When Immigration Matters

How Can You Sponsor an Employee for a Work Visa?

Posted by Karen-Lee Pollak on Fri, Jun 09, 2017 @ 11:30 AM

Find The Right People written on road sign-763974-edited.jpegFind The Right People written on road sign-763974-edited.jpegWhen a U.S. citizen is not available to fill a position, many employers across the country want or need to sponsor an employee for a work visa. While the process is detailed and complex, here are some fundamental things to keep in mind if this scenario applies (or might soon apply) in your organization:

  • Permanent or Temporary? 

The first thing to determine is whether the employee that you wish to sponsor for a work visa would fill a permanent or a temporary position.

  • Sponsoring Permanent Workers

If the position is permanent, then the foreign employee may apply for permanent residence (a.k.a. “a green card”), provided they have unique skills that fit into one of the five preference categories (noted below). As the prospective employer, you will also need to demonstrate to the Department of Labor’s satisfaction that hiring them will not displace a U.S. worker, or have a negative impact on wages or working conditions for U.S. workers.    

  • Permanent Worker Visa Preference Categories 

There are five permanent worker visa preference categories: First Preference EB-1, Second Preference EB-2, Third Preference EB-3, Fourth Preference EB-4, and Fifth Preference EB-5 (note that EB-5 is for investors, and so typically will not apply to employers who wish to sponsor foreign employees). For a description of each preference category, click here.

  • Sponsoring Temporary Workers

The USCIC has several nonimmigrant categories of temporary workers (noted below). As part of the sponsorship application, you will have to attest to certain commitment and conditions, including that: you will pay a wage that is no less than that paid to similarly qualified workers in the geographic area; you will provide working conditions that will not negatively impact other similarly employed workers; there is no strike or lockout where the sponsored employee would be working. 

  • Temporary (Nonimmigrant) Worker Categories

As noted, USCIS offers several non-immigrant categories of temporary workers, including (but not limited to): H1B Visa - Specialty Occupation; O1 Visa - Extraordinary Ability; L1 - Intracompany Transferee; TN Visa - Nonimmigrant NAFTA Professional. For a description of each category, click here.

  • Working with an Experienced Team

To learn more about how to sponsor an employee for a work visa, contact the experienced Pollak team today. We will help you clearly understand the rules and process — including those that have recently changed and may shift in the near future — and ensure that your application to the USCIS is complete, accurate and timely. Contact us to learn more.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

What’s the Difference Between a Green Card and an Immigrant Visa?

Posted by Karen-Lee Pollak on Thu, May 18, 2017 @ 11:30 AM

Portrait of a student peeking behind flag of USA-230779-edited.jpeggreen card vs immigrant visaWhile outside of the legal world and government sector the terms Green Card and non-immigrant visa are sometimes used interchangeably, they are categorically separate types of permits. Here are the key distinctions: 

  • Residence 

A Green Card – which is officially known as a “permanent residence card” – is permanent, and entitles the holder to remain in the U.S. for the unconditional amount of time. Non-immigrant visas (of which there are several types) are temporary, and allow the holder the right to enter and remain in the U.S. for a specified period of time (typically up to a maximum of 6 years in two 3-year terms). 

  • Legal Right to Work

Green Card holders are legally entitled to work in any industry, sector or field, anywhere in the U.S. or its territories. Non-immigrant visa holders may be allowed to work under certain conditions and for a specific employer, depending on the type of visa they hold. 

  • Mobility

Green Card holders may leave and return to the U.S. as often as they wish, provided that their card and passport are valid. Non-immigrant visa holders face restrictions and limitations on travel, such as travel dates, number of re-entries, and so on. Again, the type of non-immigrant visa determines these rules.

  • Citizenship

Provided they have no serious criminal convictions, Green card holders may apply for U.S. citizenship after 5 years (or 3 years if they are married to a U.S. citizen). Non-immigrant visa holders cannot apply for U.S. citizenship. They must first obtain a Green Card and apply accordingly. 

  • Criminal Behavior 

Generally, Green Card holders are granted somewhat more flexibility and tolerance for committing certain non-severe criminal acts. However, non-immigrant visa holders must ensure that they comply with all laws at all times. A transgression that many people (including the courts) might view as relatively minor or non-serious, such as a DUI that does not result in an injury or accident, can result in a non-immigrant visa being revoked by USCIS

  • Voting

This is not a distinction between the two types of permits, but it is worth noting because there is some confusion and misunderstanding around this aspect; especially in light of the prevailing political discourse. Here are the facts: neither Green Card holders nor non-immigrant visa holders have the right to vote. Only U.S. citizens have this right. While it’s true that Green Card holders enjoy many of the rights afforded to U.S. citizens, such as serving in the military, this does not extend to voting in any election (local, state or federal). 

Learn More 

To learn more about the differences between a Green Card and non-immigrant visa, including specific details about various non-immigrant visa types such as (but not limited to): EB-1, EB2, EB-3, H-1B, F-1, R-1, L-1 and more, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

US Green Card: What You Need to Know About Permanent Residency

Posted by Karen Pollak on Wed, Jul 08, 2015 @ 9:30 AM

DHS-resized-600

Applying for a Green Card or Immigrant visa is the first step in becoming a United States Permanent Resident.  As a Green Card holder, you and your immediate family can live and work in the United States permanently. Most people obtain Green Cards by being sponsored by their employers or their relatives. Others obtain permanent residence through the Green Card lottery, asylum and through various other means. The main ways of applying for a Green Card are through marriage, employment, family, the lottery and through investment.

APPLYING FOR A GREEN CARD THROUGH MARRIAGE

Each year, over 160,000 citizens of the United States marry immigrants and petition for them to obtain permanent residency.  Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a Green Card.  There is no wait time for visas for spouses of U.S. citizens.

APPLYING FOR GREEN CARD THROUGH A FAMILY MEMBER

To be eligible for lawful permanent residence based on a family relationship you must meet the following criteria:

  • You must have a relative who is a United States citizen or a lawful permanent resident, who is willing to sponsor you for permanent residency.
  • Your relative must prove they can support you by providing documentation that their income is 125% above the mandated poverty line.
  • If your relative is a US Citizen you have to prove you share one of the following relationships:
    • Husband or wife
    • Unmarried son or daughter over 21
    • Child under 21 years old
    • Married son or daughter of any age
    • Brother or sister if you are at least 21 years old
    • Parents if you are at least 21 years old
  • If your relative is a lawful permanent resident you have to prove you share one of the following relationships:
    • Husband or wife
    • Unmarried son or daughter of any age

The wait time for a Green Card depends on your family relationship.  For example, the wait time for a parent of a U.S. citizen is approximately nine months to a year.  However, for the sibling of a U.S. citizen the wait time for a Green Card is about ten years.

APPLYING FOR AN EMPLOYMENT BASED GREEN CARD (EMPLOYMENT BASED VISA)

A U.S. employer may also sponsor an immigrant employee for a Green Card.  The permanent residency process is a multi-step process and may take 2-5 years depending upon the category of Green Card and government processing speed.

The first step requires filing a labor certification application with the Department of Labor attesting that there are no U.S. workers available to fill the position.  This is achieved by advertising the job and interviewing any potentially qualified workers.  The second step requires the filing of an application with the United States Citizenship and Immigration Service (USCIS). Once the labor certification is approved, the Green Card application may be filed with the USCIS.  The length of time it takes for approval will depend on the category/preference of the worker.

A petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree or where the employee has at least a Bachelor’s degree and five (5) years of experience.  This is called the EB2 or second preference category. 

Aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, those with three-year degrees regardless of how many years of experience and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States will file in the EB3 or third preference category.

Once the application is approved and a visa becomes available to the beneficiary an adjustment of status application is filed with the USCIS if the employee is already in the United States or the employee applies for a visa at the U.S Consulate, if outside the U.S..  Presently the wait time for a Green Card in the EB-3 category is approximately five years and is approximately two years in the EB2 category.

 

GREEN CARD LOTTERY

This program makes available by random draw 55,000 Green Cards to people from around the world. The objective of the program is to issue Green Cards to individuals born in countries with historically low levels of immigration to the United States.  South Africans are eligible to apply for a Green Card through the DV Lottery.  Successful DV entrants must be eligible to receive a visa by qualifying based on education, work, and other requirements. The law and regulations require that every DV entrant must have at least:

  • A high school education or its equivalent; or
  • Two years of work experience within the past five years in an occupation requiring at least two years' training or experience.

The U.S. Department of State will begin accepting applications for the 2017 DV Lottery in October 2015.

GREEN CARD THROUGH INVESTMENT

the U.S. provides a means for high net worth individuals to obtain a green card through investment in the US. economy.  This is known as the employment Fifth Preference or EB-5 immigrant visa. Applicants for a U.S. green card based on investment must  $1million in a U.S. business and take an active role in that business (though they don’t need to control it).  The business must also create 10 jobs for US. Workers.  The amount of the investment is reduced to $500,000 if the business is located in a rural area or an area of high unemployment.  The amount of the investment is also reduced to $500 000 if the funds are invested in a Regional Center. 

 

Immigration Reform: What it means for Highly Skilled Foreign Workers

Posted by Karen-Lee Pollak on Mon, Dec 01, 2014 @ 9:00 AM

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

What is the Diversity Immigrant Visa program (DV Lottery)?

Posted by Michael Pollak on Tue, Jan 22, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how the Diversity Immigrant Visa program works.

dv lotteryThe Diversity Immigrant Visa program is a United States congressionally mandated lottery program for receiving a United States Permanent Resident Card. It is also known as the DV Lottery or Green Card Lottery. The lottery provides for a new class of immigrants known as "diversity immigrants" (DV immigrants) and makes available 55,000 permanent resident visas annually to natives of countries deemed to have low rates of immigration to the United States.

Thanks for your comments, questions, and suggestions regarding immigration topics.

Is All Hope Lost If I Have Overstayed My Visa?

Posted by Michael Pollak on Sun, Jan 20, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains the 245i provision which allows you to apply for a green card if you are in the United States legally.

 

Thanks for your comments, questions, and suggestions regarding immigration topics.

How to Legally Bring a Family Member to the United States

Posted by Michael Pollak on Sat, Jan 19, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring a family member to the United States.

family visaThe Family Based Immigration process is governed by a system of immigrant visas, each of which establishes specific terms and conditions for entering and remaining in the United States. An Immigrant visa granting Legal Permanent Residency is also commonly referred to as a "Green Card."

 

Thanks for your comments, questions, and suggestions regarding immigration topics.

How Do I Bring an Employee to Legally Work in the US?

Posted by Michael Pollak on Fri, Jan 18, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring a employee to work in the United States.

employment visaIn order to receive an immigrant visa through employment, you must have a job offer from a U.S. employer, specific education and/or work experience and in some cases there must be no American willing or able to take that particular job.

 

Thanks for your comments, questions, and suggestions regarding immigration topics.

What is an EB-1 Visa?

Posted by Michael Pollak on Thu, Jan 17, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to bring an employee to work in the United States with an EB-1 visa.

eb-1 visaThe EB-1 is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US".  It allows them to remain permanently in the US.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

How to Qualify for an EB-2 or EB-3 Visa?

Posted by Michael Pollak on Tue, Jan 15, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring an employee to the United States. 

eb2 visaEB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States"

The EB-2 or EB-3 Employment-Based Visas allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every two years, but there is no limit to how many times one can renew. The investment must be "substantial". Investor visas are available only to treaty countries, which include countries like Albania and Senegal, but do not include Brazil, Russia, India and China.

The EB-3 is an immigrant visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog is much longer: typically 6 to 9 years, except for residents of India and China, for whom the backlog is even longer, sometimes more than 12 years.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

Posts by popularity

Posts by category