Understanding Employment Visas

The following is a lengthy explanation of the employment visa process. As it is so complex, please contact an experienced immigration lawyer at the Law Office of John P. McKenna, P.C., for answers to all of your questions.

What You Need To Know About Employment Visas

As you are aware, the process of immigrating to the United States can take years. If you are immigrating through a family member, it may be many years before you obtain legal permanent resident (green card) status in the United States. Even if you are immigrating with the help of your employer, it may be several years before you are through the process. Keep in mind that very little is automatic in the field of immigration. Just having a spouse who is a U.S. citizen does not mean that you have permission to remain in this country. Your spouse and you must be willing to file the correct paperwork with the USCIS. Similarly, nonimmigrant working visas, such as H or L visas, do not lead automatically to a green card.

When you apply for permanent immigration through employment, you are saying to the government that you intend to work for your employer for the foreseeable future. You are not bound to the company for the rest of your life, nor is the company obligated to provide you with lifetime employment. However, the government will look at your behavior to determine your intent. In other words, if you get your green card on Monday and on Tuesday you quit, the government may think that the job offer to you was not real. This can lead to the government investigating you, and, possibly, seeking to deport you.

The permanent resident process is almost completely petitioner-driven. That means that the person or company that petitions for you has control over your petition. You cannot force an employer or a relative to file on your behalf. Once a petition is filed, your employer or relative can withdraw or cancel your petition at any time before you get your permanent resident status. I cannot advise you about your family situation. However, if you are considering employment-based immigration, I strongly suggest that you find a position you like with people you can work with for the foreseeable future. Most employers will not continue with the permanent resident process if you quit or are fired from your job.

Temporary Visas

All people who enter the United States on nonimmigrant visas are considered to be here temporarily. The law believes that they intend to return to their home countries at the end of their stay in the U.S. If you are here on a temporary nonimmigrant visa and you start the permanent resident process, the law generally believes that you have lost your intent to stay temporarily because you now wish to immigrate (i.e., stay permanently in the U.S.). Normally, if you remain inside the United States and do not need to renew your temporary visa, this change of intent is not a problem. However, if you must travel internationally or you must apply for an extension of your present stay, you could have problems.

There are a few nonimmigrant categories that allow a person to have dual intent, that is, to intend to be here temporarily now but eventually to immigrate. In these categories, international travel and extensions of stay are not a problem. However, these categories have limitations, which means that you have to do some planning. The most common dual-intent visas are the H, L and E visas. E visas are available to citizens of certain countries with whom the United States has certain treaty agreements. There are many requirements for this visa, and I will not discuss them here. However, if you own a company or are employed by a company owned by citizens of your country, please call me to see if this may be an option for you. There is no limit as to how long you can remain in the U.S. in E status, but you must renew that status about every two years.

L visas are available to employees of multinational companies who: (1) have specialized knowledge of the company; or (2) are executives or managers of the company. An individual can stay in the U.S. for a maximum of five years in the specialized knowledge category and a maximum of seven years in the executive or manager category. At the end of that stay, the person must leave the U.S. for one year before he or she can return on an L or H visa.

The most common dual-intent visa is an H visa. The H visa is available if you have a U.S. bachelor's degree or its equivalent, and the job you are performing requires a bachelor's degree in order to do it. An individual can stay in the U.S. for a maximum of six years in this category. As with the L visa, an individual must leave the U.S. for one year before he or she can be readmitted in H visa status. Both the H and the L visa count time in the other category against the time cap. The H visa is a cumulative visa; in other words, you cannot change employers and get a new six-year period with each employer. Also, there is an annual cap on the number of H visas issued. Over the last few years, there have been periods of several months where H visas have not been available. The timing you apply for your H visa is something to be discussed once your plans are more settled.

As I mentioned above, the permanent immigration process has become very lengthy, and it is impossible to say exactly how long it will take. Given the uncertainty of the situation, you might want to delay applying for an H or L visa until you are ready to apply for the green card. Other visa options, which may allow you to test out possible employment situations, include: F-1 practical training, J-1 exchange visitor programs (note: be very careful that you are not subject to the two-year home residence requirement), O visas for individuals of outstanding abilities, and, if you are a citizen of Mexico or Canada, TN visas. These visas have their problems. The qualifications for some of them are more difficult than for the H visa, and they are all temporary intent visas. However, they do offer you the flexibility to search for a job you can live with without using up the time limits present on the major dual-intent visas.

As with most things in this world, there is no perfect solution. What option is best for you depends on your circumstances. I know that the immigration laws are confusing and appear to be contradictory. I hope this letter has helped to clarify the situation. I strongly recommend that you call and make an appointment after you have had a chance to think about your options.

Employment-Based Immigrant Visas

Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. Employment-based immigration is limited by statute to 140,000 persons per year. The process is threefold: (a) the employer must first obtain a labor certification from the U.S. Department of Labor (DOL); (b) the employer applies for immigrant visa classification under the employment-based second or third preference; and, (c) the foreign national applies for legal permanent residency or the green card through adjustment of status in the United States or consular processing overseas.

I. LABOR CERTIFICATION

In most cases the employer must obtain labor certification from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer also should have offered the position at the normal or prevailing wage.

The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements generally must be normal to the occupation and not more than the worker had when hired into the job offered. Nor can the requirements be tailored to the foreign worker's specific skills and qualifications.

A test of the labor market is generally done through a three-day local newspaper advertisement, or one-day advertisement in a national journal or newspaper, and an internal posting. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.

A labor certification is only a first step in the permanent resident process to obtain the green card. It is a lengthy process and does not give authorization for a foreign national to remain or work in the United States, unless he or she is in another nonimmigrant visa status that authorizes work such as an H-1B visa. In some regions, the process could take more than two years.

a. Can The Labor Certification Process Be Expedited?

The process can be expedited through a procedure known as Reduction in Recruitment (RIR). Most DOL offices are encouraging applications to be files as RIR. If the employer has conducted a good faith effort to recruit U.S. workers for a period of six months prior to the filing of a labor certification and failed to find a qualified U.S. worker, the DOL may rely on the employer's efforts to forgo recruitment under its supervision. RIR procedures vary from region to region, though the labor certification is approved in a few months as opposed to a few years. This procedure should only be attempted if the employer has conducted consistent recruitment efforts prior to filing the application. However, an employer may take certain steps to test the labor market before filing the RIR.

b. Are There Any Other Ways To Expedite Process If RIR Is Not Possible?

Physical therapists and professional nurses have been exempted from rigorous labor certification requirements. Labor certifications for college and university teachers and performing artists also can be expedited through a process known as a Special Handling.

c. Can Labor Certification Be Avoided Altogether?

Labor Certification is only required for individuals applying under the employment-based second and third preference categories (see below).

Individuals who qualify under the employment-based first preference do not require a labor certification. The three categories under the first preference are: (i) Persons of Extraordinary Ability; (ii) Outstanding Professors and Researchers; and (iii) Multinationals Executives or Managers.

(i) Persons Of Extraordinary Ability

An individual can establish extraordinary ability in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Furthermore, the individual seeks entry to continue work in the area of extraordinary ability, and his or her entry will substantially benefit prospectively the United States. No job offer is required.

Evidence to demonstrate sustained or international acclaim could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts

3. Published material about the person in professional or major trade publications or other major media

4. Participation as a judge of the work of others

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance

6. Authorship of scholarly articles in the field

7. Artistic exhibitions or showcases

8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation

9. High salary or remuneration in relation to others in the field

10. Commercial success in the performing arts

(ii) Outstanding Professors And Researchers

An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field.

This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full time in research activities, and the department, division or institution has achieved documented accomplishments in an academic field.

Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:

1. Receipt of lesser nationally or internationally recognized prizes or awards

2. Membership in an association that requires outstanding achievement

3. Published material in professional publications written by others about the applicants work

4. Evidence of the persons participation as a judge of the work of others

5. Evidence of original scientific research

6. Authorship of scholarly books or articles in the field

(iii) Multinational Executives And Managers

An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation. The alien must further establish that he or she worked in a managerial or executive capacity for one year prior to his or her entry into the United States in the parent, subsidiary, branch or affiliate of the U.S. entity.

(iv) National Interest Waivers

The time-consuming labor certification procedure may be avoided altogether even under the second preference if the foreign national can establish that the job offer requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.

In a recent decision of the Administrative Appeals Office of the Immigration and Naturalization Service (In Re New York State Department of Transportation, Int. Dec. 3363), a three-prong test was established:

1. The person must seek employment in an area of substantial intrinsic merit

2. The person must demonstrate that the proposed benefit will be national in scope

3. The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary (i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process)

II. IMMIGRANT VISA PETITION

The approved labor certification is filed with the U.S. Citizenship and Immigration Services (USCIS) along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship:

a. Employment-Based Second Preference

Members of the professions with advanced degrees or the equivalent, or aliens of exceptional ability in the sciences, arts or business.

b. Employment-Based Third Preference

Professionals, skilled workers (jobs requiring two years or more training or experience), or unskilled workers (jobs requiring less than two years training or experience).

It will take many years to immigrate under the third preference unskilled category. Strategies to avoid the third preference unskilled classification whenever possible are imperative.

The employment-based second and remaining third preferences are also backlogged for China and India. The third preference is more backlogged than the second preference. It is, therefore, important whenever possible to classify the foreign worker from China or India in the second preference rather than the remaining third preference.

III. APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING

a. Adjustment Of Status

If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the USCIS in the United States. The individuals priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The application can remain pending for several months before the USCIS issues legal permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as advance parole. The foreign worker must also have employment authorization while the adjustment application is pending.

b. Who Is Eligible For Adjustment of Status?

Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed prior to January 14, 1998, which has now been extended to April 30, 2000, could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their nonimmigrant visas. These individuals would have to pay a penalty fee of $1,000. Also, certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days, even if the labor certification is filed by April 30, 2000.

c. Consular Processing

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from re-entering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for 10 years. There are very limited exceptions for overcoming these bars.

Contact the Law Office of John P. McKenna, P.C., for an initial consultation with a lawyer by calling 866-607-0601.

Springfield employment visa attorney providing legal services to clients throughout Western Massachusetts.