Immigration FAQs

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

• Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
• Employment-Based Immigrants (see below).
• Investment-Based Immigrants (Investors in a U.S. business that creates jobs for ten U.S. workers).
• Refugee and Asylum (Persons fleeing persecution in their home countries).
• Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Current filing fees can be found on USCIS’ website.

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes. The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

This determination is made on a case-by-case basis. In some instances, we recommend filing both an EB-1 and EB-2 NIW if the NIW is stronger, but you are subject to a backlog in the EB-2 category. If filed at the same time, we charge a reduced rate for the second petition. We will work with you to determine the best option for you.

Government processing times vary, and the most current processing times are posted at www.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence varies significantly from 6-12+ months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  We will keep you apprised of the processing time for the AOS at the time your EB-1/NIW is approved. The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is over 90 days.

Once you provide the requested documents, we generally take 3-4 months (depending on the complexity of your case) to file your case. This time frames includes: our review of the documents provided; preparation of the case strategy and letters plan; your review and approval of the case strategy; internal drafting and review of the detailed reference letters; your review and edits to the reference letters; your coordination of review and signature of the final letters by your references; and final preparation of the forms, evidence, and cover letter with detailed legal argument to USCIS.

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

We work on each case as a team however, you will have an attorney and a technical writer assigned to your case. The team will work to review your documents and determine a strategy for the presentation of your case. The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1, or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).

With a bit of planning, an employer can often hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for foreign nationals skilled in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:

• The salary must meet the prevailing wage as defined by the Department of Labor, and
• A bachelor’s degree or higher is a minimum normal requirement for the position.

Work authorization documents are different depending on their status and the training. For optional practical training (OPT), F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), which is a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training (CPT), F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.

No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.

F-1 students are eligible for curricular practical training (CPT) for up to 12 months – such as co-op or internship — before completing their studies. On top of that, they are eligible for work authorization lasting an additional 12 months (or 36 months for graduates with STEM degrees). This work authorization is referred to as optional practical training (OPT). However, if they work full-time for one year or more during CPT, they are not eligible for OPT. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.

Yes! Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.” There are no additional costs to hiring international students over any other worker — just the time and effort to interview and select the best candidate for the job. The international student office from the student’s university handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring an international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.

If the recruitment that was used during the original nationally competitive recruitment process is being used for the PERM case, the application needs to be filed within 18 months of the date of selection. The most conservative approach is to use the date listed on the offer letter as the date of selection. If the 18-month window has passed, a new nationally competitive recruitment process must be undertaken to re-test the labor market.

There is a special provision in the Labor Certification regulations (20 CFR § 656.18) that govern positions for faculty/teaching positions at colleges and universities. Unlike the regular PERM process, the university needs to demonstrate that the individual selected for the position was the best qualified candidate for the position through a nationally-competitive recruitment process. The standard for regular PERM cases (non-faculty/teaching roles) is that there are no minimally qualified applicants available, willing and able to take the position.

Employers must utilize several forms of recruitment within the 180 days before filing the application. Employers must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity onsite at the company as well through any inhouse media in which jobs are ordinarily posted. For professional positions, employers must also conduct three additional recruitment steps (such as using their website “careers page,” posting on other websites, local or ethnic newspapers, or college placement offices) prior to filing the application.

Employers must assess any US workers who apply and may not proceed with the application if there are qualified US workers available, willing and able to take the position.

Current processing times for the two DOL stages in the process – the Prevailing Wage Determination (PWD) stage and the Labor Certification decision stage – are posted on the Office of Foreign Labor Certification website. In addition, between those two stages of the process, the employer must conduct specified recruiting steps no fewer than 60 days and no more than 180 days prior to filing the Labor Certification application.

PERM applications are processed electronically through one processing center in Atlanta.

PERM stands for Program Electronic Review Management and is the first step in hiring a foreign national permanently for a U.S. employer on an immigrant visa, rather than temporarily on a nonimmigrant visa. Through the PERM system, the Department of Labor (DOL) issues a “labor certification” that is required for many green card petitions. Through PERM, employers attest that they have taken specific steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker interested in and available for the position. Employers are responsible for documenting their compliance with the recruitment steps in the regulations, and must submit that documentation to DOL if DOL audits their applications.

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

• Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
• Employment-Based Immigrants (see below).
• Investment-Based Immigrants (Investors in a U.S. business that creates jobs for ten U.S. workers).
• Refugee and Asylum (Persons fleeing persecution in their home countries).
• Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Current filing fees can be found on USCIS’ website.

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes. The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

This determination is made on a case-by-case basis. In some instances, we recommend filing both an EB-1 and EB-2 NIW if the NIW is stronger, but you are subject to a backlog in the EB-2 category. If filed at the same time, we charge a reduced rate for the second petition. We will work with you to determine the best option for you.

Government processing times vary, and the most current processing times are posted at www.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence varies significantly from 6-12+ months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  We will keep you apprised of the processing time for the AOS at the time your EB-1/NIW is approved. The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is over 90 days.

Once you provide the requested documents, we generally take 3-4 months (depending on the complexity of your case) to file your case. This time frames includes: our review of the documents provided; preparation of the case strategy and letters plan; your review and approval of the case strategy; internal drafting and review of the detailed reference letters; your review and edits to the reference letters; your coordination of review and signature of the final letters by your references; and final preparation of the forms, evidence, and cover letter with detailed legal argument to USCIS.

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

We work on each case as a team however, you will have an attorney and a technical writer assigned to your case. The team will work to review your documents and determine a strategy for the presentation of your case. The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

Yes, an L nonimmigrant may have the dual intent of becoming an immigrant, if permitted to do so, and at the same time have a present intent to be an L nonimmigrant. He or she is not required to maintain a foreign residence abroad during his or her stay in the U.S. as an L nonimmigrant.

An L-2 spouse may apply for a Social Security Card by presenting either: (i) an employment authorization document issued by USCIS; or (ii) a marriage certificate and I-94 Arrival/Departure record showing current L-2 status. Other dependents may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the Internal Revenue Service (IRS).

A spouse and dependent children (unmarried children under the age of 21) of an L-1 employee are entitled to L-2 status. The spouse may work once he or she has obtained an employment authorization document, but the minor children may not.

Yes, as long as all companies for which the employee will work have the required qualifying relationship with the prior overseas employer and each has obtained approved L-1 petitions on behalf of this employee.

If the employee wants to switch to an employer which does not have the required qualifying relationship with his or her prior overseas employer, the employee must seek to qualify in some other nonimmigrant category, such as H-1B.

May an individual in the U.S. in another nonimmigrant visa status change to L-1 without leaving the U.S.?

An individual who is the beneficiary of an approved L petition wishing to apply for an L nonimmigrant visa must make an appointment and appear in person before a U.S. consular officer at a U.S. Embassy or Consulate outside the U.S. Most applicants apply in their home country. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.

Yes, an L-1 nonimmigrant employee may travel outside the U.S. if he or she is maintaining valid status and has a valid L-1 visa in his or her passport. If the employee does not have a valid L-1 visa, or his or her visa has expired, then the employee must obtain an L-1 visa abroad.

A manager or executive may remain in the U.S. for up to seven years. A specialized knowledge employee may remain in the U.S. for up to five years. A specialized knowledge (L-1B) transferee who has held a managerial position in the U.S. for more than six months before the expiration of the five years may change to managerial (L-1A) status and obtain a further extension up to the seven year maximum. The initial approval is for up to three years (except for start up companies or new offices of overseas companies, for which first approval is limited to one year). Extensions are granted in increments of up to two years.

Regular processing with USCIS typically takes at least two months. Premium processing (for an additional $1225 fee) is available and processing is to be completed in 15 days or less. Also, the Premium Processing Unit may be contacted directly by phone and e-mail. Because of mandated security checks, obtaining an L visa at a U.S. Consulate can vary from as little as one day to months depending upon the U.S. Consulate where the application is made and the country of citizenship of the applicant.

There is no specific required salary.

The employer must document that a qualifying corporate relationship exists between the overseas company and the U.S. company, that the transferee was employed by the overseas company in a managerial, executive or specialized knowledge capacity for at least one continuous year within the past three years, and that the transferee will be employed in a managerial, executive or specialized knowledge capacity by a related company in the U.S.

The employer must file an L-1 petition (Form I-129 and L Supplement) with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the transferee at the Service Center having jurisdiction over the place where the L-1 will work. Upon approval, the transferee, if outside the United States, may apply for an L-1 visa at a U.S. Consulate. Certain large employers may obtain a “Blanket” L-1 petition. This enables executives, managers and specialized knowledge professionals employed outside the United States by a qualifying organization to apply for the L-1 visa directly at a consulate, without first obtaining an approved individual L-1 petition from USCIS. Canadian citizens may apply at the border for admission to the United States as L nonimmigrants by filing an L-1 petition with the Immigration Inspector at the border or at Pre-Flight Inspection Unit at an international airport in Canada. A petition previously approved by a USCIS Service Center is not required for Canadian citizens.

An employee who possesses special knowledge of:

1. The organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets.
2. Has advanced level of knowledge or expertise in the organization’s processes and procedures.
3. The specialized or advanced knowledge possessed should be different from that generally found in the particular industry.
4. Specialized knowledge described in 1. above should be noteworthy or uncommon.
5. Specialized knowledge does not need to be proprietary or unique, but knowledge of the company’s processes and procedures must be advanced.

A manager is an employee who primarily:

1. Manages the organization, or a department, sub-division, function, or component of the organization.
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization.
3. Has the authority where directly supervising one or more employees to hire and fire, or recommend those as well as other personnel actions (such as promotion and leave authorization).
4. Manages an essential function instead of supervising other employees and operates at a senior level within the organizational hierarchy or with respect to the function being managed.
5. Exercises discretion over the day-to-day operations of that function.
6. Spends most of his or her time performing managerial or executive duties rather than producing a product or providing a service.
7. Supervises professionals if a first-line supervisor.

An executive is an employee who primarily:

1. Directs the management of an organization or a major component or function of the organization.
2. Establishes the goals and policies of the organization, component, or function.
3. Exercises wide latitude in discretionary decision-making and receives only general direction from more senior executives, the board of directors or the organization’s shareholders.

The L-1 status is available to a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial or specialized knowledge capacity and is being transferred temporarily to the U.S. to work in an executive, managerial or specialized knowledge capacity for a parent, affiliate, subsidiary, or branch in the U.S.

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21, a spouse who already has a green card, or a U.S. citizen spouse, please contact us to discuss your options.

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for an extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended. If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one-year increments, as long as the labor certification or I-140 petition more than 365 days before the extension takes effect, as long as either the labor certification or immigrant visa petition remains pending.

Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

Your country of birth is what determines your country of chargeability.

The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov). The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen to use all the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.

For an individual to obtain their green card, a visa number must be available. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the individual’s priority date is before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

A priority date can best be thought of as your “place in line” for a backlogged quota. If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved. If you have multiple I-140s filed for you, by more than one employer or for more than one job or in more than one category, your petitions are all assigned the earliest priority date to which you are entitled.

Employment-Based Second Preference (EB-2) includes members of professions holding advanced degrees (Master’s or Ph.D.) The position must require a master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job that requires a minimum of a bachelor’s degree PLUS five years of progressively responsible experience will be considered equivalent to a master’s level position and will qualify for EB-2.; EB-2 also includes persons of “exceptional ability in the sciences, art, or business.” Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected, as evidenced by criteria in the regulations. Employment-Based Third Preference (EB-3) includes professionals (position requires at least a bachelor’s degree) and skilled workers (position requires at least two years of education, training or experience). “Other workers” include positions that require less than two years of education, training, or experience.

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, or for a particular nationality, a waiting list is created, and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.

A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. Spouses may be authorized for employment only once the H-1B is the beneficiary of an approved I-140 (immigrant visa/green card) petition. Children may not accept employment in H-4t status. Both spouses and children may study in the U.S. If a spouse or child is eligible for a different status than H-4 (including H-1B), they may elect to enter the U.S. in that status rather than entering as an H-4.

Prior recruitment of U.S. workers is not required for most H-1B petitions., Only certain “H-1B Dependent” employers and employers with past violations of the LCA regulations need to have any documentation regarding recruitment.

If the change in position is significant, a new LCA and H-1B petition will have to be filed. For most relocations, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term assignment.

If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer. If the change in position is significant, a new LCA and H-1B petition will have to be filed. For most relocations, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term assignment.

If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.

Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad before returning to the U.S.

If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing the cost of return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf, or can obtain a different nonimmigrant status, within 60 days of the end of employment.

In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.

An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.

Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.

An employer may request a formal Prevailing Wage Determination from the Department of Labor, may use the Department of Labor’s Online Wage Library, or may rely upon wage data from an independent published wage survey if the survey meets Department of Labor requirements.

Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).

The following documentation is required:

• An approved LCA from the DOL;
• Documentation about the job offered to prove it qualifies as a specialty occupation;
• A copy of the individual’s U.S. degree (bachelor, master, or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.);
• A copy of any required license to practice the occupation in the state of intended employment.

A U.S. employer must submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. consulate or will be granted a change of status if they are already in the US.

A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.

An H-1B nonimmigrant visa is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

If the recruitment that was used during the original nationally competitive recruitment process is being used for the PERM case, the application needs to be filed within 18 months of the date of selection. The most conservative approach is to use the date listed on the offer letter as the date of selection. If the 18-month window has passed, a new nationally competitive recruitment process must be undertaken to re-test the labor market.

There is a special provision in the Labor Certification regulations (20 CFR § 656.18) that govern positions for faculty/teaching positions at colleges and universities. Unlike the regular PERM process, the university needs to demonstrate that the individual selected for the position was the best qualified candidate for the position through a nationally-competitive recruitment process. The standard for regular PERM cases (non-faculty/teaching roles) is that there are no minimally qualified applicants available, willing and able to take the position.

Employers must utilize several forms of recruitment within the 180 days before filing the application. Employers must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity onsite at the company as well through any inhouse media in which jobs are ordinarily posted. For professional positions, employers must also conduct three additional recruitment steps (such as using their website “careers page,” posting on other websites, local or ethnic newspapers, or college placement offices) prior to filing the application.

Employers must assess any US workers who apply and may not proceed with the application if there are qualified US workers available, willing and able to take the position.

Current processing times for the two DOL stages in the process – the Prevailing Wage Determination (PWD) stage and the Labor Certification decision stage – are posted on the Office of Foreign Labor Certification website. In addition, between those two stages of the process, the employer must conduct specified recruiting steps no fewer than 60 days and no more than 180 days prior to filing the Labor Certification application.

PERM applications are processed electronically through one processing center in Atlanta.

PERM stands for Program Electronic Review Management and is the first step in hiring a foreign national permanently for a U.S. employer on an immigrant visa, rather than temporarily on a nonimmigrant visa. Through the PERM system, the Department of Labor (DOL) issues a “labor certification” that is required for many green card petitions. Through PERM, employers attest that they have taken specific steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker interested in and available for the position. Employers are responsible for documenting their compliance with the recruitment steps in the regulations, and must submit that documentation to DOL if DOL audits their applications.