Business Immigration FAQ

Overview of Topics

Business immigration spans temporary and permanent visas, compliance with employer, and addressing status maintenance and violations. Our FAQs serve as a valuable resource to orient newcomers to the different processes and considerations. They also offer insights for seasoned professionals, delving into the intricacies of sponsoring and employing noncitizen workers. Whether you’re new to the field or seeking advanced insights, our FAQs aim to educate and clarify key aspects of business immigration law.

Employer Questions

Yes, we are always open to taking on new business immigration clients. While we can provide you with a proposal which outlines our services, how we work, and what we charge, we find it best to spend some time getting to know you over a 30- to 60-minute Teams call. Our goals for this call are to:

  • Meet you and learn details about your business, so we can understand what you do, and what your labor and related immigration needs are
  • Introduce ourselves to you so you understand our background, competency and capacity to assist your organization
  • Perform a basic immigration compliance check-up, which will help us to gauge the temperature of your existing compliance program, and possible need for assistance or automation
  • Run through our basic pricing structure and to describe the opportunities for volume pricing and other economies of scale that might fit your business profile
  • Discuss with you our technology and tracking tools to see how best we can integrate our services into your existing infrastructure.

At the end of our call, if you will be considering multiple vendors we would be happy to follow up with a more formal proposal. Alternatively, if you would like to proceed, we can go directly to submitting a formal engagement letter which would outline our pricing structure based on a variety of assumptions that we take away from our Teams conversation with you.

Our pricing structure is competitive with smaller boutique practices of our size throughout the U.S., but considerably lower than that of the larger national mobility practices. Our location in the suburbs outside Boston provides us with lower overhead allowing us to beat most firms on price. Our technology and process automation also enhances our ability to be on the lower end of the pricing spectrum. Unlike many other firms we also support employers in building and staffing their own in-house immigration team through mentoring and training, which is one of our value-added features.

We recommend we start with an immigration compliance check-up, where we can assess the processes and protocols currently in place. Speaking with your key team members responsible for compliance will help us get a sense of where you are at on the spectrum of compliance. We might follow up by recommending a spot audit of your I-9s or Public Access Files. Reviewing a small percentage of your compliance efforts will often identify deficiencies or confirm a high level of compliance which merely needs maintenance. Depending upon the need and desire on your part, we can either present you with a power point presentation on general compliance and visa issues, or if preferred, do a live in person (or virtual) training session where we run your team through the issues, present them with various scenarios, and spend some time addressing your concerns and questions.

While we are not a staffing agency, we have worked with many companies to help them identify pools of foreign labor, which include temporary work authorizations, including spouses of H-1B and L1 professionals. Most importantly we know the issues beyond compensation that drive immigrant behavior, because many of them relate to the cumbersome and lengthy immigration process.

There are multiple visa types which include B-1 visitor (a good tool for short-term knowledge transfer); H-3 trainee; L1A intracompany manager; L-1B specialized knowledge employee; H-1B specialty occupation worker (though limited in numbers); and E-2 investor program (depending upon the nationality of your company) which also permits the transfer of both high level as well as lower-level workers in essential roles.

Sponsorship and commitment. Noncitizens, particularly those who attended university here in the U.S. are desperately seeking employers who will sponsor them for a green card. Those from India and China face up to 20 years or more to get a green card through a technical role. Thus, they are looking to make a connection – to prove their skills and their commitment and are willing to commit to you in return. Employers who do not address those concerns will often see a high turnover and the lose some top-notch talent in the process.

Each employer who hires foreign worker under the H-1B program must maintain a Public Access File (PAF). This file serves as a repository of records and information related to the employment of H-1B workers. It must be accessible to the public and government agencies upon request. Required documents include:

  • A signed copy of the certified LCA and documentation of the worker’s exact pay rate
  • An explanation of how the employer determined the worker’s “actual wage”
  • An explanation of how the employer determined the “prevailing wage”
  • Documentation of how employees were notified (including dates and location of any posted notices)
  • Summary of benefits offered to all workers
  • In the case of a corporate change, a sworn or notarized statement by the successor entity accepting all obligations, liabilities, and undertakings of the predecessor entity
  • A list of each affected LCA and date of certification transferred to the successor entity
  • A description of the successor entity’s wage system
  • And a successor entity’s employer ID number.

For certain scenarios (such as H-1B dependency or willful violator status), additional information may be required. Only documents required by law should be kept in the PAF. Employers should avoid including information or documents that could cause liability issues or privacy concerns. Remember that maintaining a proper PAF is essential for complying with H-1B laws and ensuring legal requirements are met during the hiring process.

If you have further questions, feel free to ask!

H-1B workers are required to be paid the higher of the “prevailing” or “actual wage” where they are working. Employers seeking to sponsor H-1B workers can determine that wage through a variety of methods which include requesting a wage determination from DOL, consulting a private wage survey, or by citing the wage established through a collective bargaining agreement, just to name a few options. The actual wage is the wage typically paid by the employer to its employees who perform the same position working at the same job site location. It requires employers to review the wages paid to its existing workforce and establish an appropriate adjustment for education, experience, longevity and other related factors to come up with a wage, which represents a fair and actual wage for the occupation at employer’s worksite.

Employers must keep a completed Form I-9 on file for each employee who was hired after Nov. 6, 1986. Never dispose of a current employee’s Form I-9 or any copies (or electronic images) you made of the employee’s Form I-9 documentation. You must keep these records for as long as the employee works for you, and for a certain amount of time after they stop working for you. This requirement applies even if the employee ends employment shortly after the date of hire. Only when an employee stops working for you should you calculate how much longer you must keep their Form I-9. Federal regulations state you must retain a Form I-9 for each person you hire for three years after the date of hire, or one year after the date employment ends, whichever is later. You can retain Form I-9 on paper, or electronically. You only need to retain pages with information from you and your employee. You do not need to keep the Lists of Acceptable Documents on page 2, the instructions, or blank supplement pages.

We recommend that you schedule the destruction of a separated employee’s I-9 for exactly three years from their date of separation. While you will likely be retaining documents longer than necessary, there are no penalties for doing so. This simple three year retention practice avoids complicated calculations and gives you a safe harbor where you cannot prematurely destroy an I-9 you might later be required to produce upon audit

Employers are generally required to pay for the H-1B process.

Employers are only legally required to pay for the first phase of the green card process known as labor certification or PERM. In this process the employer seeks to demonstrate that they cannot find a minimally qualified available American Worker to perform the job. The employer must pay both the legal costs and any associated recruitment costs. The second phase of the process, known as the employer petition and the third and final phase, either consular processing or adjustment of status, need not be paid by the employer, though some employers pay these fees as an additional benefit. If DOL discovers the employer did not pay all PERM costs or attempted to seek reimbursement from the foreign worker, the employer may face hefty financial fines and other penalties.

This is a difficult issue. Regulations prohibit employers from seeking reimbursement of any PERM cost and imposes penalties on employers who violate these rules. However, employers are not specifically prohibited from seeking to recoup other non-PERM-related expenses such as signing bonuses, relocation, housing, transportation, training, educational reimbursement, etc. Given these amounts are often difficult to calculate, employers will sometime use liquidated damage provisions to impose a repayment obligation on employee if they leave the company in advance of a specified date. While most states frown on such agreements, and their enforceability is questionable, employers still often use them to create a perceived moral obligation on the employee’s part to reimburse the company for permissible expenses. Some companies have found such agreements moderately effective in dissuading employees from leaving prematurely. However, any backdoor attempts to recoup PERM costs is fraught with danger and should be carefully avoided. When in doubt, speak with an immigration or employment law attorney well versed on such matters.

All employers are required to complete an I-9, Employment Eligibility Verification form when a new employee is onboarded. The employee must complete the first section no later than the first day of employment. Within three business days of employment starting, the employer must complete the next section by reviewing original documentation that establishes the employee’s identity and employment authorization. The I-9 form includes a list of acceptable documents. Some employers also elect to enroll in E-Verify, a government system that electronically verifies employees’ authorization to work and provides some safe harbors to the employer. Detailed information on I-9 compliance, including important anti-discrimination requirements, is available in USCIS’s Handbook for Employers: https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274.

Key Immigration Concepts

A visa is an endorsement placed within a passport that grants the holder official permission to enter the United States in a specific category for a particular period of time. Unlike a passport, which is issued by your home country, a visa is issued by the country that you are seeking to enter. There are two primary categories of visas: nonimmigrant visas, which allow someone to enter the U.S. on a temporary basis; and immigrant visas, which allows an individual to remain permanently in the U.S. (also known as a green card.) There are many different nonimmigrant visa categories, each of which corresponds to letters of the alphabet. Some allow employment, while most do not. Some permit multiple entries, while others might be limited to a single entry.

Citizens of most countries who enter the U.S. must first obtain a visa to come to the U.S. Exceptions to this general rule include citizens of Canada, under the North American Free Trade Agreement. In addition, 41 countries with good histories of their citizens returning home are eligible to participate in the visa waiver program. Please visit Visa Waiver Program Requirements to see if your country is on the visa-waiver list. Individuals from these countries may come to the U.S. without a visa for up to 90 days, so long as they register in advance for the program and have a round trip ticket to and from the U.S. Similarly, citizens of the U.S. may travel to participating countries without first having to obtain a visa.

A nonimmigrant visa is a temporary visa, which allows an individual to enter the U.S. for a specific time and purpose. An immigrant visa is a permanent visa, often referred to as a “green card” or “lawful permanent residence” which allows the individual to live and work in the U.S. on an indefinite basis. This card is typically valid for 10 years at a time and can be renewed provided the holder maintains their residence here in the U.S., files resident tax returns, and does not otherwise violate the laws of the United States. Find more information on how to renew your green card here.

Individuals who have had their green card for more than five years (three years if married to a U.S. citizen) may apply to become U.S. citizens. Use the Naturalization Eligibility Tool to determine if you are eligible to become a U.S. Citizen.

Nonimmigrant intent, a requirement for most types of nonimmigrant visas, is the intent to depart the U.S. at the conclusion of the permitted stay and to return to a foreign residence abroad. Nonimmigrant visas including B1/B2, F, J and M require that the noncitizen applicant prove they have a residence abroad they do not intend to abandon. To prove this, applicants must have established ties to their home country, including family relationships, jobs, property ownership, or other significant reasons that would cause them to return to their foreign residence rather than remain in the U.S.

Immigrant intent is the intention to live in the U.S. permanently. USCIS and U.S. consulates abroad will deny visa applications that require nonimmigrant intent if they believe the noncitizen intends to live in the U.S. permanently, rather than to use the visa for its intended purpose and then depart. A person will be found to have immigrant intent if USCIS or the U.S. consulate believes the person will overstay their visa or will apply for a green card after entering the U.S.

A limited number of nonimmigrant visas allow the noncitizen to have dual intent, meaning both the intent to abide by the requirements of the nonimmigrant visa, but also the intent to immigrate to the U.S. in the future if possible. When applying for a visa that allows for dual intent, the applicant need not prove ties to their home country, and plans or actions that demonstrate an intent to remain in the U.S. would not be a reason to deny the visa. Visas that allow for dual intent include H-1, L, O-1, K, and R visas, as well as visas for dependent spouses or children of those visa holders.

An I-94 is an arrival/departure record that is generated each time a visa holder enters the United States, and in the past was stapled into their passport. The I-94 would note the day the individual arrived in the U.S., the category that they were admitted under; and the required date to depart. These records are now maintained digitally by the USCBP and can be found here.  This site also allows you to print out a history of your arrivals and departures.

Apply for or retrieve a I-94 admission number or record (proof of legal visitor status) here.  Insert your name, date of birth, country of citizenship and passport number to retrieve your most recent I-94 record. While at this site you can also access a travel history which can also be printed.

An I-797, also known as a Notice of Action, is issued in response to any petition or application filed with USCIS. It can be a receipt or can also be an approval notice. If the petition you filed included a request to change or extend your stay, Form I-797 will often include an updated I-94 which changes your status category and extends the time that you are permitted to remain in the U.S. Each I-797 includes a receipt number which corresponds to your individual filing. Use the Check Case Status tool to track the status of an immigration application.

Your I-94 controls how long you can remain the U.S. An individual must depart the U.S. on or before the date noted on their most recent I-94. Failure to depart within that period (in the absence of some other grant of permission or authority) may cause you to begin accruing “unlawful presence” and may result in penalties, such as disqualification from participating in the visa waiver program, being placed in deportation or removal proceedings, and if more than 180 days have passed, can even trigger bars on your ability to return to the U.S. in the future. If you have remained in the U.S. beyond your I-94 permission, always consult an immigration attorney before leaving the U.S. to make sure you understand the penalties that might apply to you upon departing.

“Status” in the immigration context refers to an individual’s legal position regarding their presence in the U.S. An individual might be in “legal” status, such as a citizen or a green card holder, possessing the right to live and work in the U.S. They might have a nonimmigrant or temporary status, such as a student, visitor, or religious worker. An individual might also be present in the U.S. as a refugee, asylee, or in some other special status that U.S. law provides, such as deferred action. Individuals who overstay their I-94, or who violate their status, are often considered to be “out of status.” Individuals who entered the country without inspection or without proper documentation are referred to as “undocumented,” meaning they have no official status here in the U.S. Even though someone may be undocumented or out of status, this does not mean they do not have rights and protections under the U.S. Constitution. Among these are the rights of children to receive a public education, and in some states undocumented individuals may be able to obtain a driver’s license. Click here see which states issue driver’s licenses to undocumented individuals.

A change of status is when an individual who entered the U.S. in one nonimmigrant status, seeks to change their status to another nonimmigrant status. For example, an individual might enter the U.S. on a B-2 visitor visa, and after arrival seek to change to F-1 student status so that s/he can pursue a full-time program of study at a U.S. college or university. They might also enter the U.S. in a dependent category, such as an L2 spouse and then seek to change to their own primary status, like F-1 student or an H-1B specialty occupation worker. Visit Change My Nonimmigrant Status for more information.

“Adjustment of Status” typically refers to an individual in nonimmigrant status who is seeking to adjust to immigrant or green card status (also known as lawful permanent residence) without having to depart the U.S. To be eligible to adjust status here in the U.S., an individual must typically be maintaining status at the time they file their application and have some underlying basis for obtaining green card status. The underlying basis could be a family-based petition filed on their behalf by a U.S. citizen or green card holding relative; or it could be an employment-based petition, either self-petitioned or sponsored by an employer. Other special programs or categories an individual might qualify for a green card here in the U.S., include, among others, those for certain investors, religious workers and refugees/asylees.

A green card, officially known as a Permanent Resident Card, is a permanent or immigrant visa/document issued by the U.S. government that grants the holder the permanent right to live and work in the U.S. and provides a pathway to U.S. citizenship after a specified period (typically three to five years). The green card, known as Form I-551 is typically valid for a maximum period of 10 years. Find out how you can renew your green card here. Individuals granted “Conditional Resident Status” based on marriage to a U.S. citizen where the couple has not been married for two years are typically granted on a “conditional” basis, which is valid for only two years. Prior to the expiration of the card, these individuals are required to either file a joint petition seeking to remove the conditions on their residence, or if the couple is no longer together, may seek a waiver of the joint filing requirement.

An “immediate relative” of a U.S. citizen is the spouse, parent or minor child of a U.S. citizen. It includes children adopted prior to their sixteenth birthday and stepchildren of U.S. citizens so long as the citizen and the child’s parent were married prior to the child’s 18th birthday. It also includes children born out of wedlock under certain circumstances.

Individuals seeking a green card typically fall into two categories: “immediate relatives” of U.S. citizens (which are not subject to numerical limitations); and all others who are subject to limitations imposed by law. An “immediate relative” is the spouse, parent or minor child of a U.S. citizen and is not subject to any numerical limitation by law. Those who do not qualify as an “immediate relative” are subject to the limitations established through the “preference system.” This system allocates a finite number of visas each year through a variety of categories; some of which are family-based; others are employment-based. Family-based categories include those for adult sons and daughters of U.S. citizens; the spouses and minor children of permanent residents (green card holders); the unmarried adult children of permanent residents; and the siblings of U.S. citizens. Waiting lists due to numerical limitations in these categories can range from a couple of years to several decades.

A priority date is an individual’s place in line or queue when waiting for a green card under one of the family or employment-based preference categories. That date is established on the day a family petition (Form I-130), a PERM application (ETA9089), or an employment-based petition (Form I-140) is filed for an individual. Once a priority date is secured by the approval of the I-130 or I-140 petition, the beneficiary must wait until their priority date is within the cutoff period for their preference category as reflected in the visa bulletin published by the U.S. Department of State. Learn more about the visa bulletin and the current cutoff dates for both the family and employment-based preference categories here.

A “relative petition” is a petition filed by a U.S. citizen or green card holder to sponsor a member of their family for a green card. Form I-130, known as the “Petition for Alien Relative” is filed with USCIS. This petition is used for both those who qualify as an “immediate relative” of a U.S. citizen as well as those subject to the limitations of the preference system – including married and unmarried sons and daughters of U.S. citizens; siblings of U.S. citizens; and the spouse, minor children and unmarried adult children of green card holders.

An “employment base petition” is a petition typically filed by a U.S. employer, but in some instances may be filed directly by the beneficiary. Form I-140, known as the “Immigrant Petition for Alien Worker” is filed with USCIS to sponsor individuals as “extraordinary ability aliens”, “outstanding researchers and professors”, “multi-national managers and executives”, “advanced degree professionals”, “National Interest Waiver” candidates, “skilled” and “unskilled workers”, “religious workers”, and employment creation visas, among other categories.

Individuals seeking to determine where they stand in a particular preference-based queue should consult the Visa Bulletin published by the U.S. State Department each month. The Visa Bulletin establishes the cutoff dates which represents the front of the queue. This bulletin has four charts: two relate to family- based petitions, and two cover employment-based petitions. Each category (family and employment) has two charts. The first, entitled “Final Action Dates” is typically used if you are currently in the U.S. and are eligible for adjustment of status. The second, entitled “Filing Date” typically control green card processing outside the U.S., also known as consular processing. To complicate things further, each month USCIS indicates through a link contained in the DOS Visa Bulletin, which of the two charts should be used for Adjustment Applications to be filed here in the U.S. This is typically the “Final Action Date” chart, but not always. Because there are both overall limitations in each of the preference categories, as well as per country limitations, there are multiple columns within the Visa Bulletin which establish separate cutoff dates for India, China, Mexico, Philippines, and one for “all other countries” which applies to everyone else. The country line or queue that each individual falls under is based on the country of their birth, or the country of their spouse’s birth, if different (a concept known as cross chargeability). When consulting the chart first check your filing or preference category in the first column and then review the country column charts, if you don’t see your country of birth listed separately, then you fall under the “all other countries” list. If you see a “C” on the chart in your preference category that means that the category is current, meaning there is no waiting list in the month the bulletin covers. If there is a date listed, then your priority date listed on your approved I-130 or I-140 petition must be that date or earlier in order to proceed with your individual I-485 adjustment application or to commence consular processing through the Department of State’s National Visa Center.

No country is allowed more than 7% of the visas in each category, regardless of size, so huge countries like India and China get access to the same number of green cards as tiny countries like Jamaica or Tibet. Some smaller countries like Mexico and Philippines, are also impacted by virtue of the historically high levels of migration from those countries to the U.S., thus earning them their own special cutoff dates.

A green card, also known as “lawful permanent residence”, “resident alien” or “immigrant visa” allows you to live and work in the U.S. but is subject to conditions. Conditions might include a probationary period, typically extended to individual who get a green card based on a recent marriage, also known as “conditional resident status.” Green cards are also subject to forfeiture or loss if you don’t make the U.S. your residence and can also be taken away if you commit certain crimes. People often confuse green card status and citizenship, but those holding “green card” status must renew their status every 10 years, cannot vote or hold public office, and may be limited in terms of security clearances when working for the U.S. government. Individuals who have had their green cards for five years or more and have spent more than half of that time in the U.S. may apply for citizenship through a process known as “naturalization.” To be naturalized as citizens most applicants must first demonstrate an ability to read and write English, as well as demonstrate a personal attachment to our Constitution and form of government. For more information about naturalization visit here.

Maintenance of Status Questions

“Status” in the immigration context refers to an individual’s legal position regarding their presence in the U.S. If you are not currently in legal status, i.e. maintaining a nonimmigrant or immigrant visa, or holding some hybrid status like TPS, DACA, Refugee or Aslyee, then you are “out of status” and may be accruing “unlawful presence” which may trigger bars or penalties on your ability to return to the U.S. in the future. Individuals who overstay their I-94, or who violate their status, are often considered to be “out of status.” Individuals who entered the country without inspection or without proper documentation are referred to as “undocumented,” meaning that they have no official status here in the U.S. Even though someone may be undocumented or out of status does not mean they do not have rights and protections under the U.S. Constitution. Among these are the rights of children to receive a public education, and in some states the undocumented may be able to obtain a driver’s license. Click here see which states issue driver’s licenses to undocumented individuals.

A change of status is when an individual who entered the U.S. in one nonimmigrant status, seeks to change their status to another nonimmigrant status. For example, an individual might enter the U.S. on a B-2 visitor visa, and after arrival seek to change to F-1 student status so that s/he can pursue a full-time program of study at a U.S. college or university. They might also enter the U.S. in a dependent category, such as an L2 spouse and then seek to change to their own primary status, like F-1 student or an H-1B specialty occupation worker. Visit Change My Nonimmigrant Status for more information.

Individuals seeking to transfer their employment from one company to another without changing their nonimmigrant classification are typically processed as “transfers.” Most common of transfers is an H-1B employee transferring their employment from one company to another. As long as the employee can produce paystubs from their previous employer which are not more than 60 days old, they can transfer their employment to a new employer without leaving the U.S., and even without waiting for the petition to first be approved before starting work for the new employer.

Individuals in status are permitted to remain in the U.S. up until the expiration date contained on their I-94. If they wish to remain in the U.S. beyond that date they need to file to “extend” their stay or status. If their extension petition arrives at USCIS on or before the date their I-94 expires, they can remain in the U.S. until their petition is processed and approved. In certain nonimmigrant categories they may also be allowed to continue working. Individuals who miss the deadline for filing their extension may seek acceptance of their late petition under unique circumstances if they can demonstrate the delay was through no fault of their own, they are not in removal proceedings, and have not otherwise violated their status in any way. To avoid gaps in status petitions may, under certain rare circumstances, be processed on a nunc pro tunc (meaning retroactive) basis. Extensions without some form of change or amendment should generally not be submitted more than 180 days in advance of their expiration.

Failure to deliver an extension petition to USCIS on or before the status date expiration can result in an individual’s legal status being placed in “limbo” precluding them from rights and benefits accorded to many timely filed extensions. Such benefits may include the right to remain in the U.S. for up to 240 days or until the petition is adjudicated, and often permits the individual to remain working until such date. Late petitions may be accepted in certain circumstances, and Premium Processing is often required to get a faster resolution before the individual accumulates extended periods of “unlawful presence.” For more details on premium processing see Request for Premium Processing Service | USCIS.

Missing the deadline to extend your status here in the U.S. is not unusual and can be a serious problem. Individuals sometimes confuse the end date on their visa with their authorized period of stay (which it is not). U.S. Customs and Border Patrol (CBP) no longer issues physical I-94s at the time of arrival forcing individuals to go on-line to discover their authorized period of stay. To make matters worse, CBP and USCIS sometime include a 10-day departure period, which is not status on Form I-797. This confuses individuals and their employers about when their time is actually up. If you are unclear about when your status expires, or whether the petition you are about to file will be timely or late, please consult an experienced immigration attorney to make sure you aren’t putting yourself or your family at risk for being out of status. In certain instances, USCIS may accept late petitions, and may even approve the petition on a retroactive basis under their nunc pro tunc policy, though this is a unique and unusual form of relief.

Most individuals who submit an extension petition prior to the expiration of their stay are entitled to remain in the U.S. up until the time their petition is processed. Most nonimmigrant categories which carry the authority to work also permit the individual to continue working for up to 240 days, or until their petition is decided. Employers of individuals eligible for the 240-day rule can rely upon this rule to continue employing their nonimmigrant worker.

An individual who overstays their 90-day visa waiver entrance are automatically disqualified from future participation in this program. Other nonimmigrant visa holders including B1/B2, F-1 H-1B, L-1 just to name a few, lose the benefit of these visas and can have the physical visa in their passport revoked and future admissions based on those stamps denied. Failure to file a timely extension may require that an individual depart the U.S., return to their home country to secure a new visa, and then return to the U.S. Certain individuals (not otherwise exempt from accruing unlawful presence) begin accruing “unlawful presence” on day one following the expiration of their I-94. Individuals who leave the U.S. after having accumulated 180 to 364 days of unlawful presence are barred from returning to the U.S. for three years; those who accrue 365 days or more are barred from returning to the U.S. for 10 years.

A person is “unlawfully present” in the U.S. if they have either entered the country without being inspected, have remained in the U.S. after their period of authorized stay has expired, or have otherwise been determined to have violated their status. Certain individuals (not otherwise exempt from accruing “unlawful presence”) begin accruing “unlawful presence” on day one following the expiration or other determination they have violated their status. Individuals who leave the U.S. after having accumulated 180 to 364 days of “unlawful presence” are barred from returning to the U.S. for three years; those who accrue 365 days or more are barred from returning to the U.S. for 10 years. While waiver of these bars are available in certain situations, they can be difficult to obtain.

“Adjustment of Status” typically refers to an individual in nonimmigrant status seeking to adjust to immigrant status, such as that of a lawful permanent resident (also known as a “green card” holder). To be eligible to adjust status here in the U.S. an individual must typically be maintaining status at the time they file their application and must have some underlying basis for obtaining green card status. That underlying basis could be a family-based petition filed on their behalf by a U.S. citizen or green card holder; or could be an employment-based petition. There are also a variety of other special programs or categories under which an individual might qualify for a green card, including those for certain investors, religious workers, and refugees/asylees, just to name a few. Programs subject to numerical limitations often have waiting lists, which for some countries can be years or even decades long.

The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries of individuals from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS). Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. To learn more, visit the U.S. Department of State’s website

Most visa holders are required to notify USCIS within 10 days of moving or changing their address. This includes individuals with green cards. You may update your address online at the USCIS website here.  The system will prompt you to enter the necessary information and will generate a final change of address confirmation. Make sure you print this confirmation page and save a copy for your records. If you have a pending case with USCIS, the online system will also give you the option to update your address for all pending applications or petitions.

Unlawful Presence Questions

A person is “unlawfully present” in the U.S. if they have either entered the country without being inspected and admitted or paroled by an immigration official; when they have remained in the U.S. after their period of authorized stay has expired; or have been determined by USCIS to have violated their status. Certain individuals (not otherwise exempt from accruing “unlawful presence”) begin accruing “unlawful presence” from the date their I-94 expires, or the date they are determined to be unlawfully present. Individuals who leave the U.S. after having accumulated 180 to 364 days of “unlawful presence” trigger a bar, which prohibits them from returning to the U.S. for three years; those who accrue 365 days or more trigger a 10-year bar on returning to the U.S. The bar on re-entry may be waived under certain circumstances based on hardship of a qualifying relative.

A person starts accumulating days of “unlawful presence:” a) when they enter the United States without inspection (without presenting themselves to an immigration official); b) when their period of authorized stay expires, and they remain in the U.S.; or c) when it is determined by USCIS that they have violated their status. Your period of authorized stay is noted on your I-94 record. Your I-94 record can be obtained either here on the website for Customs and Border Patrol or on an I-797A Notice of Action from USCIS.

There are several exceptions to the accrual of “unlawful presence.” Children under the age of 18 do not accrue “unlawful presence.” Individuals admitted as F-1 students for “the duration of status”, signified by a D/S on their I-94” do not accrue “unlawful presence” until a determination has been made that they are out of status. Those admitted or paroled into the U.S., who have filed a timely application to extend or change their status, and who have not worked without authorization, do not accrue “unlawful presence” for up to 120 days while their application is pending. Recipients of deferred action, and DACA holders, do not accrue “unlawful presence.” Asylum applicants also do not accrue “unlawful presence,” provided that their application is genuine. Certain victims of domestic violence and human trafficking also do not accrue “unlawful presence.”

When a person has accrued more than 180 continuous days but less than one year of “unlawful presence,” they are barred from returning to the U.S. for three years following their departure from the U.S. This is called the three-year bar. When a person has accrued 365 or more continuous days of “unlawful presence,” they will be barred from returning to the U.S. for ten years once they depart the U.S. This is called the 10-year bar.

The three- and 10-year bars are only triggered upon departure from the United States without advance parole. Some individuals who have been unlawfully present in the U.S. will not be affected by those bars, for example immediate relatives of U.S. citizens who can apply for their green cards inside the U.S. even if their authorized stay has expired. As they do not need to depart the U.S. as part of their green card application, they will not trigger the bar.

The three- and 10-year bars will not impact all types of immigration cases and applications. If the three- or 10-year bar does apply to you, you may be able to request a waiver from USCIS. If approved, that waiver would serve to grant you an exception to the three- or 10-year bar to reentering the United States. The requirements for the waiver depend on whether you are seeking a green card, or a nonimmigrant visa. To qualify for the waiver in order to obtain a green card, you must have a spouse or parent who is a U.S. citizen or green card holder, and you must establish that the spouse or parent would suffer “extreme hardship” if the bar is not waived in your case. To qualify for a waiver in order to obtain a nonimmigrant visa, the U.S. consulate will consider all relevant factors to decide if a waiver is appropriate in your situation. These could include the seriousness of your prior immigration law violation, the reasons you wish to travel to the U.S., and the impact your travel might have on U.S. interests.

Leaving the U.S. with a valid advance parole or TPS travel document does not trigger the “unlawful presence” bars to admissibility. Travelling with advance parole or a TPS travel document can be a useful strategy for some cases, to allow a person to apply for a green card when they would otherwise not be eligible to do so.

Departing the United States Questions

Noncitizens must depart the U.S. when their nonimmigrant status expires, or when they fail to maintain their status because they are no longer working or studying as required. If you are deemed to be “out of status” your ability to change or extend your status will likely be limited. Additionally, most nonimmigrants over the age of 18 who overstay their I-94 expiration dates will begin to accrue unlawful presence in the U.S. If you have accrued more than 180 days of unlawful presence you will be barred from returning to the U.S. for three years, or ten years if more than 365 days of unlawful presence has accrued. This penalty is not triggered unless you depart the U.S. It is also important to note that some noncitizens who apply for a green card based on family membership or employment sponsorship may be exempt from the lawful status requirement under certain circumstances. If you have questions about your status expiring or your options, please contact us for a consultation.

How long you have to depart depends on the nonimmigrant status you hold. If you came to the U.S. on a B-1 or B-2 visitor’s visa, you must depart the U.S. by the expiration date of your I-94 (or request an extension prior to that expiration) to avoid falling out of status and begin accruing unlawful presence. However, most student and employment-based green cards allow for grace periods up to 60 days after ending your employment or studies before you need to depart.

While most nonimmigrant visa (NIV) holders have no formal grace period to depart the U.S., certain NIV categories do provide a grace period. For example, foreign student who complete their educational programs have 60 days to depart the US. H-1B visa holders, on the other hand, are typically permitted a 10-day departure period. In the event of a layoff, if the employee is able to secure new employment within 60 days of their last paycheck, they may able to transfer their employment from one company to another. In the absence of any specific grace period, which is the rule for most NIV categories, we recommend that you depart the U.S. by your expiration date, or as soon thereafter as reasonably possible – which in our view is within a week to 10 days.

In general, individuals are not permitted to work during a grace or departure period. However, exceptions apply for nonimmigrants with work visas when they file a timely extension application or when a new employer files a petition for them during any grace period. In those limited circumstances, nonimmigrants may continue or resume their employment.

Whether you may return to the U.S. after departing will depend on several factors. First, you will need a valid visa stamp in your passport. However, if you have violated the terms and requirements of that visa, either by remaining past your authorized stay or working without authorization, you may be refused readmission to the U.S. and have your visa cancelled. Second, if you were deemed to be “unlawfully present” in the U.S. for 180 days or more prior to your departure, you may be barred from returning to the U.S. for three-years; 10 years if you were unlawfully present for a year or more before departing. If you have questions about returning to the U.S., please contact us for a consultation to discuss your specific situation.

Non-Immigrant/Temporary Visas Questions

Nonimmigrant visas allow citizens of other countries to enter the United States temporarily for specific purposes including tourism, education, or employment. They do not grant permanent residency or citizenship. There are many different categories of nonimmigrant visas, each with its own authorized uses and set of requirements to apply. The duration of authorized stay also varies depending on the visa type. With some important exceptions, nonimmigrant visas require applicants to demonstrate nonimmigrant intent, which is the intention to depart the U.S. and return to their home country at the conclusion of their permitted period of stay. This demonstration is in addition to all other necessary eligibility requirements for each specific visa category.

Citizens of most countries who enter the U.S. must first obtain a visa stamp or foil to come to the U.S. Exceptions to this general rule include citizens of Canada, under the North American Free Trade Agreement. In addition, 41 countries with good histories of their citizens returning home are eligible to participate in the visa waiver program. Please visit the Department of Homeland Security’s Visa Waiver Program Requirements here to see if your country is on the visa-waiver list.  Individuals from these countries may come to the U.S. without a visa for up to 90 days, as long as they register in advance for the program and have a round-trip ticket to and from the U.S. Citizens of the U.S. may similarly travel to participating countries without first having to obtain a visa.

Where you apply for a nonimmigrant visa depends on the type of visa you are seeking. For employment-based nonimmigrant visas, including H, L, and O visas, the employer must first submit a petition to U.S. Citizenship and Immigration Services (USCIS). Once that petition is approved, the applicant must obtain a visa foil or stamp from a U.S. Consulate abroad. To obtain that foil/stamp an individual must submit Form DS-160 to the U.S. Consulate in their home country. For other types of nonimmigrant visas, (including tourist visas and student visas) an application can be made directly to the U.S. Department of State and consulate abroad, bypassing USCIS. In addition, there are some exceptions for Canadian citizens, who may apply for certain types of nonimmigrant statuses at a U.S. port of entry, without having first applied to USCIS.

Nonimmigrant intent, a requirement for most types of nonimmigrant visas, is the intent to depart the U.S. at the conclusion of the permitted stay and to return to a foreign residence abroad. Nonimmigrant visas including B1/B2, F, J and M require that the noncitizen applicant prove they have a residence abroad that they do not intend to abandon. To prove this, applicants must have established ties to their home country, including family relationships, jobs, property ownership, or other significant reasons that would cause them to return to their foreign residence rather than remain in the U.S.

Immigrant intent is the intention to live in the U.S. permanently. USCIS and U.S. consulates abroad will deny visa applications that require nonimmigrant intent if they believe the noncitizen intends to live in the U.S. permanently, rather than to use the visa for its intended purpose and then depart. A person will be found to have immigrant intent if USCIS or the U.S. consulate believes the person will overstay their visa or will apply for a green card after entering the U.S.

A limited number of nonimmigrant visas allow the noncitizen to have dual intent, meaning both the intent to abide by the requirements of the nonimmigrant visa, but also the intent to immigrate to the U.S. in the future if possible. When applying for a visa that allows for dual intent, the applicant need not prove ties to their home country and plans or actions that demonstrate an intent to remain in the U.S. would not be a reason to deny the visa. Visas that allow for dual intent include H-1, L, O-1, K, and R visas, as well as visas for dependent spouses or children of those visa holders.

To apply for a B-1 business visitor visa, applicants must submit Form DS-160 to the U.S. Department of State, together with an application fee. The applicant must then schedule an interview at a U.S. Consulate abroad. At the interview, the applicant will need to explain the purpose of the proposed travel, provide any relevant documentation to that purpose, and prove their ties to their home country and nonimmigrant intent.

Individuals in the U.S. on a B-1 visa are authorized to meet with business associates, attend conventions or conferences, settle an estate, negotiate contracts, or participate in short-term trainings. An individual with a B-1 visa is not authorized to work in the United States.

To apply for a B-2 tourist visitor visa, applicants must submit a DS-160 application to the U.S. Department of State, together with an application fee. The applicant must then schedule an interview at a U.S. Consulate abroad. At the interview, the applicant will need to explain the purpose of the proposed travel, provide any relevant documentation to that purpose, and prove their ties to their home country and nonimmigrant intent.

Permissible uses of the B-2 visa include tourism, visiting with friends or relatives, receiving medical treatment, participating in events hosted by fraternal, social, or service organization, participation by amateurs in musical, sports, or similar events or contests, and attending a short recreation course of study, which is not for credit towards a degree.

No, individuals in the U.S. with a B-2 visa are not authorized to work.

An E-2 treaty investor visas allow nationals from certain countries who have reciprocal treaties with the U.S. who are investing a substantial amount of capital in a U.S. business to come to the U.S. to manage and oversee their investment. Certain employees of such a person or a qualifying organization may also be eligible for an E-2 investor visa. The E-2 visa holder must have at least a 50% ownership of the enterprise and must enter the U.S. to develop and direct the investment enterprise. E-2 visas are issued in increments of not more than two years, with no limit to the number of extensions available.

An E-1 treaty trader visa allow nationals from certain countries who have reciprocal treaties with the U.S. to enter the U.S. to engage in the trade of goods or services between their home country and the U.S. Some employees of treaty traders are also eligible for E-1 visas. E-1 visas are issued in increments of not more than two years, with no limit to the number of extensions available.

To see a list of the countries eligible to participate in the treaty trader program, the treaty investor program, or both please visit the U.S. government’s list of Treaty Countries.

E-3 visas are only available to nationals of Australia who are coming to the U.S. to perform services in a specialty occupation. A specialty occupation is one that usually requires at least a bachelor’s degree in a specific field for entry into the occupation. The E-3 visa is very similar to an H-1B, with one important difference — there is no yearly limit on the number of E-3 visas available. E-3 visas are issued in two-year increments, with no limit on the number of extensions available. Spouses and minor children of E-3 visa holders are also eligible for dependent visas.

F-1 visas are used for full-time studies at an accredited college, university, seminary, conservatory, academic high school, elementary school, or language training program.

To qualify for an F-1 visa, you must be accepted at a school that has been approved by the Department of Homeland Security through its Student and Exchange Visitor Program (SEVP). The school will then register you in the Student and Exchange Visitor Information System (SEVIS) and issue you an I-20 Form. You will then use that I-20 to apply for an F-1 visa at a U.S. consulate abroad, which will require you to submit a nonimmigrant visa application online and to attend an interview at the consulate. For more details on the requirements to obtain a student visa please visit: Student Visa (state.gov). Alternatively, if you are already in the United States in another type of nonimmigrant status, you may apply to USCIS to change your status to F-1 student. For more details on changing to student status in the U.S. visit: Students and the Form I-20 | Study in the States (dhs.gov)

You may be authorized to work for some of the time that you are in the U.S. with F-1 status. After one full academic year at a college or university, an F-1 student may apply for up to 12 months Optional Practical Training (OPT), which would provide work authorization for employment that relates to the student’s major or concentration. Students who complete certain degrees in Science, Technology, Engineering or Mathematics (so called STEM degrees) may be eligible for an extension of an additional 24 months of OPT. In addition, if your field of study requires practical training, then your school program may also authorize you to perform Curricular Practical Training (CPT) as part of the degree program, but the amount and type of CPT a student performs may impact their eligibility to also receive OPT. Finally, an F-1 student may also be eligible for work authorization based on unforeseen severe economic hardship, or if your home country is experiencing an emergency.

J visas are for exchange visitors who will come to the U.S. to teach, lecture, study, research, or consult. The J visa program is designed to promote exchange of people, as well as ideas, skills and knowledge in education, arts and sciences. J visas are used in many differed circumstances, including for professors or scholars, medical students, teachers, and even au pairs and camp counselors. Only State Department-designated sponsors are authorized to issue the required Certificate of Eligibility for Exchange Visitor (J-1) status (Form DS-2019), which is the basic document supporting an application for a J-1 visa. A list of potential program sponsors can be found here.

K visas are for fiancés/fiancées of U.S. citizens, and their children. To obtain a K visa, the U.S. citizen must file a petition with USCIS documenting the relationship and confirming that the couple intends to marry within 90 days of the noncitizen’s arrival to the U.S. So long as the couple marry within that 90-day period, the noncitizen spouse can then apply for a green card under the adjustment of status process.

H-1B Questions

An H-1B visa is a work visa that allows U.S. employers to employ foreign workers in “specialty occupations”. These workers must be paid the higher of the prevailing wage or the actual wage applicable to the job site where they will be working.

A specialty occupation requires the application of a specialized body of knowledge typically obtained through the completion of a four-year bachelor’s program in a specific field of study.

A U.S. bachelor’s degree or foreign equivalent is required. Foreign degrees must be evaluated for U.S. equivalence. Individuals who only possess a three-year degree or have a degree which is not directly related to their specialty occupation, may qualify for H-1B through a combination of education and experience. For each year of formal education an individual lacks they must typically demonstrate three years of progressive experience within the occupation or profession.

Individuals who possess a three-year foreign degree may qualify for an H-1B through a combination of education and experience. For each year of formal education an individual lacks, they must typically demonstrate three years of progressive experience within the occupation or profession. Someone with no formal education may potentially qualify for an H-1B visa if they can demonstrate 12 years of progressive experience within the occupation.

Individuals with degrees that are not directly related to their occupation may also use a combination of education and experience to achieve the required degree. Someone with a liberal arts degree but having extensive experience within the occupation may still qualify for an H-1B using a combination evaluation. Combination evaluations typically cost more than a straight educational evaluation, are usually prepared by a college or university professor with the authority to grant college credit for work-life experience and must be supported by detailed experience letters from prior employers confirming both the dates of employment and the specific duties performed over the course of the employment.

H-1B visas fall into two categories: Those subject to an annual limitation (called the H-1B “cap”), and those not subject to an annual limitation (referred to as “cap-exempt”.) Most for profit entities fall under the cap and have access to 85,000 H-1B visas allocated through an annual lottery, known as the H-1B visa lottery. 20,000 of those visas are limited to registrants who possess a master’s degree issued by a college or university in the United States. Exempt from these numerical limitations are “cap-exempt” employers.

The demand for H-1B visas by U.S. employers each year far exceeds the limited supply, which is a fraction of the numbers available in the past. Consequently, USCIS conducts an annual visa lottery where companies register as many candidates as they can demonstrate a need for using an on-line registration system. This lottery typically takes place in the first quarter of each calendar year and relates to visas which are not available until October 1st (which marks the beginning of the government’s fiscal year). Once an individual has been selected through the lottery their employer can file a petition on their behalf. They also then become eligible for up to six years of work authorization, granted in increments of no more than three years at a time.

Cap-exempt employers are organizations that are not subject to the annual limitation of H-1B visas. Such organizations include universities and related nonprofit entities, nonprofit research organizations, and government research organizations. These employers may submit an H-1B application to USCIS any time during the year.

Yes, H-1B visas can be issued for both full- and part-time employment and can include multiple employers.

No, an individual who secures an H-1B through a cap-exempt employer, even on a part-time basis, can later add an H-1B visa through a cap-subject employer without having to go through the visa lottery. However, if the cap-exempt employment ceases to exist, the right to continue working for the cap-subject employer cannot be renewed.

H-1B workers are required to be paid the higher of the “prevailing” or “actual wage” that applies to the job site where they are working. Employers seeking to sponsor H-1B workers can determine that wage through a variety of methods which include: requesting a wage determination from the U.S. Department of Labor (DOL); consulting a private wage survey; or by citing the wage established through a collective bargaining agreement, just to name a few options.

The actual wage is the wage typically paid by the employer to its employees who perform the same position at the same job site location. It requires that employers to review the wages paid to its existing workforce and establish an appropriate adjustment for education, experience, longevity and other related factors to come up with a wage, representing a fair and actual wage for the occupation at employer’s worksite.

A Labor Condition Application (LCA), Form ETA9035 is a document that a prospective employer must file with the DOL when it seeks to employ an H-1B worker. In this document the employer makes certain attestations, which include paying the employee the higher of the actual wage or the prevailing wage for the position at the specific job site. This LCA must be certified by the DOL prior to the employer filing a petition with USCIS. It must also be posted at the actual work site for a minimum of ten business days. The LCA should be posted in a location where employees are likely to see it, typically the employee breakroom, kitchen or lounge, or alternatively shared with the union representative, if employer is a union shop.

The wage requirements under an LCA are job site specific. Thus, when a job site changes an employer must examine whether the wage being paid to the employee still meets the requirements of the new job site. If the shift in job site is limited in time or duration the new work site may not constitute a new job site. Thus peripatetic employees who go from job site to job site never working more than 30 days may be exempt under the ”short-term placement rule.” In other instances, if an LCA is already on file for the new job site, and there are sufficient open slots on that LCA an employer may be able to avoid having to file a new LCA. The filing of a new LCA triggers the filing of a new H-1B visa petition with USCIS, which entails significant cost and expense to the employer.

If an H-1B worker works from home for more than 30 days a year, their home is considered a job site, and a Labor Condition Application (LCA) must be posted and certified covering that site. While odd, we typically recommend that the LCA be posted on the front or side of the employee’s refrigerator at home to satisfy the work site posting requirement.

An H-1B transfer occurs when an employee in H-1B status seeks to change employers. Transfers from a cap-exempt employer to a cap-subject employer are not permitted without the employee first securing a cap-subject visa through the H-1B visa lottery. To transfer employment from one employer to another the H-1B visa holder must be maintaining valid H-1B status, and not have exhausted their maximum H-1B eligibility, which is typically six years, unless otherwise provided under AC21. So long as they can produce a pay stub from their prior employer that is not more than 60 days old at the time of filing, they can transfer their employment immediately upon receipt of their petition. In essence the transfer rules provide H-1B holders with a 60-day grace period to seek new employment without falling out of status. Individual H-1B visa holders who have not been employed within the 60-day grace period may still be sponsored for an H-1B visa, but will likely be required to depart the U.S., secure a new visa, and re-enter the U.S., triggering a new period of H-1B status.

H-1B visa holders are typically limited to a maximum of six years in the U.S. Any complete day spent outside the U.S. is not counted toward that six-year limitation, nor is any year in which the employee is physically outside the U.S. for more than half of the time. Once an H-1B visa holder has exhausted their six-year period, they are typically required to depart the U.S. and remain outside the U.S. for a minimum of 365 days before being eligible to be readmitted. An exception to this rule relates to individuals with long pending PERM filings or approved I-140s, who are awaiting their priority date to become current. Under a law called AC21 these individuals are allowed to extend their H-1B stay beyond the limit in one-year increments (if their PERM has been pending for more than 365 days); or in three year increments (if their I-140 has been approved). Unfortunately, this benefit does not extend to L-1 visa holders.

You start with the date that you originally arrived in the U.S. or changed your status to H-1B, if already in the U.S. You add six years to that date to arrive at your max out, assuming you have not been outside the U.S. You then take that date and add back each full day that you spent outside the U.S. For any calendar year that you were out of the U.S. for more than 183 days you also add back or recapture that 365-day period. The adjusted date, after recapture is the date on which you will have exhausted your H-1B status. Please note that any time spent in L-1 status also counts towards your H-1B maximum, however any time spent in dependent status, such as an L-2 or H-4 does not count.

The concept of recapture relates to the time limitations imposed on various nonimmigrant statuses. H-1B visa holders are permitted to be in the U.S. for a maximum of six years. L-1B visa holders are limited to five years; and L-1A visa holders, seven years. Any full day spent outside the U.S. does not count against those limits and can be added back through a concept known as “recapture.”

Yes, while most nonimmigrant visas require an individual to demonstrate their intention to return home at the end of their stay, H-1B is one of the few visa categories which allows an individual to have “dual intent”. The holders of visas which permit dual intent (H-1B, L-1, O-1) are allowed to pursue both temporary and permanent visa options simultaneously, without jeopardizing their temporary status. However, they must continue to maintain the proper intention to depart the U.S. at the conclusion of the NIV.

Under AC21 the H4 spouse of an H-1B holder with an approved I-140 awaiting a priority date may apply for an H4 Employment Authorization Document (EAD). Because of this benefit H-1B visa holders with approved PERMs will often utilize premium processing when filing their I-140 to accelerate the point at which their spouse can file for an EAD. The EAD permits the spouse to work here in the U.S. for any employer of their choice, and can also engage in self-employment, should they wish.

L-1 Questions

An L-1 visa is a nonimmigrant work visa which permits managers, executives and specialized knowledge employees (collectively “a qualifying role”) of a foreign company to be transferred to the U.S. to work for a related company. These transfers are referred to as “Intra-company transfers”, meaning that an employee of company A can be transferred to company B, a U.S. company, as long as company A and company B are sufficiently related and the employee has served off-shore for at least one year in a “qualifying role” and will serve here in the U.S. in a “qualifying role.”

“Intra-company” is a reference to a transfer of employees within the same global family of companies. To support an L-1 visa the transferring (foreign) company and the receiving (U.S.) company must be sufficiently related. They must typically share either a parent/subsidiary relationship; or qualify as “affiliates”. In a parent/subsidiary relationship, one of the companies owns the other. In an “affiliate” situation the two companies may be sibling companies that share the same parent, with both being subsidiaries. The corporate organizational structure of a global or multi-national organization can be particularly confusing, but fortunately Attorney Carter, has extensive experience in corporate organizational issues having processed hundreds of L-1 and EB-1(a) petitions over the past 20 years.

An individual seeking to transfer from company A (offshore) to company B (here in the U.S.) must typically have worked in a qualifying role outside the U.S. for company A for a minimum of one year out of the three-year period prior to coming to the U.S. In some instances, if an employee worked for company C, which was later acquired by company A through a complete merger or acquisition of assets that include company A assuming all employment liabilities of company C, the employment history of employees at company C flows over to company A under the “successor-in-interest” rules. While one year of employment is the minimum requirement, not everyone who has been employed by Company A abroad for 365 days qualifies for transfer. They must also qualify as either an “executive,” “manager,” or “specialized knowledge employee.” Individuals hired as managers or executives by a company who perform that qualifying role begin accruing their 365 days at the commencement of that role. “Specialized knowledge” employees, however, only achieve their status in a qualifying role by gaining specialized knowledge of the company, its products, solutions, or processes over an extended period of time. Thus, it may take several years for them to acquire and then utilize that specific level of knowledge on behalf of Company A.

The official USCIS definition of managerial capacity for L-1A purposes is one who: (a) manages the organization, or a department, subdivision, function, or component of the organization; (b) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department of subdivision of the organization; (c) has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization). If another employee or other employees are directly supervised, or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (d) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

USCIS defines the term “executive capacity” for L-1A purposes as relating to someone who: (a) directs the management of the organization or a major component or function of the organization; (b) establishes the goals and policies of the organization, component, or function; (c) exercises wide latitude in discretionary decision-making; and (d) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

Specialized knowledge for L-1B purposes refers to an individual’s knowledge of how their organization manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. This is often referred to as “product or service” knowledge. However, specialized knowledge can also be demonstrated by possessing “process knowledge” also referred to as “advanced knowledge.” In such instances the individual’s knowledge of their employer’s processes and procedures, if greatly developed or further along in progress, complexity, and understanding, compared to other employees, may qualify them for an L-1B visa.

The L-1A is typically the preferred visa for the following reasons:

  • Individuals in L-1A status can remain in the U.S. for up to seven years, while L-1B visa holders are limited to five years
  • the L-1A can more easily be upgraded to a green card under the EB-1(c) multi-national manager and executive category, bypassing PERM, also known as the labor market test which applies to most technical roles
  • The waiting list in the EB-1 category is significantly shorter than in the EB-2 or EB-3 category for nationals of oversubscribed countries such as India and

While fewer individuals typically qualify for L-1A than L-1B, it is possible for individuals in L-1B to “convert” their status to L-1A if while in the U.S. their role expands from primarily a specializes knowledge role, to that of a managerial role. This does not necessarily qualify them for EB-1 in the future as that status requires the individual to have qualified as a manager both in the U.S. and for at least one year offshore.

An L-1A or L-1B visa can be applied for in one of two ways. The first, is via an individual petition (Form I-129) filed with USCIS here in the U.S. That petition is supported by documenting: a) the employee performed the qualifying role (manager/executive/specialized knowledge) for at least one year out of three preceding years offshore; b) the employee will perform a qualifying role here in the U.S.; c) the transferring and receiving company share the necessary qualifying relationship of either parent/subsidiary, or affiliate. Once approved by USCIS here in the U.S. notice is transmitted to the U.S. consul in their home country, which then issues them an L-1 visa to enter the U.S.

The second option, typically utilized by larger companies who frequently transfer employees back and forth to the U.S. is through an expedited process known as a “blanket petition” which bypasses USCIS and allows certain employers to file for their L-1 visas directly with the U.S. consul in their home country or country of current employment.

L-1 blanket status is an expedited process which is available to larger multi-national corporations who regularly transfer workers back and forth to the U.S. It allows such companies to establish the qualifying relationship between itself and all its related companies to USCIS one time without identifying any specific individual, and then utilizing that prior adjudication to by-pass USCIS by filing petitions directly with the U.S. consul for each employee it seeks to transfer. To qualify for this special treatment an employer must have either a) successfully processed at least 10 L-1 petitions through USCIS over a 12-month period; b) have 1,000 or more U.S. employees; or c) have annual U.S. revenue of at least $25 million per year. The use of this program helps streamline the process, reducing processing times and saves the petitioner money. The one drawback to blanket petitions is that individuals processed directly through the consuls abroad must qualify as “professionals.” Those who have degrees in fields unrelated to their occupation, or who possess only a three-year degree are generally not eligible and require an individual petition to be filed with USCIS.

Individuals who enter the U.S. on an L-1 visa can be admitted for up to three years initially and can then obtain extensions in two-year increments. L-1Bs are limited to a maximum of five total years in the U.S.; L-1As may remain for up to seven years. Time spent in H-1B status may count toward these maximum periods, but time in H or L dependent status does not. Each full day that the individual is outside can be added back or re-captured. Individuals who spend fewer than 180 days each year in the U.S. do not have those days counted toward the cap. Individuals who are approaching their L-1B maximum may be eligible to convert from L-1B to L-1A and thereby gain an additional two years in the U.S. However, there are restrictions to doing this within the final days of L-1B status, particularly if USCIS has not been previously notified of the change in role from “specialized” to “manager”. Our office typically recommends a two-step process where we first file the conversion without including a request for the sixth and seventh year and follow up with an extension petition once the conversion is approved. Unlike the H-1B visa category, individuals in L-1 status with long pending PERMs or I-140s are not eligible for unlimited extensions under AC21, so it is often advisable for them to seek an H-1B through the annual visa lottery.

Yes, while most nonimmigrant visas require an individual to demonstrate their intention to return home at the end of their stay, L-1 is one of the few visa categories which permits “dual intent”. The holders of visas which permit dual intent (H-1B, L-1, O-1,) are allowed to pursue both temporary and permanent visa options simultaneously, without jeopardizing their temporary status. However, they must continue to maintain the proper intention to depart the U.S. at the conclusion of their nonimmigrant stay. Also note, if you were born in an oversubscribed country for green card purposes such as India or China, it will likely be advisable that you convert to H-1B prior to maxing out your fifth year in L-1B or sixth year in L-1A status, as the L-1 category does not qualify for unlimited extensions under AC21. By converting from an L visa to an H-1B and securing unlimited extensions under AC21 you may ultimately be able to avoid leaving the U.S. for a year every five to seven years.

Yes, L2 spouses are entitled to automatic work authorization incident to their status without having to apply for an employment authorization document (EAD). Such individual’s visas are typically noted as being L2S with the S referencing a spouse, versus L2D where the D represents a dependent child. Children in L2D status are not eligible for an EAD based solely on their status.

O Visa Questions

An O-1 visa is a nonimmigrant visa available to individuals who possess extraordinary ability in a variety of fields. Individuals with extraordinary ability in the sciences, education, business, or athletics qualify for O-1A status; while those with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry qualify for O-1B. Certain support personnel, if integral to the O-1 activities, may qualify for an O-2 visa. Spouses and dependents of O-1 or O-2 typically receive O-3 visas.

Extraordinary ability in science, education, business or athletics requires a level of expertise suggesting that the individual is one of a small percentage of individuals who have risen to the very top of their field of endeavor. An analysis of one’s qualifications for O-1 typically begins by identifying the individual’s unique field. The more specific the endeavor the better. Proving that one is extraordinary in the entire field of science, or medicine is far more difficult than proving extraordinary ability in a particular niche or subset of the field.

Extraordinary ability in the arts means distinction, or a high level of achievement evidenced by skill and recognition substantially above that ordinarily encountered.

Unless you have achieved acclaim by receipt of a major international award or prize such as a Nobel Prize, you are generally going to need extensive documentation to prove your extraordinary ability. USCIS requires that you satisfy a minimum of three criteria off of a menu of options which include: (1) receipt of nationally or internationally recognized awards; (2) membership in organizations requiring outstanding achievement; (3) published materials about the applicant in professional or major trade publications; (4) judgment of the work of others; (5) original scientific or scholarly work of major significance in the field; (6) evidence of authorship of scholarly articles; (7) evidence of employment in critical or essential capacity at organizations with a distinguished reputation; or (8) has commanded or will command a high salary in relation to others in the field. Demonstrating at least three of the above criteria is the threshold for consideration of O-1 eligibility. USCIS considers the totality of the evidence before making a decision. Thus, it is always wise to address as many of the criteria as possible and to provide the highest level of documentation available when demonstrating each criterion. Reference letters from recognized experts in the field help in this regard, as do pleas and recommendations from U.S. government agencies who may be able to identify the importance of the applicant’s work to the country as a whole. All O-1 petitions must contain a written advisory opinion from an appropriate peer group (which can include professional organizations, unions, individuals with expertise in the field, to name just a few). If no appropriate peer group exists, the consultation requirement may be waived, but the unavailability must be sufficiently demonstrated.

O-1 visas are typically granted for an initial period of up to three years and can be extended in three year increments on an indefinite bases as long as the individual continues to meet the requirements for this visa classification.

TN Questions

The US/Mexico/Canada Agreement (USMCA) is the successor to the North American Free Trade Agreement (NAFTA) and is a treaty arrangement between the U.S., Mexico and Canada which helps facilitate the entry of Mexican and Canadian nationals into the United States. Though known as USMCA since 2020, most people still refer to the treaty as NAFTA. The treaty relaxes certain requirements for Canadian nationals and creates additional new visas for TN professionals from both Canada and Mexico. While similar to the H-1B specialty occupation visa, Canadians and Mexicans seeking TN visa status are not subject to the annual cap limitations that apply to cap-subject employers, as long as the occupation falls within the schedule of qualifying professional occupations listed in the treaty, which is far more limited than under the H-1B program. Essentially, if you don’t fit into one of the occupations on the schedule, you aren’t able to take advantage of the TN professional visa.

USMCA/NAFTA designates 63 categories of professionals eligible for Trade NAFTA (a/k/a TN) status. TN status is available only to persons engaged in the occupations listed on the appendix and identifies the required credentials for admission for each occupation.

The schedule of occupations includes four categories: teachers; scientists, medical and allied professionals; and other general professionals, which include accountants, computer systems analysts, economists, engineers, social workers, and even management consultants.

TN status differs from the H-1B in that it is not limited in terms of how many visas can be issued to for-profit entities and it is exempt from the LCA and prevailing wage requirements. It is also far more simple from a visa processing perspective, particularly as it relates to Canadians, who are not required to obtain a physical visa and can be processed for entry at the border without first filing a petition with USCIS. Unfortunately, Mexican nationals do not receive the same preferential treatment as Canadians so a prior petition must be filed with USCIS, and a visa issued for entrance to the U.S.

If you are Canadian citizen YES. If you are a citizen of Mexico, NO.

Originally TNs were limited to one-year entries at a time. That has since been modified and they can now be admitted for up to three years at a time.

TD status is the dependent status given to the spouse or child of a TN worker. TD status merely permits the spouse and children under the age of 21 to accompany the TN visa holder to the U.S. and does not carry with it the right to work while in the U.S.

A TN visa holder can apply for a green card. However, the process is tricky and full of traps and pitfalls. Unlike the H-1B or L-1 visa, which permit “dual intent” (the intention to pursue both temporary and permanent options here in the U.S.) the TN requires “nonimmigrant” intent. Marrying a U.S. citizen, having an I-130 or I-140 petition approved for you, even buying a home in the U.S. can raise questions about your intent to leave the country after your TN visa expires. Questions of intent typically arise in three situations: first when you apply for a visa (assuming a physical visa is required); second, when you seek to enter the U.S.; and third, when you file a petition with USCIS to extend your stay. In each instance you must demonstrate the required nonimmigrant intent. If DOS, CBP or USCIS determines that you misrepresented your intent in any of these instances you could potentially be denied a visa, denied entry, and worse yet, determined to be ineligible for a green card on the based on fraud. While it is not impossible to obtain adjustment of status having previously entered the U.S. in TN status, it is difficult and should only be done after consulting with an experienced immigration attorney. Generally, the safer route is to change your status to one which permits “dual intent” prior to initiating any green card process.

Employment Based EB-1 Green Card Questions

The EB-1 category is the premier employment-based category which applies to “priority workers”. These workers include persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. What makes this preference category highly desirable is because it has the shortest line for individuals born in oversubscribed countries such as India and China, and is exempt from the process by which employers must demonstrate that a U.S. worker cannot be found to fill the position, known as PERM.

Extraordinary ability under EB-1(a) requires a demonstration of “sustained or international acclaim” in a particular field of expertise. This expertise can be demonstrated by receipt of a major internationally recognized award or prize, such as a Nobel prize. Alternatively, it can be demonstrated by proving three or more lesser achievements, such as:

  • receipt of lesser nationally or internationally recognized prizes or awards
  • membership in associations which require outstanding achievement of their members
  • published materials about the individual in professional or major trade publications
  • participation as a judge of the work of others
  • evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance
  • authorship of scholarly articles in the field
  • artistic exhibitions or showcase
  • performance in a leading or critical role for an organization which has a distinguished reputation
  • high salary or renumeration in relation to others.

USCIS engages in a two-step analysis. First, it does a threshold review of the three or more categories under which the applicant is claiming qualification. Then considers the weight of the evidence to make a final merits’ determination.

To qualify as an EB-1(b) outstanding professor or researcher, an individual must demonstrate that they are recognized internationally as outstanding in a specific academic area. They should be pre-eminent and stand apart from others within their field. Like the EB-1(a) category this can be demonstrated through the receipt of some major prize or award, or alternatively by demonstrating two out of a menu of seven options. Three years of teaching or research in the academic field is required. Experience in pursuit of a graduate degree can be counted in certain instances. The offered employment should be a tenure, tenure track or comparable research position.

An EB-1(c) multi-national manager or executive in many ways mirrors the L-1A category described above. It provides managers and executives with a pathway to green card status, which is exempt from the labor market test or PERM process. To support an EB-1(c) petition the beneficiary must have worked abroad as a manager or executive for a minimum of one year out of the three, prior to being transferred to the U.S. That foreign employer must be related to the U.S. company where the beneficiary is or will be performing a similarly qualified role.

The official USCIS definition of managerial capacity for L-1A and EB-1(c) purposes is as follows:

  • manages the organization, or a department, subdivision, function, or component of the organization;
  • supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department of subdivision of the organization
  • has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised, or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed
  • exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

Unlike a personnel manager who typically manages teams of professional workers, a functional manager manages a function within the organization. If the function is essential to the organization’s success, the individual functions at a senior level within the organizational hierarchy or with respect to the function managed, and exercises discretion over the day-to-day operations of the function for which the employee has authority, the functional manager need not have a significant or, in some instances, any team member or subordinates whatsoever.

USCIS defines the term “executive capacity” for L-1A and EB-1(c) purposes as relating to someone who:

  • directs the management of the organization or a major component or function of the organization
  • establishes the goals and policies of the organization, component, or function
  • exercises wide latitude in discretionary decision-making
  • receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization

To demonstrate eligibility for EB-1 an individual must prove they served as a manager or executive for a related entity offshore for at least one year out of the three-year period prior to their transfer to the U.S. We call this the qualifying period of offshore employment. This period need not be sequential and contiguous s long as it occurs within the three-year window. Any time spent in the U.S. in valid status working for the petitioner or related company tolls the clock, potentially extending the look back period further in time. Thus, an individual might accumulate the necessary year over a number of years going back and forth between employment in the U.S. and offshore for the same family of companies.

An EB-1 petition is filed using Form I-140, Immigrant Petition for Alien Worker. The same petition is used for all the employment-based preference categories. The petition is supported by evidence demonstrating the beneficiary meets the requirements for the classification being sought. This often includes many exhibits, and original source documentation to back up the assertions contained in the petition and letter of support.

Employment Based EB-2/3 and PERM Questions

Before a U.S. company can sponsor an employee working under a temporary work visa on a permanent basis, also known as a green card in the EB-2 or EB-3 category the company must demonstrate that they cannot find a minimally qualified U.S. worker able to fill the position. This process, known as Labor Certification, or the labor market test, is commonly referred to as PERM, which is an acronym for the Department of Labor’s (DOL) Permanent Electronics Review Management (PERM) system. This is the automated database-driven system that the DOL uses to process Applications for Alien Labor Certification filed by U.S. employers. It represents the first phase of a three-phase process used to obtain a green card in the employment-based EB-2 and EB-3 category.

In order to demonstrate that it cannot find a qualified available American worker to fill its needs, a U.S. employer must establish a benchmark, against which all candidates are measured. That benchmark is the job description, which establishes the job title, the job site location, the duties of the position along with the minimum education and experience required to perform the position. Before embarking on recruitment, an employer is required to determine the prevailing wage for that position. This is typically done by filing a Prevailing Wage Request with DOL. DOL currently takes approximately six to seven months to provide employers with a prevailing wage determination. Assuming the employer accepts the wage, they begin recruitment for the position, following a recruitment regime prescribed decades ago. Assuming this recruitment doesn’t result in the employer finding a qualified U.S. worker, a PERM application is prepared which details the requirements of the position, summarizes the recruitment conducted, and details the noncitizen’s qualifications showing that the beneficiary meets the minimum requirements of the position.

PERM rules require that an employer seeking to file a PERM application pay all costs associated with that filing, including the recruitment costs. Employer’s may not pass theses costs or expenses off to the employee.

In the absence of a shared recruitment program utilizing pre-existing wage determinations and recruitment, the timeline for filing a PERM takes approximately 10 months or more. It currently takes the DOL approximately six to seven months to generate a prevailing wage determination (PWD). Recruitment takes a minimum of 30 days. The recruitment period is followed by a minimum 30-day waiting period, during which the employer is required to consider the qualifications of any applicants for the position. This period can extend out by a month or two if potentially qualified applicants submit resumes or applications for employment. Assuming the employer is able to prove the recruitment failed to result in finding a qualified available American Worker able and willing to perform the position, the employer then files a PERM application with DOL. Thereafter DOL takes approximately 13 to 20 months to process and certify the unavailability of U.S. workers, depending upon whether the case is audited or not audited. That extends the entire PERM process out to approximately 24 to 30 months.

An individual’s priority date is based on the date their PERM application is filed with the DOL. If a PERM is not required to be filed, such as for an EB-1 applicant or an EB-2 National Interest Waiver Applicant, their priority date is the date their I-140 (Petition for Immigrant Worker) is filed with USCIS. Individuals with priority dates from I-140s filed by previous employers may recapture that place in queue to avoid spending additional time in line. While the priority date is obtained at the time the PERM is filed, the PERM must be approved followed by the approval of an I-140 within the validity period of the PERM in order for the priority date to be secured. Even after the approval of an EB-2 or EB-3 I-140, a priority date may be lost if the employer withdraws the petition prior to the passage of 180 days. For this reason, beneficiaries of approved I-140s rarely leave their employer during the first 180 days following the approval of their I-140 Petitions.

The prescribed recruitment process for PERM includes the posting of the job opportunity at the work site. This Notice of Posting is required to include the offered wage, which cannot be below the minimum wage for the occupation in the metropolitan statistical area in which the job is located. To avoid faulty recruitment and unnecessary expense, most employers wait until they receive the prevailing wage determination before they commence recruitment under PERM.

Upon receipt of a Prevailing Wage Request (PWR) by the DOL the DOL will review the job description and assign the job to one of the approximately 1200 Standard Occupational Codes for which DOL maintains annual wage data across every single metropolitan area in the U.S. Once the job description is mapped to a SOC Code, DOL then determines which of the four wage levels the position falls within. Those wage levels include Level 1, typically referred to as “entry level”; Level 2, often referred to as the fully functioning professional; Level 3, which designates a senior level position, and Level 4, which typically corresponds to a super senior or high-level position. DOL then issues a Prevailing Wage Determination (PWD) and sends this electronically to the employer. Each wage is typically valid until the end of the survey year, which is June 30, or 90 days after issuance if the wage determination was issued within the final 90 days of the survey year. Wages are updated by DOL on July 1st each year. To explore the DOL’s wage wizard yourself, visit: FLCDataCenter.com

Unlike the H-1B program where employers may utilize the DOL’s wage information and select the wage level the employer deems most appropriate to the position in questions, the PERM rules (in the absence of a pre-existing private wage survey or a collective bargaining agreement) require employers to utilize individual prevailing wage determinations made by the DOL. The DOL utilizes a four-tier wage system which can range from an entry level wage for an IT worker of $70,000 that maxes out at $160,000 at level 4. While real world conditions do not see individuals more than double their wages within a five-year period of time, DOL routinely assigns the super-senior Level 4 wage to any position requiring five years or more of experience, using a point system which is disconnected from real world wage conditions. To explore the DOL’s Standard Occupational Classification and Wage Classification Systems, click here FLCDataCenter.com.

The PERM process requires employers to prove they can’t find qualified U.S. workers. In the absence of such workers, the employer must demonstrate the foreign worker identified in the PERM application meets the requirements of the position. While documentation of educational qualifications can be easily obtained, verification of specific experience is required and must typically come from a prior employer. While many employers will only issue service certificates which verify dates of employment but not specific job duties, individuals seeking PERM must obtain very specific job letters that verify they meet each specific requirement of the PERM position. In instances where a prior employer no longer exists or refuses to provide a detailed job letter, we are often able to use secondary evidence, typically a colleague letter, issued by a former co-worker, provided it is sufficiently detailed, and we can document the unavailability of a detailed job letter from the actual employer.

The EB-2 category for “advanced degree professionals” (those with a U.S. master’s degree or equivalent, which may also include a four-year foreign bachelor’s degree plus five years of progressive experience) historically has had a slightly shorter waiting list or queue, particularly for India and China, the two major oversubscribed countries. The other benefit of the EB-2 category is that if a job description qualifies under EB-2, it can also be filed or “downgraded” to EB-3, giving an EB-2 JD the choice of whichever line reaches them first, i.e. the best of both worlds. EB-3 cases in contrast cannot easily move between the two waiting lists and require an entirely new PERM process supported by an EB-2 job description.

EB-2 positions, particularly those whose requirement includes a Bachelor’s plus five years of experience are generally assigned the DOL’s highest wage level possible, which is typically often twice the entry level wage or more. In many instances the wages assigned are far above industry standards and thus individuals who would otherwise qualify for filing under EB-2 have to accept their filing under the lower EB-3 category. In other instances, even those who are making a sufficiently high wage may be mapped to an EB-3 position if that will enable their PERM to be filled sooner. This is frequently the case with individuals from oversubscribed countries such as India and China, where the 10 month delay in filing their PERM based on a fresh new job description could result in them falling 20 to 30 months behind in lines or queues which are already 20 to 30+ years long. For such individuals getting a PERM filed ASAP trumps getting the PERM filed in the ideal or preferred EB-2 category. For this reason, we have developed shared recruitment programs for our larger employers which provide them with off the shelf solutions which short cut the regular PERM filing timeline.

Current processing times for PERM are approximately 13-15 months from the date of filing. We typically see responses within that time frame, with approximately 98% or more of our filings receiving approvals, with the remaining 2% or less being randomly selected for audit. The audit function is part of the quality control process the DOL utilizes to monitor the performance of its automated database-driven system. Cases selected for audit are extracted from the DOL’s database and assigned to a case worker, an “old school” manual process that often drags the process out by another six to 10 months. Fortunately, a PERM applicant’s priority date is based on the date their PERM is filed, not the date of its approval, so even if final approval of their application is delayed, their place in the queue is secured.

Unlike USCIS, which is a fee-for-service agency, funded primarily by filing fees, there are no filing fees for PERM as DOL is funded by U.S. taxpayers. As such the wheels of progress move slowly at DOL, and PERM processing times get longer and longer with each passing year. For DOL to offer premium processing would require a complete overhaul of how the DOL is organized and funded, which is not likely to happen any time soon.

Yes, but none of them are particularly easy. Options include the EB-1 preference categories: extraordinary ability alien, outstanding professor and researcher; multi-national managers or executives; and National Interest Waivers in the EB-2 category. There are also other less frequently used preference categories such as special immigrants, religious workers and EB-5 investors who are also exempt from the labor market test process known as PERM.

The national interest waiver (NIW) is a special waiver available to individuals who qualify in the EB-2 category, which allows them to by-pass or skip the PERM process. To do so they must demonstrate that it is in the best interest of the nation to relieve them from going through the PERM process.

Employment Based I-140 Questions

Form I-140, also known as the Immigrant Petition for Alien Worker, is the petition that is used by employers (and sometimes the employee themselves if permitted to self-petition) to sponsor an individual for a green card in one of the employment- based categories. The categories as noted elsewhere are subject to overall numerical limitations, and per country limitations which create separate waiting lists for countries where demand significantly exceeds supply. When filing this petition, the Petitioner identifies which employment-based category the employee falls under. Petitions must be accompanied by evidence of the employee’s eligibility for classification in the particular category noted on the petition. Petitions filed under the EB-2 and EB-3 category must be accompanied by an approved ETA9089 PERM application, unless a “National Interest Waiver” of the labor certification process is being sought. The approval of the petition confirms both the employee preference category, as well as the “priority date” which enables the employee to monitor where they stand in line/queue while waiting for their green card. It is not unusual for nationals of India and China, both oversubscribed countries, to have waiting lists which extend 20 years or more.

Processing times vary by regional service center and can range from four to eight months in duration. To see current processing times visit: Processing Times (uscis.gov)

Yes, all I-140 categories are now eligible for premium processing, but the cost is steep, currently $2,805. However, the turnaround time can be as quick as 15 business days for most EB-2 and EB-3 cases, and 45 to 60 days for EB-1 and NIW EB-2s.

Individuals from countries without waiting lists, or those with priority dates which are current based on previously filed petitions, may file their Application for Adjustment of Status “concurrently” (meaning at the same time they file their I-140). Individuals born in India or China, with huge waiting lists, are not usually able to engage in concurrent filing, unless they are seeking to recapture a priority date from an earlier petition which is now current.

An individual with an approved I-140 will typically monitor the U.S. State Department’s Visa Bulletin to see if their “priority date” is current. If it is, they can proceed to the final phase of the green card process – their immigrant visa processing. If their priority date has not been reached yet, then they must wait until their date has been reached, advancing them to the front of the queue. To check where you stand in line, click here to see the visa bulletin. The Visa Bulletin (state.gov)

There are a limited number of green cards available for employment-based cases each year, and there are per country limits which adversely impact larger countries like India and China, creating huge backlogs and decades long waiting lists for some. The line you are in is dependent upon your country of birth.

An unmarried individual is assigned to the line which corresponds to the country of their birth. If they are married and their spouse was born in a different country, the primary applicant can take advantage of that fact and request the benefit of cross-chargeability, claiming the country of their spouse’s place of birth, rather than their own. This can make a world of difference for someone from India or China and is an opportunity that we always discuss with Indian and Chinese nationals who have not yet married.

The “Visa Bulletin” can be found at The Visa Bulletin (state.gov) and is published on-line each month by the U.S. Department of State (DOS). It establishes the cut-off dates for each family- and employment-based preference category and country for the upcoming month. It typically comes out around the second or third week of the prior month giving applicants a bit of a “heads up” in advance of the month to come. It contains four main charts: the first two control the availability of family-based preference categories; the second two control availability of employment-based categories. The difference between the two charts is identified as the “Final Action Date” and this chart typically controls the availability of visas for individuals seeking adjustment of status here in the U.S. The second chart, which is called the “Filing Date” chart generally controls eligibility to apply for their immigrant visas (green cards) abroad at the designated U.S. consulate in one’s home county. Occasionally, USCIS will allow individuals here in the U.S. to use the Filing Chart, but this is typically the exception, and not the rule.

To file a I-485 you must have reached the front of whatever line or queue you are in. Your priority date establishes the date you got in line, and the Visa bulletin establishes the cutoff dates for each month. If your date is after the cutoff established for your preference category and country, then you must continue waiting. If your priority date is before the cutoff date, or your category indicates a “C” which means your category is “Current” or has no waiting list, then you can file your I-485 Application during the month covered by the visa bulletin. Please note that it is not unusual for the availability of priority dates to “retrogress” which means, move backward. So, while your priority date might have been current last month, it may no longer be current this, or the coming month. Thus, you must closely monitor your cutoff date, and be ready to file your I-485 as quickly as possible, preferably prior to the close of the month, when the date might go backward. Please note that you can only file your I-485 in a month when there is a visa available to you. Even if your application is accepted by USCIS, you should continue monitoring your priority date because USCIS cannot finalize and approve your I-485 unless your priority date is current at the date of filing and is also current at the time of approval. USCIS cannot finalize your I-485 in any month that your priority date is after the cutoff date established for your category that month. It is not unusual for individuals to file their I-485, and then find out the next month that the category retrogressed by several years, leaving them in a form of limbo where their green card cannot be finalized, because their priority date is no longer current. However, USCIS will keep the I-485 pending and the individual will be able to apply for work authorization and travel authorization while waiting for their priority date to become current again.

Individuals who qualify for a green card under one of the preference-based categories are also entitled to have their spouse and children obtain green cards with them as “dependents.” However, a child can only get a green card along with their parent as long as they remain unmarried and under the age of 21. This is a major concern for nationals of over-subscribed countries such as India or China, where the parent might have a 15 to 30 year wait to reach the front of their queue. We regularly counsel individuals on how to address their need to keep their family intact and explore ways in which an individual might upgrade from one preference category to another. Children who age out as dependents will often change status to F-1 student status to enable them to continue their university studies here in the U.S. While their parents, after being approved for a green card, can sponsor them by filing a family-based petition, the waiting list is extraordinarily long, and the child must remain unmarried.

The Child Status Protection Act (CSPA) helps prevent children from aging out of immigration benefits due to administrative delays and ensures they can continue to pursue lawful permanent resident status even if they turn 21 during the process. The age of a dependent child for green card purposes can be frozen in time or adjusted downward based on a complex set of rules. CSPA applies to various categories of immigrants, including refugees, asylees, immediate relatives, family preference, employment preference and diversity visa immigrants.

Adjustment of Status Questions

Adjustment of status is the process for individuals who are already in the United States to obtain a green card without departing the country. This is generally only available for individuals who were inspected and admitted to the U.S. and who have continuously maintained lawful status since their entry. However, immediate relatives need only show the lawful entry. Applicants who are not inside the United States or who are not eligible for adjustment of status must instead apply for their green card status through consular processing by appearing at an interview at a U.S. Embassy or consulate abroad. For more information on Consular Processing visit the NVC website.

The Form I-485 requires a great deal of information to confirm the applicants personal eligibility for a green card and to allow USCIS to flag any areas of concern. The form also asks dozens of yes or no questions that relate to possible reasons to deny a green card application based on the inadmissibility sections of the Immigration and Nationality Act. While answering ‘yes’ to one of those questions does not necessarily mean that your case cannot be approved, we recommend that you contact our office for a consultation if you think you may need to answer ‘yes’ to any of those questions.

Possibly. Some J-1 visas holders are subject to a two-year foreign residence requirement. Noncitizens who are subject to that requirement must prove that they spent at least two years in their home country after completing their J-1 stay before they may apply for a green card, immigrant visa, H or L visa.

Even if your record has been sealed, it must be disclosed to USCIS. This may even require that your record be unsealed so that you can obtain the required documents to submit to USCIS.

This may be a problem. A noncitizen who entered the United States as a crewman is not eligible to adjust status inside the U.S. and would instead need to apply for an immigrant visa at a consulate abroad, if eligible. D visas are for crewmembers, so if you last entered the U.S. with a D visa, you are not eligible to apply for adjustment of status. C visas are transit visas that can be used for various purposes including for individuals transiting the U.S. to join the crew of a vessel. If your C visa indicates that its purpose is to allow you to join a crew, you are also ineligible to adjust status inside the U.S.

Yes, you may apply for adjustment of status even though your I-130 or I-140 indicated that you would apply for an immigrant visa in your home country instead. In this scenario, you should notify the National Visa Center of the change in plan. If your situation is the opposite (you said on the I-130 or I-485 that you would adjust status, but now wish to consular process), you must first file an I-824 application with USCIS, for USCIS to send your approval notice and file to the National Visa Center.

If your children and spouse are in the United States when you apply for adjustment of status, they may also apply for adjustment of status as long as they can also show they are eligible, for example by showing they were inspected and admitted into the U.S., and they have maintained lawful nonimmigrant status since arriving. If your children and/or spouse are outside the U.S. when you apply for adjustment of status, they will need to wait until your green card is approved before they may apply for an immigrant visa at a U.S. consulate abroad.

Any spouse or child acquired before your green card application is approved may also apply for adjustment of status as a derivative of your case. However, any spouse or child acquired after your green card is approved will need to be processed separately through a family-based I-130 petition.

Follow to join means that your derivative spouse or child will immigrate to the U.S. more than six months after you.

No, USCIS does not offer Premium Processing for adjustment of status applications.

Your priority date must be current as of the date that USCIS approves your I-485 Adjustment Application. If the date retrogresses (moves back) after your I-485 application was filed, then USCIS will keep that application pending while it waits for the priority date to become current again. You can renew your work permit and advance parole travel document during this time, if you wish. Once the priority date is current again, USCIS will resume processing the green card application.

When a noncitizen applies for adjustment of status based on a family petition, the U.S. citizen or green card holder who filed the petition must promise to provide the new immigrant with any support necessary to maintain him or her at an income level that is at least 125 percent of the federal poverty guidelines for the household size. The petitioner must also show that he or she has an income of at least 125 percent of the federal poverty guidelines for his or her household size. In some situations, income of the green card applicant may be used when calculating that income. If the U.S. citizen or green card holder petitioner does not have enough income, he or she may use assets to make up the difference or may find a joint sponsor who is willing to make the same promises as the petitioner. See the Poverty Guidelines to determine what your support requirements might be.

Whether you should apply for Advance Parole will depend on your specific circumstances and travel plans. For most adjustment applicants, Advance Parole is required prior to any international travel. If you depart the U.S. without an approved Advance Parole travel document, USCIS will determine that you abandoned your I-485 Adjustment of Status application and will deny it. You will not be permitted to return to the U.S. However, there is an important exception to this rule for H and L nonimmigrant visa holders. If you hold valid H or L status, you may continue to travel with your H or L visa while your I-485 application is pending, without abandoning your I-485 application. USCIS has increased the filing fee for Advance Parole travel documents to $630 for paper filings or $580 for online filings. If you do not plan to travel, or if you have a valid H or L visa, it may not make sense to pay the filing fees for a travel document. However, if you do not hold H or L status and plan to travel internationally while your adjustment application is pending, you must first apply for and receive an Advance Parole travel document.

An EAD is an Employment Authorization Document, which allows the bearer to obtain a social security number (if they don’t already have one), and to work legally in the United States. Applicants for adjustment of status may also apply for an EAD for an additional government filing fee. USCIS generally approves the EAD application within four to six months, meaning that the noncitizen may start working even before the green card is approved. However, if you already have work authorization through your nonimmigrant status, or if you do not need to work or obtain an EAD, you may decide against requesting an EAD.

Biometrics are unique physical characteristics that can be used to confirm an individual’s identity. USCIS collects biometrics for many types of applications, including adjustment of status applications, to confirm the identity of the applicant. If USCIS requires biometrics from you, they will schedule you for an appointment at one of its Application Support Centers. When you attend your appointment, USCIS will collect biometrics from you, which may include your fingerprints, photograph, and/or signature. If you previously provided biometrics, USCIS may instead tell you that they will reuse your previously captured biometrics and not require you to attend a new biometrics appointment.

Visit this website to search for doctors who are authorized to preform immigration medical examinations. n These doctors are also called Designated Civil Surgeons. Note that health insurance policies do not cover immigration medical examinations, and there is not a set fee for those examinations. You may wish to call several different doctors to compare prices.

Consular Processing Questions

Consular processing is the process of applying for an immigrant visa and green card status at a U.S. consulate abroad. This process is used for individuals who are not already living in the U.S., and for those who are in the U.S. but who prefer to be processed for their green card abroad.

The National Visa Center (NVC) is part of the U.S. Department of State. It is responsible for collecting all information necessary for green card processing to take place at one of the U.S. consul posts abroad, and then forwarding that paperwork to the appropriate U.S. consulate in advance of the interview. If you indicated on your I-130 or I-140 petition that you would apply for your immigrant visa abroad, USCIS will send your file to the NVC once it approves the I-130/I-485 petition. The NVC will then contact you to request you submit the immigrant visa application, fees, and supporting documentation. Click here for further information on the National Visa Center.

You will need your birth certificate, valid passport, any marriage or divorce certificates, police clearance certificates for any countries you have lived in after turning 16, and criminal, court, or military records, if applicable. If you are applying for an immigrant visa based on a family-based petition, you will also need proof of the petitioner’s U.S. status, income, and recent federal income tax filings.

USCIS’s Form I-824 is an “Application for Action on an Approved Application or Petition.” In the consular processing context, this form is used when the applicant wishes to change the location for their green card processing from here in the United State (under the Adjustment of Status process) and instead wishes to be processed for their immigration visa by the U.S. consul in their home country. It is also used when a derivative spouse or child wishes to apply for an immigrant visa abroad after the principal applicant adjusted status inside the United States. After USCIS approves your I-824 Application, your file will be forwarded to the National Visa Center to begin the appropriate consular processing case.

Police clearance certificates are required for every country where you have lived for six months or more after turning 16. The only exceptions are that no police clearance certificates are required for time spent in the United States, and no police certificates are required from countries for which such certificates are unavailable, as determined by the Department of State’s U.S. Visa Reciprocity and Civil Documents by Country database.  Immigrant visa applications must consult that database to see the requirements for police clearance certificates for every country where they have lived for six months or more after turning 16.

The consulate may recommend DNA testing when other evidence of a biological relationship is insufficient. The consulate may not require DNA testing, but it may refuse to issue an Immigrant Visa if it finds insufficient evidence to prove the family relationship the visa requires.

Many applicants will not have a choice between adjusting status or consular processing in their home country, as immigration history and current country of residence may require one avenue or the other. However, for applicants who are able to pursue either option, adjustment of status is generally preferred. This is because adjustment applicants are able to remain and work in the U.S. while their applications are pending and because they are entitled to all the privileges and protections of the U.S. Constitution, while such rights and protections do not exist while on foreign soil.

EAD Questions

An EAD is an Employment Authorization Document, which allows the bearer to obtain a social security number (if they don’t already have one), and to work legally in the United States. However, some noncitizens may work automatically as a part of their status, for example lawful permanent residents (green card holders), asylees, individuals with employment-based visas (E, H-1B, J, L, TN) and L-2S visa holders. Others will first need an EAD before they accept employment. The immigration law defines the different types of noncitizens who may qualify for an EAD. Some of the most frequently used categories for an EAD are for applicants with pending I-485 adjustment of status applications, and for spouses of H-1B nonimmigrants with approved I-140 petitions. To apply for an EAD, you must submit an application, supporting documents, and passport-style photographs to USCIS.

To work lawfully in the United States, a noncitizen must possess the legal authority to work. Such authority can be automatic and incidental to their status and not require an EAD. Examples of those authorized to work without a separate EAD are: Lawful Permanent Residents, Conditional Residents, Aslyees/Refugees, H-1B visa holders, E-1/E-2/E-3, J-1 TN, L-1 and L-2S visa holders, etc. Other categories of status may only engage in employment after first obtaining an Employment Authorization Document (EAD). Examples of these include F-1, H-4, applicants for Adjustment of Status, TPS, etc. You cannot legally work in the U.S. without some type of employment authorization, whether automatic as part of your status or as a result of an EAD. Accepting employment without proper authorization may affect your ability to receive future U.S. immigration benefits.

The validity period of your EAD will depend on your EAD eligibility category and possibly on the time remaining on your nonimmigrant status. For example, if you apply for an EAD because you have a pending I-485 adjustment application, the EAD should be valid for a five-year period. If you apply for an EAD based on having H-4 status and being married to an H-1B nonimmigrant with an approved I-140, then your EAD will only be valid to the expiration date of your lawful stay in H-4 status. Other types of EAD categories will have other validity periods. If you have questions about an EAD application, please contact our office for a consultation.

Noncitizens who are authorized to work in the U.S. are authorized to obtain a social security card. If you have an EAD, you are authorized to work and can obtain a social security card. However, if you are authorized to work based on a nonimmigrant visa status, then you can also obtain a social security card with proof of that status, rather than with an EAD. If you are not authorized to work in the U.S., you will not be able to obtain a social security card.

Some states require applicants for a driver’s license to prove lawful immigration status, with an EAD as one example of a document that proves lawful immigration status. Individuals with no EAD but with certain types of nonimmigrant visas will also be able to obtain a driver’s license in states that require proof of immigration status. Other states, including Massachusetts, California, New Jersey, Connecticut, New York, and others, will permit noncitizens to obtain driver’s licenses without proving their immigration status. To see which states issue driver’s licenses to undocumented individuals, please visit States Offering Driver’s Licenses to Immigrants   Note however that federal law requires a ‘REAL ID’ to permit access to domestic flights and certain federal facilities. A driver’s license that does not require proof of immigration status will not qualify as a REAL ID for those purposes.

USCIS’s processing times vary substantially depending on what type of case you have pending. You can check the standard processing time for your type of case here.

The processing times published there reflect how long USCIS is taking to process 80% of similar cases. Your case may take more or less time to reach completion, so this is only a rough estimate.

You may check the status of your USCIS application by entering the receipt number from your I-797C receipt notice on the U.S. Citizenship and Immigration services website here.

All noncitizens in the U.S. are required to notify USCIS if their address changes, even if they have no pending application or petition pending. However, if you have a pending application or petition, it is important that you also include the receipt number of that pending case when you update your address. Otherwise, USCIS will not update the mailing address for your application, and you may miss important notices that could even result in the denial of your application. If you have an online USCIS account, you can log-in there to update your address. If you do not have an online account, you can still update your address online here. You also have the option to mail in a paper change of address form.