Common Questions

A The US offers around 140,000 employment-based visas for qualified applicants. These visas are divided by county of birth and five preference categories. The five preference categories:

• Employment First Preference (EB-1)- 28.6% of visas
• Employment Second Preference (EB-2)- 28.6% of visas
• Employment Third Preference (EB-3)- 28.6% of visas
• Employment Fourth Preference (EB-4)- 7.1% of visas
• Employment Fifth Preference (EB-5)- 7.1% of visas

A Usually, an employer must file an Immigrant Petition for Alien Worker, Form I-140, for the appropriate preference category, with the U.S. Citizenship and Immigration Services (USCIS). An employer must generally obtain labor certification approval for two preference categories: Employment Second Preference (EB-2) and Employment Third Preference (EB-3).

A There will absolutely be an impact on his or her eligibility of citizenship as any stays longer than 6 months will make an individual ineligible. If the length of time outside of the US is known beforehand there may be some ways to preserve eligibility for citizenship. With regards to their green card status, A good rule of thumb is as follows:

• Travel for less than 6 months- No issues or red flags raised
• Travel between 6 months to 1 year- Red flag raised but assumed to be a green card holder. It is the burden of the government to prove otherwise. To that end they are able to ask questions and gather evidence to ensure the traveler is living in the US and not visiting.
• Travel of more than a year- Red flag raised and assumed not to be a green card holder. The burden shifts to the traveler and they must prove they are in fact a permanent resident of the US. The employee may not even be allowed on the plane.

AAn H-1B visa is a non-immigrant temporary working visa for “specialty occupations” (positions which require at least the equivalent of a Bachelor’s degree) which allows foreign nationals to live and work in the U.S. for up to six years. New limited exceptions for the six year cap were implemented for H-1B visa holders who have passed specific stages of their permanent residency processing. Part-time H-1Bs and multiple H-1Bs for one alien are allowed. Employers must pay H-1B employees the required wage for the full number of hours set forth in the petition even if the employee does not have an assignment or is temporarily unable to take up an assignment (e.g. for lack of a professional license required by some H-1B occupations.) This means full-time wages for full-time positions. Part-time employees must be paid for the number of hours specified in the petition. In an effort to curtail an influx of foreign workers, the United States Congress set a limit on how many new H-1B visas could be allocated within a government fiscal year. To meet an overwhelming demand by U.S. employers, the annual cap of new H-1B visa allocations was raised to 195,000 for fiscal years 2001 through 2003. As of October 1, 2003, however, the annual cap has returned to 65,000 – the lowest number since 1998. For this reason, H-1B numbers have run out relatively early in the government’s fiscal year. Please note, this annual cap applies only to new H-1B visa allocations and does not apply to H-1B extensions or “transfers” to new employers. The annual cap also does not apply to employees of higher education institutions, non-profit research organizations and government research institutions. On December 8, 2004, President Bush signed new legislation entitled the “L-1 Visa and H-1B Visa Reform Act” which allows foreign employees who have earned a Master’s degree or higher from U.S. institutions of higher learning access to an additional 20,000 H-1Bs per fiscal year. Given the demand for H-1Bs, however, even these additional numbers are expected to be exhausted quickly within the government’s fiscal year. Also, employers must pay H-1B employees no later than 30 days after the employee is admitted to the U.S. in H-1B status, or 83 days after non-immigrants already in the U.S. become eligible to work. The provision does not relate to nonproductive time due to non-work-related factors such as voluntary absence on the employee’s part.

ASelf-employment is not allowed under an H-1B. However, an H-1B may start a business venture as long as that employee can show that he or she is under the control of the US business, he or she started. One of the ways to do this is to have an independent, separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control his employment for the company he or she intends on establishing. This by itself will not make the employment permissible, as there are other requirements as well, including proving that: the company is a legitimate company, the company has to be able to pay “prevailing wage” for the employee, the job performed by the employee requires a bachelor’s degree, etc. This process can be complex and the knowledge and insight offered by an attorney, such as myself, is invaluable.

AAccording to USCIS: Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, if the H-1B nonimmigrant:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

AThe L-1 visa classification, designed for “Intracompany Transferees,” is a temporary, non-immigrant category which allows a person to work in the United States. To qualify for this category, a person must show that he or she will be transferred to a U.S. parent, branch, affiliate, subsidiary or joint venture of a foreign company for which he or she has worked at least one year within the past three years prior to entry in the U.S. For L-1A classification, the person must have worked in an executive or managerial capacity in the company abroad and must be coming to the U.S. temporarily in order to serve in a similar capacity. For L-1B classification, the person must have had “specialized knowledge” particular to the company and must be coming to the U.S. temporarily in order to work in a similar capacity. “Specialized knowledge” is defined as knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interest and its application within international markets, or an advanced level of knowledge in the organization’s processes and procedures. The foremost important issue in the L-1 process is proving the proper relationship between the U.S. and foreign companies. The U.S. company must be the same employer, or its affiliate or subsidiary. Affiliation and subsidiary relationships include: 1) A majority of stock ownership in both companies; 2) Control over management and policy when there is less than the majority of stock ownership; and 3) Ownership by a common group or the same individuals, in the same share or proportion of each entity, so that there is no danger of one group controlling the foreign entity and another the U.S. one. Note that a mere contractual relationship (e.g., licensing/franchising) is not sufficient, generally, to establish the necessary relationship. Factors which the USCIS may consider in making its determination are 1) Common name; 2) Regular sharing and exchange of personnel; 3) Cross directorship; 4) Sharing of technical, financial and research skills; and 5) Size and general recognition of the organization. Attached to this memo is a generic list of ideal documents, if available, used to support an L-1petition, including documentation necessary to prove the required relationship. Second, the most important issue for the L-1A is proof that the positions both abroad and in the U.S. are executive or managerial in nature. For the L-1B, it is that the beneficiary has obtained the specialized knowledge and the U.S. position requires someone with such knowledge. Though the L-1 petition process is rather straight forward, extensive documentation must be assembled in order to prepare the petition properly.

AInternational Medical Graduates (IMGs) account for a large number of physicians currently practicing medicine in the United States today. Many of these IMGs are not US Citizens and often participate in graduate medical education (GME) through a residency or fellowship program under the auspices of J-1 status. All IMGs who are involved in GME in J-1 status are subject to the two-year foreign residence requirement, which obligates them to return to their home country or country of last permanent residence for at least two years prior to being eligible to obtain most other immigration benefits. Under the Conrad waiver program, a clinician may receive a waiver of the two-year requirement if he or she agrees to practice in an underserved area designated by the U.S. Department of Health and Human Services (HHS). This program was created in an effort to address the chronic shortages of primary care and mental health clinicians in selected communities around the nation. States that choose to participate may request up to 30 such waivers per fiscal year. Hence, the program was nicknamed the “Conrad State 30” waiver program. This process can be complex and the knowledge and insight offered by an attorney, such as myself, is invaluable. If you are an IMG or a medical clinic/hospital that has an IMG in J-1 status, you should reach out for guidance and counsel 1-2 years before graduation.

A10,000 visas are yearly granted to qualified applicants who invest $1 million in a new commercial enterprise employing at least ten full-time workers. The investment need only be $500,000 if done in a “targeted employment area” defined as a rural area or one which has experienced an average unemployment rate of at least 150% of the national average rate. Investors must show that a “qualified investment” (as defined below) is being made in a new commercial enterprise located within an approved regional center and using “reasonable methodology”, that 10 or more jobs are created directly or indirectly through revenues generated from increased exports resulting from the new commercial enterprise. Investors, including their spouse and unmarried minor children, are initially granted conditional permanent residence status and the alien investor must file a petition with the USCIS within 90 days prior to the two-year anniversary requesting that conditional status be removed, again establishing that alien has complied with the conditions of the investor visa.