Immigration is stressful—I aim to provide you with accurate legal analysis and careful case preparation, so you can stay in control of your lives and worry less about money and paperwork.
Services Offered
- H-1B Specialty Occupation Professionals
- TN Trade NAFTA
- R-1 Religious Workers
- PERM Labor Certification for Professionals and Non-Professionals
- I-140 Employer Sponsored Immigrant Petitions (Only EB1s for current clients; no NIWs)
- I-360 Special Immigrant Religious Workers
- Adjustment of Status
Experience with Complications such as:
- Cap-Exempt Petitioners
- Third-Party Worksites
- Experience Equivalency
- Motions to Reopen and Reconsider
- Appeals to the Administrative Appeals Office
- DOL Audits
- Ability to Pay Wages
- Priority Date Recapture
- Status Violations and Admissibility
- Status Violations and Admissibility
- Consequences of Criminal Convictions
- Waivers of Inadmissibility for Immigrants and Nonimmigrants
Procedures
At SIL, I can help you prepare and file petitions for work visas for employers and employees; pursue permanent residency through the PERM labor certification process filed by the I-140 Immigrant Petition; file adjustment of status or consular processing applications; provide support for dependent family members; and advise on complications with job changes or status violations. I will consult with either the employer or the employee and advise whether I believe there is a viable visa option available. I will provide a customized list of documents and can work directly with the employer or employee to prepare the filing. I can also provide “second opinion” consultations or consultations to employees of large companies who are concerned about their immigration future.
LEGAL OVERVIEW
Employment Sponsored Immigrant Petitions
To become a permanent resident, a person typically must have a sponsor such as a family member or an employer. The form used to sponsor an employee is called the Form I-140 Immigrant Petition for Alien Worker. It determines the immigrant classification or category, whether the employee meets the eligibility, and whether the employer can pay the employee the proper wage.
Employment sponsored immigrant petitions like family petitions have different classifications of preference and are subject to annual numerical limitations on the number of individuals who can immigrate per country. Each classification has different requirements. As many more petitions have been filed than there are “visa numbers” available, a backlog has developed for some classifications from certain countries. In the past, most immigrants had to wait many years whereas today the visas are mostly current except for individuals from China and India. Below is a summary of the main employment based petitions categories:
1st Preference – Aliens of Extraordinary Ability; Multinational Managers and Executives; and Outstanding Researchers
2nd Preference – Master’s Degrees or Higher
3rd Preference – Skilled Worker (at least 2 years of experience) or Bachelor’s Degree
3rd Preference “Other Workers” – Unskilled Workers with less than 2 years’ experience required
5th Preference – Special Immigrant Religious Workers
Petitions in the 2nd and 3rd preference categories, called EB3 and EB2, typically require the filing of a preliminary step with the U.S. Department of Labor. The employer must obtain permission from the DOL that there are no U.S. workers that are qualified, willing, able, and available to work this position prior to filing the petition. The employer must follow a strict set of DOL rules to post actual job advertisements to obtain DOL’s “labor certification”. The current process is called PERM—Permanent Employment Resource Management. If applicants apply who may qualify, the employer must contact the applicants for further interview. It is only if no qualified applicants apply or a qualified applicant declines the position will the employer be able to submit the application. Once certified from DOL, the employer can file the petition; however, the employer must establish the beneficiary meets the job requirements as set forth in the labor certification and that the employer can pay the beneficiary the prevailing wage.
A skilled attorney must analyze:
Employment and Other Nonimmigrant Visas
To stay and work in the U.S. lawfully, a temporary visitor must have an appropriate and valid nonimmigrant visa status. These nonimmigrant visas can be issued for a number of different purposes for certain designated periods of time, and each has its own specific requirements. Not many visas authorize employment in the U.S., and those that do are difficult to obtain. The following visa categories are most often available to individuals seeking to work in the U.S.:
E Treaty Trader or Investors (E-1, E-2, and E-3) – Individuals who come to the U.S. under a treaty of commerce between the U.S. The E-2 investor authorizes employment to come to the U.S. to develop and direct an enterprise as the principal investor, essential employee, supervisor or executive, or in a highly specialized skill capacity. The investment must be substantial, with investment funds or assets committed and irrevocable; the investment must be a real operating enterprise generating significant income, the investor must have control of the funds, and the investment must be at risk. This category also includes Australian specialty occupation workers, which is essentially an H-1B visa only for Australians.
H1B Specialized Occupation Professional – Workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, education, architecture, engineering, mathematics, science, medicine, etc. and other jobs that require as entry into the field at least a four-year specialized degree. The H-1B visa is subject to an annual numerical cap of 65,000 visas per fiscal year plus an additional 20,000 for graduates of U.S. master’s degree programs. A company can petition an employee to begin working on the visa as of that October 1 until the visas are exhausted. Filing often begins the first week of April because such petitions can be filed up to 180 days in advance of the start date of employment (October 1). But far more than 85,000 petitions have been filed and lately USCIS must conduct a random lottery to fill the 85,000. Thousands of petitions are rejected and not selected for an H-1B for that year despite the strength of the petition. Some employers are exempt from the H-1B cap and are able to file for the petitions at any time. Other visa options may be available, and permanent residency may also be a reasonable alternative especially for STEM OPT holders.
L International Transferee Manager or Specialized Knowledge Occupation – For certain employees of international companies with subsidiaries, affiliates, or parent companies in the U.S. to be transferred from the foreign office to the U.S. or to open a new office in the U.S. Must establish proper legal relationship and ownership between corporations and that the employee is either a manager or executive or an employee with specialized knowledge.
Aliens of Extraordinary Ability – Individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
R Religious Workers – Ministers, Rabbis, Imams, or other religious vocation or occupation for at least part time employment by a non-profit religious organization in the U.S. or a non-profit organization affiliated with a religious denomination in the U.S. The job duties must primarily relate to a traditional religious function; be recognized as a religious occupation within the denomination; and be primarily related to, and clearly involve or carrying out the religious creed and beliefs of the denomination.
TN Visa – Based upon NAFTA, TN visa permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The visa is not subject to the annual numerical cap like an H-1B and does not require a pre-filed USCIS petition at all; however, the employment position must be listed on the NAFTA professionals list.
I have worked with both large employers and small companies who may have never hired a foreign national employee before. With so many amazing universities and colleges in the area, it is becoming more common for an employer to hire a recent international graduate for temporary employment and then seek longer-term immigration options. I prefer to work closely with both the employer and the employee to provide personal and attentive service to help both parties understand the complexities of the process. I enjoy learning about different occupation fields and helping draft unique job descriptions.