Immigration US

40+ Facts About United States Employment Immigration Rules

The United States remains the dream working destination of many professionals from different parts of the world. If you have plans of coming to the US for employment reasons, here are important facts you should know:

  1. Under the 180-day portability rule, your approved I-140 may still remain valid if you change employers during an employment-based green card application process if your I-485 has been pending for at least 180 days. The portability provision enables some nonimmigrant workers to change to a different job without the risk of being “out of status.” (Source: USCIS)
  1. If you have a pending Form I-485 for Adjustment of Status application and you are working with an Employment Authorization Document (EAD), even if you are certain that your green card would be ready before your work permit expiration, to be on the safe side, it is advisable to still go ahead and apply for its renewal. (Source: USCIS)
  1. The 180-day rule under the AC21 Act is determined by the receipt date of your petition. The counting usually starts from the date your Form I-485 was received by the USCIS, and not the date when USCIS generated the receipt of notice. The receipt date refers to the date the application was received at the mailroom; NOT the date the application was mailed, and NOT the date the receipt of notice was issued. The portability provision enables some nonimmigrant workers to change to a different job without the risk of being “out of status.”
  1. One of the major requirements for porting (changing) from one employer to another during a green card application is to have the same or similar occupational classification. However, if the jobs are not exactly the same, your green card application may still be processed if the differences are minor.
  1. You may use an Employment Authorization Document (EAD) to request for change of employers under AC21 portability rule or let your employer file an H-1B extension on your behalf if you are an H-1B holder. 
  1. You can change jobs multiple times using AC21. For instance, you left Company A that filed your I-140 after your I-485 has been pending for at least 180 days and moved to Company B under the AC21 rule. After working with Company B for some time, you just realized it isn’t the best place for you. You are permitted to move on to Company C under the same rule.  The most important thing is that the job descriptions for each of those companies are the same or similar. 
  1. You may still apply for EB-2 National Interest Waiver even if you have a pending PERM labor certification application. In other words, if you have applied for other subcategories in the Employment-Based Second Preference (EB-2) or Employment-Based Third Preference (EB-3) and your PERM application is pending with Department of Labor (DOL). But thereafter, you decide to give the EB-2 National Interest Waiver (NIW) a try, you can go ahead and file the EB-2 NIW petition despite still having a pending PERM with DOL. 
  1. The Employment-Based First Preference (EB-1) green card has 3 subcategories, namely EB-1A for professionals with extraordinary achievements in their fields, EB-1B for outstanding researchers and professors, and EB-1C for executives and managers. The EB-1 is the most prestigious green card category that offers a wide range of benefits which include faster and flexible application process. This is because it does not require the PERM labor certification process, and also allows applicants who meet the eligibility criteria for EB-1A to sponsor their petitions without the need for a job offer from a U.S. employer. 
  1. To be eligible to act as a petitioning employer for Multinational for executive and manager (EB-1C) subcategory, the sponsor must be a multinational U.S. organization with a subsidiary, branch, or affiliate in a foreign country, and must have been operating a business in the U.S. for at least a year before filing a petition for the foreign employee. 
  1. If you are seeking a PERM-based employment green card, your green card priority date is the date the Department of Labor (DOL) received your labor certification application. 
  1. If you are seeking NIW (National Interest Waiver) or Employment-Based First Preference EB-1 green card, your green card is the date USCIS received your I-140 petition. 
  1. It is permitted for a petitioner to file multiple employment-based green card applications for the same person in different categories, such as (EB-1, EB-2, EB-3) at the same time. This can be with the same employer or with multiple employers. 
  1. In most cases, the priority date for EB-1 applicants remains current, meaning they won’t have to wait in the green card wait line before filing an adjustment of status. 
  1. The Employment-Based First Preference for Extraordinary Ability (EB-1A) green card has 10 eligibility criteria, and an applicant is expected to meet at least 3 out of the 10. 
  1. The Employment-Based First Preference for Outstanding Researchers and Professors (EB-1B) has 6 eligibility requirements, and applicants are expected to meet at least 2 to demonstrate they are an outstanding professor or researcher. 
  1. To qualify for Multinational Executive and Manager (EB-1C), the beneficiary must have worked as a manager or executive in a foreign branch of the U.S. affiliated company sponsoring the petition for at least 3 years leading to their application. 
  1. The H-1B was created in 1990 following the expansion of the 1965 Immigration and Nationality Act (INA). 
  1. U.S. employers are allowed to employ H-1B professionals to work in the U.S. when they cannot find qualified American workers for the job position. 
  1. An H-1B visa holder can only work for the employer that sponsored their visa or the visa will be revoked. In other words, if Employer A sponsored your H-1B visa petition, after receiving the visa, you cannot use it to work for employer B. If you get a job offer from Employer B, Employer B must file a fresh petition for you. 
  2. For an employer to obtain an H-1B visa for a foreign professional, the employer must file a Labor Condition Application (LCA), and submit Form I-129, Petition for Nonimmigrant Worker after the approval of the LCA. If the I-129 is approved, the foreign national will be issued an H-1B visa. 
  3. Establishment of employer-employee relationship is one of the most important aspects of the H-1B visa application. Employer-employee relationship indicates that there is enough proof that the employer will or has the ability to hire, pay, fire, and supervise the H-1B employee. In other words, the employer is in control of the work of the employee. 
  4. The annual H-1B visa quota is 85,000 in total. Out of the 85,0000, 65,000 are issued to foreign professionals with a bachelor’s degree or equivalent while the remaining 20,000 goes to applicants with an advanced degree. 
  5. Dependents (spouse and dependent children) of H-1B visa holders can obtain H-4 visa. An H-4 visa holder may apply for and get a work permit to allow them to work in the U.S. 
  6. You may upgrade or port from one green card category waiting line to another with a shorter waiting time. For example, moving from EB-2 to EB-1 green card queue. This can be possible if after staying in the EB-2 waiting line, you later acquire skills, education, and/or experience that meet the EB-1 requirements and get a new job position that meets the EB-1 requirements. In this case, your employer will only need to file a fresh Form I-140 petition along with the newly acquired supporting evidence, for EB-1 on your behalf. With that, you would be able to expedite your green card process so long the new category has a shorter waiting time. 
  7. To obtain an H-1B visa for their prospective foreign employees, employers must undergo an electronic registration process to register the employees. After the registration, the United States Citizenship and Immigration Services (USCIS) will select the eligible candidates. After the selection, employers can then proceed to process the H-1B application for only the selected individuals. 
  8. If your H-1B employment is terminated by your employer, you may have a 60-day grace period to remain in the U.S. to find another employer who is willing to offer you a job and sponsor your visa application. If at the end of the grace period, you cannot find employment, you will have to leave the U.S. or risk being flagged for being out of status and unlawful presence. 
  9. The H-1B visa for a specialty occupation requires theoretical and practical expertise in different fields, such as I.T., finance, accounting, medicine, mathematics, and science, etc. The job offer must also meet one of the following requirements to qualify as a specialty occupation: The minimum entry requirement for the position is a Bachelor’s degree or higher degree or its equivalent. The required degree is so common in the industry, or the job is so unique that it can be done only by a degree holder. The employer normally requires at least a degree or its equivalent for the job position. The nature of the job tasks is so specialized that required expertise to carry them out is usually associated with the attainment of a minimum of bachelor’s degree 
  10. If your H-1B status expires and your employer doesn’t file an extension, you will have only 10 days to leave the United States, except you have another qualifying status that allows you to stay. As far as H-1B visa is concerned, one has to be working and earning wages from their employer in order to maintain lawful status. 
  11. The U.S. employers hiring H-1B workers are required by the Department of Labor (DOL) to provide evidence showing their ability and readiness to pay the prevailing wage or actual wage. This is because employers are not allowed to pay below a certain wage, depending on the industry, place of employment, and other related factors. 
  12. In some work visa applications, employers are required to pay their employees the prevailing wage. Prevailing wage, according to the Department of Labor, is the “he average salary paid to similarly employed employees in a specific job in the area of intended employment.” This may be determined by using the collective union contract, which contains wage rate applicable to that profession. In a job not covered by a union contract, the weighted average of salaries paid to other employees in similar employment in the geographic location can be used to determine the prevailing wage. 
  13. In some work visa applications, employers are required to pay their employees the “actual wage”. Actual Wage, according to the U.S. Department of Labor is the wage rate paid by an employer to those with qualifications and experience similar to the H-1B employee’s experience and qualifications for the specific job in question at the place of employment. 
  14. The H-1B petition can only be filed by your prospective employer. H-1B visa beneficiary cannot self-sponsor his or her own petition. However, there is an exception to this, whereby an H-1B petition is filed using a U.S. organization owned by the visa beneficiary. This, however, is usually subjected to much more scrutiny by the USCIS. 
  15. A visa cap is the annual numerical limitation indicating the number of visas that can be granted in a year under that particular category. The H-1B is one of the visas with this regulation. 
  16. The H-1B application process has a timeframe for employers to submit petitions on behalf of their prospective employees. The H-1B annual window opens every first working day in April and will remain open until either when 80,000 petitions have been collected by the USCIS or when 7 days have passed. Whichever one comes first out of the two will be the end of submission for that year. 
  17. H-1B transfer means moving from one employer to another. To be eligible for a transfer, you are required to be physically present in the U.S. Your new employer will need to submit an H-1B transfer petition to the USCIS. Once the new employer has submitted the petition and received a Notice of Action receipt (I-797C), you can start working on your new job. 
  1. The L-1 Intracompany Transferee Visa is an employment-based classification, which allows U.S-based organizations to transfer a foreign professional employees from related foreign offices to the U.S. For a foreign employee to qualify for this visa, they must have worked in the capacity of executive or manager for the foreign parent, branch, or subsidiary of the U.S. organization for at least one of the last three years. In most cases, an L-1 petition is filed for a single beneficiary. 
  1. The L-1 blanket visa program allows U.S.-based organizations to petition the United States Citizenship and Immigration Services (USCIS) to bring many foreign employees to the United States quickly and on short notice. It is a single visa petition that practically eliminates the need to file separate L-1 petitions for each of the qualified employees. Once the L-1 blanket visa petition is approved, each transferring employee may file an application for an L-1 visa directly at the U. S. embassy or consulate. 
  1. To qualify for L-1A for employees holding executive capacity, you must demonstrate that you have the ability to make decisions of wide latitude within the company without much supervision from a higher authority. In other words, your job position allows you to direct the affairs of the company or a component within the company. The L-1 Intracompany Transferee Visa is an employment-based classification, which allows U.S-based organizations to transfer a foreign professional employees from related foreign offices to the United States. 
  1. To qualify for L-1B for employees holding a managerial capacity, you will need to demonstrate that you are holding a position that affords you the ability to manage the organization by controlling and supervising the works of other professional employees in the organization, or a department, subdivision, function, or component of the company. The L-1 Intracompany Transferee Visa is an employment-based classification, which allows U.S-based organizations to transfer foreign professional employees from related foreign offices to the United States. 
  1. Every L-1 visa beneficiary is initial 3 years validity even when the validity for the L-1 blanket may expire before end date of the job in the U.S. If you enter on an L-1 blanket visa, and your visa is to expire while you are still in the United States, your organization (petitioner) will need to request for an extension of the L-1 blanket petition or file an individual L-1 petition to support your continued stay in the U.S.  The L-1 Intracompany Transferee Visa is an employment-based classification, which allows U.S-based organizations to transfer foreign professional employees from related foreign offices to the United States. 
  1. Employers are allowed to transfer their foreign employees from one of their organizations with L-1 blanket approval to another that also has L-1 blanket approval as long as  the employee will be carrying out the same job duties. If the job duties will be different, the employer will have to request a new approval from the USCIS by filing a new I-129s on behalf of the employee.  The L-1 Intracompany Transferee Visa is an employment-based visa, which allows U.S-based organizations to transfer foreign professional employees from related foreign offices to the United State 
  1. You can request renewal of your Employment Authorization Document (EAD) any time starting from 180 days before the expiration of the current one. You may file and complete your I-765 for Employment Authorization Document (EAD) renewal application online or download the application form and complete it by hand. 
  1. An Employment Authorization Document (EAD) is not issued on a permanent basis; you will need to renew it after a certain period of time. 

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