Employment-Based

Responding to H-1B Request for Evidence in the Trump Era

/

Responding to H-1B Request for Evidence in the Trump Era (April 11, 2018)

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

Responding to H-1B Request for Evidence in the Trump Era Read More »

Employers Impacted By Immigration Changes In Trump’s First Year

/

Employers Impacted By Immigration Changes In Trump’s First Year (February 20, 2018)

The January 30, 2018 State of the Union became another chapter in President Trump’s ongoing campaign for America to serve its own needs and its people first.  Embodying this ideology, President Trump declared that, “we will follow two simple rules: Buy American and Hire American.”

During his first term, those two simple rules have dramatically changed the immigration process into the United States.  Although Congress has yet to pass immigration reform, President Trump has issued several executive orders that have overhauled the United States immigration system. Trump’s first year has made it more difficult for employers to sponsor or hire immigrant workers and following Trump’s State of Union employers should not expect it to become easier to hire immigrant workers during the Trump’s tenure.

Employers Impacted By Immigration Changes In Trump’s First Year Read More »

National Interest Waiver

/

National Interest Waiver (December 18, 2017)

Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves.  Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.

Fortunately, there are a few exceptions.  Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”

National Interest Waiver Read More »

H-1B for Nurses

/

H-1B for Nurses (October 31, 2016)

Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.

H-1B for Nurses Read More »

Do’s & Don’ts in H-1B Filing Season

/

Do’s & Don’ts in H-1B Filing Season (February 9, 2016)

Each year prior to April employers and their prospective employees vying for the much coveted H-1B status, of which currently only 85,000 visas are available every year, work to file their cases with U.S. Citizenship & Immigration Services (USCIS) and hope that they will actually have their H-1B applications approved.  Because so much can be at stake in these filings, potentially resulting in loss of job and business opportunities, not to mention potentially displaced foreign nationals who would not be able to be in or continue to stay in the United States absent other viable immigration options, paying attention to details and making sure that a filing is done correctly may make all the difference.

Do’s & Don’ts in H-1B Filing Season Read More »

Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers

/

Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers (October 19, 2015)

H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year.  To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training.  The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers.

On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions.  (26 I&N Dec. 542, 2015.)  This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.

Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers Read More »

Basic Overview of the H-1B Visa Qualifications and Procedures

/

Basic Overview of the H-1B Visa Qualifications and Procedures (September 9, 2015)

The H-1B is a non-immigrant visa that allows United States employers to petition on behalf of a foreign national employee to work in a “specialty occupation” on a temporary basis. While the configuration of the visa program has changed over the years, the current H-1B program has been in effect since the Immigration Act of 1990. Qualifications for specialty occupations will be discussed in more detail, but are generally comprised of highly educated workers like scientists, economists, engineers, and doctors.

Basic Overview of the H-1B Visa Qualifications and Procedures Read More »

USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015

/

USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015 (August 14, 2015)

L-1 visas are non-immigrant visas specific to the employees of multinational corporations. These visas provide a means to transfer employees currently working for the company abroad to an affiliated U.S. operation. L-1A visas allow higher-level employees such as executives and managers to transfer to a U.S. company. The L-1B category encompasses other current employees who hold “specialized knowledge” in the field or of the company.

USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015 Read More »

Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons

/

Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons (December 13, 2012)

A B-1 business visitor visa is a nonimmigrant visa issued to those who visit the US for limited business purposes[5]. Ordinarily, the B-1 visa is not available for those who wish to engage in gainful employment within the US.[6] An H-1B visa, on the other hand, would be an appropriate visa category to allow certain specialized workers to work within the US. The U.S. government has drawn the line for permissible business activity under the B-1 visa as conduct that “is incidental to work that will principally be performed outside out the United States.”[7]  Examples of permissible business activities include attending conventions, conferences, and providing consultations[8].

However, the B-1 visa has an exception explicitly carved out by the Department of State (DOS), which states that “there are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 applicants in certain circumstances.”[9] For example, a qualified H-1 visa applicant coming to the United States to perform H-1 services on a temporary, short-term basis typically lasting no longer than six months.

Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons Read More »