Houston Employment Immigration Lawyer

The U.S. Immigration system provides foreign nationals with many ways to become permanent resident through employment. The employment-based (EB) “preference immigrant” categories include:

• EB-1: For individuals with extraordinary ability; recognized professors and researchers; and multinational managers and executives
• EB-2: For individuals who hold an advanced degree
• EB-3: For professionals and skilled workers
• EB-4: For “special immigrants” including certain religious workers, those who work in U.S. foreign service posts, retired employees of international organizations, and other specialty classes

Certain foreign nationals who are professionals in their respective fields, may be eligible for immigration through the National Interest Waiver program (NIW). The NIW pathway to permanent residence is an employment-based, second preference visa (EB-2), which qualified candidates may apply for if they hold an advanced degree or those with exceptional abilities. Generally, EB-2 visas require applicants to have an employer sponsor who has offered a position to the foreign applicant. However, the NIW is a waiver process, which allows an intending immigrant to apply for the EB-2 visa without an employer. Rather, the applicant applies based on their own merit and by proving that their proposed endeavor would be in the national interest of the U.S.  

To qualify for a national interest waiver, you must demonstrate that: 

• The proposed endeavor has both substantial merit and national importance.
• You are well positioned to advance the proposed endeavor.
• It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

 NIW Applicants must also meet at least three of the seven criteria listed below: 

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

Some types of employment-based immigrant visas require applicants to have a sponsoring U.S. Employer and a current job offer, which fits their skill set. For most types of employment-based categories, the employer must establish that there are insufficient available qualified and willing U.S. workers to fill the position being offered by the company and that the position is being offered at the prevailing wage. 

In order to hire a foreign worker on a permanent basis, an employer must complete the PERM Labor certification process and petition for the immigrant employee, as outlined below: 

• Step 1: Wage determination by the Department of Labor National Prevailing Wage Center (DOL NPWC)

After obtaining job details, including the job title, location, offered salary and job description, a request is submitted to the DOL NPWC for a wage determination. The DOL NPWC will issue a number for tracking purposes. 

• Step 2: Testing the U.S. Labor Market – Notice and Advertisement Requirements

After the wage determination is issued, the employer will need to post a notice outlining the details of the job offer. Advertisements for the position will need to be posted as required by the DOL and any U.S. citizen applicants whose resumes meet the position requirements must be contacted and interviewed.

• Step 3: Labor Certification 

After 30 days have passed since the removal of the job notice and required advertisements, the labor application will be eligible for filing. Once the labor application has been filed, the DOL may randomly select the filing for an audit to ensure that all requirements were met. 

• Step 4: I-140 Petition 

Once the labor certification is approved, the I-140 petition can then be filed with USCIS. The original labor certification is submitted with the I-140 petition confirming the employee’s eligibility for the position and demonstrating the employer’s ability to pay the required wage. 

• Step 5: Adjustment of Status

If it is determined that the employee is eligible, an I-485 form may be filed concurrently with the I-140 petition to request an adjustment of status; the I-485 can be filed at a later date. 

Employers may hire foreign workers in specialty occupations or as fashion models who can demonstrate distinguished merit or ability. H-1B status is generally awarded for a period of three years initially, with the option to extend for an additional three years. H-1B is a non-immigrant status, which does not lead directly to a green card. However, many H-1B holders are eventually sponsored by their employers for permanent residence. 

Each fiscal year, the H1-B category has an annual limit, or cap, of 65,000 visas. The number of applicants always exceeds the cap, so a lottery system is in place to randomly select cap-subject applicants. However, some occupations are not subject to the cap. An additional 20,000 H-1B visas are allotted each year for applicants with a master’s degree or higher from a U.S. university. Applicants who are being sponsored by US institution of higher education, related non-profit entities and research organizations are not subject to the annual H-1B cap.

H-1B Lottery Process 

Step 1: Labor Condition Application (LCA)

There is now an online registration process to be considered in the lottery and USCIS selects the lottery winners at the end of the filing window.  The filing window to be considered in the H-1B visa lottery is currently March 1 – March 20. The company, if not already registered, may do so prior to the filing window. Registrations for specific applicants being sponsored by their employer cannot be entered prior to the opening of the filing window.The results of H-1B lottery will be made available in April and May, with a notice being issued for employers to file the selected H-1B petitions for adjudication within 90 days. 

Step 2: Prepare forms and letters necessary for the H-1B petition and PAF

Using details provided by the employer and employee in their questionnaires and documents provided, the forms are prepared and sent to the employer for signature with the certified LCA. Public Access File (PAF) is prepared and forwarded with the documents for signature to the employer.  The PAF is kept at the employer’s location and should be available for review, should the file be requested by either a member of the general public or U.S. government official.

Step 3: Submission and Processing of H-1B petition

H-1B petitions are submitted through on online system and the results of H-1B lottery generally are made available towards the end of May, with a receipt notice being issued for selected petitions. All other petitions are rejected and returned to the employer.  The employer will usually have received either the receipt notice when the petition has been selected or the rejected petition by the beginning of July.

Step 4: Adjudication of Selected Petitions

If the petition is selected, it may receive a Request for Further Evidence (RFE).  This has become a routine practice with USCIS as the current administration has placed a great of scrutiny on immigration in general and employment-based visas in particular. The employer is given 84 days to respond to the RFE. When approved, the employee will be eligible to begin work on H-1B from October 1, 2020 or later, depending on when the petition is adjudicated. Petitions can be pending long after the October 1.

L-1A Intracompany Transferee Executive or Manager

The ideal solution for companies with new or existing U.S branch operations. 

The L-1A visa authorizes the temporary employment of executives or upper-level managers who are transferred from a foreign company to a related U.S. company, which is typically a branch or subsidiary of the parent organization. Foreign companies are also allowed to establish new U.S. offices and petition for executives and upper-level managers to begin the new company’s operations. 

The L-1A visa can be extended for a total of 7 years. The employee’s dependents – spouse and unmarried children under age 21 — are also eligible for visas and will be admitted to the U.S. in L-2 status. The L-2 spouses of L-1 visa holders are allowed work authorization in the U.S., and may apply for a work permit upon arrival to the U.S. The Spouse’s employment permission will be granted for the period of authorized stay granted the L-1 principal.

L-1A Visa Requirements

The L-1A visa requires 

1. a foreign company and a U.S. company to be related as parent, subsidiary, affiliate or branch;
2. the companies must be currently doing business; 
3. the employee must have at least one year of executive or upper-level managerial experience with the foreign company; and 
4. the employee must be employed as an executive or manager with the U.S. company.

The L-1A visa petition must include detailed information about the U.S. company, including: the type of business, organizational structure, financial goals, and the size of the U.S. investment. The petition must also include information about the foreign company, including the organizational structure and the financial ability of the company to support the U.S. company.

L-1B Intracompany Transferee Specialized Knowledge 

The essential visa for professional employees with unique qualifications.

The L-1B nonimmigrant visa category permits a U.S. company to transfer a professional employee with specialized knowledge of the organization from one of its foreign offices to one of its offices located in the U.S.  In addition, a foreign company may sponsor an L-1B employee with specialized knowledge of the organization’s operations or interests to assist in establishing a new branch or subsidiary office in the U.S.  

In the L-1B context, Specialized knowledge means that the beneficially employee must possess either special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

Eligibility

Qualified L-1 employers must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country for the duration of the L-1 Employees stay in the U.S. 

Qualified L-1 employees must:

• Have been working for the sponsoring organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

L-1 Blanket Petitions

Convenience & Flexibility for Medium and Large-Scale Companies

Certain organizations may qualify for an advanced determination that the required intracompany relationship exists between the foreign and U.S. organization prior to filing individual L-1 petitions. This is done by filing a blanket L-1 petition. 

Eligibility:

• The petitioning company and each of the qualifying organizations must be engaged in commercial trade or services;
• The petitioning company must have an office in the United States, which has been doing business for one year or more;
• The petitioning company must have three or more domestic and foreign branches, subsidiaries, and affiliates; and
• The petitioning company, along with the other qualifying organizations must meet one of the following criteria:
  • Have obtained at least 10 L-1 approvals during the previous 12-month period;  
  • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  • Have a U.S. work force of at least 1,000 employees.

The advantages to an organization having an approved blanket L petition include greater flexibility in the transfer of employees to the U.S., shorter processing times, and the convenience of not having to file individual L-1 petitions for each employee. 

 

Individuals who possess extraordinary abilities in the sciences, arts, education, business, or athletics, or those who are able to demonstrate a record of extraordinary achievement in the television or film industry, and those who have been recognized on a national or international level for their achievements may be eligible for the O-1 non-immigrant visa.  An employer may file a non-immigrant visa petition for eligible applicants who possess a skill necessary for the position and integral to the employment purpose.  

O-1 visas may be granted for a period of up to three years of O-1 primary applicants and their family members including spouse and children under 21 years old. Extensions are possible, but the O-1 visa category does not lead directly to permanent residence. However the O-1 is a dual-intent visa and O-1 visa holders may apply for permanent residence through employer sponsorship or they pay self-sponsor through the EB-1 category or by requesting a national interest waiver (NIW).