FAQ about Employer-based Immigration
Last week, we defined some terms for Employer-based Immigration here. This week we will give answers to some of our most frequently asked questions.
Keep in mind that these are broad answers that should not be construed as an attorney/client relationship or something you can rely on to 100% answer your personal legal question. There are many more factors that need to be considered in each individual situation.
We *highly* recommend that you call our office and set up a consultation so we can give you specific advice. 678-615-8529
Once I’m working at an employer in the United States who sponsored me, can I leave if I don’t like it and get a different work sponsor?
The short answer to this question is: No.
The long answer: The visa you have is tied to the employer who sponsored you. In order to get a new visa, you would need to have a different employer sponsor you and obtain a visa for you, after you have left the United States, in order to be here legally. In the past, some people have said that people are given 10 days (or until you receive the last paycheck) to leave the country, but the fact is, you are out of status the minute you are no longer considered an employee of the sponsoring company. To remain in the United States after that time can jeopardize any future application for a visa or green card that you might want to make.
There are some very narrow circumstances that may allow you to leave that employer, such as you are a victim of a crime or your employer is trying to make you commit a crime. However, these are very rare and you must meet specific requirements.
If the employer no longer needs you and you are fired, you are out of status the day you are fired.
Do I have to be specially trained to be able to obtain an employer-based work visa?
For most employer-based work visas you DO need to have special skills or training in order to be approved for a visa. Each one has different requirements but as an example, the H1B requires the employee to have specialized knowledge and a bachelor’s or higher degree in that specific specialty.
What factors are considered when visas are granted for employer-based immigrants?
There are 5 preferences for Employment-based visas.
- E1 are priority workers;
- E2 consists of Professionals holding advanced degrees and persons of exceptional ability;
- E3 include skilled workers, unskilled workers, and professionals;
- E4 is a category for certain special immigrants;
- and E5 are for immigrant investors.
Each of these categories are carefully defined and a worker must fall into the specific category to be considered. We recommend you contact our office to ensure the person you are considering sponsoring will meet the necessary criteria
What are the various types of visas an employer can sponsor?
There are a number of visas that an employer can apply for, for their workers. Some are temporary work visas that allow you to work for a specific employer such as H1B, H2A, L1, O1, E1, and TN. Then there are immigrant visas that provide a green card so that you can stay in the US permanently including EB1 and EB2.
This shouldn’t be considered a full list. We are happy to meet with you and review your business needs to determine if obtaining a visa might be possible.
How can an employer sponsor an employee for an H1B visa?
An employer must first submit a Labor Condition Application (“LCA”) with the Department of Labor to ensure they are in compliance. The LCA cannot be filed more than six months before the start of employment. H1B visas are for speciality occupations. There are annual limits on the number approved and the employees must meet certain criteria to be approved.
What is are the differences between an L1A or L1B visa?
The L-1A visa is for those who work in managerial or executive positions in a company outside the US and are transferred into the US in an intracompany transfer.
L-1B visas are for intracompany transferees in positions that require specialized knowledge.
Are there any ways I can apply for a green card without an employer sponsoring me under the employer based immigration category?
Yes, if you have the funds to invest you don’t always need a sponsor.
To be considered an immigrant investor, a foreign national must be able to invest, without borrowing, a minimum dollar amount of $1,000,00 in a qualifying commercial enterprise; or $500,000 in a high-unemployment or rural area that is considered a target employment area.
Within two years the qualifying investment must create 10 full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants with authorization to work in the U.S. not including the investor, their spouse, sons or daughters.
These visas include: C5 (outside targeted areas), T5 (inside a targeted area), R5 – Investor Pilot Program (“IPP”) in a target area, and I5 which is an IPP in a targeted area.
Can the application fees be considered wages for employees by the employer?
Typically, any application fees that the employer has to pay cannot be considered wages. An employer must pay prevailing wages for the particular position for which they hire the individual.
There are several ways the prevailing wage can be determined. We are happy to assist with this for our clients.
If I am here on a student visa, can I adjust my status to an employer-based visa?
Each visa has different permissions and requirements. Typically, a student visa cannot be adjusted while the individual remains in the United States. Working, while here on a student visa, may jeopardize your ability to apply for another visa, please contact our office regarding any changes you want to make so we can assist you in doing it correctly.
Is there anything that would keep an employee from being approved for an employer-based visa?
Yes, there are a number of reasons that can may keep you from getting a visa. As each situation is different, it would be best to talk to us about your individual circumstances. We highly recommend that the employee is open and honest with their employer and/or attorney so that the advice they receive is based on all the facts and there are no surprises for anyone involved.
Co-written by Nina Cleere for Raluca Hanea.
Legal Disclaimer: The legal information presented on this post should not be construed to be formal legal advice, nor the formation of an attorney/client relationship. Any results set forth herein are based upon the facts of each particular case and do not represent a promise or guarantee for your case. Please contact our office for a consultation on your particular legal matter.