Employer-based Immigration – A Compilation
Our Employment Based Immigration posts have been a great success. We’ve been thrilled to welcome new clients this month and provide value to all of our readers. This post combines everything we’ve written this month. It is more streamlined but repetitive (so if you’ve read each one, this is why it might seem like you’re reading the same thing again).
Our goal, at the Hanea Law Firm, is to make your experience as stress-free because we are as helpful as possible. We know we have achieved that goal when you come back and refer your friends. Thank you for trusting us.
We have successfully helped business and individual clients with applying for and receiving visas and green cards through employer-based sponsorship.
Why is employer-based immigration a great choice for people?
Many people, especially older married children of immigrants, are frustrated with extremely long processing times for family-based immigration. Having an employer sponsor you, or if you have a qualified business of your own, the length of time it takes may be significantly decreased.
What do all those letters mean in front of the numbers for visas?
There are over 100 types of visas so…it would take way too long for us to tell you what everyone means but we can tell you that EB is for Employment Based. These initials are used in front of several different types of visas that are granted through employment based sponsorship. There are many visas that can be obtained through employment based sponsorship that do not begin with “EB.”
What can be sponsored by employers?
Businesses can apply for time limited visas (such as an H1B) or a green card aka lawful permanent residency (“LPR”) for their foreign labor employees.
What is immigration that is employer-sponsored?
When a business sponsors a foreign laborer or foreign national as an LPR through a permanent job offer that is Employer-sponsored immigration.
Immigrant v Nonimmigrant Status?
Someone with Immigrant status is working toward becoming an LPR and eventually they, want to become a US Citizen.
Someone with a nonimmigrant status is in the US temporarily and are not considered to be moving toward becoming a US Citizen. They can apply to change their status to become an LPR.
Can an employer help their foreign worker apply to obtain a green card?
Employers can apply for a green card for their workers. Once they obtain one this provides the worker what is called “lawful permanent status” so they are now a “lawful permanent resident” (“LPR”).
What is the most common application for employers to sponsor someone?
The most common application filed by employers for foreign workers is the H1B visa as of July 2018.
What is the limit of how many workers can be granted a green card by employer sponsorship?
Employment based immigrant visas are limited to 140,000 per year. There are also per country limits.
How does a company start the process for employment based immigration?
MOST OFTEN a company must obtain an approved Application for Permanent Labor Certification (aka PERM) from the US Department of Labor.
Then the employer files a form I-140 for the employee.
Is there a limit on how many workers can be granted a visa through their employer’s application?
Yes, there is a limit on how many temporary worker visas that are granted yearly.
What is an EAD?
An EAD is an “employment authorization document” meaning a person who has one can work in the United States legally.
Does an employee who is here on a temporary work visa or LPR need to get an EAD (Employment Authorization Document)?
Yes, an employee here on a visa or green card must obtain an EAD.
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?
No, in order to leave you would need a different employer to sponsor you before you leave the original sponsoring employer.
There are very narrow circumstances that may allow you to leave your place of employment who has sponsored you like you are a victim of a crime perpetrated by the employer or your employer is trying to make you commit a crime. However, these are very limited. Our office can help review your case and determine if these would apply to your individual circumstances.
Do I have to be specially trained to be able to get an employer-based work visa?
You DO need to have special skills or training to obtain a visa.
What factors are considered when visas are granted for employer-based immigrants?
There are 5 preferences for Employment based visas which require different skills sets and education specific to the position for which the employer would sponsor an employee.
What are the various types of visas an employer can sponsor?
There are several visas an employer may choose to sponsor an employee under. There are also immigrant visas that provide a green card.
How does an employer obtain an H1B visa for a an employee?
First, an employer must submit a Labor Condition Application (“LCA”) with the Department of Labor to ensure they are in compliance.
How do L1A visas differ from an L1B visa?
The L-1A is for employees in a managerial or executive position with a company outside the US who are transferred into the US by an intracompany transfer.
L-1B visas are employees with specialized knowledge for intracompany transferees to the US.
Are there any ways I can apply for a green card without an employer sponsor under an employer based immigration category?
Yes, if you have the funds to invest into the appropriate and approved business you don’t need an employer sponsor.
Can the application fees be considered wages for employees by the employer?
No, application fees cannot be considered wages. An employer must pay prevailing wages for the particular position for which they hire the individual.
If I am here on a student visa, can I adjust my status to an employer-based visa?
In most circumstances, a student visa cannot be adjusted while the individual remains in the United States.
Is there anything that would keep me from getting a visa?
Yes, there are a variety of circumstances that might keep you from getting a visa.
What is a TN visa and how is NAFTA involved?
TN visas are employer-based non-immigrant visas for Canadian and Mexican citizens. TN visas are one type (but not the only type) of visa mentioned and governed by NAFTA (“North American Free Trade Agreement”).
What type of evidence required to prove that a Canadian or Mexican citizen is a professional in a qualifying profession is spelled out in NAFTA.
How many TN Visas are issued yearly?
In the fiscal year 2016 (the most recent for which the US has stats) almost 15,000 TN visas were issued.
Is vetting done for TN Visa holders?
Yes, it is. Applicants must pass a background check and are their applications are scrutinized by border agents for Canadians and Consular Officers and border agents for Mexicans. Plus, The Department of Homeland Security and The Department of State determines who can enter the United States under TN visas.
Do TN visa holders help the United States?
Yes, TN visa holders help with industry shortages in areas such as healthcare and agriculture.
The types of professionals that are able to seek admission as TN nonimmigrants include accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:
- You are a citizen of Canada or Mexico;
- Your profession qualifies;
- The position requires a NAFTA professional;
- You have a prearranged full-time or part-time job with a U.S. employer (not self-employment); and
- You have the qualifications to practice in that profession.
How long can TN visa holders stay in the United States?
The initial amount of time a TN visa holder can stay in the US with their visa is three years.
Are families of TN holders able to come to the US with a visa, too?
Yes, a TN visa holder’s spouse and children under age 21 are also granted visas to live here during the same time. (These do not give them employment authorization).
A tiny NAFTA overview
Ronald Reagan started planning for NAFTA when he ran for President, it was finally signed on January 1, 1994 by the US, Mexico and Canada. NAFTA eliminated tariffs (a tax) for the three countries to make it easier to move goods across each other’s borders. Removing the cost of taxes helped to increase opportunities for all three countries.
If it’s not broken why fix it?
Parts of NAFTA are a bit broken. The digital world has grown MASSIVELY since it was signed. President Trump has said that “it is the worst treaty ever entered into” and he argues that changing it will return US jobs to the US.
Why was August so important for NAFTA negotiations?
August 25, 2018 was when the US wanted any changes to be agreed upon by Canada and Mexico. The US must give Congress 90 days to review and approve any changes before it is signed by the participating countries. The current Mexican president is scheduled to leave office on December 1, 2018 so he was hoping he would be able to sign it before the new President came into office. Trump and Mexico reached an agreement on August 27, 2018. Canada has not.
What about if Canada doesn’t agree?
Without Canada signing off on any changes, nothing can be changed. The US can pull out of the agreement but only with Congressional approval – which isn’t likely in the time desired, if at all.
Why won’t Canada agree:
The issues that were causing a delay in agreement included:
- One of the big things that both Mexico and Canada disagreed with was the “auto rules of origin.” To avoid tariffs a certain percentage of a car’s parts must be built in factories within the NAFTA region and they could not agree about what this percentage should be.
- The Canadian Prime Minister Justin Trudeau did not like the “sunset provision” Trump wanted. This provision says that NAFTA will expire in five years unless it is re-negotiated before that time.
- In place of the sunset provision, Canada suggested a periodic review but the US said no to that suggestion.
Why is dissolving NAFTA a bad choice?
The U.S. Chamber of Commerce published a report on NAFTA in 2017. This report showed that trade with Canada and Mexico supported almost 14 million jobs in the U.S., with nearly 5 million of these jobs related to the increase in trade created by NAFTA.
NAFTA gives all three countries much strength when negotiating and competing with Europe and China than they have on their own.
Both US companies and farms will feel more financial strain with increased tariffs.
Currently, ttrade secrets and intellectual property are protected by NAFTA. We don’t have a similar agreement with China and many companies (large and small) lose tons of money because of this, without this protection there is a concern they will lose even more. Many smaller companies won’t sell or produce in China because of this.
Finally, for immigration purposes, dissolving NAFTA will get rid of the TN visa.
Is there anything else in immigration that might be impacted by changes in NAFTA?
Yes, since the TN visa is not the only one created within NAFTA any others, will be impacted. The E-1 and E-2 treaty trader/investor visa categories will also be impacted. These visas are for investors which create jobs for U.S. workers.
According to the Department of Commerce, Canadian foreign direct investment supported 636,100 jobs in the U.S. in 2015 and Mexico’s foreign direct investment for the same period supported 79,900 jobs in the U.S.
How Not To Lose Your Status When Here On Employment Based Visa
It seems common sense but we think we need to remind everyone that you cannot do whatever you want while in the US on a visa.
Whatever would be a basis for denying you a visa should not be done when here in the US.
This includes: drug trafficking; overstaying a previous visa; or submitting fraudulent documents. In some instances there may be waivers available for some of these.
When you are here on an employment based visa, you are a “temporary worker.” Always remember, you cannot stay in the US permanently with a temporary visa. If you overstay your visa you may lose the chance to ever return to the US.
Here’s a list we recommend you review and follow:
- USCIS can visit your place job without notice and you should be there so don’t work remotely everyday.
- Do keep a copy (not the actual) of your I-94 with you at all times.
- Do not live more than 50 miles from your place of business.
- Do not get another job, even if if only brings in a little bit of money.
- Do file to extend your visa as soon as you’re able to do so.
- Do not get into fights with anyone – your boss, vendors, other co-workers, your spouse or even strangers.
- Do do the best work you can.
We also provide a list of things that our employer clients should do to keep themselves off the debarment list:
- Be Honest – don’t engage in fraud or misrepresentation
- Respond to all audit requests
- Don’t violate the Wage and Hour Division rules.
All of our posts are broad and should not be considered advice for your specific situation. If you have any questions, please submit them to us on our Facebook page or on our website.
Please contact us to discuss how we can help you – 678-615-8529.