Immigration Attorney - The Law Offices of Kenneth G. Wincorn & Associates, P.C.
FALL 2020 ISSUE:
Common Myths and Misconceptions of Employment-Based Petitions
As an immigration attorney, one of the most common questions I hear is, “my boss wants to help me with my immigration status, can he/she do something for me?” The answer is, “it depends.” There are many factors that must be taken into account before a company or employer can initiate an employment-based petition for a foreign national - meaning any person without U.S. citizenship or nationality.1
Regardless of whether a company is a large corporation or a small mom-and-pop shop, filing a petition for a foreign worker is not a simple task. Employment-based immigration is one of the most complex areas of immigration law. Numerous questions must be answered before filing an employment-based petition. What is your highest level of education? What are your skills? What is your previous experience in this role? Do you have a criminal record in your country and/or in the U.S. ? Have you previously held any other type of immigration status? In addition to many more, these questions make up the large set of characteristics that are considered when seeking immigration sponsorship from your employer.
Most employment-based immigration begins with the issuance of a nonimmigrant visa. Nonimmigrant visas allow foreign nationals into the U.S. for a specific, temporary purpose.2This purpose can range anywhere from seasonal work in agriculture to managerial positions in large corporations. The journey to obtaining a nonimmigrant visa is a two-step process. It begins when an employer files a foreign worker petition with the United States Citizenship and Immigration Services (USCIS). USCIS will accept and process the petition. The second step depends on where the foreign worker is located. If a foreign worker outside of the U.S., USCIS will forward the petition to the worker’s consulate abroad for processing. If the worker is present in the U.S., USCIS will keep the petition and make a decision. If the petition is approved, a nonimmigrant visa is issued.
A nonimmigrant visa is temporary and limited in its nature.3 As the name suggests, this type of visa will not allow a foreign national to immigrate to the U.S. In other words, a foreign national would not be eligible to live permanently in the U.S. Despite this intention, many nonimmigrant visas allow foreign nationals the opportunity to apply for permanent resident status via an immigrant visa. A person with the “right combination of skills, education, and/or work experience” could eventually seek an immigrant visa.4
There are more than twenty types of nonimmigrant worker petitions, each with specific requirements based on skill, education, and the employer’s need.5 While each category is different, if granted, these petitions lead to temporary stay and work authorization in the U.S.6
Nonimmigrant visas can be obtained through two different processes– change of status or administrative processing by a consular officer.7 A change of status occurs when a person is in the U.S. with a valid and current lawful nonimmigrant status and seeks to change that status to another category.8 Administrative processing by a consular officer occurs when a person is outside of the U.S. or does not hold a current and valid nonimmigrant status.9 The foreign national must seek the nonimmigrant visa directly from a U.S. Consulate or Embassy overseas.10
Due to the complex nature of this process, there are many myths and misconceptions regarding the process of obtaining a nonimmigrant visa for work authorization in the U.S. Below, I will address some of the most common myths and misconceptions of employment-based nonimmigrant visas.
1. Only large companies can sponsor employees
False. Most nonimmigrant visas do not require that a company employ a specific number of employees. While there are many stipulations for employers to sponsor a foreign worker, the business or corporation’s size is not one of those stipulations.
The type of petition a company files for a foreign national depends on the company’s needs, the specific role that needs to be filled, and the worker’s skills. The key to employment-based petitions is that the job needs to be executed by a foreign worker. A small company could have a need to fill a very specific role and find itself opening that role to U.S. citizens and foreign nationals alike. Thus, the company’s size is irrelevant for its ability to file a petition for a foreign worker. A mom-and-pop shop with specific needs could be in a better position to successfully file a petition for a foreign worker than a large corporation with a generalized need.
2. My employer can petition for me
It depends. Generally speaking, yes, an employer can file a petition for a foreign worker. However, there are a plethora of factors that affect the outcome of a petition. The decision to file a petition for a foreign worker should not be taken lightly. An employer must not have any doubts about the eligibility of that person before starting a petition. Determining whether or not a person qualifies for an employment-based petition is decided on a case-by-case basis. Previous immigration violations, criminal record, manner of entry, and immigration history are a few of the factors considered to determine eligibility.
One of the most common issues arises when the employer wants to start a petition for the foreign employee, but the employee has been unlawfully present in the U.S. and working without authorization. To obtain a nonimmigrant visa, the employee must be able to either adjust his status inside of the U.S. or go abroad and present himself at a U.S. Consulate or Embassy. If the employee has been unlawfully present in the U.S., neither of those options are likely possible.
3. My family can be part of my petition
True. Family members can accompany the foreign worker as derivatives of the initial petition.11 If a nonimmigrant visa is granted to the foreign worker, then certain immediate relatives of that worker can receive their own visas for admittance into the U.S. An immediate relative includes: spouses of U.S. citizens; unmarried children under the age of 21 of U.S. citizens; parents of a U.S. citizen at least 21 years of age; and widows and widowers of U.S. citizens.12 However, in employment-based petitions, only spouses and unmarried children under the age of 21 can apply as derivatives.
The process for derivatives is very similar to that of the main applicant. The qualifying immediate relatives, can either change their status from a current valid status or present themselves at the U.S. Consulate or Embassy abroad at the same time as the main applicant. Again, each person’s eligibility is determined on a case-by-case basis. Each derivative must individually qualify for entry into the U.S. Previous immigration violations, and certain crimes could potentially prevent a derivative from being admitted into the U.S.
4. My employer can file a petition at any time
False. While some petitions can be filed at any time, other petitions must be filed by a specific date. For example, the H-1B nonimmigrant visa, one of the most popular categories, is usually subject to certain limitations and must be filed by April 1st of the current year to have a chance to receive one of the allotted visas for the following fiscal year.13 The employer must first register through a system set up by USCIS.14 If selected, the employer can file the H-1B petition. Only then will USCIS begin the processing of the H-1B visa. This is only one example of the importance of deadlines and timing.
Furthermore, the timing will depend mostly on the employer’s needs and the type of nonimmigrant visa needed for that worker. For example, if the employer needs someone on a temporary basis for the summer, the employer would need to allow himself enough time for the petition to be processed by that time. While processing times can be tracked on the USCIS website, they often vary and change frequently.15
5. I can start working as soon as my employer files a petition
False. The petition must be approved before the foreign worker can start working. It is not enough to file a petition. As mentioned above, processing times for petitions vary and can be long. It is essential to take this into account and plan accordingly. Fortunately, some petitions can be processed faster by USCIS if the employer pays for a service called Premium Processing.16 Premium Processing allows an employer to pay a fee for USCIS to speed up processing and decide on the application within fifteen business days from the day it is received.17 Notably, Premium Processing is not available for all foreign worker petitions.
Once a petition is approved, it will have a dated range of validity. Depending on the nonimmigrant visa category, the worker could have a few days of flexibility before the visa’s validity begins. The employee can only work during the range of validity of an approved petition, so they can take those days to set up their residence in the U.S.
6. Approval of an employment-based nonimmigrant petition will result in a “green card”
False. The approval of a nonimmigrant visa will not automatically result in a “green card.” The term “green card” is commonly used to describe the Lawful Permanent Resident Card issued once a foreign national obtains permanent resident status in the U.S.18
Remember that nonimmigrant visas are temporary and have their own set of restrictions. Those who hold a nonimmigrant visa have stated and agreed that their purpose --or intent-- is to reside in the U.S. temporarily and eventually return to their own country. This is considered a “nonimmigrant intent.”19
However, some nonimmigrant visas allow for a “dual intent.” A dual intent visa allows a foreign national to enter with the intent of staying temporarily but still maintain the option of seeking permanent status.20 An employer can sponsor the employee for the nonimmigrant visa and the immigrant visa. If an immigrant visa is granted, then the foreign worker becomes a Lawful Permanent Resident.
7. I can change occupations once I have an approved petition
False. When a company starts a petition for a foreign worker, the company must state the worker’s specific role and job duties if the worker receives the visa. To secure a work visa, the job must be that which was petitioned for and not any other. As mentioned above, the key to these types of petitions is the job duty that a worker needs to execute. If the petition is for a managerial position that requires at least four years of experience, then the worker must meet those requirements.
Job duties sometimes evolve, or the responsibility of the employee changes. While some change is expected, the role cannot change completely. The employer cannot obtain a nonimmigrant visa for a high skilled laborer and then have that employee work a completely different role. USCIS will only approve a petition for a particular position.
8. My employer cannot terminate me
False. An employer can terminate an employee at any point as long as the termination aligns with state and federal employment laws. This means that if the employer has a legitimate reason for termination, the approved nonimmigrant visa is secondary. The employer can withdraw sponsorship for the visa at any point during the process. The employer could withdraw sponsorship while the petition is pending or find that termination or layoff is necessary after the visa approval. The employer must notify USCIS that it is withdrawing its support and sponsorship of the foreign worker.21 Revocation is required if the sponsoring employer goes out of business or if the sponsoring employer files a written withdrawal of the petition.22
For example, suppose an employee is doing something that is against the interest of the company. In that case, the employer could choose to end the employment relationship. Since the nonimmigrant visa is directly linked to that job, the employee would have to either depart the country or find a new employer willing to sponsor him. The nonimmigrant visa, however, must be transferable. Alternatively, if the employee desires to find a new job or decides to return to her home country, she can resign. If the employee finds a new job, the new job must take over the sponsorship.
A great example of this is the portability of H-1B visas. “The American Competitiveness in the Twenty-First Century Act provides that a foreign worker with a previously issued H-1B visa may begin working for a new H-1B employer as soon as the new employer files a ‘nonfrivolous’ H-1B petition on the nonimmigrant’s behalf.” In this scenario, as long as the H-1B worker meets a few requirements, he can begin work for the new employer while the petition to change employer is pending. Unfortunately, not all visas are portable, meaning that this might not even be an option for the employee.
9. My visa does not have a renewal limit
False. Nonimmigrant visas are temporary and limited in scope. All nonimmigrant visas have a specified period of stay that varies according to the foreign worker’s petition category.23
Each visa category has an initial period of stay and can be extended by submitting a petition to extend that status.24 While some visas have a maximum stay of six or seven years, some are only valid for a few months but can be renewed more often. The need of the employer determines the period of stay. If the employer’s job offer is for two years, then the initial period of stay will likely be two years. The maximum period of stay varies by each category and should be discussed with the employer when the initial petition is filed. It is important for the employer to keep in mind for how long they wish to keep that position to give the employee a timeframe of their stay. It is also important for both, the employer and employee, to know if the employer is willing to sponsor the employee for an immigrant visa in the future if that becomes an option.
10. The U.S. government will process my application correctly and in a timely fashion
Technically, yes. The U.S. government does have a responsibility to do its part timely and correctly. However, in the past few years, processing times and denial of petitions have increased.
Case processing times are available for most petitions. These processing times are posted on the USCIS website and serve as a range of the time it takes to complete cases. USCIS posts processing times as a range of months, with the first figure being the time it takes to complete 50% of cases and the second figure being the time it takes to complete 93% of the cases.24
In the last few years, we have seen an increase in Requests for Evidence for all employment-based petitions. Request for Evidence are issued when USCIS determines it needs more information before rendering a decision on the petition. They might ask for additional evidence or clarification of the evidence provided.
Receiving a Request for Evidence does not mean that the visa will be denied. It simply means that USCIS cannot make a decision with the evidence initially provided. Once USCIS receives the evidence requested, it will continue to process and adjudicate the petition.
This is not an all-inclusive list of everything you need to know before pursuing an employment-based petition. Employment-based petitions are complex, and so is the process of hiring foreign workers and acquiring nonimmigrant visas for those individuals. Thus, it is always recommended that the employer and employee consult with an immigration attorney well versed in employment-based petitions to ensure that the intended employee qualifies, and that the necessary petitions are filed timely and accurately. While the process may be long and confusing, it is well worth it because finding the right fit for your company is crucial.