For seasoned corporate HR professionals to small startups alike, we’re here to make the process painless and timely.
With immigration experience deep down in our bones, you should expect nothing short of smart and professional execution that’s always on time and ahead of the curve. We can help in the following areas:
H-1B is a professional work visa for individuals sponsored by a U.S. company who are filling a temporary position in a “specialty occupation.” A “specialty occupation” is an occupation that requires a specialized Bachelor’s or higher degree, or the equivalent. Dependent family members may qualify for H-4 status, which does not provide work authorization.
Obtaining H-1B status for an employee involves three steps: labor condition application wage certification by the US Department of Labor; approval of an H-1B petition by the US Citizenship and Immigration Services; and, when required, visa issuance by the US Department of State at a consular post abroad.
An individual may be admitted to the United States in H-1B status for an initial period of up to three years. Extensions are possible for a total of six years cumulative for time spent with all employers. H-1B status may be extended beyond six years if a labor certification or I-140 application has been filed or pending for 365 days or an I-140 application has been approved.
The H-1B visa category is subject to a numerical cap each fiscal year beginning October 1. Therefore, new H-1Bs are available for only part of the year. H-1B applications may be filed up to six months in advance of the start date, and as a result, new H-1B petitions may be filed on or after April 1 of each year. Typically, an H-1B petition can be filed year-round for an individual who is currently working in H-1B status for another employer if he or she has already been counted towards the cap. Note that some employers, such as institutions of higher education or nonprofit research organizations, are not subject to the cap.
The cap gap refers to the period of time between the expiration of an F-1 student’s period of OPT authorization and the start of the new H-1B visa year on October 1. In some cases, the F-1 student may continue to work during this gap period.
TN Treaty NAFTA for Canadian and Mexican professionals
The North American Free Trade Agreement (NAFTA) provides for TN admission to the United States of Canadian and Mexican citizens seeking to fill a temporary position in specific professional occupations. TN status may be granted for up to three years, with extensions following. Dependent family members may receive TD authorization, which does not provide work authorization in the United States.
The L-1 “Intracompany Transferee” Visa category is useful for multinational corporations who wish to transfer key personnel from a foreign parent, subsidiary, affiliate, or branch organization to a related company in the United States on a temporary basis. To qualify for L-1 authorization, the foreign employee must have been employed abroad by the related foreign corporation for at least one continuous year in the immediately preceding three years and must meet the criteria for an executive, manager, or specialized knowledge employee. L2 spouses may apply for employment authorization in the United States.
Executives, managers and professional specialized knowledge employees of companies holding L Blanket authorization may apply for L visas directly at a foreign consulate, without waiting for USCIS authorization first. Canadian citizens may apply directly at a port of entry.
You should speak with an immigration lawyer about the options open to you based on your specific situation. E-1 and E-2 status is provided for traders and investors from certain treaty countries. Spouses of E-1 and E-2 visa holders may apply for work authorization in the United States, which will be demonstrated by a valid employment authorization card.
Spouses of E and L visa holders may apply for authorization to work in the United States while in a dependent visa status. For most other categories, the spouse must obtain his or her own work visa in order to work in the United States.
Unmarried partners (regardless of gender) of E, H, and L visa holders may obtain B-2 status to accompany the primary visa holder. The US federal government recognizes same sex marriages for purposes of immigration benefits.
The “PERM” process is often the first of three steps to employment-based permanent residency in the US. It is a labor program that is conducted on a national basis with standard recruitment requirements. Recruitment must be conducted precisely in accordance with the regulations to determine whether there is a US worker immediately available and qualified for a particular job. If there are no qualified US workers, the employer may file for labor certification with the US Department of Labor.
The PERM process involves a wage determination filed with the Department of Labor, a job order posted with the Department of Labor for at least thirty days, at least two advertisements in the Sunday edition of the newspaper of the largest circulation in the area, and an in-house posting for 10 business days. For professional positions, the employer must utilize three additional forms of recruitment from a list of ten possibilities:
Other Job Search Website
Trade or Professional Organization
Private Employment Firms
Employee Referral Program With Incentives
Campus Placement Office
Local or Ethnic Newspaper
Radio and Television Advertisements
Once a PERM is certified, the company may file an I-140 immigrant visa application with the USCIS on behalf of the employee. At that time, the employee must demonstrate that he or she met the minimum requirements for the position prior to joining the employer (with the exception of individuals who have changed jobs substantially) and the employer must demonstrate its ability to pay the salary on a permanent basis. When a visa number is available, the employee can apply for permanent residency.
The I-140 application may be filed without an underlying PERM in some cases, including Intracompany Managers and Executives, Outstanding Researchers, National Interest Waiver cases, and for individuals who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics.
Under the employer sanctions provisions of the US Immigration and Nationality Act, employers must verify the identity and US employment authorization of every employee hired after November 6, 1986 by completing and maintaining Form I-9, Employment Eligibility Verification.
Employers are often inconsistent in completing all required areas of the form, leaving blanks, missing signatures, checking incorrect boxes, and failing to complete the forms within the required timeline. Monetary and criminal penalties may accrue in the event of a government audit. As a result, it is worthwhile to conduct regular audits to ensure proper compliance.
In House Training for human resources staff and legal departments
We assist in-house human resources and legal departments with trainings and immigration policy development tailored to your systems and industry. Please contact us to discuss how we can assist your organization.
Christoffersen Law P.S. typically charges on a flat-fee basis for consultations and immigrant and nonimmigrant visa work. This fee structure encourages clients to ask questions and provides clarity for budgeting purposes.
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