Concurrent Filing – I-140 and I-485

What Is Concurrent Filing?

Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.

Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.

Must Concurrent Filing Be Used?

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait.

Who Is Allowed To File Concurrently?

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

Can Form I-485 Be Filed After the I-140 Is Filed But Before It Is Approved?

Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.

What Are the Benefits of Using Concurrent Filing?

One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).

Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.

What Are the Risks of Using Concurrent Filing?

One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.

Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.

Will Concurrent Filing of an I-485 Result in a Faster Grant of Permanent Resident Status?

Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.

If Concurrent Filing Is Not Used, Will It Delay the I-140 Adjudication?

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

Can Concurrent Filing Be Used If More Than One I-140 Is Filed on Behalf of the Same Beneficiary?If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?

Yes, with a few caveats.

Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.

The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.

If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.

The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.

Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

If Concurrent Filing Is Used, and the I-485 is Eligible for Transfer from One I-140 to Another I-140, is there a Process to do so?

No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.

Should a Concurrent I-485 Be Filed When Approval of the I-140 Is Uncertain?

Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.

Are There Any Disadvantages to Concurrent Filing?

The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.

What Happens If the I-140 is Denied?

If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.

However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.

Does the Concurrent Filing Rule Affect "Portability?"

Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.

EB-1 and NIW Cases

What is KILP’ experience with EB-1 and NIW petitions?

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

How does KILP assist with the petition?

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist your referees in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements, and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

With whom will I be working? Who is in charge of my case?

Although I am responsible for your case and am available to you as needed, we work on all cases as a team.  In addition to myself, you should expect to be communicating with at least one other professional, a technical writer, in my office.  The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

What are my obligations?

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

Will you give me any guidance in preparing the requested input statement?

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire, and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

What is the time frame for preparing the case?

Our work generally takes about two months from the time you provide us the requested information to get started with our work.  We estimate approximately another two months for you to review and edit the reference letters, for us to make the requested changes, for you to forward the reference letters to the referees, for the referees to review and sign the reference letters and get them back to us, and for us to prepare the final transmittal letter to USCIS.

How long will it take the government to decide the case?

Government processing times vary, and the most current processing times are posted at www.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence is six months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is ninety days.

Should I file 1 petition or multiple petitions?

We generally recommend filing multiple petitions.  We do not charge additional for filing both an EB-1 and an NIW application at the same time.

Should I file the application for permanent residence at the same time (concurrently) with the I-140 Petition?

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

What are the legal fees, and what do the legal fees include?

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes.The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

What are the government filing fees?

The I-140 government filing is $700.  If you file more than one I-140, you will need to pay the $700 with each petition.  The filing fee for the I-485, including employment authorization and travel document applications, is $1,225.  If you are including spouse or children fourteen years of age or older, they will also need to pay the $1,225.  For children under 14, the filing fee is $750.  Government filing fees are separate from legal fees.

Do we need to meet during the course of the case?

You are always welcome to schedule a time to come in and discuss your case.  However, most people prefer to communicate by email and telephone.

What should I look for in choosing an EB-1/NIW attorney?

Click here to review a list of qualifications that you may want to consider in choosing the best EB 1/NIW attorney.

How do I get started?

Please advise me if you wish to pay the retainer payment by check or credit card.  If you wish to pay by credit card, we will email you a credit card authorization form.  Once we receive your retainer payment, we will schedule the input call and proceed as we explained above.

Are you interested in receiving referrals of friends and colleagues who need immigration assistance?

Many of our clients are referred by universities and hospitals, as well as our appreciative EB-1 clients.  We very much appreciate your referrals.

EB-5 Quota Backlog

What is the EB-5 quota?

Congress has allocated approximately 10,000 visa numbers for EB-5 investors and family members. This quota was established in 1990 and has never been changed. Until recently, because of a lack of demand in the EB-5 category, this 10,000 allocation has been sufficient to meet demand. With the increased demand in recent years – accompanied by increased investment dollars and increased jobs – that number is no longer sufficient.

How many EB-5 investors can obtain conditional permanent residence in any year?

A majority of the EB-5 quota is used up by investors’ family members. The actual number of EB-5 investors who can immigrate in any year depends on the number of family members, but is generally in a range between 3,500 and 4,000.

When are EB-5 visa numbers allocated?

Upon approval of conditional permanent residence – either issuance of a conditional immigrant visa at a U.S. Consulate or adjustment of status to conditional permanent residence in the U.S.

 

There were over 6,500 I-526 petitions filed in the fiscal year ending September 30, 2013 with over 3,600 approvals. Why was the quota not reached?

From the time of approval of the I-526 petition until the time of issuance of conditional immigrant visa or approval of conditional permanent residence status, there is often a delay of about one year. The impact of the FY2013 filings and approvals will be realized in subsequent fiscal years’ quota allocations.

The Department of State had predicted that the EB-5 quota might be reached for China in the last fiscal year. Why was it not?

The main reason is the very slow pace of I-526 approvals by USCIS. Processing times for I-526 petitions have increased from six months to, in many cases, more than eighteen months. If I-526 petitions do not get approved, investors do not get conditional permanent residence; and numbers are not used. In a curious way, the unprecedentedly slow processing times have delayed the onset of quota retrogression.

Is the EB-5 quota likely to be reached in the fiscal year ending September 30, 2014?

If USCIS continues to process I-526 petitions at the present extremely slow pace, there is a possibility the quota will not be reached in this fiscal year. More likely, quota retrogression may begin in the last quarter of this fiscal year (July, August, September).

If the quota is reached, will it affect all countries?

No, it will only affect China. 81% of the world’s EB-5 petitions are filed by Chinese nationals. Because there are per country limits that set in before the quota is backlogged for the entire world, the Department of State would create a waiting list for Chinese investors to make certain that EB-5 visas remain available for the rest of the world.

What does it mean if there is a quota backlog for China?

Chinese investors will still be able to invest. Chinese investors will still be able to file I-526 petitions. Chinese investors will still be able to have their I-526 petitions approved. However, the final step of the process – issuance of the conditional immigrant visa or adjustment of status to conditional permanent residence – will not occur until there is a quota number available for the investor.

If Chinese quota retrogression occurs, how long will be the wait?

No one knows the answer to this question. However, since there are a very large number of cases pending at the National Visa Center with I-526 filing dates (“priority dates”) in 2012, it is likely that some date in 2012 will be the cutoff date.

What does it mean if there is a 2012 cutoff date?

Let’s just postulate that there is a China EB-5 quota cutoff date of November 1, 2012. This means that all investors whose I-526 petitions were filed before November 1, 2012 will be able to continue processing for their conditional permanent residence. However, all investors who filed I-526 petitions on or after November 1, 2012 will not be able to do so. This date is updated each month in the Department of State Visa Bulletin. (www.travel.state.gov)

If there is a quota backlog, will there be a difference between regional center and direct EB-5s?

No.

If there is a backlog in the last quarter of this fiscal year, will it likely continue indefinitely?

There is a possibility that, at the beginning of the new fiscal year on October 1, 2014, the quota could again become current given the infusion of a new year’s visa numbers. However, it is even more likely that there will be a quota backlog at some time during the next fiscal year than there is for this fiscal year.

Is there any chance that USCIS will increase the quota?

No, USCIS does not have the power to do so. Only Congress can do so.

Is there any chance that Congress will increase the quota?

The comprehensive immigration bill that passed the U.S. Senate several months ago would have resulted in avoiding a quota backlog, probably for a number of years. This was done not through increasing the numbers but through removing family members from the EB-5 quota. So far, the House of Representatives has failed to take up this bill. Advocacy efforts are being undertaken by many individuals and groups, including IIUSA and AILA, to address the impending EB-5 quota backlog issue. The prospects for success at this time are speculative.

Why should the EB-5 quota be increased?

Retrogression in the Chinese EB-5 quota could discourage investment. Since EB-5 investment contributes more than $2 billion of foreign direct investment to the U.S. and creates more than 40,000 jobs per year, this would be a result that is contrary to the national interest.

I hope that this FAQ is helpful in clarifying quota retrogression issues. My next blog will focus on actions to be taken in anticipation of a possible quota backlog and USCIS policies that need to be changed in the event of retrogression.

Employment-Based Permanent Resident Status or “Green Card”

What is a “green card”?

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Who is eligible to apply for permanent resident status or a green card?

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

  • Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
  • Employment-Based Immigrants (see below).
  • Investment-Based Immigrants (Investors of $500,000 – $1 million in a U.S. business that creates jobs for ten U.S. workers).
  • Refugee and Asylum (Persons fleeing persecution in their home countries).
  • Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

What is the process for obtaining an employment-based green card?

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

Is it necessary to be sponsored by an employer?

No. If an individual qualifies as extraordinary in his or her field or if his or her work is in the “national interest,” then he or she may file a self-sponsored petition.

What is the labor certification process?

Protections for U.S. workers are built into the system. Most employment immigrant cases require Department of Labor certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that admitting the immigrant will not negatively impact the wages and working conditions of similarly situated U.S. workers.

Who can qualify without the labor certification process?

The categories exempt from this requirement are those individuals who are recognized to be extraordinary in their field, whose employment is in the “national interest,” or who are outstanding professors or researchers, multinational managers, investors, certain religious ministers or workers, and a small number of “special immigrants.”

How long will it take to obtain a green card?

It is quite difficult to accurately predict exactly how long the process will take. Employers must consider the processing time for petitions and applications at the United States Citizenship and Immigration Services’ Regional Service Centers, the PERM process for labor certification processing for the Department of Labor and also the availability of visa numbers. No approval is guaranteed. Cases may take anywhere from 18 months to four years or more depending on these factors.

May the employee remain in the U.S. during the immigrant process?

An employee may not remain in the U.S. merely because a labor certification or immigrant visa petition is pending. The entire process may take place in the U.S. if the individual is able to maintain his or her valid nonimmigrant visa status (J-1, H-1B, L-1, etc.) until the Form I-485, Application to Register Permanent Residence or Adjust Status can be filed. Once the I-485 is filed, the employee may remain in the U.S. until it is adjudicated.

May an individual work while a petition is pending?

An individual may not be employed in the U.S. merely because a labor certification or immigrant visa petition is pending. An individual may work while a petition is pending if he or she is authorized for employment in the U.S. by maintaining a valid nonimmigrant working visa status such as H-1B or L-1. In addition, he or she may file a Form I-765, Application for Employment Authorization, at the same time the Form I-485 package is submitted. Approval of the Employment Authorization Document (EAD) allows the individual to work even without a valid nonimmigrant working visa status.

May an individual travel while their petition is pending?

An individual may travel during the labor certification process and while the I-140 is pending if he or she has a valid nonimmigrant visa. An individual may travel while the I-485 adjustment is pending if he or she has obtained an advance parole document and/or is currently in valid H-1B or L-1 status.

What happens if an individual switches jobs or changes employers while a petition is pending or after it has been approved?

For an employer-sponsored petition, a change in employer (or even location of employment) will likely mean that the process must start over from the beginning unless the change takes place more than 180 days after the filing of the I-485 package and the change is to a position in the “same or similar” occupation. Self-petitioners who change employment within their field will usually be able to continue with the pending petition.

After having received an immigrant petition approval notice, when can an individual expect to be scheduled for an interview?

If an individual elects to complete the process abroad at a U.S. Consulate, it could take four to ten months before an appointment is scheduled. If he or she elects to remain in the U.S., the adjustment of status process can take from 12 to 24 months or more.

How long must a legal permanent resident (LPR) remain with an employer?

There is no required amount of time that an LPR must remain with an employer. LPRs must be able to demonstrate that their intention at the time of adjustment to LPR status or entry as an immigrant is to remain with the sponsoring employer indefinitely.

Is there any required amount of time that an LPR must remain in the U.S.?

Yes. Absences of one year or more may result in loss of LPR status unless a reentry permit is applied for in advance of departure from the U.S. Absences of six months or more may result in questioning upon return to the U.S. as to whether the LPR has abandoned his or her residence in the U.S.

Does an LPR lose his or her citizenship?

No, LPR status in the U.S. does not affect one’s citizenship of another country.

May an LPR apply for U.S. citizenship?

Yes. An LPR may apply for naturalization as a U.S. citizen after maintaining LPR status for five years, assuming certain residence and physical presence requirements are met. If an individual is married to and living with a U.S. citizen, then he or she may apply after maintaining LPR status for three years.

Is an LPR required to give up his or her citizenship if he or she applies for naturalization as a U.S. citizen?

The U.S. can only confer U.S. citizenship on an individual, and cannot force a person to lose any other citizenship which they hold. In some instances, an individual’s country of citizenship will regard the person as having lost citizenship in his or her country of nationality when he or she becomes naturalized as a U.S. citizen. Individuals who wish to maintain dual citizenship should consult with officials of their country of current citizenship.

May a spouse and dependent children (unmarried children under the age of 21) be included in the I-140 petition and subsequent I-485 adjustment of status application?

Yes, a spouse and dependent children may be included.

Are spouses and/or dependent children eligible to apply for employment authorization and an advance parole travel document?

Yes, all applicants who apply for adjustment of status are eligible to apply for employment authorization and advance parole.

Green Card Quota Backlogs

WHAT IS THE “QUOTA BACKLOG”?

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.

WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

Employment-Based First Preference (EB-1)
Employment-Based Second Preference (EB-2)
Employment-Based Third Preference (EB-3)
Other Workers

WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s Degree PLUS five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected

WHAT DOES EB-3 MEAN?

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor’s degree or two years of training.

WHAT DOES “OTHER WORKERS” MEAN?

Other workers include positions that require less than two years of experience.

WHAT IS THE “PRIORITY DATE”?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?

The Priority Date is determined by USCIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.

WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “MM/DD/YY” (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e., 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

WHAT DOES “C” MEAN?

“Current” – this means that there is no quota backlog in this category.

WHAT DOES IT MEAN TO BE “CURRENT”?

If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02, IS MY PRIORITY DATE CURRENT?

No. In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.

HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen in order to use all of the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.

THE CUT-OFF DATE CURRENTLY LISTED IS FIVE (OR THREE AND A HALF, OR TWO) YEARS AGO. DOES THIS MEAN THAT IT WILL TAKE FIVE (OR THREE AND A HALF, OR TWO) YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No. It all depends on how many visas are used. Please see the answer to the above question.

I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.

VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OR CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?

Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT. CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?

No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.

I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?

Yes. Quota backlogs can apply to everyone, regardless of where they are from. While the backlogs have typically affected some countries more than others, note that on the current Visa Bulletin, the backlogs apply to all countries for the EB-3 preference category.

MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?

No. The labor certification process is not affected by quota backlogs.

CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?

Maybe. The visa category of a particular filing cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed.  Sometimes, starting the application again if your position or qualifications has changed can result in the new application having a more favorable preference category; however, that strategy is not possible in every case. 

THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?

Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.

MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?

Yes. Even though your case was approved, your dependent’s application is still based on your priority date. USCIS cannot approve the dependent’s application until the priority date is current.

THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A QUOTA BACKLOG AFFECT ME?

Yes. USCIS can work on the pending application. However, it cannot approve the application unless the priority date is current.

THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?

Yes. USCIS will continue to process the I-140 and it can be approved regardless of the quota backlog

CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT USCIS IF I AM SUBJECT TO A QUOTA BACKLOG?

No. Under USCIS guidelines, inquiries may not be made on a case unless the priority date is current.

IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?

It may. USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence or biometrics appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics.

MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?

No. Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.

DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?

No. Immigrant visa numbers are not assigned to a case until right before approval.

CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?

Yes. As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.

MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E., CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?

No. In order to add a dependent to the pending application, the priority date must be current.

MY BIOMETRICS HAS ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE. WILL USCIS REQUIRE ME TO REDO MY BIOMETRICS?IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

Yes. Biometrics results expire after 15 months. USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new biometrics appointment notice.

IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

USCIS may ask for updated employment information. However, new photos and medical exams should not be required.

IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?

An I-765 (EAD) application cannot be filed unless an I-485 is pending. Therefore, your spouse will not be eligible for an EAD card and will need to seek employment sponsorship for work authorization.

IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?

Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remain current.

I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended.

If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.

IF I AM NOT ABLE TO FILE THE I-485 AND THEN LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?

No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR U.S. CITIZEN CHILDREN AND I HAVE A U.S. CITIZEN SPOUSE, CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?

Unfortunately, a child cannot sponsor you for a permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.

H-1B Nonimmigrant Status For Professionals

Who may obtain H-1B status?

H-1B nonimmigrant status is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.

What is a specialty occupation?

A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.

What is involved in applying for H-1B status?

A Labor Condition Application (LCA) is submitted online with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file the Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. Consulate, or will be granted a change of status if they are in status in the US.

What are the filing fees for H-1B status?

The filing fee is U.S. $460. Employers must also pay a $1500 ($750 for employers with 25 employees or less) “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee. Employers are also required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $1,225 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.

What documentation is required to file a petition for H-1B status?

The following documentation is required:

  1. An approved LCA from the DOL.
  2. Documentation that the job qualifies as a specialty occupation.
  3. A copy of the individual’s U.S. degree (bachelor, master or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.)
  4. A copy of any required license to practice the occupation in the state of intended employment.

How may an individual determine if a foreign degree is equivalent to a U.S. degree?

An individual may request an evaluation from a reputable credentialing agency.

Is there a certain wage that must be paid to an H-1B employee?

Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).

How does an employer determine the prevailing wage?

An employer may request a prevailing wage determination from the State Employment Service Agency (SESA) or may rely upon wage data from an independent survey if the survey meets the Department of Labor requirements.

May an H-1B employee work part-time?

Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.

How long does this petition process take?

It may take from 6 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides an option to pay an extra fee of $1000 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.

Are there any times of the year when new H-1B visas are unavailable?

Yes. In recent years, the quota or “cap” for H-1B visas has been reached as early as mid-May. When the cap is reached, no individual may obtain an H-1B until October 1 of the following fiscal year unless the individual is already in H-1B status and seeking an extension, change of employer, or addition of employer. H-1B petitions may be filed as soon as six months ahead of time, or on April 1 for an October 1 start date.

May an H-1B individual work for more than one employer?

An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.

How long may an individual remain in H-1B status?

In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.

What happens if the employment is terminated before the employee’s H-1B status expires?

If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status.

May an employee in H-1B status travel outside of the U.S.?

Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad.

May an employee in H-1B status with a pending extension travel outside of the U.S.?

Yes, an employee in H-1B status with a pending extension may travel outside of the U.S. However, if the current valid H-1B status expires while the employee is abroad, then the individual must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S.

May an individual in the U.S. in a nonimmigrant visa status change to H-1B without leaving the U.S.?

Yes, if he or she meets all of the criteria for H-1B status and is in valid nonimmigrant status.

How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?

Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their home country while visiting there after changing status in the United States. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.

What happens if an H-1B wants to switch employers?

If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.

What happens if an H-1B employee changes positions but remains with the same employer?

Unless the change in position is an insignificant change, a new LCA and H-1B petition will have to be filed.

What happens if the employer transfers the H-1B employee to another location?

In most cases, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term transfer.

Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition?

No, unless the employer has been found to be a willing violator of the LCA regulations.

What is the immigration status of an H-1B employee’s family in the U.S.?

A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the spouse is eligible for a different status than H-4 (including H-1B), the spouse may elect to enter the U.S. in that status rather than entering as an H-4. Spouses should note that an offer of employment from a U.S. employer is required in order to obtain most types of work-authorized nonimmigrant status.

May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?

No. Individuals in H-4 status may not be eligible to obtain Social Security Cards. However, they may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the U.S. Internal Revenue Service (IRS).

Hiring International Students

Isn’t it illegal to hire international students because they do not have a green card?

No. Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.”

Even if it’s legal to hire international students, won’t it cost a lot of money and involve a lot of paperwork?

No. The only cost to the employer hiring international students is the time and effort to interview and select the best candidate for the job. The international student office handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.

How long can international students work in the United States with their student visas?

F-1 students are eligible for curricular practical training (up to 12 months – such as co-op or internship) before completing their studies, as well as an additional 12 months of optional practical training, either before or following graduation, or a combination of the two. However, if they work full-time for one year or more during curricular practical training, they are not eligible for optional practical training. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.

Don’t international students need work authorization before I can hire them?

No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer in order to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.

What does the work authorization look like?

For optional practical training, F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training, F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.

What if I want to continue to employ international students after their work authorization expires?

With a bit of planning ahead, an employer can hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for workers in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:

  1. The salary must meet the prevailing wage as defined by the Department of Labor, and
  2. A bachelor’s degree or higher is a minimum normal requirement for the position.

Doesn’t an employer have to prove that international students are not taking jobs from a qualified American?

No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1 or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).

L-1 Nonimmigrant Status for Intracompany Transferees

Who may obtain L-1 status?

The L-1 status is available to a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial or specialized knowledge capacity and is being transferred temporarily to the U.S. to work in an executive, managerial or specialized knowledge capacity for a parent, affiliate, subsidiary, or branch in the U.S.

Who qualifies as an L-1A executive?

An executive is an employee who primarily:
1. Directs the management of an organization or a major component or function of the organization.
2. Establishes the goals and policies of the organization, component, or function.
3. Exercises wide latitude in discretionary decision-making and receives only general direction from more senior executives, the board of directors or the organization’s shareholders.

Who qualifies as an L-1A manager?

A manager is an employee who primarily:
1. Manages the organization, or a department, sub-division, function, or component of the organization.
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization.
3. Has the authority where directly supervising one or more employees to hire and fire, or recommend those as well as other personnel actions (such as promotion and leave authorization).
4. Manages an essential function instead of supervising other employees and operates at a senior level within the organizational hierarchy or with respect to the function being managed.
5. Exercises discretion over the day-to-day operations of that function.
6. Spends most of his or her time performing managerial or executive duties rather than producing a product or providing a service.
7. Supervises professionals if a first-line supervisor.

Who qualifies as an employee with specialized knowledge?

An employee who possesses special knowledge of:
1. The organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets.
2. Has advanced level of knowledge or expertise in the organization’s processes and procedures.
3. The specialized or advanced knowledge possessed should be different from that generally found in the particular industry.
4. Specialized knowledge described in 1. above should be noteworthy or uncommon.
5. Specialized knowledge does not need to be proprietary or unique, but knowledge of the company’s processes and procedures must be advanced.

What is involved in applying for L-1 status?

The employer must file an L-1 petition (Form I-129 and L Supplement) with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the transferee at the Service Center having jurisdiction over the place where the L-1 will work. Upon approval, the transferee, if outside the United States, may apply for an L-1 visa at a U.S. Consulate. Certain large employers may obtain a “Blanket” L-1 petition. This enables executives, managers and specialized knowledge professionals employed outside the United States by a qualifying organization to apply for the L-1 visa directly at a consulate, without first obtaining an approved individual L-1 petition from USCIS. Canadian citizens may apply at the border for admission to the United States as L nonimmigrants by filing an L-1 petition with the Immigration Inspector at the border or at Pre-Flight Inspection Unit at an international airport in Canada. A petition previously approved by a USCIS Service Center is not required for Canadian citizens.

What are the fees for filing an L-1 petition?

The USCIS filing fee is U.S. $320.

What documentation should be submitted in support of an L-1 petition?

The employer must document that a qualifying corporate relationship exists between the overseas company and the U.S. company, that the transferee was employed by the overseas company in a managerial, executive or specialized knowledge capacity for at least one continuous year within the past three years, and that the transferee will be employed in a managerial, executive or specialized knowledge capacity by a related company in the U.S.

Is there a certain salary that must be paid to an L-1 employee?

There is no specific required salary.

How long does this process take?

USCIS is required by statute to process L petitions in 30 days, but processing sometimes takes longer at the Service Centers. Premium processing (for an additional $1000 fee) is available and processing is to be completed in 15 days or less. Also, the Premium Processing Unit may be contacted directly by phone, fax and e-mail. Because of mandated security checks, obtaining an L visa at a U.S. Consulate can vary from as little as one day to months depending upon the U.S. Consulate where the application is made and the country of citizenship of the applicant.

How long may an individual remain in L-1 status?

A manager or executive may remain in the U.S. for up to seven years. A specialized knowledge employee may remain in the U.S. for up to five years. A specialized knowledge (L-1B) transferee who has held a managerial position in the U.S. for more than six months before the expiration of the five years may change to managerial (L-1A) status and obtain a further extension up to the seven year maximum. The initial approval is for up to three years (except for start up companies or new offices of overseas companies, for which first approval is limited to one year). Extensions are granted in increments of up to two years.

May an employee in L-1 status travel outside the U.S.?

Yes, an L-1 nonimmigrant employee may travel outside the U.S. if he or she is maintaining valid status and has a valid L-1 visa in his or her passport. If the employee does not have a valid L-1 visa, or his or her visa has expired, then the employee must obtain an L-1 visa abroad.

May an employee in L-1 status with a pending L extension petition travel outside of the U.S.?

Yes, an employee in L-1 status with a pending L extension petition may travel outside of the U.S. However, if his or her current L-1 status expires while the employee is abroad, then the individual must remain abroad until the extension petition is approved and he or she has obtained a new L visa before returning to the U.S.

How may an individual in a valid L status obtain an L visa in his or her passport or renew an expired L visa?

An individual who is the beneficiary of an approved L petition wishing to apply for an L nonimmigrant visa must make an appointment and appear in person before a U.S. consular officer at a U.S. Embassy or Consulate outside the U.S. Most applicants apply in their home country. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.

May an individual in the U.S. in another nonimmigrant visa status change to L-1 without leaving the U.S.?

Yes, if he or she is eligible for change of status and meets all of the criteria for L‑1 status.

What happens if an L-1 employee wants to switch employers?

 If the employee wants to switch to an employer which does not have the required qualifying relationship with his or her prior overseas employer, the employee must seek to qualify in some other nonimmigrant category, such as H-1B.

May an L-1 employee be employed by more than one company in the U.S.?

Yes, as long as all companies for which the employee will work have the required qualifying relationship with the prior overseas employer and each has obtained approved L-1 petitions on behalf of this employee.

What is the immigration status of an L-1 employee’s family in the U.S.?

A spouse and dependent children (unmarried children under the age of 21) of an L-1 employee are entitled to L-2 status. The spouse may work once he or she has obtained an employment authorization document, but the minor children may not.

May a spouse and/or dependent children in L-2 status obtain a Social Security Card(s)?

Only an L-2 spouse with an employment authorization document may obtain a Social Security Card. The others may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the Internal Revenue Service (IRS).

Is an individual with a pending or approved immigrant petition and an application to adjust status pending with USCIS eligible for L status?

Yes, an L nonimmigrant may have the dual intent of becoming an immigrant, if permitted to do so, and at the same time have a present intent to be an L nonimmigrant. He or she is not required to maintain a foreign residence abroad during his or her stay in the U.S. as an L nonimmigrant.

Litigation to Challenge Agency Delays

Why is the adjudication of some applications delayed for long periods of time after normal processing time?

Although on occasion the reason for government adjudication delay may be an investigation of a particular factual or legal issue or even the government’s mishandling or losing of a file, the very large percentage of delayed application are delayed because of pending security, name check or criminal clearances.  Since these clearances are considered a matter of national security, the government will not provide any details regarding the type of clearances that are pending or any likely date for resolution of the clearances.

What is the chance that repetitive inquiries will expedite the adjudication of the application?

None.

What other alternatives exist to expedite the adjudication of the application?

When the problem is a delayed clearance, the only other alternative is filing a mandamus case in federal court. Even congressional or senatorial intervention will do nothing to expedite the clearance process.

What is a mandamus lawsuit?

A mandamus lawsuit requests a federal court judge to order the government to take action in a case. It does not and cannot request the judge to actually approve the case. If the judge believes that the delay is unreasonable, the judge may order the FBI to complete clearances and/or the USCIS to adjudicate the application within a specified period of time. Although the time specified by the judge may vary, it is often 30 to 90 days.

When do you recommend filing a mandamus case?

There is no correct or incorrect time. Certainly, it would be inadvisable to file before the expiration of normal processing times. Generally, we recommend waiting at least 1 ½ years after filing an adjustment of status application. Since many adjustment of status applications with pending security or name check clearances are approved within eighteen to thirty months after filing, the expense of a mandamus case may be saved by waiting longer than eighteen months. Our experience is that applications that are pending more than 2 ½ years often never get adjudicated or at least may be delayed for several more years. Another factor to be considered is that the longer the application has been pending, the greater the chance that a judge may consider the delay to be unreasonable.

How long does it take to get action after filing a mandamus case in federal court?

The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal.

Under what circumstances will the government expedite the clearances and the adjudication after the filing of the mandamus case?

If the government is convinced that there are “compelling circumstances” that require expediting, the AUSA will make efforts to try to get the case expedited. Examples of this could be medical issues, issues of the person losing eligibility for the benefit if there is a further delay, issues regarding the national interest, etc. In addition, even when there are no “compelling circumstances,” our experience is that many applications get expedited after the filing of the complaint and before the judge has to get involved without any formal notification that the case is being expedited.

Will the government retaliate and deny the case as punishment for the filing of the mandamus case?

This is highly unlikely, especially since there are so many mandamus cases being filed. In addition, the government cannot just deny a case for no reason. Before we file a mandamus case, we review carefully the applicant’s eligibility for the benefit sought (permanent residence or naturalization) to make certain that there is no basis for a denial.

What are the chances of success if a mandamus case is filed?

We have been successful on a very high percentage of these cases, but not 100%. Most judges agree that the grant of the relief in mandamus is appropriate with a long delayed application, but some judges do not. Also, the length of time in which the application is delayed may be a relevant issue affecting the chances of success.

Where does the mandamus case get filed?

The application is filed in federal district court in one of two places: either the federal district court with jurisdiction over the place where the foreign national lives or the federal district court in Washington, D.C. The only exception is on a naturalization case where the permanent resident alien has already been interviewed (called a “336(b) case”), which must be filed in the federal district court with jurisdiction over the place where the permanent resident lives.

Who should be named as a defendant in the mandamus complaint?

All government agencies involved in the adjudication of the application could be named. Normally, this includes USCIS (and often the local district director, the regional center director and the commissioner of USICS in Washington), the Department of Homeland Security and the Attorney General of the United States. It is also often a good idea to include as a defendant the FBI, which has the mandate to process the clearances.

Who represents the government?

The Assistant U.S. Attorney.

What is the government’s likely response to the complaint?

The official response is usually a Motion to Dismiss in which the government attempts to convince the judge that a mandamus case is not appropriate for an adjustment of status or a naturalization application. In some cases, the application is adjudicated before the government files its Motion to Dismiss.

What is the likelihood that the government’s Motion to Dismiss will be granted?

Although some judges agree with the reasons given to dismiss the application, our experience is that most judges agree with the legal argument that we provide in our Reply to the Motion to Dismiss and refuse to dismiss the mandamus case.

What happens if the Motion to Dismiss is granted?

In that event, the case is dismissed; and the mandamus possibility is gone. The foreign national remains in the exact same position he was in before the filing of the mandamus case.

What happens if the Motion to Dismiss is denied?

In most cases, the government voluntarily adjudicates the application before receiving a judge’s order requiring it to do so. If that does not happen, we request the judge to issue such an order requiring the adjudication of the application within a specified period of time.

Can the judge approve the application?

No. The judge can only order the FBI to complete the clearances and order USCIS to adjudicate the application within a specified period of time.

What are the reasons given by the government why the mandamus case should be dismissed?

The government usually raises some combination of the following defenses:
  • cases involving national security are not appropriate for action by the federal court;
  • the court should not allow the mandamus applicant to “jump ahead” of others standing in line;
  • the government has complete discretion regarding how long to take in adjudicating  an application, and its discretion is not subject to court review;
  • the government has no duty to adjudicate the application;
  • the amount of delay in a particular case is not “unreasonable.”

Can the judge order the government to pay attorneys fees?

If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorneys fees under the Equal Access to Justice Act.

Can an employer, including a university, be a party to the mandamus case?

When the mandamus case seeks action on a petition in which the employer (including a university) is the petitioner, the employer can and must be a plaintiff in the litigation.

Can a mandamus case be filed on behalf of someone outside of the United States?

There are more complicated issues involved when the mandamus case is filed on behalf of someone outside of the United States. It may be possible to file such an action if there is a U.S. petitioning employer and if the defendant is the Department of State in Washington rather than the U.S. Consulate overseas. The court would have to be convinced that it has jurisdiction over the case because of the action or inaction of the Department of State or other government entity in Washington, as opposed to the action or inaction of a U.S. Consulate overseas, since the court would likely hold that it has no jurisdiction over the U.S. Consulate overseas.

Are naturalization cases the same as adjustment of status cases?

Although the issues are a little bit different, a mandamus case can be filed for a long-pending naturalization applicant just as for a long-pending adjustment of status applicant. There are special provisions available if the naturalization applicant was interviewed and if no decision was made on the application for more than 120 days following the interview. In that event, the federal court judge can be requested to not only order USCIS to adjudicate the application but actually to have the federal court judge hold a hearing and decide the naturalization application.

Medical Examination and Vaccination Record: Best Practices and Frequently Asked Questions

All applicants filing Form I-485 for adjustment of status to that of a lawful permanent resident must submit Form I-693 completed by a designated civil surgeon.  Form I-693 is used to report the results of a medical examination to the U.S. Citizenship and Immigration Services.  The examination is required to establish that an applicant is not inadmissible to the United States on public health grounds.  To locate a civil surgeon, please click here.

All applicants for permanent residence are required to present the examining physician with proof of vaccination against mumps, measles, rubella, polio, tetanus, diphtheria, pertussis, Type B influenza, hepatitis B, varicella, haemophilus influenza type B, and pneumococcus.  If you and your family cannot present proof of having received one or more of the required vaccines, you will have to receive such vaccination prior to receiving an approved medical certificate.  The doctor is required to note each of your vaccination records on the Vaccination Supplement form.

Certain vaccines may not be required if you have a medical condition that prevents you from receiving it.  If this is the case, the civil surgeon will annotate the Form I-693 accordingly, marking the vaccine as contraindicated.  However, contraindication is only permissible under very limited circumstances.  Click here for further details about the grounds for contraindication.

After the exam, the physician will complete and seal the Form I-693 and Vaccination Supplement in an envelope and return them to you.  Please forward these to our office in the sealed envelopes.  Do not open the envelopesWe recommend requesting a copy of the completed Form I-693 and Vaccination Supplement from the physician to ensure that it was properly completed.  If either the vaccination chart or the I-693 is not properly completed, USCIS may return the Form I-693 with instructions on how to correct it, which will delay the adjudication of your Adjustment of Status petition.

What if I refuse to receive one or all of the required vaccines?

Under the following circumstances, you may be eligible for a waiver of one or more of the required vaccines:

  • You are opposed to vaccinations in any form– that is, you cannot obtain a waiver based on an objection only as to one vaccination; and
  • Your objection must be based on religious beliefs or moral convictions; and
  • The religious or moral beliefs must be sincere.

USCIS will require significant documentation to demonstrate that you meet these requirements for a vaccination waiver.

My civil surgeon or I believe that I am exempt from the TB test. Am I?

This is a question that seems to create a lot of confusion.  Note that the USCIS vaccine requirements are very stringent, and may oblige you to be vaccinated when either you or the civil surgeon believes you are exempt.  Every applicant for permanent residence must be administered either the TST or IGRA test for TB.  The only exemptions are as follows:

  • The applicant provides written documentation (with a healthcare provider’s signature) of a TST reaction of 5 mm or more of induration; or
  • The applicant has had a severe reaction with blistering to a prior TST; or
  • The applicant provides written documentation (with a healthcare provider’s signature) of a prior positive IGRA.

In these cases, the applicants must be administered a chest radiograph to evaluate for tuberculosis.

I am pregnant and do not wish to receive any vaccinations. Do I still have to get them to be able to obtain permanent resident status in the United States?

If you are pregnant or believe you may be pregnant, USCIS may still require you to have the vaccines.  While you can certainly defer any of these vaccines until later in the pregnancy or after delivery, that means you would need to also defer filing the I-485 adjustment of status.

The Centers for Disease Control and Prevention’s Technical Instructions direct the civil surgeon to evaluate the vaccines you are able to receive during pregnancy.  If the civil surgeon cannot safely administer a required vaccine, he/she will annotate the Form I-693 by marking the vaccine as contraindicated.  Pregnancy is only considered to be a valid contraindication for MMR, varicella, and intranasal influenza vaccines.  It is not considered to be a valid contraindication for receiving the Td, Tdap, inactivated influenza, or the hepatitis B vaccines; if your civil surgeon exempts you from any of these vaccines because you are pregnant, USCIS may return the Form I-693 with further instructions, which will delay the adjudication of your Adjustment of Status petition.

For additional questions about the vaccination requirements, please click here.

Options for Medical Residents

What issues affect hiring international medical graduates?

International Medical Graduates (IMGs) need special credentialing from the Educational Commission on Foreign Medical Graduates (ECFMG) in order to become licensed physicians or begin residency training. In addition, IMGs who are not U.S. citizens or permanent residents (“green card” holders) must obtain an employment-authorized temporary visa before beginning employment (including residency training) in the United States.

What visa options do IMGs have for their residency?

IMGs generally have three nonimmigrant status options for their residency: a J-1 Exchange Visitor, sponsored through ECFMG; H-1B Professional Worker, sponsored by the hospital where they will be a resident; and O-1 Extraordinary Ability, sponsored by the hospital where they will be a resident.

What are the requirements for J-1 status?

A residency program must be sponsored by ECFMG, which will issue a Form DS-2019 to a physician to enable him or her to obtain J-1 status or apply for a J‑1 visa abroad. ECFMG requires a physician to have obtained ECFMG certification, which includes a credentials review and satisfactory scores on the USMLE Step 1, Step 2 Clinical Knowledge, and Step 2 Clinical Skills (or the ECFMG Clinical Skills Assessment plus a passing score on the Test of English as a Foreign Language (TOEFL)) examinations.

What are the limitations on J-1 status?

J-1 status is limited to the length of a normal training program in the specialty for which the physician is being trained, as recognized by ACGME. In addition, the overall time limit for a J-1 physician is seven years. Finally, any physician who receives graduate medical education (GME) in J-1 status must return to his or her home country for two years before being eligible for H status or permanent residence, unless a waiver of that requirement is granted.

What are the requirements for H-1B status?

An H-1B petition may be filed for an IMG who has an ECFMG certificate, has completed all three steps of the USMLE examination and has a valid training (or house) license in the state of intended training. An employer must first file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), attesting that it is offering the position at the prevailing wage for the occupation and is offering the H-1B the same wages and working conditions as it offers its other residents. The LCA is filed with Form I-129, Petition for Nonimmigrant Worker, and supporting documentation, to United States Citizenship and Immigration Services (USCIS). A petition on behalf of a person in valid status in the United States can request the person’s status be changed to H-1B with the petition approval; a petition on behalf of a person outside of the U.S. allows the person to apply for an H-1B visa at a. U.S. Consulate upon petition approval.

What are the filing fees for H-1B status?

The filing fee is U.S. $325. Employers must also pay a $1,500 “U.S. Worker Training Fee” to Department of Homeland Security for the initial petition they file and for the first extension they file on behalf of a particular employee. Effective March 8, 2005, employers will also be required to pay a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $1,225 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.

How long does this petition process take?

It may take from 12 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides and option to pay an extra fee of $1,225 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing. The process will take longer if USCIS requests additional documentation.

Are there any times of the year when new H-1B visas are unavailable?

Yes. H-1B petitions may be filed as soon as six months ahead of time, or on April 1 for an October 1 start date. In recent years, the quota or “cap” for H-1B visas has been reached as early as mid-May for a start date of the following October 1. When the cap is reached, no individual in a cap-subject job may obtain an H-1B until October 1 of the following fiscal year unless the individual is already in H-1B status and seeking an extension, change of employer, or addition of employer.

Are training hospitals exempt from the H-1B cap?

An institution of higher education, or a nonprofit organization “affiliated with” an institution of higher education, is not limited by the annual cap on H-1B status. Nonprofit hospitals conducting residency training that have affiliation agreements with university medical schools have been able to argue successfully that their H‑1B petitions should be approved in spite of the cap on the basis of those affiliation agreements.

How long may an individual remain in H-1B status?

In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.

What are the requirements for O-1 status?

O-1 status is for physicians of “Extraordinary Ability”; that is, status for those who have sustained recognition either internationally or in their home countries. Because even prominent physicians may need to participate in one or more years of residency training in the United States for licensing purposes, a physician with an international or national reputation for excellence may be sponsored for O-1 status, even for a residency program.

Passports, Visas and the I-94 Card

What is a visa?

A visa is a permit to apply to enter the United States. Visas are different from “status,” which is the length of time an individual may stay in the U.S. after admission. There are two types of visas, nonimmigrant and immigrant. The nonimmigrant visa is issued to individuals who intend to come into the U.S. for a temporary period of stay for a specific purpose. The immigrant visa is issued to individuals who intend to live and work permanently in the U.S. Such individuals obtain “green cards” after arrival and are called permanent residents.

Who needs a visa?

Most individuals coming into the U.S. for a temporary period of stay must obtain a visa. There is an exception for individuals who are nationals of countries which are included in the Visa Waiver Program. Such nonimmigrants are not required to obtain a visa to apply to enter the U.S. as a visitor for business or pleasure (B-1 and/or B-2 visa categories), if they are staying for no more than 90 days. In addition, citizens of Canada do not generally require a nonimmigrant visa unless they are coming to the U.S. as a Treaty Trader or Treaty Investor.

Is there a specific period of time for which a passport must be valid?

The length of the visa may be limited to the expiration date of the passport. In addition, U.S. immigration law requires that a foreign national’s passport be valid during all periods of time spent in the U.S., including the time during an extension of stay, so a person’s status may be limited to the validity of their passport.

How does an individual obtain a visa for entry into the U.S.?

If an individual is planning to travel to the U.S., he or she (and family members) should apply for their nonimmigrant visa(s) at the nearest U.S. embassy or consular post. Prior to applying for the visa, the applicant must obtain the necessary supporting documentation, which may include notice of the approval of a nonimmigrant visa petition by the U.S. Citizenship and Immigration Services (USCIS).

Does a visa guarantee entry into the U.S.?

No. A visa is issued to an individual by a consular officer outside of the U.S. Having a valid visa does not necessarily guarantee a smooth entry into the U.S. U.S. Customs and Border Protection (CBP) has the authority to grant or deny admission to the U.S. In addition, CBP will determine how long an individual may remain in the U.S. This information is recorded on the I-94 card at the port of entry.

What is an I-94 Card?

The I-94 Card is also known as the Arrival/Departure Document. It serves as the registration form for individuals admitted to the U.S. as nonimmigrants. This document is created by CBP when the individual is inspected upon arrival in the U.S. The CBP inspector will endorse the I-94 with the date, place of arrival, status (i.e., F, J, H, L, etc.), and length of authorized stay. The individual keeps the I-94 Card as the official record of admission and permission to remain in the U.S. If an individual decides to remain in the U.S. beyond the date on the I-94 card, he or she must file a petition for an extension of stay with U.S. Citizenship and Immigration Services (USCIS). When departing the U.S., an individual must surrender his or her I-94 Card except if travelling only to Canada, Mexico, or adjacent islands other than Cuba for a period not to exceed 30 days, in which case the individual may be able to use the I-94 Card to reenter the U.S.

Does an individual need a new visa every time he or she travels outside of the U.S.?

Not necessarily. An individual should examine the visa in his or her passport to determine the immigration status (H-1, L-1, J-1, etc.), number of entries permitted, and the expiration date. If the individual is reentering in the same immigration status and the initial visa has not expired and is valid for more than one entry, a new visa is not required. If he or she has changed status in the U.S. prior to departing or plans to reenter in a different status, a new visa is required.

How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?

Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their country of nationality; however, some applicants may apply in Canada or Mexico, or in other countries outside their own.

What determines the length of validity of a visa?

A visa is a permit to travel to the U.S. and apply to enter the U.S. The Consular Officer may grant a visa for as little as one month or as long as ten years, depending on the classification of the visa and the treatment given by the individual’s country of nationality to U.S. visa applicants in similar classifications. The U.S. government’s “reciprocity schedule” for each country lists maximum validity of each type of visa for nationals of each country. The validity of the visa does not affect how long an individual may remain in the U.S. on any entry. Therefore, the date on the I-94 Card may be different from the date on the visa.

What determines the length of validity of my stay in the U.S.?

The duration of a nonimmigrant’s lawful stay is recorded on the I-94 Card created by CBP when the individual is inspected upon arrival in the U.S. It may be shorter or longer than the validity of the nonimmigrant’s visa. Nonimmigrants should note the date written on this card, as it governs the time they are “lawfully present” in the U.S.

If a visa has expired and an immigration status extension is in process, may an individual leave the country?

Yes. An individual may leave the U.S.; but, in most cases, he or she must remain out of the country until the extension is approved. Once the approval notice is received, the individual must apply for a new visa at the appropriate U.S. consular post.

What happens if a valid visa is in an expired passport?

The individual should keep the expired passport with the valid visa together with the new passport issued by his or her country of nationality. It is not required — although it may be convenient — to have the visa issued in the new passport.

May an individual travel to the U.S. on a business trip while awaiting a USCIS approval notice for a visa that allows employment in the U.S.?

An individual whose overseas position requires a trip to the U.S. may travel to the U.S. on a business visa (B-1) or under the visa waiver program, but he or she must not assume any of the responsibilities of the U.S. position while in that category. In addition, he or she must remain on the payroll of the foreign company.

PERM

What Is PERM?

PERM is a system through which employers can hire a foreign national by submitting an application electronically or by mail to DOL in which they attest that they have taken certain steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker for the position. Employers will be responsible for documenting their compliance with the recruitment steps enumerated in the regulations, but they will only submit that documentation to DOL if DOL chooses to audit their applications. All labor certification applications for full-time permanent positions filed on or after March 28, 2005, must comply with these regulations.

Where And How Are PERM Labor Certification Applications Processed?

PERM centralizes processing of labor certification applications at two national processing centers, one in Atlanta and one inChicago. Previously, labor certification applications were filed locally with State Workforce Agencies (SWAs), the state-level organizations responsible for unemployment insurance, job training and placement of workers. Under the PERM program, applications are no longer submitted to SWAs for processing, though SWAs will continue to provide determinations of the prevailing wages for occupations through their Labor Market Information (LMI) units.

How Long Will It Take DOL To Process A PERM Application?

Through electronic filing and the audit-based adjudication process, DOL reports that “clean” applications take less than 60 days to adjudicate. In users’ experience, applications may be processed very quickly – sometimes in less than a week – but normally take 60-90 days. Processing times for audited cases also vary, with some being decided quickly and others not processed for months.

How Is Recruitment Being Handled Under PERM?

PERM’s goal is to make nationally uniform the requirements for the recruitment steps an employer must take prior to filing an application for labor certification, and to require every application to undergo pre-filing recruitment. Employers must utilize several forms of recruitment within the six months prior to filing the application, must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity on site at the company as well through any in-house company media in which jobs are ordinarily posted, and must secure a prevailing wage determination from the SWA.

What Print Ads Are Required Under PERM?

 Prior to filing an application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Application for Permanent Employment Certification, Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage, as determined by the SWA.

Must A SWA Job Order Be Placed Under PERM?

The employer must place a job order with its local SWA for the position. The job order should contain the same information as the advertisement, and the employer should request that the SWA refer any potentially qualified applicants directly to the employer.

Are Recruitment Steps For Professional And Non-Professional Jobs The Same?

The recruitment for a professional occupation (those for which the attainment of a bachelor’s or higher degree is the usual education requirement) consists of a job order and two print ads plus three additional steps. The recruitment for non-professional occupations consists only of a job order and the two Sunday advertisements.

What Are The Three Additional Recruitment Steps for Professional Jobs?

An employer must both advertise the opening and carry out three additional recruitment steps, choosing from the following options: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps; i.e., may not conduct one of the three steps three times. With respect to these additional steps, an employer may advertise either for the specific job opportunity, or merely for the occupation involved in the application. All three recruitment steps must have taken place no more than 180 days before filing, but only one of the steps may have taken place within 30 days of filing. The employer must specify the dates of each of the three additional recruitment steps it has undertaken on the application form, and maintain documentation of the recruitment step, such as a dated printout from a website, or a flyer announcing the employer’s participation in a job fair.

Does PERM Require An Employer to Post a Notice of Job Opportunity?

 An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. The Notice must contain the salary for the position, but may contain a salary range so long as the lower level of the range meets or exceeds the prevailing wage. The notice may contain the same description of the position as is placed in the newspaper advertisement, and should include a contact person for employees who wish to apply for the position. In addition, the notice must contain language indicating that the posting is in connection with an application for labor certification, and that any person having information bearing on the application can submit that information to the Department of Labor. Importantly,in addition to a printed posted notice, an employer must place the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. The notification must include all information posted in print, including salary range and DOL contact information. Since the notification in such media need only be done if it is the employer’s normal practice to do so for the job classification in issue in the application, an employer could avoid listing executive-level positions if it is not normal practice to do so. Duration of the in-house media notification should be as long as other comparable positions are posted.

Can An Employer Use Qualification in Excess of What DOL Considers “Normal?”

DOL will generally not allow an employer to use job requirements that exceed the requirements for a position as found in the DOL’s description of the occupation in its Standard Occupational Classification (SOC) system unless the employer can justify it on the basis of “business necessity.” To meet this exception, the employer must show that the requirements are reasonably related to the position and necessary to perform the job duties in the context of the employer’s operation. This ability to deviate from the SOC system is important, as that system categorizes jobs into far fewer categories than the Dictionary of Occupational Titles formerly used to measure “normal” requirements.

Can Experience Gained With The Petitioning Employer Be Used?

Employers may use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).

Is The Use Of Alternative Experience Permitted?

Any alternative means for a worker to be considered qualified must be “substantially equivalent” to the primary means of being considered qualified. For example, if the labor certification application involves a household cook position, it would be reasonable to require one year of experience as a household cook or, alternatively, one year of experience as a restaurant cook, as the two periods of cooking experience are comparable. It would not be reasonable to require one year as a cook or, alternatively, one year of experience as a “household worker with some cooking duties” as the alternative requirement is less stringent than the primary requirement.

If The Job Requires Four Skills And A Job Applicant Lacks One Of These Four Skills, Is This A Lawful Reason To Reject The Applicant?

Lack of one of four required skills may not be enough to lawfully reject an otherwise qualified U.S. worker. The employer will need to explore and evaluate whether the U.S. worker applicant could perform the job with a reasonable amount of on the job training in the lacking skill(s). What is reasonable will depend on the particular employer and the job opportunity. For example, if it would not be reasonable to spend six months training a U.S. worker in one of the required four skills, this would need to be explained and documented.

What Salary Does PERM Require Employers To Pay In Connection With The Labor Certification Position?

An employer must complete a Prevailing Wage Determination Request Form (PWDR) and file it with the SWA before filing the Labor Certification Application. The SWA will use its wage survey data to provide a prevailing wage unless an employer provides an acceptable alternative survey. The SWA uses DOL’s Online Wage Library to provide a wage level based on a formula that compares the employer’s requirements to the DOL’s Standard Vocational Preparation criteria. The employer also has the option of using a qualifying survey, which must meet certain specified criteria to be considered acceptable. These criteria are essentially the same as the criteria under RIR except that a median figure, not just an arithmetic mean, can in certain circumstances be used for the prevailing wage.

The employer must attest that it will pay 100% of the prevailing wage at the time that the foreign national beneficiary obtains permanent residence on the basis of the Labor Certification.

What Can An Employer Do If It Does Not Agree With The SWA Prevailing Wage Determination And It Cannot Find A Qualifying Alternate Survey?

An employer has the opportunity for one submission of additional information to persuade the SWA to change the appropriate skill level or job classification or find that the alternative survey qualifies. After that one submission is made, the employer may either appeal the SWA’s determination to the Certifying Officer or file a new prevailing wage request. If the employer does not agree with the Certifying Officer’s determination, then the employer may file an appeal to BALCA.

How Long Is The PWD Valid?

The SWA specifies the validity period of the prevailing wage on the PWDR form. It must be valid for at least 90 days and no more than one year from the determination date on the form. Employers must either begin the recruitment, or file their PERMapplications, within the validity period on the PWDR.

What Recruitment Documentation Must Be Prepared By Employer?

The employer must prepare documentation of all of its recruitment steps, such as newspaper tearsheets for advertisements and printouts of web sites. The employer should maintain copies of all resumes or applications submitted in connection with the recruitment steps. In addition, the employer must prepare a recruitment report that describes the recruitment steps taken and the results. This report shall include the number of hires and the number of U.S. workers rejected, categorized by the lawful job‑related reasons for rejection. Although it does not need to include the identity of the individual U.S. workers who applied for the job opportunity, it must track them sufficiently that an auditor can determine which resumes were evaluated for each job opportunity. The employer must sign the recruitment report and retain it as part of the supporting documentation.

What Must Employer Do If Application Is Selected For Audit?

If an application is selected for audit, the employer is required to provide the supporting documentation within 30 days of a request by a Certifying Officer (CO). After the documentation has been submitted, the CO can approve the application or deny the application. In addition, if the Certifying Officer is not satisfied that the documentation establishes unavailability of U.S. workers, the CO may require supervised recruitment after the filing. The supervised recruitment will involve a new newspaper advertisement and job order, this one directing responses to the CO, and the employer will be expected to give an applicant-by-applicant evaluation of whether the applicants met the qualifications for the position. If an employer fails to respond to a request for documentation, or is deemed to have misrepresented the recruitment steps it took or its reasons for rejecting U.S. workers, the CO may require the employer to use supervised recruitment for all of its applications for a period of up to two years.

How Long Must Employer Retain Recruitment Documentation?

The employer must retain its recruitment documentation for five (5) years from the date of filing of the application, as the DOL may reopen its labor certification determination even after approval and conduct an audit.

What Happens To Pending Cases and New Cases Prior to March 28, 2005?

Pending cases and new cases filed before PERM’s effective date will continue to be processed under the current system, if the employer wishes.

Can Cases Filed Under the Current System Be Converted To A PERM Case?

A pending case can be converted to a PERM case, while preserving the original filing date, by withdrawing the pending case and refiling it. A case may be withdrawn and refiled if it is an RIR application, or if it is a “traditional” application for which supervised recruitment has not yet begun. In order to be refiled and keep the original filing (priority) date, the application must be for the “identical job opportunity,” and must otherwise comply with all of the PERM requirements. If it is found not to be “identical,” then the earlier filing date or priority date will be lost. In order to refile, therefore, an employer would need to have conducted recruitment that meets the PERM standards no more than 180 days prior to the request for conversion. Given the expense of newspaper advertising alone, many employers will opt to leave their RIR cases pending with DOL rather than converting them to PERM.

Prevailing Wage Determinations through DOL’s National Processing Center

What is a ‘prevailing wage’?

A prevailing wage is a rate of pay calculated based on the average wages in a particular geographic area for a given employment position. In the immigration context, it is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in certain nonimmigrant classifications (H-1B, H-2B, H-1B1, E-3), or sponsor a foreign national for permanent residence through the labor certification process (PERM).

How can I obtain a prevailing wage determination (PWD)?Can I use the same PWD for the H-1B and for PERM? Or the same ETA-9141 for multiple PERM applications for the same position?

Effective January 1, 2010, all prevailing wage requests (PWR) are submitted to the U.S. Department of Labor’s (DOL) National Prevailing Wage Center (NPWHC) on Form ETA-9141. Requests may be made either through the iCert portal, http://icert.doleta.gov/, or by post to:

U.S. Department of Labor
Employment & Training Administration
National Prevailing Wage and HelpDesk Center
ATTN: PWD Request
1341 G Street, NW – Suite 201
Washington, DC 20005 – 3105

DOL has indicated a preference to receive requests via the iCert portal.

Can I use the same PWD for the H-1B and for PERM? Or the same ETA-9141 for multiple PERM applications for the same position?

Yes. Presuming the position description and requirements are identical, and presuming the prevailing wage is still valid, you may use it more than once.

Must I request a prevailing wage determination from DOL?

It depends. If a PERM labor certification application is being submitted, the answer is yes. A formal PWD issued by the DOL is required for every PERM filing.

However, the same is not true for petitions for H-1B, H-1B1, and E-3 nonimmigrant classifications. For these classifications, a DOL PWD need only be obtained if the employer wishes to take advantage of the DOL’s ‘safe harbor’ provisions.

What is Safe Harbor?

Safe harbor is the term used to refer to the DOL’s regulation that states that “In all situations where the employer obtains the PWD from the NPC, the Department will deem that PWD as correct as to the amount of the wage.” Therefore, the employer is “safe” from investigations questioning the validity of the prevailing wage.

Is safe harbor really safe?

For the most part. However, the protection offered by safe harbor may not be as comprehensive as many employers believe. While the DOL may not question the wage itself, they may question the information provided on the ETA-9141 to determine the wage. For example, DOL may investigate if the job description was accurate, sufficiently detailed, and all requirements articulated.

Are there other disadvantages to using safe harbor?

Possibly. For one, the current DOL processing time for a PWD is around 60 days. Since the PWD is needed to file the Labor Condition Application (LCA), it may increase the lead time for filing an H-1B to 10 weeks. For another, if the wage appears to be inaccurate and is completely unrealistic, the employer may have to accept it as valid and raise the offered wage in order to proceed with an H-1B, as noted below.

Can I challenge an unrealistic/incorrect PWD?

Absolutely. There are a number of avenues to challenge a PWD. If it appears to have a technical error, for example, or the information on the PWD appears not related to the ETA-9141, email OFLC.portal@dol.gov.

For non-technical errors, the first step would be to request a redetermination through the iCert portal. The reason for the request should be selected from the drop-down list, and a brief explanation of why the PWD is believed to be incorrect should be noted. This appears to be the quickest way to challenge the wage, sometimes taking less than two weeks.

If the redetermination is denied, the PWD can also be challenged by requesting review by the Center Director, which must be done within 30 days of receiving the response on the redetermination. If that too is denied, an appeal may be made to the Board of Alien Labor Certification Appeals. This will likely take at least a year, if not longer.

We are within 1% of the wage, is there anything we can do short of raising the wage?

Under the regulations, the employer is obligated to pay 100% of the prevailing wage.

Is there guidance on completing the ETA-9141?

Yes. DOL has provided guidance on a number of key issues, noted below.

  1. ACWIA wage: On the ETA-9141, item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: “***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). ***” (March 2010 DOL FAQs). NOTE: The ACWIA wage is applicable to institutions of higher education, nonprofit organizations affiliated with an institution of higher education, and nonprofit research institutions. Please note that the ACWIA wage must be used by such institutions, even if higher than the “all industries” wage library for the same location and position.
  2. Entry Level Positions (including Postdoctoral Fellows): According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, “DOL recognized that post-doc positions are typically entry-level training positions that should not be calculated automatically and PWDs should be assigned based on actual duties of the position.…Users are encouraged to… reference the entry-level nature and training component of post-doctoral research [and] … to include the same terminology under job duties.”
  3. Work Schedule: According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, the work schedule is not meant to be static. If a position is 35 – 40 hours per week, but the employee has a flexible schedule, it is fine to note “9am-5pm” as the standard schedule.
  4. Travel: In response to AILA’s question at the March 25, 2010 DOL Stakeholder’s meeting regarding the relevancy of travel to a PWD, the DOL noted that the ETA-9141 is used for several programs (e.g. PERM, H-2B, H-1B) and may not be relevant.
  5. Worksites: If there are multiple worksites, this should be addressed at D.c.7 and 7a, and is distinct from “travel” as noted above. The form allows you to add as many worksites as necessary. DOL further clarified that multiple worksites on a single campus (within the same MSA) do not need to be listed, and noted that the main office or headquarters can be used instead.

I followed this guidance but still received an unrealistic wage? Can I ignore the DOL’s PWD and do my own determination?

The DOL regulations at 20 CFR 655.731(a)(2)(ii)(A) state that “if employer is unable to wait…for the prevailing wage…or for the CO and/or BALCA to issue a decision [on a request for redetermination], the employer may rely on other legitimate sources.” This would seem to suggest that employers are not required to wait for the PWD for nonimmigrant petitions.

However, the regulations also add that “if the employer later discovers, upon receipt of PWD…that the information relied upon produced a wage below the final PWD…no violation will be found if the employer retroactively compensates the…nonimmigrant.” Some attorneys believe that, if the employer does not wait, but later receives the PWD, the employer may be bound by it.

A best practice for employers who file the ETA-9141 for nonimmigrant petitions and cannot wait for the PWD may be to withdraw the ETA-9141 to avoid receiving a conflicting wage.

How do I do my own determination?

The DOL provides step by step instructions to make a prevailing wage determination. These instructions, available online at http://www.foreignlaborcert.doleta.gov/reg.cfm#PREVAILINGWAGE, are the same instructions used by Certifying Officers in making PWDs. Just as the Certifying Officers do, you should use the job description to determine the appropriate SOC-ONET classification from those available at http://online.onetcenter.org/. This will provide you with the relevant “Job Zone”, which defines the quantitative parameters for the amount of experience the DOL considers “normal to the occupation.”

Once you have determined the SOC-ONET code and corresponding Job Zone, follow the DOL’s “Check Sheet for Use in Determining OES Wage Level” to complete the “Worksheet for Use in Determining OES Level.” These are Appendices B/C of the guidance noted above, which can be used to chart the employer’s job requirements against the DOL’s parameters of “normal to the occupation.” Comparing the amount of education, experience, special skills required by the employer to the SOC-ONET and Job Zone’s definition of “normal to the occupation” will yield a calculation of what wage level is appropriate. You may then determine which of the four levels of prevailing wage used by the DOL is correct. These are available at http://icert.doleta.gov/.

Note that a wage cannot be lower than Level 1. Therefore, the worksheet always includes ‘1’ and points are added as necessary to reflect a more senior level. The highest level is Level 4, so even if the worksheet yields what would seem to be Level 10, it is still considered Level 4 because there is no higher wage. Since this process is trickier in theory than it is in practice, it may be beneficial to view some examples on using the guidance and the DOL’s Worksheet, available at http://www.klaskolaw.com/events-calendar.php?action=view&id=210.

What are the advantages of doing the PWD without DOL?

The primary advantage is expediency. If DOL continues to take 60 days for PWDs, it may not be feasible to wait for the PWD and then file and wait for the LCA.

Another major advantage is that learning how to calculate the prevailing wage takes the mystery out of the process, and avoids having to challenge an unrealistic wage.

Keep in mind that when you calculate the prevailing wage, you will still need to explain how you selected the SOC-ONET category and justify the wage level you determined to be appropriate. You must be able to honestly compare the employer requirements against the SOC-ONET range and select the best match, regardless of where the wage may fall.

If I do my own determination, do I need to submit the ETA-9141?

For H-1B purposes, a DOL-issued PWD is not required. However, using the DOL’s instructions to make your own PWD does not qualify as a “safe harbor” wage.

For PERM applications, a DOL-issued PWD is an absolute requirement. It may be a good idea to do your own calculation to predict the correct wage level, to determine the feasibility of a PERM filing. Moreover, the documents you use to calculate the wage can be submitted to DOL with the ETA-9141 to advocate for a wage.

If I do my own determination, what documents do I include in the Public Access File?

A good practice would be to include those documents you used to determine the appropriate OES level. For example, if you used the DOL’s worksheet to calculate the level based on the SOC-ONET code and the OES wage, you may want to include the worksheet, the print out of the SOC-ONET description, and the OES webpage. You may also want to include a memo to the file explaining on what basis the SOC-ONET code was selected. You may also wish to include print outs of the position descriptions that were similar, but which you did not choose, along with an explanation of why you felt they were not as good a match as the position and wage you selected.

There is no OES wage data in my geographic area for the relevant SOC-ONET code. What do I do?

The regulations at 20 CFR 655.741(a)(2)(iii) note that if there is no data for the occupational category in the area of intended employment, the wage for jobs requiring a substantially similar level of skill within the area of intended employment should be used. If there are no substantially comparable jobs within the geographic area, it is appropriate to look at the occupational category in areas outside the area of intended employment. At the March 25, 2010 DOL Stakeholder’s meeting, DOL indicated that an FAQ on this topic would be forthcoming.

The relevant SOC-ONET code indicated “no zone set”; without the job zone, how do I determine the experience parameters?

This is a great question, but at present, there is no great answer. While we await DOL guidance, a suggestion is to use the Job Zone for a similar type of occupation, and to document your choice in the public access file. For example, if the position is for a Biological Scientist, depending on the job duties, it may make sense to look at the Job Zone for a Microbiologist, or a Biochemist, or a Biomedical Engineer. Most important would be to explain the rationale for using the related occupation in the public access file.

The SOC-ONET code indicated a Job Zone 4, but for Education & Training, it indicated “No Code Set”. How do I determine the degree level that is considered “normal to the occupation”?

This is another great question, for which there is no great answer. A suggestion would be to look at the detailed descriptions related to the relevant SOC-ONET at http://online.onetcenter.org/. There is usually a comment on the normal educational requirements, such as is noted below:

Education: Most of these occupations require graduate school. For example, they may require a master’s degree, and some require a Ph.D., M.D., or J.D. (law degree).

A conservative approach would be to default to the lowest degree level mentioned, a master’s degree, and add a point if a Ph.D. is in fact required. Another approach would be to research the occupation in the DOL’s “Occupational Outlook Handbook” and similar material to determine if there’s a sufficient basis to argue that a Ph.D. is the norm. The DOL guidance recognizes that adding points for wage levels should not be done “in an automated fashion.” However, whatever approach you choose, you should be prepared to justify it with documentation in the public access file.

How do I distinguish between Education, Training, and Experience? What should be considered a “special skill”?

Generally, education refers to the degree requirement. Appendix D of the November 2009 DOL Guidance defines the degree that is considered “normal to the occupation.” If the training and/or experience is part of the education, i.e. it was necessary to obtain the degree, it should not be counted twice. Moreover, consider the actual requirement. For example, is it a certain number of years of medical residency training, or is it that the employee is Board Eligible?

Depending on the nature and extent of the training requirement, it may be considered a “special skill”. The DOL guidance indicates that the employer’s requirements should be compared to the SOC-ONET descriptions to determine if it merits a point, and provides a few examples of special skills, such as foreign language requirements (for other than foreign language teachers and interpreters), or licensure, unless it is a normal requirement to perform the duties at an entry level. Again the DOL states that the worksheet should not be completed in an automated fashion, and if the ‘special skill’ is already encompassed in education or experience, a point should not be added.

Are there any SOC-ONET categories that would work for medical residents?

SOC-ONET categories that have been suggested include:

  • 29-1199 – Health Diagnosing and Treating Practitioners, All Other
  • 29-1069 – Physicians & Surgeons, All Other
  • 29-1062 – Family & General Practitioners
  • 29-1063 – Internists, General

Can I forego the OES and use a different wage survey?

Yes. It is permissible to use alternative wage surveys.

How do I request a PWD based upon a source other than OES?

On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, the employer should include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate. Additionally, the employer may also need to provide supporting documentation, as explained in the questions and answers immediately following.

In addition, after entering the employers’ job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.

Example:
D.a.6: *** Request SCA WD 950221 (Rev.23) Emergency Incident/Fire Safety Services***
D.a.1: Site Sample Technician [30210 Laboratory Technician]

What documents do I need to send with a request to use an employer provided/published or employer-conducted/commissioned survey?

According to the DOL November 2009 Guidance, to be acceptable, an employer must provide the following information pertaining to the survey:

  1. The full name of the published survey (acronyms are not acceptable);
  2. The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey;
  3. When the data was collected;
  4. A description of the job duties or activities used in the survey;
  5. The methodology used in the survey:
    1. How the universe was defined;
    2. How the sample size was determined
    3. How the participants were selected;
  6. The number of employers surveyed for the occupation in the area;
  7. The number of wage value responses (employees) for the occupation in the area; and
  8. A list of employer participants or explanation of how the cross industry nature of the survey was maintained.

Recruitment Under PERM

How is Recruitment Handled Under PERM?

PERM’s goal is to make nationally uniform the requirements for the recruitment steps an employer must take prior to filing an application for labor certification, and to require every application to undergo pre-filing recruitment. Employers must utilize several forms of recruitment within the six months prior to filing the application, must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity on site at the company as well through any in-house company media in which jobs are ordinarily posted, and must secure a prevailing wage determination from the SWA.

Are Print Ads Required Under PERM?

Prior to filing any application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Application for Permanent Employment Certification, Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage, as determined by the SWA.

Must A SWA Job Order Be Placed Under PERM?

The employer must place a job order with its local SWA for the position. The job order should contain the same information as the advertisement, and the employer should request that the SWA refer any potentially qualified applicants directly to the employer.

Are Recruitment Steps For Professional And Non-Professional Jobs The Same?

The recruitment for a professional occupation (those for which the attainment of a bachelor’s or higher degree is the usual education requirement) consists of a job order and two print ads plus three additional steps. The recruitment for non-professional occupations consists only of a job order and the two Sunday advertisements.

What Are The Three Additional Recruitment Steps for Professional Jobs?

An employer must both advertise the opening and carry out three additional recruitment steps, choosing from the following options: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps; i.e., may not conduct one of the three steps three times. With respect to these additional steps, an employer may advertise either for the specific job opportunity, or merely for the occupation involved in the application. All three recruitment steps must have taken place no more than 180 days before filing, but only one of the steps may have taken place within 30 days of filing. The employer must specify the dates of each of the three additional recruitment steps it has undertaken on the application form, and maintain documentation of the recruitment step, such as a dated printout from a website, or a flyer announcing the employer’s participation in a job fair.

Does PERM Require An Employer to Post a Notice of Job Opportunity?

An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. The Notice must contain the salary for the position, but may contain a salary range so long as the lower level of the range meets or exceeds the prevailing wage. The notice may contain the same description of the position as is placed in the newspaper advertisement, and should include a contact person for employees who wish to apply for the position. In addition, the notice must contain language indicating that the posting is in connection with an application for labor certification, and that any person having information bearing on the application can submit that information to the Department of Labor. Importantly,in addition to a printed posted notice, an employer must now place the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. The notification must include all information posted in print, including salary range and DOL contact information. Since the notification in such media need only be done if it is the employer’s normal practice to do so for the job classification in issue in the application, an employer could avoid listing executive-level positions if it is not normal practice to do so. Duration of the in-house media notification should be as long as other comparable positions are posted.

Can An Employer Use Qualification in Excess of What DOL Considers “Normal?”

DOL will generally not allow an employer to use job requirements that exceed the requirements for a position as found in the DOL’s description of the occupation in its Standard Occupational Classification (SOC) system unless the employer can justify it on the basis of “business necessity.” To meet this exception, the employer must show that the requirements are reasonably related to the position and necessary to perform the job duties in the context of the employer’s operation. This ability to deviate from the SOC system is important, as that system categorizes jobs into far fewer categories than the Dictionary of Occupational Titles currently uses to measure “normal” requirements.

Can Experience Gained With The Petitioning Employer Be Used?

Employers may continue to use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).

Is The Use Of Alternative Experience Permitted?

Any alternative means for a worker to be considered qualified must be “substantially equivalent” to the primary means of being considered qualified. For example, if the labor certification application involves a household cook position, it would be reasonable to require one year of experience as a household cook or, alternatively, one year of experience as a restaurant cook, as the two periods of cooking experience are comparable. It would not be reasonable to require one year as a cook or, alternatively, one year of experience as a “household worker with some cooking duties” as the alternative requirement is less stringent than the primary requirement.

If The Job Requires Four Skills And A Job Applicant Lacks One Of These Four Skills, Is This A Lawful Reason To Reject The Applicant?

Lack of one of four required skills may not be enough to lawfully reject an otherwise qualified U.S. worker. The employer will need to explore and evaluate whether the U.S. worker applicant could perform the job with a reasonable amount of on the job training in the lacking skill(s). What is reasonable will depend on the particular employer and the job opportunity. For example, if it would not be reasonable to spend six months training a U.S. worker in one of the required four skills, this would need to be explained and documented.

What Salary Does PERM Require Employers To Pay In Connection With The Labor Certification Position?

An employer must complete a Prevailing Wage Determination Request Form (PWDR) and file it with the SWA before filing the Labor Certification Application. The SWA will use its wage survey data to provide a prevailing wage unless an employer provides an acceptable alternative survey. The SWA will be required to provide at least four wage levels instead of the two (entry-level and experienced) it currently provides. If only two levels are available for the government wage survey, an arithmetic formula will be used to determine two additional wage levels. We expect that these four wage levels will substantially improve the situation for obtaining more appropriate prevailing wage determinations. The employer also has the option of using a qualifying survey, which must meet certain specified criteria to be considered acceptable. These criteria are essentially the same as the criteria under RIR except that a median figure, not just an arithmetic mean, can in certain circumstances be used for the prevailing wage.

The employer must attest that it will pay 100% of the prevailing wage at the time that the foreign national beneficiary obtains permanent residence on the basis of the Labor Certification. This is different from RIR, which only required that the employer pay 95% of the prevailing wage.

What Recruitment Documentation Must Be Prepared By Employer?

The employer must prepare documentation of all of its recruitment steps, such as newspaper tearsheets for advertisements and printouts of web sites. The employer should maintain copies of all resumes or applications submitted in connection with the recruitment steps. In addition, the employer must prepare a recruitment report that describes the recruitment steps taken and the results. This report shall include the number of hires and the number of U.S. workers rejected, categorized by the lawful job‑related reasons for rejection. Although it does not need to include the identity of the individual U.S. workers who applied for the job opportunity, it must track them sufficiently that an auditor can determine which resumes were evaluated for each job opportunity. The employer must sign the recruitment report and retain it as part of the supporting documentation.

Social Security and ITINs

May an employee on a nonimmigrant visa obtain a Social Security Number?

Yes, as long as the employee has entered the U.S. using an employment-authorized visa. If the employee is not in a work authorized status (for example, as a visitor on a pre-relocation trip to the U.S.), the employee may not apply for a Social Security Number. After an employee arrives on an employment-authorized visa and applies for a Social Security Number, it may be six to eight weeks before a number is issued. During that time, the employee may work without a Social Security Number, and the employer can keep track of the employee’s earnings using an identifier other than a Social Security Number.

May the family of an employee on a nonimmigrant visa obtain a Social Security Number?

Generally not, unless the family member is in one of the few classes of nonimmigrant dependents who are able to obtain employment authorization (such as L-2 or E nonimmigrant spouses or J-2 nonimmigrants). For tax compliance purposes (such as opening a bank account), family members may be able to obtain an Individual Taxpayer Identification Number (ITIN). The Internal Revenue Service issues ITINs only to those persons who have a tax reporting obligation (for example, holders of an interest-bearing U.S. bank account).

May a nonimmigrant open a bank account in the U.S.?

There is no legal prohibition against a nonimmigrant opening a bank account in the U.S. However, banks must comply with all federal banking requirements which may require that the individual have a Social Security Number or Individual Taxpayer Identification Number to open an account.

May an employee on a nonimmigrant visa purchase a house in the U.S.?

Yes; however, there may be difficulty obtaining a mortgage because of the employee’s temporary status in the U.S. There are mortgage companies willing to lend to nonimmigrants; however, the terms are generally not as generous as the terms offered to permanent residents or U.S. Citizens, due to the temporary nature of a nonimmigrant’s status in the U.S. Purchasing a residence in the U.S. will have no effect (positive or negative) on the individual’s ability to adjust to lawful permanent resident status.

What is the status of children born in the U.S.?

Children born in the U.S. are U.S. citizens at birth, and may also have acquired the citizenship of their parents. Being the parent of a U.S. citizen provides few immediate benefits, however, as a U.S. citizen child may not petition on behalf of a parent for immigrant benefits until the U.S. citizen child is 21 years of age.

May nonimmigrants bring domestic employees with them to the U.S.?

Yes; however, several conditions apply. The domestic employee must demonstrate at least one year’s experience as a personal or domestic servant; the nonimmigrant and the employee must sign an employment contract guaranteeing that the employee will be employed only by the nonimmigrant and will receive the prevailing wage and free room and board; and either that the employee was employed by the nonimmigrant abroad as a personal or domestic servant for at least one year prior to the date of the employer’s admission to the United States, or that the nonimmigrant has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the domestic servant’s visa application. Domestic servants are given visas in the B-1 nonimmigrant category, and should apply for an employment authorization document from the USCIS upon arrival in the United States.

The Eternal Adjustment Applicant

Does a principal lose O-1 status upon applying for adjustment?

Not necessarily. If the O-1 continues to work in a manner commensurate with the O-1 status, then the O-1 maintains O-1 status. On the other hand, if the O-1 works other than for the O-1 petitioner, the O-1 will lose O-1 status.

Does this also hold true for an F or an H-3 who maintains status during the pendency of the adjustment?

Yes, although the F or H-3 may not be able to extend status, the filing of the adjustment application does not terminate lawful nonimmigrant status. If the adjustment is denied, the alien would likely be unable to obtain an F-1 or H-3 visa and would possibly encounter problems seeking readmission because of lack of nonimmigrant intent.

Does an alien have to be in the United States when an advance parole is filed? When approved?

The applicant must have been granted advance parole, unless present in the United States on an H-1B or L, before leaving the United States.

Does it make a difference if the alien departs the United States with a valid advance parole, that advance parole expires, and a new advance parole is issued when the alien is abroad?

Although the regulatory language (8 C.F.R. 245.2 (a)(4)(ii)(B) is not completely clear. The instructions to Form I-131 (which are in many respects outdated) state that the application is deemed abandoned by the alien’s departure.

When should an advance parole extension be filed?

The USCIS website allows filing up to 120 days in advance of the expiration of the parole.

What if an alien is working in the US with employment authorization and not maintaining H-1B status? He now needs to travel on an emergency basis. He will not be able to obtain advance parole before he travels. Can his employer file a premium processing H-1B petition and have the employee obtain an H-1B visa overseas in order to return to the US without abandoning the adjustment of status application?

This is a very risky strategy. Logically, the alien should be able to return to the US with the H-1B visa. However, the alien risks a determination by an astute immigration examiner at the time of adjudication of the adjustment of status application that the adjustment was abandoned. The reason for this is that the regulation does not just require that the alien return with the H-1B. Rather the regulation requires that the alien be in lawful H (or L) status at the time of traveling outside the US.

What if the employee was maintaining H-1B status but changed employers using H-1B portability. Can she leave the US and reenter using a previously issued H-1B visa without abandoning her adjustment of status?

The answer should be yes. The reason it is less than completely clear is that the regulatory language requires the alien to be returning to the US “ to resume with the same employer for whom he or she had previously been authorized to work as an H-1B or L-1 nonimmigrant…” 8C.F.R., 245.2 (a) (a)(4)(ii) (c).  The issue is whether the employment with the new employer was “ previously authorized”. Although it would be far better if this were clarified, it would appear that the best reading of the regulation is that employment with the new employer was “authorized” by statute, even though not expressly authorized by any USCIS adjudication.

Does an adjustment applicant need employment authorization to work if the adjustment applicant reenters the United States on advance parole and remains the beneficiary of an unexpired, valid H-1B or L-1A visa?

An adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii). If the alien’s H-1 or L-1 employment authorization would not have expired had the alien not left and returned under advance parole, the applicant’s failure to obtain a separate employment authorization document will not negate the alien’s ability to work. It is important to note that this rule only applies to those who have not been employed outside the terms of their H or L.

When should an EAD extension be filed?

USCIS allows filing up to 4 months in advance of expiration. We suggest filing as close as possible to 4 months in advance.

What happens if an adjustment applicant works without an EAD and without valid nonimmigrant status after the filing of the adjustment application?

The USCIS position, as evidenced in its training materials, is that unauthorized employment after the filing of the adjustment application can bar adjustment. CIS will accumulate any unauthorized employment prior to the filing of the adjustment and unauthorized employment after the filing of the adjustment and, if the total exceeds 180 days since the last entry, the applicant will be considered ineligible to adjust and not protected by INA section 245(k). 

What if the adjustment applicant fails to maintain any nonimmigrant status after the filing of the adjustment, but does not work without authorization?

The USCIS position is that, as long as any violation of status was less than 180 days after last entry and before the filing of the adjustment application, INA section 245(k) protects the alien’s eligibility for adjustment of status.

What if an alien has worked without authorization after the filing of the adjustment application, travels using advance parole, returns to the US and continues to engage in unauthorized employment. If the total, including the time before and after travel, exceeds 180 days, is the alien ineligible to adjust?

The prevailing USCIS position appears to be the alien is ineligible to adjust. INA § 245(k) allows an employment-based alien to adjust status as long as the period of unauthorized employment does not exceed 180 days “subsequent to such lawful admission”. Unfortunately, the parole entry was not an admission. As such, the unauthorized employment continues to aggregate. Once it exceeds 180 days, the alien is ineligible to adjust.

Can an alien who enters on advance parole extend H-1B or L status?

An alien who held an unexpired, valid H-1 or L-1 nonimmigrant visa, but who was paroled into the U.S., may apply for an extension of H-1 or L-1 status if there is a valid and approved petition, as long as the alien has not worked outside the H-1 or L-1. If the Service approves the application for an extension, the alien’s parole is terminated.

Is it wise to extend H or L status if an adjustment is pending?

This depends on a number of factors:
  1. cost
  2. easier to travel with H or L as opposed to advance parole (so long as the individual has a valid visa) and there is no need for annual extensions of these documents
  3. there is a limit to the period of stay in H or L; an applicant might reach up this limit while the adjustment is pending, negating any possibility of using the visa if the adjustment is denied
  4. the sponsor employer’s H-1B dependency
  5. if the adjustment application is denied, the applicant will still have H or L status
  6. employment authorization is automatically extended on the filing of an H or L extension; this is not the case with employment and advance parole extensions.
  7. employment authorization and advance parole extensions require name checks that can take a long time
  8. advance parole and employment authorization must be renewed four months before expiration to be safe; the failure to calendar this will result in the loss of these benefits
  9. maintenance of the H or L by the principal will enable a spouse or child who did not file for adjustment, or missed the priority date cut-off, to continue to remain in the United States with the principal. It will also protect the after-acquired spouse by according status as an H-4 or L-2.

What period of time can an H-1B obtain when filing for an extension?

The H-1B can be approved for any period of time remaining on the H-1B plus recover any time spent outside the United States. Moreover, the H-1B can be approved for an additional three years if the I-140 has been approved and the priority date is not current when the H-1B extension is filed, or one year if 365 days have elapsed since the filing of the labor certification or I-140. The I-140 or labor certification must have been pending at least 365 days from the requested start date on the extension.

Is an alien still eligible for the extension if the I-140 has been denied, but an appeal has been filed?

Yes.

Can a principal be the beneficiary of a nonimmigrant visa petition filed by a different sponsor while the principal’s adjustment is pending?

Yes. There is no requirement that the alien be employed by the sponsor on a permanent residence petition. Nevertheless, there is a requirement that the alien have the intention to be employed by the sponsor. This intention can change once the visa petition is approved and the adjustment application has been pending 180 days.

Can an adjustment applicant change to consular processing?

Yes, but both cannot be pending at the same time. The I-824 is treated as a request to withdraw the I-485.

What is the procedure for doing this?

File form I-824. Some posts will create an immigrant visa application with a copy of the receipt notice for Form I-824; however, they will not adjudicate the visa application until they receive the petition from NVC. A DOS cable encourages posts to process cases utilizing the I-797 approval notice of an I-140, a copy of the I-140, a receipt for the I-824 and evidence that the applicant was last resident in the consular post.

Can an adjustment applicant port if the adjustment applicant decides to consular process?

Yes.  As long as the visa petition is approved and the adjustment application was pending for 180 days.

Can an I-485 application be transferred from one I-140 to another I-140?

Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.
 
The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated.
 
If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.
 
The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.
 
Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

If concurrent filing is used, and the I-485 is eligible for transfer from one I-140 to another I-140, is there a process to do so?

No. There is no established process to transfer the I-485 from one I-140 to another. If there is a Request for Evidence (RFE) on the I-140 filed concurrently with the I-485, and another I-140 has been approved and is current, we can request that in the context of the response to the RFE. However, if there is no RFE, it is often extremely difficult and entangling to request such a transfer. While it is possible to make a request, it may take a long time, and may go unheeded by USCIS.

Can an alien have more than one adjustment of status application pending at the same time? For example, what if two spouses have approved I-140s and both spouses file I‑485s with their approved I-140s and separate I-485s as derivatives of their spouse’s I‑140 adjustments?

Although USCIS discourages such duplicate filings, they are not violative of any law or regulation. However, as a practical matter, multiple adjustment filings may result in confusion regarding multiple biometrics, multiple security clearances, multiple RFEs and possible Service withdrawal or denial of one of the two adjustment applications.

If the principal H-1B enters the United States on advance parole, can the spouse continue to enter the United States on an H-4?

There are two schools of thought on this. One is that the H-4’s status is dependent on the principal’s status; and if the principal is on advance parole, the spouse must also enter on advance parole. The other is that if the spouse has not violated the essential terms of his/her H status, a legal fiction is created that the H status is still valid and thus the H-4 can continue to travel on the H-4.

Does an H-4 lose status as an H-4 if granted EAD?

Only if the H-4 uses the EAD. If the H-4 has the EAD and does not use it, the H-4 maintains H-4 status.

Does this same analysis apply to the L-2?

No. Since the L-2 has employment authorization, employment on the L-2 will not disrupt L-2 status.

If an adjustment application is filed for the principal, and a child or spouse is outside of the United States, can the child or spouse reenter the United States on an H or L visa?

Yes, if the principal is maintaining status on an H-1B or L. 9 FAM 41.53 N 18.2

If the principal filed for adjustment when his/her priority date was current, can a spouse or child later file for adjustment, even if the priority date is not current?

No. The priority date must be current at the time of the filing of the adjustment.

Can an H-4 who has employment authorization travel and reenter on an H-4?

Yes, unless the H-4 has actually taken up employment. The holding of the employment authorization document does not in and of itself alter the H-4’s status.

What if the principal has entered the United States on advance parole?

The answer appears to be that the spouse or child is not entitled to issuance of a derivative nonimmigrant visa unless the principal holds nonimmigrant status in the United States.

If the principal H-1B is in the United States and working outside the parameters of the H-1B with an employment authorization document, can the spouse use the H-4 to travel?

No. If the principal is present in the United States and has not maintained H-1B status, the H-4 is not entitled to that status. 9 FAM 41.53 N 18.2

What can be done to protect the children of the principal adjustment applicant from aging out if they are abroad and will visa process?

File an I-824 with the adjustment application. This will constitute the child’s application for the visa.

Will concurrent filing of the adjustment application and visa petition freeze a child’s age?

If the principal files an I-140 and I-485 concurrently and the beneficiary “child” is in the United States and wishes to adjust with the principal, the filing of an I-485 by the child contemporaneous with the parent’s concurrent filing should protect the child. The child’s I-485 will be pending when the parent’s I-140 is approved; and, assuming the priority date is current, the child’s age will be frozen at the time the I-140 is filed. However, if the priority date is not current when the I-140 is approved, the Child Status Protection Act, which did not anticipate concurrent filing, is rather ambiguous. We believe that the better argument is that the child’s age is protected on the date of filing of the concurrent I-485 irrespective of subsequent quota retrogression.

What if the child was 21 when the adjustment was filed for the principal, is the child eligible to adjust?

Assuming the priority date is current, the child may still be eligible to adjust. Deduct the period of time the I-140 that was filed on behalf of the principal was pending, and subtract this period of time from the child’s age to determine the child’s filing age. The child must still seek to procure residence within one year of the approval of the parent’s I-140.

Does the child have an argument that he is protected by the CSPA if he failed to file for adjustment when his priority date became current, and subsequently the priority date retrogressed for more than a year?

The CSPA itself does not take into account the possibility that a priority date might be current for a one month period and then subsequently retrogress for over a year. The statute contemplates giving the child a one year period to make an application for the visa or adjustment. Thus, one could argue that the period of time that the child could not apply because the priority date retrogressed tolls the year by the period of time that the priority date was unavailable. One would argue that there was impossibility of performance within the one year filing deadline.