B
O
C
EMPLOYMENT BASED PETITIONS:
Can I obtain my residency through employment, if my boss
wants to sponsor me?
To be eligible for an Employment Based Residency, you (the
beneficiary) must meet all of the criteria in one of the three
following categories:
1. Category I
If I have an employment residency application pending, can I
change employer and continue with my pending application,
if the new employer is willing to sponsor me?
This is only possible in some very specific situations. For example:
U.S.? Is it the date their visa expires or the date their I-94
expires, and is there a "grace period"?
On entry, all nonimmigrants are given I-94 cards, which typically
state an expiration date, which is the date that they are required to
depart the U.S. or make application for a change of status or
extension of stay to another immigrant classification. Upon
approval of that application, such individuals will receive new I-94
cards. The date of a visa expiration has nothing to do with how
long an individual is allowed to remain in the U.S. There is no
"grace period" beyond the expiration date on the I-94 card.
How do J-1 and F-1 status holders know when their status
expires, since the I-94 card says "D/S," and is there a "grace
period"?
J-1 and F-1 visa holders are given I-94 cards for "duration of
status," meaning they are eligible to remain in the U.S. as long as
they have maintained status according to the terms of their visa
and have not worked without authorization. The dates on the IAP-
66 and I-20 forms, indicate the end of these individuals' programs.
In the case of a J-1 holder there is a 30-day grace period and for F-
1 status holders there is a 60-day grace period beyond completion
of the program.
What are the special visas for artists and entertainers and
how famous does one have to be to get one?
The typical nonimmigrant visas for artists and entertainers are O's
and P's. O's require that individuals establish through substantial
documentation that they are of "distinguished ability." This is a
lower standard than the "extraordinary ability" standard required for
permanent residents or for non-artists in O-1 status. P's are
divided into three categories: P-1, P-2, and P-3. The first category
is for entertainment groups or individual athletes; the second is for
individuals involved in an established reciprocal arts exchange
program; and the third is for culturally unique artists, entertainers,
and coaches. This last category is very useful for artists who
cannot provide substantial documentation of sustained renowned
ability.
Why do most employees who have received change of
status or extension of stay to H-1B, O-1, L-1, or some other
similar nonimmigrant status still need to get a visa in order
to come back into the U.S. once they have left?
The U.S. Immigration Service does not issue visas, which are
required for most foreign nationals (except Canadians) to enter the
U.S. However, if an employee is already in the U.S., the USCIS has
the authority to issue a change of status or extension of stay and
the employee will receive a new I-94 card authorizing continuation
of lawful status in the U.S. Once that person departs, he or she is
unable to re-enter the U.S. without obtaining a visa from a U.S.
consulate abroad. The only exception to this rule is for foreign
nationals traveling to Canada or Mexico for less than 30 days--
they are allowed to re-enter the U.S. on the basis of their I-94 card
alone.
What strategies can employers use to ensure that their
employees will not run out of status, either as a result of
practical training expiring before H-1B status is available or
because they have used up a full 6 years in H-1B status?
A careful analysis of the timing issues should be done early on in
one's practical training year, because of the risk of running out of
employment authorization, either prior to applying for an H-1B or
due to using up all six years of H-1B availability. Too often,
individuals wait until it is too late to remedy the situation. For those
whose status in H-1B is running out, it may be possible to obtain O-
1 status, L-1 status if the company is multinational and the
employer is willing to send the foreign national abroad for a year, or
recapture H-1B time spent out of the country.
Can I start working with my new employer before I finish
transferring my H-1B visa?
Yes. The law (AC-21) allows an H-1 B visa holder to begin working
with a new employer as soon as his/her transfer application has
been filed with the immigration service, without having to wait for an
approval. However, if your H1B transfer application is denied, you
will be left out of status or “illegal”, making it much more difficult to
return to legal status in the future.
Why is there frequently an employment-based backlog
related to Indian and Chinese nationals and is there
anything that can be done to speed things up?
Lawful permanent residence is issued to individuals based on a
complicated formula related to preference categories, world-wide
quotas, and country specific quotas. Because the quota is the
same for every country in the world, the larger countries with high
levels of immigration to the U.S. fill up first. Nothing can be done to
prompt the U.S. State Department to grant an immigrant visa out of
order. Therefore, great care should be taken with employment-
based immigration cases to ensure that individuals are eligible for
the highest preference category that they are qualified for and that
the employer is willing to support. This analysis should begin at the
nonimmigrant level when applying for H-1B or other status. For
more on the current availability of employment-based immigrant
visas go to the U.S. Department of State site on the web at http:
//www.state.gov
Can I obtain my residency through employment, if my boss
wants to sponsor me?
To be eligible for an Employment Based Residency, you (the
beneficiary) must meet all of the criteria in one of the three
following categories:
1. Category I
- Must be living in the U.S. on or before December 18,
2000 (According to the former INA §245(i) law.
Currently there are more than one proposed
amendment to this statute which impose different
statuatory date limitations for filing. Therefore it is
advisable to initiate this procedure as soon as possible
if the requirements are fulfilled). - Must have never left the U.S. without permission of the
The U.S. Immigration Service - Must have an offer of employment from a U.S.
employer, who has agreed to sponsor the beneficiary
for the residency. Must receive a salary equal to or
above the prevailing wage offered for such a position
in the State in which the job will be performed
- Must be lawfully present in the U.S. on a current
nonimmigrant visa - Must not have violated conditions of nonimmigrant visa
- Must be residing outside the U.S.
- Must not have been previously deported or removed
from the U.S. - Must not be subject to an order of removal, exclusion,
or deportation
If I have an employment residency application pending, can I
change employer and continue with my pending application,
if the new employer is willing to sponsor me?
This is only possible in some very specific situations. For example:
- 1). If your I-140 has been approved for at least 6 months,
you may change employer as long as the new employer and
the new position are similar to the ones in the original
petition, and the new employer is in the same geographic
region as the original employer.
2). If the original employer has changed corporate identity
or merged with a new company and the new employment is
with the new company. In general however, it is not advisable
to change employer while your residency application is
pending.
U.S.? Is it the date their visa expires or the date their I-94
expires, and is there a "grace period"?
On entry, all nonimmigrants are given I-94 cards, which typically
state an expiration date, which is the date that they are required to
depart the U.S. or make application for a change of status or
extension of stay to another immigrant classification. Upon
approval of that application, such individuals will receive new I-94
cards. The date of a visa expiration has nothing to do with how
long an individual is allowed to remain in the U.S. There is no
"grace period" beyond the expiration date on the I-94 card.
How do J-1 and F-1 status holders know when their status
expires, since the I-94 card says "D/S," and is there a "grace
period"?
J-1 and F-1 visa holders are given I-94 cards for "duration of
status," meaning they are eligible to remain in the U.S. as long as
they have maintained status according to the terms of their visa
and have not worked without authorization. The dates on the IAP-
66 and I-20 forms, indicate the end of these individuals' programs.
In the case of a J-1 holder there is a 30-day grace period and for F-
1 status holders there is a 60-day grace period beyond completion
of the program.
What are the special visas for artists and entertainers and
how famous does one have to be to get one?
The typical nonimmigrant visas for artists and entertainers are O's
and P's. O's require that individuals establish through substantial
documentation that they are of "distinguished ability." This is a
lower standard than the "extraordinary ability" standard required for
permanent residents or for non-artists in O-1 status. P's are
divided into three categories: P-1, P-2, and P-3. The first category
is for entertainment groups or individual athletes; the second is for
individuals involved in an established reciprocal arts exchange
program; and the third is for culturally unique artists, entertainers,
and coaches. This last category is very useful for artists who
cannot provide substantial documentation of sustained renowned
ability.
Why do most employees who have received change of
status or extension of stay to H-1B, O-1, L-1, or some other
similar nonimmigrant status still need to get a visa in order
to come back into the U.S. once they have left?
The U.S. Immigration Service does not issue visas, which are
required for most foreign nationals (except Canadians) to enter the
U.S. However, if an employee is already in the U.S., the USCIS has
the authority to issue a change of status or extension of stay and
the employee will receive a new I-94 card authorizing continuation
of lawful status in the U.S. Once that person departs, he or she is
unable to re-enter the U.S. without obtaining a visa from a U.S.
consulate abroad. The only exception to this rule is for foreign
nationals traveling to Canada or Mexico for less than 30 days--
they are allowed to re-enter the U.S. on the basis of their I-94 card
alone.
What strategies can employers use to ensure that their
employees will not run out of status, either as a result of
practical training expiring before H-1B status is available or
because they have used up a full 6 years in H-1B status?
A careful analysis of the timing issues should be done early on in
one's practical training year, because of the risk of running out of
employment authorization, either prior to applying for an H-1B or
due to using up all six years of H-1B availability. Too often,
individuals wait until it is too late to remedy the situation. For those
whose status in H-1B is running out, it may be possible to obtain O-
1 status, L-1 status if the company is multinational and the
employer is willing to send the foreign national abroad for a year, or
recapture H-1B time spent out of the country.
Can I start working with my new employer before I finish
transferring my H-1B visa?
Yes. The law (AC-21) allows an H-1 B visa holder to begin working
with a new employer as soon as his/her transfer application has
been filed with the immigration service, without having to wait for an
approval. However, if your H1B transfer application is denied, you
will be left out of status or “illegal”, making it much more difficult to
return to legal status in the future.
Why is there frequently an employment-based backlog
related to Indian and Chinese nationals and is there
anything that can be done to speed things up?
Lawful permanent residence is issued to individuals based on a
complicated formula related to preference categories, world-wide
quotas, and country specific quotas. Because the quota is the
same for every country in the world, the larger countries with high
levels of immigration to the U.S. fill up first. Nothing can be done to
prompt the U.S. State Department to grant an immigrant visa out of
order. Therefore, great care should be taken with employment-
based immigration cases to ensure that individuals are eligible for
the highest preference category that they are qualified for and that
the employer is willing to support. This analysis should begin at the
nonimmigrant level when applying for H-1B or other status. For
more on the current availability of employment-based immigrant
visas go to the U.S. Department of State site on the web at http:
//www.state.gov
BOGLE
OKOYE
CHANG
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BOGLE & CHANG, LLC
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Questions: Employment Based Petitions
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