The Law Office of Dana L. White Offers Employment and Family Based Immigration Solutions in all 50 States as well as US Embassies and Consulates Abroad
The Law Office of Dana L. White, PLLC provides employers and employees with the latest and most appropriate immigration strategies. We represent businesses, as well as individuals and families undergoing the U.S. immigration process, wherever the immigration applicant/ petitioner/beneficiary may be, whether in the U.S. or on the other side of the world. We take pride in the quality of our work and our attention to detail. We serve regional, national and international clients including multi-national corporations, Fortune 500 corporations, small businesses, colleges & universities, individuals and families.
We handle employment-based immigration law, including H-1B’s, L-1’s, O-1’s, TN’s, PERM Labor Certification, Faculty Special Handling, I-140 Visa Petitions for Outstanding Professors/Researchers, I-140 Visa Petitions for Waiver of Labor Certification in the National Interest, I-140 Visa Petitions for Aliens of Extraordinary Ability, and I-140 Visa Petitions for Multinational Managers.
We also handle family-based immigration, including I-130/I-485’s, and I-751’s. In addition, we offer legal services for Naturalization/Citizenship and Deferred Action for Childhood Arrivals (DACA).
We also provide our corporate clients with compliance information, including monitoring guidelines and actions to take in the event of an audit.
Immigration Practice Areas
Temporary Non-Immigrant Employment Visa Options
There are numerous non-immigrant visa categories for both skilled and unskilled workers, each with their own conditions regarding eligibility, length of stay, options for extending, annual numerical availability and whether one can concurrently pursue permanent residency. Some of the most common categories for temporary workers include:
The H-1B visa classification permits a foreign national to work in the U.S. for a temporary period. This option is for professional workers with positions requiring a minimum of a Bachelor’s degree in a specialized field. The H-1B classification is also available for an offer of employment as a fashion model of distinguished merit and ability.
This is a dual intent visa, allowing a worker to also pursue permanent residence while working on the temporary visa.
A person may have H-1B classification for a maximum of six years and is issued in increments of up to three years by the USCIS. An employee may receive extensions of the H-1B beyond six years in certain circumstances, (i.e., if the beneficiary has an employment-based permanent residence case pending (also known as a “green card.”)
Note: The spouse and minor child/ren of an H-1B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.
H-1B “Cap”-Subject Cases
Annual Numerical Limitation Each Fiscal Year Beginning October 1st
There are a limited number of new H-1B’s available in any government year (which runs 10/1 to 9/30). H-1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities), also known as the “H-1B cap.”
We anticipate that the government will RUN OUT of new H-1B’s very early, as has been the case in recent years. The government will begin accepting H-1B petitions subject to the fiscal year 2020 cap on Monday, April 1, 2019. A random lottery will be held to see which petitions will be reviewed. Those cases not selected by the lottery will be returned to the attorney/employer with the applicable filing fees.
H-1B’s Not Subject to H-1B “Cap”
Note that university employees and affiliated entities are not subject to any numerical quotas and are considered “cap exempt” employers. Also, an employee who has previously held H-1B classification or has been granted H-1B status is generally exempt from the numerical cap limitations under the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21), which allows them to transition their H-1B to a different employer.
- To be deemed an H-1B ‘specialty occupation,’ the job must require at least a Bachelor’s degree (or the equivalent) in a specialty area, and the foreign national worker must have that specialized degree. So, for example, an architecture position requiring a degree in architecture would be an appropriate “specialty occupation,” as would a civil engineering position requiring a degree in engineering. Other types of positions that are usually appropriate for H-1B visas include positions in finance, accounting, computer science and the hard sciences.
- Positions that are “generalist” positions, such as sales jobs, data entry or simple computer programming positions, and administrative positions are often not eligible for H-1B work authorization. Also, if the employer requires a Bachelor’s degree but any degree is acceptable (for example, a degree in liberal arts or a degree in business administration [without a particular major, such as finance or marketing], then the position is typically not appropriate for H-1B classification.
- The H-1B petition is filed by the employer (not the employee). Prior to filing the H-1B petition with the USCIS and, as part of the H-1B application process, the employer must file a Labor Condition Attestation (LCA, Form 9035) and receive certification from the U.S. Department of Labor (DOL). The LCA contains a number of important employer attestations. They are the following:
- The employer attests that they will pay the foreign national employee the “actual wage” or the “prevailing wage” for the position, whichever is higher. The “actual wage” is the wage set by the employer for the position for employees with similar experience and skills. Usually, the “prevailing wage” is a figure provided by the state workforce agency, which it obtains from a Department of Labor database available on the internet at https://flcdatacenter.com (although other prevailing wage sources are also be available). Again, the employer must agree to pay the higher of the two wages, as the required wage rate. The employer must pay the salary until the employment relationship terminates. While legitimate leaves of absences are permissible, “benching” or “furloughs” are not permitted for H-1B employees.
- The employer attests that employing the foreign national will not adversely affect the working conditions of other similarly employed workers. So, for example, it would not be permissible for an employer to hire foreign national employees without paid vacation and health insurance in order to justify a decision to not offer those benefits to U.S. workers.
- The employer attests that they will inform the Department of Labor of any strikes, lockouts, or work stoppages if any of these develop after the Labor Condition Application is filed with the Department of Labor.
- The employer attests they will provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.
- The employer attests that they will create a “public access file” which can be available for public inspection. The file must contain documentation showing that the employer is complying with the aforementioned requirements.
- The employer must pay all of the H-1B costs (legal fees and filing fees).
- In the event the employer terminates the employee relationship before the end of the requested period of work authorization, the employer must also agree to pay for a return plane ticket for the H-1B worker to their country of origin (assuming the H-1B employee does not quit or accept employment with another US employer in lieu of returning home).
- The employer must confirm that it complies with export regulations with respect to employment of the foreign national.
- If the H-1B employee is placed outside of his/her specified work location(s) (e.g. metropolitan statistical area) for 30 days or more, the employer must file a new LCA with the DOL and file an amended H-1B petition with the USCIS.
- During the validity of the H-1B, an H-1B employer is prohibited from placing an H-1B beneficiary in ‘non-productive’ status, commonly referred to as “benching” (where the worker is not paid or is paid less than the full hours specified in the petition). The employer must continue to pay the H-1B worker the prevailing wage, even if the H-1B worker is without a current work assignment. If the employee voluntarily requests a leave of absence pursuant to normal company policies (i.e. maternity leave, FMLA, unpaid vacation, etc.), then the government does not consider this to be “benching.”
- Companies employing a large percentage of H-1B employees may be “H-1B dependent employers”, with significant additional obligations under the regulations. A “dependent employer is defined as an employer (a) with 25 or fewer FT employees who employs more than 7 H-1Bs; (b) with at least 26 and not more than 50 FT employees and employs more than 12 H-1Bs; or (c) with at least 51 FT employees with H-1B employees constituting 15% or more of its FT employee workforce.
- Because H-1B work authorization is employer specific, any time an H-1B worker changes employer, a new H-1B petition must be filed.
F-1 Students Changing to H-1B
Most often, H-1B employers hire a foreign national employee who has work authorization pursuant to his or her student status in the U.S. Typically, F-1 student work authorization (called “optional practical training” or “OPT”) is only valid for 12 months; thus, the employer must file an H-1B petition if a longer period of employment is desirable. Note also, under regulations issued in 2008, if an H-1B beneficiary has F-1 OPT status that ends after April 1, and if the petition has been accepted by the random lottery, then OPT will automatically be extended to 10/1 when the H-1B begins.
Additionally, under these same new regulations, if an H-1B employer participates in the E-verify employment verification program, and the F-1 OPT employee has an eligible degree in the Sciences, Technology, Engineering or Math (“STEM degree”), then the F-1 student may be eligible for 27 months of OPT rather than the normal 12 months of OPT. Information about the E-verify program is available at https://www.e-verify.gov/ F-1 students whose employers are considering filing an H-1B petition on their behalf should check with their International Student Advisor at their university to determine whether their degree area is eligible for an OPT extension.
Because the H-1B is the employer’s petition, with the foreign national as the beneficiary, our firm will not work a case until we have been retained by the employer, in writing, through the retention procedures we have in place with that particular employer. If we have not worked prior H-1B’s for a particular employer, we will need to enter into a retention agreement before opening an H-1B case. For additional information on the H-1B category, click here.
H-1B1 Singapore/Chile Classification
Similar to the H-1B category, and also subject to an annual cap, this category is not heavily used and is typically available year round. This visa category was created by the free trade agreements signed by the U.S. with Chile and Singapore in 2003. There are 6,800 visas available each fiscal year to citizens of these two countries. These numbers are deducted from the H-1B annual limit of 65,000, which is available worldwide each year.
This option is for intra-company transferees with specialized knowledge or in management/ executive positions that have worked abroad for an affiliated company and are being transferred to the U.S. There is no annual numerical limitation and like the H-1B, the L is also a dual intent visa, allowing the worker to pursue permanent residence while working on the temporary visa. The L-1A for managers/executives is limited to seven years and the L-1B for those with specialized knowledge is limited to five years. For additional information on the L category of visas, click here.
For seasonal, or ‘one-time need’ non-agricultural workers. This is common for workers whose positions are not year around, including positions in landscaping, forestry, hotels and tourism, seafood processing, restaurants, amusement parks, and construction.
Trade Nafta visa for professionals from Mexico or Canada. For additional information on the TN category of visas, click here.
For professionals from Australia.
For “extraordinary ability aliens.” Can include renowned persons in the arts, sciences, business, sports, etc.
For long term trainees (up to 18 months). Permits some work incidental to training.
For business visitors. Not permitted to “work” in the U.S., but there are many legitimate activities for bringing someone in for business purposes, such as training, attending meetings, etc.
For Religious workers, including ministers, religious professionals, and those engaged in religious vocations.
Visas for athletes, artists, and entertainers.
J-1 Exchange Visitor Classification
Although this is not technically an “employment-based” visa, this can be a good temporary option for interns and trainees.
The F-1 classification if for students. Normally, aside from part-time on-campus employment, F-1 students are not permitted to work. However, we often advise students in F-1 status on issues relating to work authorization, maintenance of their student status, and transitioning to OPT’s or employment-based visas (i.e. H-1B visa). Sometimes an employer will hire a foreign national employee who has work authorization pursuant to his or her student status in the U.S. Typically, student work authorization (called “optional practical training” or “OPT”) is only valid for 12 months, and the employer must file an H-1B petition if a longer period of employment is desirable.
Employment-Based Permanent Residence – Permanent Options for Workers (green card/permanent residency)
Labor Certification (PERM)
An employment-based process for obtaining permanent residence involving the employer’s application to the U.S. Department of Labor (DOL) for certification of a permanent position, testing the labor market and demonstrating that U.S. workers are not being displaced for the job opportunity. Following certification, an I-140 immigrant petition is filed with the USCIS for classification as an immigrant worker. Once a visa becomes available based on priority date, country of birth and visa classification, the I-485 Application to Adjust Status to Permanent Residence is filed, along with any ancillary applications, such as the I-765 application for a work permit and/or an I-131 application for Advance Parole, which allows international travel while the I-485 is pending. For additional information on the PERM process, click here.
Labor Certification for Faculty Members at the College or University Level
A “special handling” process involving a specialized labor certification application for teaching faculty members.
I-140 Visa Petition for Outstanding Professors/Researchers
For persons involved in research in universities or private employers with a record of accomplishment. For additional information on the I-140 Visa Petition for Outstanding Professors/Researchers, click here.
I-140 Visa Petition based on Extraordinary Ability
For persons of national or international renown and accomplishment in science, business, the arts, etc. For additional information on the I-140 Visa Petition based on Extraordinary Ability, click here.
I-140 National Interest Waivers
For persons whose presence here is so important in contributing to a national interest (such as health, defense, etc.) that it is not in the national interest to require labor certification.
I-140 Multi-national Managers/Executives
For transferees with management experience abroad for affiliated companies coming to fill management positions in the U.S.
I-360 Petition for Religious Workers
For ministers, religious professionals, and those engaged in religious vocations seeking to immigrate permanently to the U.S.
Family-Based Permanent Residence
Each year, over 500,000 persons obtain lawful permanent residence in the U.S. by being sponsored by a relative.
U.S. citizens (USC’s) may sponsor the following relatives for lawful permanent residence: spouses, children, adult sons and daughters, parents and brothers and sisters.
Considered a ‘fast track’ for obtaining lawful permanent residence is marriage to a U.S. citizen, as a spouse of a U.S. citizen is deemed an “immediate relative” under the law. This means there are no quota restrictions on the number of people who can obtain green cards through marriage to U.S. citizens.
If currently present in the U.S., the U.S. citizen starts the process by submitting a form I-130 visa petition on behalf of their foreign-born spouse. If the spouse entered the U.S. lawfully, he/she can file for an I-485 adjustment of status without having to leave the U.S. Generally, the spouse receives an Employment Authorization Document (EAD) within 90 days and may also be eligible for an Advance Parole document to travel abroad. If the foreign-born spouse entered the U.S. without inspection, he/she may have to apply for a green card through marriage in his home country. He may, however, be eligible to apply for a provisional waiver in the United States.
U.S. permanent residents are limited to sponsoring the following for lawful permanent residence: spouses, children and unmarried adult sons and daughters.
Except for spouses, children and parents of U.S. citizens who are deemed “immediate relatives”, all other categories of relatives are subject to a numerically-limited preference system.
To obtain a green card through marriage, your marriage must be a bona fide, i.e. ‘real’ marriage. This is a lot easier to prove if there is a wedding reception where the US citizen spouse’s relatives are present, where the couple has joint property and files joint income tax returns and especially if the couple has a child together.
If permanent residence is granted through marriage and the marriage is less than two years old when the green card is granted, it will have a two-year time limit, referred to as “conditional’ permanent residence.
The couple must submit an I-751 application during the 90-day prior before the expiration of the green card in order for the foreign-born spouse to obtain a ten-year green card. If the couple divorces before the end of the two-year period, the foreign-born spouse must use form I-751 to apply for a “good faith marriage waiver” of the joint petition requirement.
The N-400 is the Application for US Citizenship. We have years of experience helping persons in completing their N-400 applications, passing the naturalization test and accompanying our clients to their interviews.
Deferred Action for Childhood Arrivals (DACA)
The Department of Homeland Security (DHS) asserts that it continues to focus its enforcement resources on the removal of those who pose a danger to national security or a risk to public safety, including those convicted of crimes, especially violent criminals, felons, and repeat offenders. DHS maintains it will continue to exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the U.S. as children. Individuals who demonstrate their eligibility as detailed below may request consideration of “Deferred Action for Childhood Arrivals (DACA) for a period of 2 years, subject to renewal, and may also be eligible for employment authorization.
You may request consideration of deferred action under DACA if you:
- Were under the age of 31 as of June 15, 2012;
- Came to the U.S. before reaching your 16th birthday;
- Have continuously resided in the U.S. since June 15, 2007, up to the present time;
- Were physically present in the U.S. on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
If you or anyone you know might meet the criteria above, please contact our office to set up a consultation.
Employer Compliance Matters
We also assist our business clients with compliance of complex immigration laws, including government audits (H-1B, PERM and I-9) as well as training of HR staff regarding postings and other regulatory compliance issues.
Unlawful Presence Bars and Waivers
A person can accumulate unlawful presence by (1) entering the U.S. without inspection; (2) by overstaying the expiration date on his/her I-94; or (3) by violating his/her status if he/she is notified by the government that he/she has done so.
Congress passed a rather harsh law in 1996 that bars individuals who have accumulated a certain period of “unlawful presence” in the U.S. (and then departed the U.S.) from entering the country, obtaining a visa, and from becoming U.S. permanent residents for a period of time unless they first obtain a waiver.
Specifically, persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then departed the U.S., cannot return to the U.S. for 3 years.
Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then departed the U.S., cannot return to the U.S. for 10 years.
Persons who illegally return to the U.S. without seeking a waiver must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the U.S. after being deported.
Note also that the -3 and -10 year bars are not “triggered” until the person actually departs the U.S. So, for example, if a person entered the U.S. on a valid visa but overstayed for a prolonged period of time and is otherwise eligible to adjust status, that person will be able to avoid triggering the “unlawful presence” ground of inadmissibility.
In addition, note that persons who commit fraud or a material misrepresentation are barred from the U.S. for life unless they obtain a waiver.
A waiver may be obtained by submitting Form I-601 to the USCIS and demonstrating that the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person was granted a waiver. Note again that the ‘extreme hardship’ is based on the needs of the waiver applicant’s immediate family members who are U.S. citizen/permanent residents, not on the needs of the waiver applicant.
Note: This material is for informational purposes only and does not provide an exhaustive review of immigration processes nor does it include all information relevant to a particular non-immigrant/immigrant visa beneficiary. Receipt of this information does not create an attorney-client relationship. Our office often provides general information about immigration requirements to individuals and employers before we have been retained to work a case. For additional information, please contact our office or another immigration attorney.