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Employment/Occupational Green Cards

Employment-Based Green Card Sponsorship For PERM Labor Certification and I-140 Petition for Alien Worker

U.S. employers may sponsor workers to remain and work in the U.S. permanently as permanent residents.  For most occupations and positions, an employer must first request labor certification (PERM) from the U.S. Department of Labor to demonstrate that it recruited, but could not locate a suitable U.S. worker for the position. Please visit our PERM Information Center for details regarding the new labor certification procedures. 
 
Certain occupations that are pre-determined to be experiencing a shortage of U.S. workers do not require labor certifications. This includes include positions in the healthcare field such as; nursing, physical therapists, physicians who work in underserved areas, and certain professionals of exceptional ability. Positions requiring labor certification require employer sponsorship and a job offer from the petitioning employer. For positions requiring labor certification, a green card or adjustment of status petition may only be filed after the labor certification petition is approved.
 
Certain highly accomplished aliens who meet the very demanding requirements of the first employment based preference category, EB-1, are not required to obtain a labor certification or job offer in order to submit green card or adjustment of status petitions. Qualifying aliens may submit a green card petition directly with the USCIS without an offer of employment or an approved labor certification.
 
Upon approval of the labor certification, how quickly one becomes eligible to file for a green card or adjustment of status generally depends on the level of education and/or experience required for the profession - the preference. Depending on the preference category, one must wait for a visa number to become available before he can enter the U.S. or file for a green card adjustment of status if already here. If the beneficiary of the green card petition resides outside of the U.S., the visa approval is forwarded to the National Visa Center for additional processing and interview at the appropriate U.S. consulate. The length of the wait is determined by the priority date – the date that the labor certification petition was submitted and the preference category. The Department of State publishes a monthly visa bulletin that reflects visa availability based on preference and priority date. Following are the various employment based preferences:

  • First -Workers of Extraordinary Ability-EB-1
  • Second -Members of the Professions Holding Advanced Degrees or Persons of  Exceptional Ability-EB-2
  • Third -Skilled Workers, Professionals, and Other Workers-EB-3
  • Schedule A Workers -Physical Therapists, Nurses, Aliens of Exceptional Ability in the Sciences or the Arts, and Performing Art Aliens 
  • Fourth -Religious Workers-EB-4
  • Fifth - Employment Creation/Commercial Enterprise-EB-5

The visa bulletin reflects the priority dates – date of filing of labor certification petitions – for each preference of those aliens who presently have a visa number available to seek adjustment of status. In other words, one’s priority date must be at or earlier than that listed for the preference before he can apply for adjustment of status. Note that “C” means that a visa number is currently available for that preference.

In some instances, H-1B visa holders and those who are being sponsored for I-140 green cards  by one employer may change employers while the green card petition is still pending and maintain their H-1B or green card status. In other words, the H-1B visa as well I-140 green card petitions are sometimes portable or transferrable to a different employer. As such, changing employers does not automatically mean that the green card application or H-1B visa terminates.

Click here to review the September 12, 2006 memorandum describing guidelines for USCIS officers to apply in reviewing and approving employment-based green card petitions.

Q Visa-Cultural Exchange Program

The Q visa is intended for aliens who are coming to the United States temporarily as participants in an international cultural exchange program approved by the Attorney General. To qualify, the program must:

  • take place in a school, museum, business, or other establishment where the public is exposed to aspects of a foreign culture as part of a structured program;
  • contain a cultural component that is an essential and integral part of the cultural visitor’s employment or training; and
  • not contain employment or training independent of the cultural component. Programs that are restricted to the home, such as Au Pair, do not qualify.

Q-1 aliens must be at least 18 years old at the time the petition is filed and must be qualified to perform the service or labor, or receive the type of training stated in the petition as part of their exchange program. Q-1 aliens must also be able to communicate effectively about the cultural attributes of their country of nationality to the public. The Q -1 visa is approved for the duration of the program or 15 months, whichever is shorter, and 30 days to allow for travel arrangements. There are no extensions for this visa. Those Q-1 aliens who have left the U.S. after 15 months are prohibited from returning on a Q-1 visa until they have physically resided outside the U.S. for one year.

Dependents
There is no Q derivative status for dependents. However, family members may accompany or subsequently join the Q alien in the U.S. in any other visa classification for which they are eligible.

How does one apply for an H-1B visa?

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including a payment of prevailing wages for the position, and working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee. (Prior to FY2004, employers were required to submit an additional fee to sponsor the H-1B worker, unless specifically exempt). Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of non-immigrant status.  

F-1 Academic Student Visa

Qualifying and Applying for F-1 Student Visa Status

Read Current News: Recent H-1B Visa Cap-Gap and OPT Developments F-1 STEM Extensions

To qualify, applicants for the F-1 status must demonstrate that they have no intention of immigrating to the U.S. Applicants must show evidence of significant ties to their home country that will ensure their return upon completing studies in the U.S. They must also demonstrate that they are able to obtain the financial support necessary to fund their educational goals in the U.S. Successful applicants are sometimes given the F-1 status for duration of status (D/S). This permits such students continue in the F-1 student status so long as they remain in the course of study with a valid Form I-20. F-1 Student visa holders must also carry a full course load in order to maintain status.

Prior to applying, applicants must first obtain admission into a qualifying institution and obtain a Form I-20 which specifies the length of the intended program and the costs of same. Effective January 3, 2003, SEVIS Form I-20s may only be issued by a school that is designated by the USCIS. Requests for designation are made using Form I-17 and I-17A along with requisite fee and supporting documents.

Applications for a change to the F-1 status made within 30-60 days of arrival in the U.S. in another status may be denied on the basis that such is fraudulent. It is assumed that such an applicant entered the U.S. with a different visa while intending to be a student upon arrival.

Employment:
On-Campus Employment: F-1 visa holders may qualify to accept part-time on-campus employment while school is in session and full-time employment during breaks. On-campus employment may begin at any time.

Off-Campus Employment: The regulations also permit off-campus employment if it is based on severe economic hardship due to unforseen circumstances beyond the student’s control. To be eligible, students must have been in the F-1 status for 9 months and obtain a recommendation from the school prior to requesting work authorization from the USCIS.

Curricular Practical Training: This refers to employment that is integral or important to the student’s academic training. This type of employment is usually offered by employers through a cooperative agreement with the school. This requires 9 months in the F-1 visa status and endorsement of the school.

Optional Practical Training: This permits F-1 students to accept employment after completing each program such as Bachelor’s degree, Masters and/or PhD. Each authorization last 12 months and employment must be in the student’s major area of study. To qualify, students must have been enrolled in school for 9 consecutive months prior. They must also obtain the School’s endorsement as must file an application for employment authorization to the USCIS within 90 days of completion of studies. All practical training must be completed within 14 months of the completion of studies. During the authorized period of training, a student may re-enter the U.S. after traveling abroad so long as he has a valid F-1 student visa, a recently endorsed Form I-20, a valid EAD card, if he has not otherwise violated his status.

Dependents
Spouses and children of F-1 students visa holders may apply for F-2 visas. Those dependents in the U.S. in another visa category may seek a change of status. Those outside of the U.S. may apply for F-2 visas at the appropriate U.S. consulate abroad. Student and Exchange Visitor Information System regulations now prohibit F-2 spouses from engaging in full-time studies at any level.

A dependent child in F-2 status may attend primary and secondary schooling on a full-time basis. Both the child and dependent child in F-2 status must change to the F-1 status if they desire to attend any post-secondary program on a full-time basis. F-2 visa holders may not accept employment.