H-1B and EB-1 Different Visas With Different Purposes
Categories Immigration and Customs Enforcement News & Updates USCIS

H-1B vs. EB-1, EB-2 and EB-3: Nonimmigrant Visas vs. Immigrant Visas

Immigration law is complicated. There are no two ways about it. One of the things that makes it complicated is the fact that there are so many different kinds of visas people can obtain in order to gain authorized entry into the U.S. For example, consider the H-1B and EB-1 visas. They are two distinctly different visas with different purposes. Yet that doesn’t prevent confusion among both employers and their foreign-born workers.

As immigration attorneys specializing in business immigration, it is our responsibility to understand the different types of visas that employers might need for their foreign-born workers coming into this country. We pass on our knowledge as we assist both employers and potential employees in their attempts to navigate U.S. immigration law.

The H-1B Visa Is Temporary

The biggest difference between the two visas relates to how long a valid visa holder can remain in this country. Under the H-1B visa program, an employee’s stay is temporary. H-1B visas are typically granted for an initial term of three years. Foreign born workers can renew their visas for another 3 years, providing them with up to six years total. After that, a worker must either change to another status or leave the country.

Statute dictates that the H-1B visa is a non-immigrant visa. In other words, a company is may not be hiring an H-1B visa holder with the goal of making them a permanent resident in the country. Although, in our experience, most companies that are willing to sponsor someone for an H-1B are likely to eventually sponsor them for an immigrant visa down the road. It is important to remember that the H-1B is for temporary work status only.

Foreign Nationals With Special Skills

It is also worth noting that the H-1B visa is not for just anyone. The program is intended to give employers access to foreign nationals with special skills. The skills in question are limited in scope. They are often science, technology, engineering, and mathematics (STEM) related. At a minimum, the position must require a bachelor’s degree. If it’s a foreign degree, it must be evaluated as being equivalent to a U.S. bachelor’s degree. A person may also qualify through a combination of education plus experience that equates to a U.S. bachelor’s degree. 

Employers hoping to bring in foreign nationals under the H-1B program, who then wish to sponsor the employee for an immigrant visa,  typically must demonstrate that they cannot find sufficient talent here at home to fill open positions. They must attest to the fact that an offer of employment under the H-1B program is temporary only. However, H-1B status is considered “dual intent,” which means the person can be in a nonimmigrant status such as H-1B, while also intending to become a lawful permanent resident. 

The EB-1, EB-2, and EB-3 Visas Are Permanent

Where the H-1B visa is technically temporary, the EB-1, EB-2, and EB-3 are permanent. They are immigration visas that give the holder the legal right to live and work in the U.S. indefinitely. They are essentially permanent resident visas. But like the H-1B, the EB-1, EB-2, and EB-3 are not available to everyone. They are specifically designed for foreign nationals with extraordinary ability, skills in the national interest of the United States, professional-level employees, and other skilled workers.

These are typically people with skills that are hard to come by. They are professors, scientific researchers, senior executives, and other types of business professionals that are in short supply in this country.

Employers should understand that EB-1, EB-2 and EB-3 visas can take several months to process, at minimum. More complex applications could take years. EB-1, EB-2, and EB-3 visas are also highly competitive and require a significant amount of documentation. Many categories are oversubscribed, so the employee may potentially need to wait years before receiving lawful permanent residency. This is why having another work status such as H-1B is so critical because it enables them to live and work in the United States while waiting for an immigrant visa. 

EB-1 Visa

The EB-1 is so designated because those who qualify for it are at the top of the list of preferences. Each subsequent EB visa is designated by a number indicating order of preference. There are five EB visas in total. In this article we covered only EB-1, EB-2 and EB-3 because they are the most common. 

Do not let the complex nature of business immigration and visas scare you. If you are looking to bring foreign nationals into the country on a temporary or permanent basis, Graham Adair is here to assist. We can help you navigate the system, complete documentation correctly and on time, and do everything else required to secure those visas.

Categories News & Updates USCIS

Proposed H-1B Change Would Regulate Duplicate Filings

DHS’s proposed rule on revising the H-1B regulations was published on October 23rd, 2023. This is not the final rule and is open for public comment until December 22nd, 2023.

The proposed rule entails 3 areas of focus:-

  • First, amend the definition of specialty occupation for purposes of a position qualifying as an H-1B position;
  • Second, provide flexibilities to F-1 students and broaden the definition of cap exempt organizations; and
  • Third, address H-1B cap registration abuse by changing the way USCIS selects registrations.

 

SUMMARY

 

H-1B Specialty Occupation

  1. A position will not qualify for H-1B if it solely requires a general degree, such as business administration, or liberal arts without further specialization. Similarly, the position will not qualify as specialty occupation if it requires a general degree without further specialization. For example, if the role requirement is any engineering degree instead of a specialization such as Electrical Engineering.
  2. A petitioner may list multiple disparate fields of study as the minimum entry requirement for a position, so long as they can establish how each of those different fields of study are directly related to the job duties. Clarify that “normally” does not mean “always” within the criteria for a specialty occupation.
  3. Codify the existing requirement to file an H-1B amendment prior to any material change taking effect. For instance, if the beneficiary is moving to a location outside the MSA, an amendment must be filed prior to the move.
  4. For off-site placements where a beneficiary is staffed to a third party, the requirements of that third party, and not the petitioner, are most relevant when determining whether the position is a qualifying specialty occupation.
  5. Eliminates itinerary requirement for H-1B petitions.
  6. Update regulations to expressly require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay.
  7. Codify the existing deference policy to cover all nonimmigrants using form I-129, stating that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts.
  8. H-1B beneficiaries who are owners of a petitioning entity may be eligible for H-1B status, subject to some conditions where the beneficiary owns a controlling interest in the petitioner. For a petitioner that is more than 50% owned by the H1B worker, the beneficiary would be permitted to perform duties directly related to owning and directing the business – including duties that are non-specialty occupation duties – so long as more than half of the individual’s time will be spent performing specialty occupation duties. Such petitions will be limited to an initial validity period of 18 months, and the first extension will be limited to another 18 months. Subsequent extensions would be permissible in up to 3-year increments.
  9. Allow H1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed.

 

F-1 & H-1B Cap Exempt Organizations

  1. Provide flexibilities such as automatically extending the duration of F–1 status, until April 1st of the relevant fiscal year, rather than October 1st of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F–1 students changing their status to H–1B.
  2. Broaden the definition of “non-profit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity. This creates more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization

 

H-1B Cap Registration

  1. To significantly reduce fraud and abuse, and to make the lottery system fairer, USCIS would select registrations by unique beneficiary, instead of registration so that each foreign national would be entered once in the lottery, regardless of the number of registrants that submit a registration on his or her behalf. If the beneficiary’s registration is picked, each registrant that submitted a registration on the beneficiary’s behalf would be notified of the selection and be eligible to file the petition on the beneficiary’s behalf.
  2. Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary, similar to the prohibition on related entities filing multiple cap-subject petitions for the same beneficiary for the same fiscal year’s numerical allocations.
  3. Codify USCIS’s authority to request contracts, work orders, and/or related documents to establish the contractual relationship between all parties, the terms and conditions of the beneficiary’s work, and the minimal education requirements to perform the work.
  4. Clarify the requirements regarding the requested employment start date on H–1B cap-subject petitions to permit filing with requested start dates that are after October 1st of the relevant fiscal year, consistent with current USCIS policy.
  5. Codify USCIS’s authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid.

 

CONCLUSION

It should be noted that this is not the final rule. It must go through the standard rulemaking process, which includes a 60-day comment period. Once DHS makes any changes and finalizes the proposals contained in this rulemaking through one or more final rules, it would likely do so in time for the fiscal year (FY) 2025 cap season that will open in March of next year.

The Immigration System Itself Is Why You Need an Attorney
Categories Immigration and Customs Enforcement

The Immigration System Itself Is Why You Need an Attorney

We immigration attorneys practice law on behalf of immigrants, their families, and companies hoping to employ them stateside. We work within a system that can be difficult to navigate and even harder to understand. The system itself is why we say you need a business immigration attorney if you are hoping to bring foreign nationals here to work.

It is not our job to judge the U.S. immigration system as being right or wrong from a moral or ethical standpoint. The law is what it is. But we can say that satisfying immigration law is time-consuming. It involves a tremendous amount of paperwork that needs to be completed and submitted correctly. Immigration law is governed by a lot of rules and regulations, some of which are so mundane that they are easy to miss.

A Buffet of Visa Options

One of the first issues foreign nationals run in to when considering immigration for work purposes is figuring out what type of visa to apply for. Needless to say that our system allows for a veritable buffet of options. We have dozens of different visas all defined by their own criteria. How does a worker know which one is most appropriate?

One of the visas we specialize in is the H-1B work visa. It is for skilled laborers in very specific industries. Qualifying for an H-1B is not easy. And even if a worker does qualify, H-1B visas are limited in number and offered on a lottery basis. Qualifying does not guarantee approval.

Unfortunately, even being considered for an H-1B is impossible if paperwork is not completed correctly and submitted on time. It is not difficult for someone who doesn’t understand the system to fall behind and eventually find himself with his back against the wall as the deadline approaches.

A System-Wide Problem

We do not want to give the impression that the only challenge in U.S. immigration is applying for a visa. Indeed, the time-consuming and complex nature of the immigration process is a system-wide problem. Even foreign nationals attempting to seek asylum in the U.S. can struggle.

Take the case of a Nicaraguan immigrant profiled a few months ago by NBC News. He was exiled to the U.S. for political reasons. He is now seeking political asylum in this country. He has already been here five years and his case has stalled.

It is not that the man has done anything wrong. He hasn’t. It’s just that the system has been overwhelmed by backlogs. There are so many people needing help and far too few resources and personnel to help them. Meanwhile, this individual must continue maintaining records of his past to support his case when it is eventually heard.

It is Okay to Need Help

We mention all of this to say that it is okay to need help. Business immigration is not easy. It is certainly not simple. If your company is hoping to bring workers into the U.S. from other countries, your best bet for navigating the system as easily and efficiently as possible is to work with a business immigration attorney.

Business immigration is our specialty here at Graham Adair. We work with clients to get paperwork completed and submitted. We educate foreign nationals about the visa process. We can even help prepare them for their immigration exams.

We cannot make the process any simpler for you. However, we can work alongside you to help you do everything by the book. Needless to say that our system is difficult to work. But that is why you need an immigration attorney.

What Has the USCIS Thinking About Changes to the H-1B Lottery
Categories News & Updates

Why Is the USCIS Thinking About Changes to the H-1B Lottery?

There have been a lot of rumblings in recent months that the US Customs & Immigration Service (USCIS) is seriously thinking about making changes to the H-1B lottery system. The rumors started almost immediately after the USCIS discovered a sharp increase in the number of duplicate applications for FY 2024.

The two big questions are this: are changes forthcoming and, if so, what will they be? Regardless of the answers, one thing that is painfully clear is that the USCIS doesn’t issue nearly enough H-1B visas to satisfy annual demand. Put another way, the current lottery system is not keeping up with the demand for foreign-born workers.

Here at Graham Adair, business immigration is our specialty. We plan to keep an eye on the H-1B lottery. As soon as we know more about pending changes, we will pass that information along. For now, it might be helpful to understand why changes are even being discussed.

Companies Potentially Colluding

As previously mentioned, there was a significant increase in the number of duplicate H-1B applications for FY 2024. In FY 2023, the number of “eligible registrations for beneficiaries with multiple eligible registrations” stood at 165,180. The number rose to 408,891 for FY 2024. Incidentally, the number for FY 2021 was a mere 28,125.

Though the USCIS has not offered any supporting documentation, they claim to have suspicions of companies colluding to increase the chances that certain applicants will be selected in the FY 2024 lottery. The agency suggests that companies are working together to provide multiple job offers to individual candidates for the purposes of submitting more than one application.

Companies Submitting Multiple Applications

The USCIS also suspects that a small number of lesser-known tech companies have submitted multiple applications for foreign nationals. Again, no documentation was provided and no names were named. But if the allegations are true, it would amount to some employers knowingly submitting multiple applications while simultaneously requiring candidates to attest to truthfulness.

Bear in mind that candidates must attest to three things on their applications:

  1. That all the information contained in the registration submission is complete, true, and accurate.
  2. That the registration submission reflects a legitimate job offer from a legitimate employer.
  3. That neither the applicant nor another organization acting on their behalf is trying to game the system in order to increase the chances that the applicant will be selected in the lottery.

Of course, we simplified what applicants must attest to for the purposes of this post. The main point here is that applicants must attest to the fact that they are being completely truthful, and they are not working either individually or with others to artificially inflate their chances of being awarded an H-1B visa.

Graham Adair Can Help

We have no way of knowing whether the USCIS will modify the lottery process so as to make cheating more difficult. Should they decide to do so, we will not know exactly what the changes look like until a proposal is issued. In the meantime, we must work within the boundaries of the system already in place – even if it seems broken.

Graham Adair can help your company and foreign-born job applicants navigate the H-1B visa process. We can help ensure that paperwork is completed properly and submitted through the appropriate channels. We can help prepare your foreign-born applicants for the lottery as well. If you are trying to bring foreign nationals here to work and are confused by all things H-1B related, give us a call. We are business immigration experts.

Categories Department of Labor Department of State Immigration and Customs Enforcement News & Updates USCIS

How Would A Government Shutdown Impact Employment-based Immigration?

As of today, September 25, 2023, Congress has not agreed to the temporary spending measures needed to fund the U.S. government after the current fiscal year ends on September 30, 2023. If no agreement is reached by Saturday, key government agencies will be forced to shut down. Below is a list of the U.S. government agencies linked to business immigration and the impact a potential government shutdown will have on these agencies:

United States Citizenship and Immigration Services (USCIS)

USCIS is a fee-based agency, so its operations will mostly proceed as usual. E-Verify will be unavailable during the shutdown and employers may use the new remote Form I-9 document verification as an alternative.

Department of Labor

The Department of Labor’s Office of Foreign Labor Certification will disable the FLAG system and not process PERM labor certification applications, prevailing wage determination requests, and labor condition applications (LCAs) during the government shutdown. If you anticipate the need to any H-1B, E-3, or H-1B1 nonimmigrant petition filings soon, you may want to speak with your immigration counsel to see if you can submit LCAs for those cases this week. It will also be prudent to file any PERMs or prevailing wage determination requests that can be prepped this week as well.

Department of State

The Department of State is partially fee-funded, and passport issuance and visa processing should continue at the start of the shutdown. However, a prolonged shutdown could limit consular activities to emergency services at certain posts due to insufficient funding. If you have upcoming travel plans to the U.S. that require a visa, please speak with your immigration counsel on how those plans might be impacted by a potential government shutdown.

Customs and Border Protection (CBP)

CBP will remain open because its employees are essential personnel. However, travelers may experience application processing delays at the border. If you have upcoming travel plans to the U.S. that require applying at the border, please speak with your immigration counsel on how those plans might be impacted by a potential government shutdown.

Social Security Administration (SSA)

The SSA has stated that it will continue to issue new social security cards and numbers in the event of a government shutdown. But thousands of SSA employees will be furloughed during the shutdown, and that can potentially cause significant delays with card and number issuance.

Please contact us with any questions at info@grahamadair.com.