An Illustrative Example
Because the laws and procedures in obtaining permanent residency for your family members are so complex, I think it may be very helpful to you if I illustrate the process by way examples. Please note that theses are only a few examples of employment visas.
Disclaimer. The following is intended only to give you a general idea of the topic. It is NOT intended to be legal advice. Everyone’s goals and situations are unique. Please consult an attorney to determine which method is best for your specific goals.
Example 1: Employment Based 3rd Preference Category (EB-3), Filipino Skilled Workers and Professionals
Christian, a native and citizen of the Philippines, is currently working as a Database Administrator for a private school under H-1b status. His spouse and children are currently living in the U.S. with him under H4 dependent status. His employer is very impressed by his work and has decided to offer him permanent employment with the school and has agreed to petition him for a green card (permanent residence).
Three Step Process
Attorney Avelino explains to them that they will have to go through a three step process in order for the school to permanently employ and obtain a green card for Christian and his family:
- The school must obtain a Permanent Employment Certification (also known as Labor Certification, commonly referred to as the PERM process and Form ETA-9089) from the U.S. Department of Labor (DOL). In order to get such a certification, the school must prove that there are no willing, able or qualified U.S. workers for the job and hiring Christian will not otherwise adversely affect the working conditions of similarly employed U.S. workers.
- The school must obtain an approved immigrant petition (Form I-140) from USCIS. Two main issues at this stage concern whether the school can afford to pay Christian a full time permanent salary as a Database Administrator and whether Christian has the adequate qualifications for the job.
- Christian and his family must obtain approvals on their applications to adjust status to lawful permanent resident (Form I-485) from USCIS. Here, USCIS will determine whether there any reasons why they should not get a green card, such as: prior immigration violations, criminal records, medical conditions, etc. However, Christian and his family cannot file these applications to adjust status until his priority date becomes current.
- His priority date is the date that the Application for Permanent Employment Certification in Step 1 is filed. In a sense, it is his number in line to get a green card. He must wait for all the other Filipino workers (in the same category as him) who began their process before he did to get their green cards first, before he and his family can get theirs.
- This, unfortunately, usually means that there is a several years gap between Step 2 and Step 3.
- Because the U.S. government only issues a limited number of green cards per year in this category and there is always more demand then supply, this creates a backlog. In this scenario, there are literally thousands of Filipino workers who are in line ahead of Christian and it will likely take several years before he and his family can file to adjust their status to permanent residence.
- The good news is that if he and the school do everything correctly, Christian can continue working for the school and his family can continue to live with him in the U.S. up until the time his priority date becomes current (his number in line is called to file an Application to Adjust Status and receive a Green Card).
Example 2: Employment Based 2nd Preference Category (EB-2), Filipinos Holding Advanced Degrees or Equivalent In Work Experience
Christine obtained her Bachelor’s degree in Computer Science from De La Salle University in the Philippines. After graduating, she worked in several key positions within the business IT industry steadily working her way up the career ladder gaining over five years of progressive experience in her field.
She is now working in the U.S. under H-1b as an IT Manager for an electronics component manufacturer. Recently, she learns that her employer has an opening for their Director of Business Analytics position that they haven’t been able to fill. The minimum qualifications for this position is an advanced degree (such as a master’s or doctor’s) or a bachelor’s degree plus five years of progressive post bachelor experience in the relevant field.
Christine applies for the position and is offered the job. Her employer agrees to file an immigrant petition for her so that she may work for the company permanently in this position and obtain a green card for herself and her family.
Attorney Avelino explains to them that they will have to go through the same three step process as noted above in Example 1, however, with one BIG DIFFERENCE. Unlike the EB-3 preference category, the EB-2 preference category has immediately available visas. This means that Christine and her family can concurrently do Step 3 of filing their applications to adjust status at the same time her employer does Step 2 of filing the immigrant petition. For Filipinos, this essentially reduces their wait time by around seven years and Christine’s family is likely to get their green cards within one to two years!
The Law Office of Irwin M. Avelino has successfully helped hundreds of Filipinos obtain temporary working visas and permanent residence (green card) based on employment in the United States with over a 99% approval rating. These include accountants, engineers, IT professionals, graphic designers/artists, investors, teachers, nurses, researchers, land surveyors, market research analysts, scientists, architects, human resource specialists, executives, unskilled workers, and many others.
- Each employment category has complex requirements and conditions;
- Each employer has varying needs; and
- Each applicant for employment has unique credentials,
It is best to speak to an experienced immigration attorney to discuss your possible options in detail.
H-1B Specialty Occupation Visas (Temporary Working Visa)
This visa category applies to people who wish to perform services in a specialty occupation.
The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Period of Stay
As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.
The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.