EB-1A Client Success: Electronics Engineer
One of the things I enjoy about being a Business Immigration Attorney is the diverse occupations that we have the opportunity to work with. In particular, I love working with scientists and engineers, not only because their work is so critical to our nation, but also because it is challenging to translate what they do into simple terms without losing the complexity of their work. It is quite a balancing act!
I recently had the opportunity to prepare and file an EB-1A petition for an Electronics Engineer, which was approved by USCIS without an RFE.
The Client, who self-petitioned, had more than 15 years of experience in the Electronics Engineering field, with a specialization in the design and development of semiconductor chips and supercomputing technologies used in artificial intelligence and a diverse range of next-generation technologies, which are key national security and critical infrastructure areas identified by the Biden-Harris Administration.
Although the Client was clearly a leader in their field, they had no media or public footprint–all of their work was behind the scenes. We had a consultation about the EB-1 standards–I assessed their portfolio, advised them of the strengths in their case and areas of potential USCIS challenge. I also advised the Client of key steps that they could complete to strengthen their EB-1A case, which they did. We developed a strategic plan and aggressive timeline–we started preparing the EB-1A in October, filed in mid-November, and received an approval about a week later.
There were 3 keys to our success: (1) identifying the EB-1A criteria that best suited the Client’s work and achievements; (2) properly explaining, in layman's terms, the Client’s niche and showcasing the evidence that supported EB-1A classification; and (3) most importantly, actively collaborating as a team to ensure that all of the language used truly captured what made the Client extraordinary.
It is important to note that although the EB-1A requires submission of at least 3 out of 10 criteria where the beneficiary does not have evidence of a major internationally-recognized award, the more probative evidence that can be provided, the stronger the case. Through our collaborative effort, we were able to satisfy the following criteria: (1) the Client’s membership in associations in the field that require outstanding achievement of their members; (2) the Client’s original scientific and business-related contributions of major significance to the field; (3) the Client’s performance in a critical role (as opposed to leading role) for distinguished organizations; and (4) the Client’s receipt of a high salary or other significantly high remuneration in comparison to others in the field.
With the EB-1A approval, the Client is now able to transfer their old EB-2 priority date, which has retrogressed by 11 years, to the EB-1A preference and apply for lawful permanent residence.
If you are thinking about self-petitioning for EB-1A classification, it is essential to work with an experienced business immigration attorney who possesses: (1) the immigration law and know how; and (2) knowledge of your science and/or engineering industry and how it contributes to the national security and critical infrastructure goals of the United States; and (3) will work with you as a collaborative partner.
The Relationship Between Unauthorized Practice of Law and Unauthorized Employment
There are people who confuse being entrepreneurial with being parasitic. Where an opportunity arises and there is significant demand and desperation, there are people who will, and have, taken advantage of those who wish to obtain such an opportunity.
Take for example this year’s H-1B lottery debacle, wherein more than 408,000 H-1B registrations were filed for the same 96,000 beneficiaries, leading USCIS to conclude that “several dozen small technology companies” colluded to submit multiple registrations to increase their odds of selection in the H-1B lottery. USCIS has been actively engaged in investigating these companies and beneficiaries.
We are now seeing this with the sudden increase of O-1, NIW and EB-1A consultants offering immigration coaching and mentoring services on LinkedIn, specifically focusing on how to “build a profile” to be eligible for an O-1, NIW or EB-1A. What are their qualifications? Simply one circumstance: being the beneficiary of their own O-1, NIW or EB-1A petition, which in most instances was prepared and filed by a qualified and experienced immigration attorney. These individuals are taking advantage of the concern and desperation being experienced by individuals who were not selected in the H-1B lottery, and/or otherwise subject to the extensive delays in the availability of immigrant visa numbers because of the per-country restrictions.
Why do I take issue with this? First and foremost, these individuals are not trained, licensed or experienced business immigration attorneys and are clearly engaged in the unauthorized practice of law. Second, in some instances the unauthorized practice of law can result in unauthorized employment.
What is unauthorized practice of law?
According to the American Bar Association (ABA), unauthorized practice of law (UPL) “manifests in a non-attorney who establishes a business to offer immigration and other legal services” which includes guiding people “on what actions to take to resolve their immigration matters,” instructions “on which immigration form or process they should utilize”, completion of “the form, possibly even suggesting specific answers” and advising “on what they could expect.”
Furthermore, the ABA states that the “practice of immigration law is defined by federal regulation as an "act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with [the Department of Homeland Security]...Preparation, an essential element of the practice of immigration law, is ‘the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers’.
USCIS recognizes the following individuals as being qualified to offer immigration advice and representation: (1) attorneys; and (2) non-attorney representatives who are accredited by the Board of Immigration Appeals. Someone whose only experience with the O-1, NIW or EB-1A is having their own petition approved is not recognized nor qualified to offer any legal advice.
These O-1, NIW and EB-1A consultants are engaged in UPL, regardless of the disclaimers they post on their LinkedIn profiles and websites. The moment an O-1, NIW, or EB-1A consultant advises a foreign national how to “build” their profile and brand, and meet USCIS criteria, they are engaged in providing legal advice. One particular non-attorney consultant wrote a book that they claim “demystifies” the EB-1A process, which they sell for approximately $150 in addition to offering their services to “coach” foreign nationals to create an EB-1A profile. Although they claim repeatedly that they are not offering legal advice, their book includes: distinctions between the different EB-1 categories with their opinion that the “bar is definitely lower in comparison” for certain categories [erroneous legal assessment]; the EB-1C requires employment as a multinational manager abroad for two years [erroneous legal interpretation]; that the EB-1A takes a shorter period of time to qualify than the other EB-1 categories; offers sample filing letters; and a claim that the final merits determination is based on establishing that a foreign national’s work benefits the U.S. economy [erroneous legal interpretation]. Contrary to their disclaimers, their book is filled with erroneous legal advice and standards.
So, assuming an O-1, NIW or EB-1A consultant offers legal advice that is more cost-effective than an immigration attorney (which is not accurate in many instances), what is the problem?
First, because such individuals are not trained, licensed and experienced immigration attorneys, they do not understand the intricacies of immigration law, which is filled with nuanced terms of art. As clear from above, this particular EB-1A consultant has misinterpreted the regulations or otherwise made-up standards that simply do not exist in the statute, regulations or case law. Their only experience with the EB-1A category is the approval of their own petition, which was prepared and filed by a qualified U.S. immigration attorney.
Second, a foreign national’s immigration record is forever–meaning mistakes made not only remain a permanent part of a foreign national’s record, but can have severe consequences. At best, a mistake made by one of these non-attorneys will result in lost fees and a rejected or denied petition. At worst, a mistake can result in the foreign national being subjected to additional scrutiny for misrepresentation or fraud, losing significant money, violating or otherwise failing to maintain the nonimmigrant status, or being subjected to removal proceedings.
Third, by convincing a foreign national who is not qualified for the O-1, NIW or EB-1A to file a petition with USCIS, they are only adding to the significant caseload and backlogs that are plaguing our immigration system. Each case filed with USCIS must be adjudicated and in comparison, to other types of petitions, O-1, NIW and EB-1 petitions are very document-heavy, meaning that there is significant evidence that must be reviewed. When a petition is filed with the skewed standards as interpreted by an O-1, NIW or EB-1A consultant that do not meet the regulatory criteria, valuable USCIS resources are misused, adding to delays and costs.
How does UPL trigger unauthorized employment?
According to USCIS, unauthorized employment is: “any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization.”
USCIS generally approves nonimmigrant petitions for employment (such as an H-1B, O-1A or O-1B) with a specific employer, for a specific role, with specific job duties, for a specific period of time. A foreign national may engage in unauthorized employment by working for a company other than the one listed on their USCIS approval notice, by performing duties or services not approved by USCIS in the petition filed by their employer, or working beyond the date authorized by USCIS regulations.
How does UPL trigger unauthorized employment? There are a number of individuals present in the U.S. in O-1A status who have now jumped into the immigration coaching and mentoring area, by writing books offering legal advice and by providing coaching/mentoring services for immigration.
For example, two individuals who recently received approved O-1A petitions held a LinkedIn webinar offering O-1A preparation, planning and mentoring advice to other professionals in the Information Technology (IT) industry. Both individuals stated that they received their O-1As for Product Manager roles through very well-known tech companies (their profiles confirmed this information) and now they were offering immigration advice to help other Product Managers qualify for the O-1A including: whether the foreign national needed to work in the sciences or research; whether the foreign national required an advanced degree; what kind of evidence is required; and that foreign nationals can change from F-1 to O-1.
Here is the problem, it is highly likely, given their detailed job descriptions posted online, that their UPL exceeds the scope of their Product Manager employment as petitioned by the IT employers and approved by USCIS. That is, unless their respective IT employers included in their job description that they would be required to engage in providing legal advice and mentoring other Product Managers on their immigration qualifications and how to prepare and qualify for an O-1, such activities would likely constitute unauthorized employment. [Note: it is unlikely that USCIS would have approved an O-1 petition for an IT Product Manager that also included the job duty of UPL – such a duty falls outside what is normally required of an IT Product Manager.]
Engaging in unauthorized employment can result in severe consequences for foreign nationals. First, foreign nationals who engage in unauthorized employment are deemed to have violated their nonimmigrant status and failed to maintain status. Second, it makes a foreign national ineligible to extend or change their status in the United States. Third, it makes a foreign national ineligible to adjust their status to lawful permanent resident in the United States unless there is an exemption or other provision of law available. Fourth, it makes a foreign national subject to deportation or removal proceedings. Fifth, it could result in their nonimmigrant visa being revoked or a future application denied.
Keep in mind, the test for unauthorized employment is NEVER just about receipt of payment. A very common misconception held by foreign nationals is that if they don’t get paid for the work, then they are volunteering. Engaging in unpaid work is not the same as volunteering and where USCIS is concerned, if a foreign national is engaging in work that is usually performed for payment, then the foreign national must: (a) hold the proper visa classification and (b) be paid.
How would USCIS even find out about unauthorized employment? In this case, very easily – through social media. Nearly each one of these O-1A IT professionals have advertised their books and immigration mentoring services on LinkedIn, which can easily be found by searching the “#O1visa”. In addition, if these individuals are receiving payment for their immigration mentoring services, such payment must be reported on the U.S. tax returns, which must be provided if the foreign national seeks a greencard in the United States. USCIS is increasingly becoming social media savvy and many of these individuals have been very public in offering their services. It is a shame that they did not speak with their immigration attorneys before engaging in these activities, which can potentially jeopardize their immigration status in the U.S.
Conclusion
I’m not looking to denigrate anyone’s work or ability to make a living. However, providing the wrong legal advice can and does cause harm that can be permanent, place people in legal jeopardy and cause them to lose thousands of dollars.
These O-1, NIW and EB-1A consultants are providing erroneous legal advice and engaging in the unauthorized practice of law, which can have significant consequences for themselves and the foreign national consumers who use them.
If you want legal advice on immigration law, hire an immigration attorney with experience. If you have any questions about an O-1, NIW or EB-1, please schedule a consultation with us. If you are in the U.S. and seek to engage in services beyond the scope of your employment, you must speak with an immigration attorney before commencing such activities because you could be violating your nonimmigrant status.
Notes from the AILA Annual Conference
The AILA Annual Conference (AC23) took place in Orlando, Florida from June 21 to June 24 and was a great learning opportunity, where some of the field’s most knowledgeable practitioners shared their experiences and insights.
Below, I’ve included a summary of some of the most important points that I learned.
Wednesday, June 21, 2023
Obtaining The Elusive NIV Consular Appointment and What to do Once You Get it
NIV intent does not mean that the FN must prove their intent to return to their home country, only that they intend to leave the U.S. It is important to keep this in mind if country conditions are challenging the FN’s home country because of natural disasters, war, political instability, etc.
TCN - usually eligible to apply wherever they are lawfully present – for example if a person from China is legally in London for tourism or business purposes, they should be able to apply for an L-1 or H-1B in London
Highly unlikely (and unrecommended by panel) to try to get a B-1/B-2 as a TCN
Some countries will absolutely not adjudicate TCNs (Panama and Mexico)
Wait times on DOS website do not reflect TCN wait times
Always prepare clients for consular interviews.
In most cases, consular officers will make up their minds in 3 minutes or less
Client should be able to explain all facets of their job in the U.S. and abroad and how they qualify for visa classification
Remote and Hybrid Workforce Issues and Trends
DOL most likely won’t issue FAQs for new PERM form until they start adjudicating them in about 10 months
Remote workforce
This is highly problematic where the FN has authority or prerogative to change location at will. Employer may need to file multiple amendments
PERM
Farmer memo is for “roving” employees or unanticipated worksites, not for “hybrid” or “remote” but it’s the best we’ve got
The new form - where do you address the telecommuting issue? Section FC, other geographic areas where work is performed. This is where panel is listing telecommuting issues and roving employees
What to do when a company has no HQ and all employees are remote/WFH?
Does NOF at registered address, shared workspace
If there is a change in the worksite for the job because PWD has been pending so long, what to do?
Need to do a PWD unless you can preserve the original worksite wherein the employer says that the FN will return to the worksite.
Thursday, June 22nd
Workshop Deep Dive in responding to H1B RFEs
USCIS is issuing RFEs for maintenance of status, where the FN has worked with OPT and then several rounds of CPT
RFEs where there is a change in work location (prior to filing LCA and amended petition)
Amended petition should be filed before work in new location (different MSA) begins
Employers need to keep track of where FN is working and living especially if remote work/WFH is permitted
Uptick in specialty occupation RFEs
Read RFE carefully especially if case law is cited because it is often misquoted
Labor Condition Application: More than meets the eye
The new SOC codes also include some new occupations, such as Project Management Specialist
Best Practice: Employers should consider creating and implementing a policy about foreign national employees moving without notice because there is the potential to trigger LCA violations as well as a failure to maintain status for those in H-1B, H-1B1 and E-3 status
If an FN works in a location not covered by an LCA, there is a status violation
Until the regulations are changed, where an FN works from home, the LCA needs to include the home address and the LCA must be posted at the FN’s home
Keep in mind that FDNS can show up at any address listed on the LCA, including the FN’s home address
Wage and hour violations
Fines and debarment are possible penalties for LCA violations but the DOL is issuing more debarments from the H-1B program now
Friday, June 23rd
Hot topics in compliance including form I-9
The new Form I-9 is on the horizon with a final rule that permits permanent virtual solution.
The new rule will come out in August
The new permanent virtual solution may not be available to all employers – there will be a lot of requirements to use this solution
Physical inspections of I-9 documents (for employees on-boarded virtually/remotely) must be completed by August 30th
Be careful using electronic I-9 systems — employers will be held responsible for violations caused by software
Outer continental shelf (OCS) workers do not need to do I-9s because the OCS is not subject to jurisdiction of the U.S. Even if the OCS worker is paid from U.S., the employer is not required to complete and I-9 for OCS employees
E-verify
Mandatory in certain circumstances: federal government/contractors, several States, and some jurisdictions within States. Even if an Employer has 1 employee in these jurisdictions (working remotely), the EMployer must use E-verify
E-Verify must be completed within same timeframe as the I-9
If the employee requires reverification, re-verify the I-9, but do not complete another e-Verify entry
Required to employ STEM OPT employees
DOL Open Forum
Work load data
PERM submissions remain very high, with more than 79,000 cases filed in the first half of 2023
23% more PWR for PERM cases filed in first the half of 2023
Workload doubled due to increase in H2A numbers
Temporary visas have been prioritized over PERM applications and have shifted analysts away from PERM cases
Submit questions about the new 9089 on the FLAG system and these will be turned into FAQs by the DOL
The more feedback that is provided, the more quickly DOL can resolve issues
For fields that require dates, but specific dates are not available, the DOL is working to amend PERM to allow an entry of “N/A”
Audit responses
Best Practice: choose one method, either mail or electronic, but do not submit responses using both methods.
The DOL prefers electronic submissions
9141 issues
H-1B prevailing wage can be linked to new PERM 9089
A PWD that expires on June 30th for linking with PERMs in July – the DOL is aware and will issue guidance
The DOL will issue guidance on linking multiple PWDs (where there are more than 2 sets of requirements) but if you come across this, email the FLAG help desk
PWDs are issued with an annual salary. You cannot list an hourly wage on the 9089 and must use the annual wage. However, the NOF can use the hourly wage so as long as it is equivalent to annual wage
With regard to determining whether the requirements exceed the SVP, the DOL uses ONET to determine what is normal to the occupation
Physical posting of the NOF is still required
Employers no longer need to register to create a PERM account and will no longer receive post-filing emails
No expedites available for prevailing wage requests or PERM adjudications
OFLC will change wages on July 1, 2023
Risky business: permissible and impermissible activities
It is permissible to manage your own investments while in the U.S. in B-1/B-2/ESTA status
Sometimes it is a good idea to have an FN who is eligible for ESTA or visa waiver apply for a B-1/B-2 visa if they travel to U.S. frequently or stay beyond 90 days
ESTA will be canceled permanently if the FN visits Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen
B-1 in lieu of H-3 (admission for 1 year) and in lieu of H-1B (admission for usually 6 months)
The FAM says there is no such thing as a misrepresentation by silence
USCIS says the opposite – omission can be misrepresentation
Saturday, June 24th
Prevailing wage determinations
Virtual businesses are posing a problem – what address should be used as the company’s HQ? The DOL requires an address to be listed so that:
interested applicants may submit a resume for a job, and
there is a location for site visits.
The Farmer memo deals with “roving” employees and is not really meant for “remote” employees, but the DOL says it’s still valid. If you cannot anticipate where the employee will work at the time of filing, list the HQ and list all possible locations where the FN will work
The DOL is reluctant to issue a PWD with XX-XX99, all other occupations SOCs, especially for IT occupations. BALCA says these are legitimate, so if the DOL won’t issue a PWD using an “all other occupation” classification, you can challenge the determination and ask for reconsideration
Wage transparency laws: If a person can work remotely from anywhere in the US, you need to comply with wage transparency laws
With batch recruiting be careful that the lowest wage is the one that can be listed on the 9089
Mastering the complexities of PERM
There has to be a physical office where applicants can be referred and for the NOF to be posted.
100% virtual companies are highly problematic. If there is an audit the employer will most likely not be able to get the PERM approved
For worksite location selections on the PERM form, always pick “business premises” (not “employee’s home” even if the employee is working remotely).
The DOL admitted during the open forum that the people who created the new PERM application do not understand the regulations and do not prepare or adjudicate PERM applications as part of the normal job duties
This form was not Beta tested – we are doing the Beta testing by filing our PERM applications (which may be denied 10 months from now).
Audit triggers - section G - answering yes to any of these, you will need to explain in 1,500 characters or less. If explanation is sufficient, it will not cause an audit.
Panelist thinks you should answer yes to 9 if you have a JZ 7- 8 (e.g. software developer) and require bachelor’s and 5 years or master’s and 3 years. This is the business necessity issue.
The old question is below and you could get away with saying “yes”--that the job requirements were normal – if the requirements were the employer’s normal requirements you could say “yes”. But now, the question now is “do the requirements exceed teh SVP”?
Equal pay laws/salary transparency laws
Hawaii just signed bill - starts January 2024
Illinois - includes salary and all benefits - starts January 2024
No more PERM email confirmations for employers to respond to
The Impact of Relocating on U.S. Immigration Processes
As a result of the COVID-19 pandemic companies in nearly every industry switched to a remote or hybrid workforce, providing their employees with the flexibility and autonomy to move to various locations within the United States. Regardless of the reason for these relocations, it is very important for employers and their foreign national employees to consider the immigration consequences that may arise from moving.
The goal of this post is to provide foreign nationals and their employers with important issues to consider when moving and the impact that such a move might have. It can be an unwelcome surprise to foreign nationals and their employers when they realize the impact that moving, even within the same State, can have on their immigration status. To explain the importance of moving, we will provide two hypothetical situations below and the immigration consequences of each.
Hypothetical 1: A nonimmigrant with a pending I-485, Application to Adjust Status to Permanent Resident.
Emily is a nonimmigrant who has a pending I-140, Petition for Immigrant Worker (I-140 Petition), and a pending I-485, Application to Adjust Status to Permanent Resident (I-485 Application), which were concurrently filed in January 2023 based on her employment with ABC Co. When Emily’s I-140 Petition and I-485 Application were filed she was working remotely, from her home office. As listed on her I-140 Petition and I-485 Application, Emily resided in New York, NY.
In March 2023, U.S. Citizenship and Immigration Services (USCIS) mailed Emily an ASC Appointment Notice to have her biometrics (photograph and fingerprints) recorded at a local USCIS Application Support Center on April 11, 2023. Unbeknownst to ABC Co. or their immigration counsel, Emily had moved to Hoboken, NJ and never informed her employer or immigration counsel of her new address.
Although Emily had her mail forwarded from her old address in New York, NY to her new address in Hoboken, NJ, she never informed USCIS that she moved. She never received the original ASC Appointment Notice mailed to her directly from USCIS. In addition, even though ABC Co. and their immigration counsel emailed Emily a copy of the ASC Appointment Notice, she never read the email or opened the attachment.
On May 16, 2023, Emily received mail that was forwarded to her new address, including the ASC Appointment Notice and realized that she missed the appointment to have her biometrics recorded.
It is significant to note that forwarding mail is not sufficient for USCIS. Any nonimmigrant who moves is required to file a Form AR-11, Alien’s Change of Address Card, with USCIS within ten (10) days of the change of address. The requirement to file the AR-11 applies to all foreign nationals, whether they move to a different apartment within the same building or to a different city or State. A best practice is to also send a letter to USCIS, by certified mail return receipt, with a copy of the receipt notice for each pending petition or application to advise of the change of address.
What are the consequences of Emily missing the biometrics appointment for her I-485 Application? The failure to appear for the biometrics appointment, or to timely request (prior to the appointment date) that USCIS reschedule the appointment, will result in USCIS denying the I-485 Application as being abandoned. Although there have been some instances where the local ASC office will allow a foreign national to appear late to have their biometrics recorded, more often than not, USCIS will deny the I-485 Application as abandoned. Assuming the foreign national has otherwise maintained their status, this would require the foreign national to refile a new I-485 Application and be placed at the end of the queue for a greencard after having waited months or years to file.
Hypothetical 2: An H-1B nonimmigrant whose employer permits remote working
Dana is an H-1B nonimmigrant whose employer, XYZ Ltd., has implemented a work from home or remote working policy (WFH Policy) in response to the COVID-19 pandemic. XYZ Ltd., which is located in Morris County, NJ, initially implemented the WFH Policy as a temporary measure, but in December 2022, made it one of several permanent options for its employees.
Dana, who has been employed as an IT Project Manager with XYZ Ltd. for four years, has been working remotely since March 2020. Her current H-1B status expires on September 1, 2023 and she is currently earning an annual salary of $100,000. Now that she has the option of permanently WFH, she purchased a home in Fairfax County, VA on February 1, 2023. On March 15, 2023, while XYZ Ltd.’s immigration attorneys were preparing an extension of Dana’s H-1B status, she advised XYZ Ltd. that she had purchased a home in Fairfax County, VA and was seeking to move to her new home as of April 15, 2023.
What are the consequences to Dana’s H-1B status based on her planned relocation from Morris County, NJ to Fairfax County, VA? Changes in an H-1B nonimmigrant’s work location can have significant immigration consequences due to the U.S. employer’s requirement to meet the prevailing wage.
In order to file an H-1B petition, an employer must agree to pay the H-1B beneficiary at least the “required wage,” which is defined as the higher of the prevailing wage or the employer’s actual wage paid to similarly employed workers. A U.S. employer establishes its agreement to pay the required wage by filing and obtaining certification (or approval) of a Labor Condition Application (LCA).
The appropriate prevailing wage is determined by the geographical area of employment. The prevailing wage for Dana’s position of IT Project Manager in Morris County, NJ is $94,349 per year, while in Fairfax County, VA, the prevailing wage for an IT Project Manager is $121,722 per year.
By purchasing a home and planning to relocate without first consulting with XYZ Ltd. and its immigration counsel, Dana created an expensive dilemma for herself and her employer, which may jeopardize her ability to maintain her lawful nonimmigrant status. Under this scenario, XYZ Ltd. and Dana have several options.
First, assuming XYZ Ltd. agrees to file the H-1B extension for Dana to work in Fairfax County, VA, XYZ Ltd. must agree to pay her the prevailing wage, which is now $121,722 per year, more than a $21,000 increase over her current salary. While XYZ Ltd. has the option of purchasing a private wage survey as an alternative means of determining the prevailing wage, such private wage surveys can be quite expensive and there is no guarantee that the private wage survey will be accepted by either the Department of Labor or USCIS as sufficiently meeting the prevailing wage regulations.
Second, XYZ Ltd. may decide that it cannot or will not file an H-1B extension petition for Dana, which would place her lawful nonimmigrant status in jeopardy. If XYZ Ltd. determines that it cannot pay Dana $121,722 per year or that it cannot find a private wage survey as an alternative means of determining the prevailing wage, then XYZ Ltd. could decide not to file an H-1B extension on behalf of Dana and let her H-1B status expire.
Third, XYZ Ltd. could determine that it can only afford to extend Dana’s H-1B status if she continued working in Morris County, NJ, which would mean that Dana could not move to her new home in Fairfax, VA.
Fourth, Dana would have the option of transferring her H-1B employment to an employer who could pay the prevailing wage for her role as IT Project Manager in Fairfax, VA. This would require Dana to find a new employer who would be willing and able to sponsor her, pay the prevailing wage, and file the H-1B extension petition before her current status expired on September 1, 2023. While not impossible, the very short period of time with which Dana has to find a new employer, get hired and get the employer to file the petition on her behalf, makes it unlikely that this option would be successful.
As detailed from above, both Emily and Dana failed to communicate, with the employers and immigration counsel, a material change in their personal circumstances, which in turn had significant consequences, placing both in financial or immigration jeopardy. It is critical that foreign nationals always share a change in their address with their employer and immigration counsel. As the above hypotheticals show, relocating can have a significant impact on a foreign national’s immigration status.
Nonimmigrant Alternatives to the H-1B Visa
What are some alternatives that employers and foreign nationals can consider if they have not been selected in this year’s H-1B cap lottery?
E-3, Australian Specialty Occupation Worker
Pursuant to the 2005 U.S.-Australia Free Trade Agreement, the E-3 visa classification allows Australian citizens to enter and work in the U.S. in a specialty occupation for two (2) years. To qualify for an E-3 visa, the applicant must:
Be an Australian citizen;
Have a legitimate offer of employment in the U.S. in a specialty occupation; and
Possess the required academic background or other qualifying credentials for the specialty occupation.
The Immigration and Nationality Act (“INA”) defines a “specialty occupation” as a job that requires the “theoretical and practical application of a body of highly specialized knowledge to perform the occupation”; and the “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” INA §214(i)(1).
Generally, a specialty occupation is one that cannot be performed without a bachelor's or higher degree (or its equivalent) in a specific field of study.
Examples of specialty occupations include but are limited to: architects; engineers; professors; teachers; lawyers/attorneys; database administrators and other information technology-related occupations; accountants; economists; doctors and other medical and health related occupations; writers; librarians; marketing and advertising positions; and social workers, to name few.
An added benefit of the E-3 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in E-3D status may work without applying for work authorization in the United States.
L-1A & L-1B Intracompany Transferees
The L-1 visa classifications provide U.S. employers with the opportunity to transfer key personnel to the U.S. from their foreign parent, subsidiary, branch or affiliate companies. Generally, the L-1A visa is valid for a maximum period of seven (7) years, while the L-1B visa is valid for a maximum period of five (5) years.
To qualify for an L-1 visa, the applicant must:
Have worked outside the U.S. on a full-time basis for one continuous year out of the last three years for a parent, subsidiary, or affiliate of the U.S. employer, where the foreign employer and U.S. employer are related through at least 50% common ownership;
Have worked in either an executive, managerial or specialized knowledge capacity for the foreign employer; and
Be coming to the U.S. to work in an executive, managerial or specialized knowledge capacity for the U.S. employer.
The L-1A visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in either an executive or a managerial capacity. According to USCIS:
An Executive directs the management of an organization, division, or major function, including establishing goals and policies and exercising discretionary decision-making. An Executive is supervised by higher level executives, board of directors or stockholders.
A Manager manages the operational affairs of the organization as a whole, or a major function of an operating division.
Within the Manager classification, there are personnel managers, who are responsible for supervising and directing the work of other managerial, supervisory and professional personnel within the organization, and functional managers, who are responsible for managing and directing a core or essential function, component, or division of the organization.
The L-1B visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in a specialized knowledge capacity. According to USCIS:
A specialized knowledge individual is one who possesses special knowledge or advanced knowledge.
Special knowledge is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;
Advanced knowledge is knowledge of, or expertise in, the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
Specialized knowledge need not be proprietary, unique, or narrowly held throughout the company, but must be advanced or complex, primarily gained through prior experience with the petitioning employer, and not easily transferable or taught to another individual.
An added benefit of the L-1 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in L-2S status may work without applying for work authorization in the United States.
TN USMCA Professionals
The United States-Mexico-Canada Agreement (USMCA), enacted on July 1, 2020 to replace the 1994 North American Free Trade Agreement (NAFTA), facilitates travel to and employment in the U.S. for certain Canadian and Mexican citizens.
USMCA created the TN visa classification for eligible Canadian and Mexican professional workers to be employed in the U.S. in certain professions, up to three (3) years, including but not limited to: accountants, architects, computer systems analysts, economists, engineers, graphic designers, hotel managers, industrial designers, interior designers, landscape architects, lawyers, librarians, mathematicians, dentists, pharmacists, and a full-range of scientific occupations. For a full list of the qualifying occupations, please visit: https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/16_Temporary_Entry.pdf.
To qualify for a TN visa, the applicant must:
Be an Canadian or Mexican citizen;
Have a legitimate offer of employment in the one of the qualifying occupations listed in the USMCA Appendix 2 list of professions; and
Possess the required academic background or other qualifying credentials for the specialty occupation. Each USMCA profession lists various educational and/or employment experience requirements for the position, which may include: a Baccalaureate or licenciatura degree; a State, Provincial or Federal license; three years' of relevant employment experience; a post-secondary diploma or certificate; or a licenciatura degree only.