Employment-based Green Cards:

There are a limited number of green cards available each year to foreign nationals who possess the skills needed to fill the employment gaps and/or needs of US employers.

There are five (5) types of preference categories for employment-based green cards (also known as an “employment-based permanent residence”):

1. EB-1: Priority Workers
2. EB-2: Workers with advanced degrees or exceptional ability
3. EB-3: Skilled, professionals or other workers
4. EB-4: Religious workers and various miscellaneous categories of workers and other individuals; also called special immigrants.
5. EB-5: Individual investors willing to invest a certain amount of money in a U.S. business

Unless you qualify for the EB-1 category, you must meet the following requirements to qualify for an employment-based green card:

1. Have a full-time job or job offer from a U.S. employer;
2. Possess the necessary educational and skills backgrounds; and
3. Have a U.S. employer who is willing to sponsor your green card, which can often be a tedious and expensive process.

A. The first preference category, EB-1: Priority Workers, are divided into three (3) subcategories:

1. Aliens with extraordinary ability in the “sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation” INA § (b)(1)(A).
2. Outstanding University Professors or Researchers who are internationally recognized in their particular field with at least three (3) years of either teaching or research experience in that field. Professors need to be tenured or on the tenure-track at the university.
3. Certain Executives and/or Managers of Multinational Companies who have been employed by a qualified company outside the U.S. for a certain period of time and are either transferred or being transferred to the U.S.

B. The second preference category, EB-2: Workers with advanced degrees or exceptional ability is for:

1. Professionals holding advanced degrees (e.g., graduate level degrees or professional degrees requiring postgraduate education, such as law or medicine) or their equivalent, or
2. Aliens of exceptional ability “who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.” INA § (b)(2)(A).

If you do not hold an advanced degree but have a bachelor’s degree followed by at least five (5) years of work experience in a professional position either here in the US or abroad, then you may qualify for the EB-2 category because your work experience may be considered equivalent to the advanced degree.

C. The third preference category, EB-3: Skilled, professionals or other workers, include:

1. Skilled workers,
2. Professional workers, and
3. Unskilled workers without advanced degrees.

INA § (b)(3) defines the three (3) categories as follows:

1. A skilled worker is someone who is “capable, at the time of petitioning of this classification, of performing skilled labor (requiring at least 2 years of training or experience)”.  Examples of skilled workers include chefs, graphic designers and journalists.
2. A professional worker is a “qualified immigrant who holds baccalaureate degrees and who are members of the professions.”  Examples of professional workers include accountants, pharmacists, and fashion designers.
3. An unskilled worker is someone who is “capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.”  Examples of an unskilled worker include nannies, housekeepers, and farm workers.

All three (3) categories require labor certifications and draw green cards from the same annual allotment.    Unskilled workers, however, are allocated the fewest number of green cards than the other two subcategories within the EB-3.

A labor certification is basically an official recognition by the U.S. Department of Labor that there are no able, willing, qualified and available U.S. workers for the position offered.  Employers must provide proof of this through a recruitment campaign, which should include advertisements in newspapers, the Internet, and employment agencies.  All labor certifications must be filed under the Program Electronic Review Management (“PERM”) regulations.

D. The fourth preference category, EB-4: Certain Special Immigrants, which includes religious workers and various miscellaneous categories of workers and individuals.  Religious workers include ministers and religious professionals.  Examples of other individuals included in this category are former U.S. government workers and children dependent on the U.S. foster care system.

E. The fifth preference category, EB-5: Employment Creation, is available for investors who are willing to invest a minimum of $500,000 to $1,000,000 in a new U.S. business that will create jobs.

If you do not fit into any of the employment-based green card categories, then you may be able to qualify for an employment-based visa.  In the meantime, for more information about any one of the employment-based green card preference categories, please feel free to contact us at info@cftienlaw.com.

The H1B cap for FY 2010 was reached on December 21, 2009. Final FY10 cap announcement was made by USCIS on December 22, 2009.  Any cap-subject cases filed after December 21, 2009 will be returned to the filer.

For those of you who missed the FY2010 H1B cap, it is time to start preparing for the H1B FY2010 Cap Petitions.  First day of filing will be on April 1, 2010.  If you’re not sure what to do, stay tuned for more information about a FREE Educational Seminar that we will be hosting for both H-1B employees and employers.

As of 11/20,  approximately 56,900 H-1B cap-subject petitions have been filed.  You can read more about it here: http://bit.ly/7yx0Ev.

During these tough economic times, layoffs are common and employers who hire (or have hired) foreign nationals must be aware of recent actions taken by the USDOL, as well as the decisions by the US Department of Labor.

Employers are permitted to hire foreign national workers in certain occupations under the H-1B visa classification.  These employers of H-1B or H-1B1 workers must meet certain prerequisites, including the wage payment obligations under the H1B and LCA documents.  Therefore, any underpayment of the prevailing wages or nonpayment of wages during bench time may result in a substantial award of back wages and interest penalties.  Likewise, terminations of H-1B employment must be handled carefully, with diligence towards an offer of 1-way airfare to H-1B worker’s home country and notification to USCIS of revocation of the H-1B petition to avoid back wage payment issues.

What happens, however, when employees are “benched” due to lack of work?  Employers must pay the employee’s wage during the employee’s nonproductive status if such status is due to a lack of assigned work, lack of a permit or license, or some other employment-related reason.

If the nonproductive status is due to conditions unrelated to employment which remove the non-immigrant from his/her duties at the employees’ “voluntary request and convenience” or which render them unable to work (i.e., caring for a relative who is ill, maternity leave, or a temporarily incapacitating accident), then the employer will not have to pay the employee’s wage during the employee’s nonproductive status.  Employer will, however, be required to pay employee during annual plant shutdowns or holidays or other events, which affect both US and H-1B workers, even if the US worker is not paid because these events are part of their ordinary course of business.  During this period of time, employers cannot bench or layoff the US worker while H-1B employees continue to work.

How much is the employer required to pay the employee during the non-productive status?  It depends.  The employer is obligated to pay the wage that was designated on the petition.  If the employer indicated a range of hours on the petition, then he or she must pay the employee for the average number of hours he or she ordinarily works.  The employer also should be wary of paying the part-time employee for the amount indicated on the petition if the employee has worked more than the designated part-time hours prior to the start of his or her non-productive status.  Therefore, unless the employer officially terminates the employee’s employment with the firm by (a) issuing a bona fide termination of the employment relationship; and (b) notifying the USCIS that the employment relationship has been terminated so that the H-1B petition can be cancelled, he or she must continue to make diligent efforts to pay the employee during non-productive status, if necessary, to avoid back wage payment issues.

Please feel free to contact The Law Office of Chen Tien with additional questions about H-1B visas or other employment visas.