The EB-3 Visa Lawyers Guide: Navigating Your Path to U.S. Employment
The EB-3 Visa Lawyers Guide: Navigating Your Path to U.S. Employment In the intricate world of U.S. immigration, securing…
One of the more complicated aspects of being in the U.S. on an employment-based visa is the level of scrutiny and specificity it takes to be approved. Immigration law plays out according to a strict set of rules. Life, on the other hand, is not always so clear-cut.
When you enter the U.S. under one set of rules and life takes you in another direction, you might want to consider consulting with an immigration lawyer to have the best chance of seamlessly transitioning to your new pathway without losing the ability to reside in the U.S.
The H-1B visa program allows U.S. employers to fill certain specialty occupation positions with foreign nationals. Each year, the H-1B program has a numerical cap of 65,000 new visas, with an additional 20,000 petitions filed on behalf of beneficiaries with master’s degrees or higher from a U.S. institution of higher education who are exempt from the cap.
Before an employer can file a petition with USCIS to sponsor employees under the H-1B category, they must take steps to ensure that hiring the foreign worker will not harm U.S. workers by filing for a labor certification with the Department of Labor as well as provide their existing workers with notice that they intend to hire H-1B workers. As you can tell, the residency of a foreign national in the U.S. as the beneficiary of an H-1B visa is specific to the job they hold. So what happens if they want to change jobs?
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Foreign nationals in the U.S. under the H-1B visa program must always have an employer sponsor. If they want to change jobs, it must be for another employer who can and will sponsor their visa. To do so, the new employer must file their petition with the DOL and/or USCIS, depending on where they are in the process of labor certification for the position. While this is commonly referred to as a transfer, there is no real difference in the employer’s application process whether the employee is currently a visa holder under the H-1B program or not.
However, when an employee is already a visa holder under the H-1B program, they are not subject to the cap, which can benefit both the employer and the employee. Employers do not need to worry about the lottery process, which can make prospective employees more attractive and competitive in the labor market.
Because employees who are in the U.S. as a beneficiary of the H-1B program are already approved, they can immediately start working for the new employer once the petition is filed. The assumption is that it will be approved and, since they are not subject to the caps, they should have no problem remaining eligible.
However, even the most minor paperwork errors can cause delays or even denials when it comes to labor certifications or petitions for H-1B workers. If the employer’s petition is denied, the employee is at risk of being out of status, which can lead to removal proceedings.
To reduce the risk of complications during the petition process, employers should consider working with a business immigration attorney. This way, employers can avoid common pitfalls that lead to wasted application fees, unnecessary delays, and tarnished relationships with highly qualified talent.
If the J-1 visa has a home residency requirement, then the employee must either return home for two years before applying under the H-1B program or apply for a J-1 waiver.
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The attorneys at Farmer Law PC understand the value of a diversified workforce and are adept at navigating every facet of immigration law. We offer comprehensive solutions for all of your labor shortages. Our team locates honest, accomplished workers to provide employers with exceptional talent from every corner of the globe.
