Employment Based

Law Offices of Steve Qi & Assoicates, represents a broad spectrum of businesses and individual clients in the United States and some foreign countries. Our firm provides its clients with a full range of U.S. immigration law services. Our clients include large, medium, and small businesses, foreign students, phyicians, individual skilled professionals, persons with extraordinary abilities, as well as persons seeking to unite with family members. We provide the following immigration service:

Immigrant Visas

Upon the approval of the immigrant visa or the adjustment of status, an alien individual will be issued the Green Card (Alien Registration Card). The permanent Residency can be normally obtained through the following means:

Employment Based Immigration

One of the most widely used methods to obtain permanent immigration is through employment. There are five classifications for employment-based immigration. These are the options available to you:

EB1 or Prority Workers: Extraordinary Ability

EB1 or Priority Workers: Multinational Executive or Manager

This category requires a job offer, but not a labor certification.
This immigrant visa category is designed to facilitate international transfer of executive or managerial personnel within multinational companies.
In order to qualify as a multinational executive or manager under this category, an individual:

• Must have been employed abroad in a managerial or executive capacity for at least one year in the three years prior to admission to the U.S. for either a branch office of the sponsoring company or a qualifying subsidiary, affiliate or parent company of the U.S. employer; and
• Must be offered a permanent position in the U.S. in a managerial or executive role with the appropriate corporate organization.The employee should be coming to the United States company to function in an executive or managerial capacity. The employee may already be in the United States in a non-immigrant visa status such as the L-1A visa or one of the E visa classifications. Depending upon circumstances, individuals who entered the U.S. to work for a qualifying employer in another nonimmigrant visa status (such as E or H-1B) may also be eligible under this category, if they meet the appropriate requirements.

The USCIS maintains very specific definitions regarding executive/managerial duties and qualifying corporate relationships; therefore, individuals and corporate employers considering this permanent residence option should consult a reputable immigration lawyer for further information.

Foreign Labor Certification

Almost for all employment-based permanent residence application cases, the first step is to obtain a LC from Department of Labor (DOL) . The goal of the LC process is to determine that the insufficiency of U.S. workers in the local area warrants the hiring of a foreign worker for the position. The local labor market is tested via advertising and other competitive recruitment. A detailed LC application is filed with the state labor agency.

In most instances, before the U.S. employer can submit an immigration petition to the USCIS, the employer must obtain an approved labor certification request (Form ETA 750) from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the CIS that there are no qualified U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area of intended employment.

Traditional Labor Certification

Alien Labor Certification is a process by which an employer may sponsor an employee for permanent residence. There are no jobs that can not qualify for Labor Certification. The goal of the traditional Labor Certification Process is to make sure that foreign workers are not taking jobs from qualified U.S. citizens. The actual standard is that Labor Certification will be granted if there are no “able, willing and qualified” U.S. workers.

The employer files the initial application with the State Workforce Agency (SWA). The SWA then orders the employer to conduct a recruitment campaign for the position, using very specific language. After the recruitment period, the employer must file a second round of paperwork with the SWA explaining why each of the applicants (if any) are not qualified. If the SWA agrees that no qualified applicants applied, then the application is forwarded to the regional Department of Labor (DOL) for certification. If a minimally qualified U.S. citizen applies, then Labor Certification can not be granted.

The DOL, in concert with the local State Workforce Agency (SWA), processes applications for Alien Employment Certification (Form ETA 750). The date the labor certification application is filed with the SWA is known as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the CIS service center with an I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin to learn which priority dates are currently being processed.

This process can sometimes take several years depending on the state in which the job is being offered. States that are popular sites for immigrant hiring, such as New York, Texas, or California, may take much longer than states with less such activity. Click here for processing times.

Reduction in Recruitment (RIR)

In response to the increased backlogs of traditional Labor Certifications, the Department of Labor instituted the Reduction in Recruitment process. RIR is an expedited process that involves submitting the results of recent recruitment already conducted.

• The employer must document that it has engaged in, within the last six months, a pattern of recruitment in an effort to hire U.S. workers for the position, but has been unsuccessful in identifying qualified and available U.S. workers. The pattern of recruitment may vary depending on the nature of the occupation being requested and the labor market at the time of the job search. However, the minimum is one print advertisement and evidence of other actions taken to search the labor market. These other actions may include use of Internet, use of job markets on the Internet, participation in job fairs, use of union halls (where appropriate), participation in college job fairs, and other similar activities.
• The employer must submit evidence of the pattern of recruitment to the SWA. In addition, a recruitment report must be provided of the active recruitment effort to hire U.S. workers at the prevailing wage at a minimum showing the number of U.S. workers who applied, and the reasons they were not accepted.

In addition, it is useful to submit:

• Information about vacancies at the company, the number of workers in similar positions hired recently, and the number of U.S. citizens hired for similar positions
• Information on any current vacancies for a similar positionPlease note: there are special provisions for jobs covered by a union contract.

After the Department of Labor approves (“certifies”) the RIR application, an immigrant petition must be filed with the USCIS. This includes USCIS Form I-140, the certified RIR application, proof of the beneficiary’s qualification, and financial information about the company. I-485 can also be concurrently filed with I-140 in order to obtain an expedite processing of the case.

H1-B workers with a pending Labor Certification or I-140 may be eligible for an extension of H1B on an annul basis. Because of the downturn in the economy, RIR Labor Certifications, especially for IT related jobs, are receiving extra scrutiny at each level. In some case, a Traditional Labor Certification may be advisable.

Special Handling for College and University TeachersM.

It might be the best option for individuals who secured a job offer at colleges and universities to initiate his/her greencard application through ?°special handling?± labor certification. The Department of Labor does not require the college to show that there are no U.S. workers available for the job (almost impossible for academic jobs), only that it hires the most qualified individual rather than a minimally qualified U.S. worker. Basic requirements:

• The job offer involves teaching assignment.
• One job advertisement on a nationally circulated journal is required.
• Applications for Special Handling MUST be submitted to the state SWA within 18 months of the date of hire.Advantages:
• It relieves employers from several obligations, including the need for further recruitment, the need to state salary in the recruitment advertising, and the need to submit applicants’ names and resumes to the SESA.
• It significantly reduces the processing time since each state has a designated unit responsible for special handling LC.
• It does not need alien to be on the very top of the field, neither does it require that alien’s work benefit US national interests.

PERM

PERM is an expeditious processing procedure of labor certification. Under this process, the entire labor certification should be completed within twenty-one (21) days with online filing; randomly selected cases may be scrutinized, for quality control and fraud purposes, in an exhaustive review. If implemented, this process could further streamline the labor certification process.

The U.S. Department of Labor has recently provided an estimated time for the publication of the final PERM regulation. The very earliest possibility could be June 2004, although it more likely will be in July or August 2004 at the earliest, with Fall 2004 being most realistic. The regulation is still expected to be effective 120 days from the time it is published.

The DOL confirmed that cases could be filed using the present, regular labor certification system or the Reduction in Recruitment or RIR process, until PERM becomes effective. Thus, even after PERM regulations are published, it should be possible to file a case under the regular LC or RIR process within the limited window before the effective date of PERM. Once PERM is effective, all labor certifications will have to use only the PERM system.

Foreign Nurse Immigration Petition

A Foreign Nurse Immigration petition usually falls into the employment-based immigration third preference category. Normally, to file an employment-based third preference petition, Labor Certification approval is generally required. However, employers who want to immigrate a foreign registered nurse are exempt from having to submit an application for labor certification to the Department of Labor.

General Requirement:

Whether the nurse resides outside the U.S. or within the U.S., the nurse must be in possession of:

1. A diploma from a nursing school in her country;
2. A license to practice nursing in her country; and
3. A full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed either the US licensing examination (NCLEX-RN) but cannot obtain the license without the social security number, or the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS).
4. Visa Screen Certificate

In addition, unless the nurse was educated in an English-speaking country, she must achieve a certain score on tests in written and spoken English administered by TOEFL or IELTS in order to qualify for a Visa Screen Certificate. Passing scores are as follows: TOEFL Paper-Based 540; TOEFL Computer-Based 207; Test of Written English (TWE) 4.0; Test of Spoken English (TSE) 50. IELTS (Academic Module only): 6.5; IELTS Spoken Band: 7.0.

Procedure:

If the nurse resides abroad:

The immigration process begins when an employer submits an immigrant visa petition (Form I-140) to USCIS having jurisdiction over the nurse’s place of intended employment. The petition must be accompanied by DOL forms ETA-750 A and B by various documents including those listed above. Usually, the USCIS will approve the visa petition in eight to ten months.

1. If the RN is a native of one of ten selected countries (including Canada, China and Philippines), the USCIS first sends the approved visa petition to the NVC (National Visa Center) in Portsmouth, NH. If there is no backlog for immigrant visa from the RN’s native country (her “priority date” is “current”), the NVC forwards a packet to the nurse or her attorney containing biographical information forms to be completed by her and her family members, and a list of documents which must be presented at her interview for permanent residence.
2. The RN, or her attorney, then sends the signed and completed forms to the US consulate where the nurse will have her interview for permanent residence.

Generally, the process of obtaining permanent residence may take between 12 to 24 months assuming that the immigrant visa quota from the RN’s country is available. However, currently there is a huge backlog for nurses born in China, and they usually have to wait for around 6 years to receive their green cards. Hopefully, the government can implement some new rules to expedite the green card process for foreign registered nurses.

Employment Based Second Preference (EB2)

Members of the Professions Holding Advanced Degrees

(Employer and Labor Certification Required)

INS defines an advanced degree as a professional or academic degree, given by a U.S. institution, beyond that of a baccalaureate. A foreign degree from an overseas institution may also be acceptable if the INS determines it to be equivalent to a U.S. degree.

After the baccalaureate degree five years of employment experience, involving incremental responsibility in the profession, may be used in place of the advanced degree to qualify for the second preference category. This is provided the position requires the advanced degree.

In this EB2 category, the applicant must have a job offer in the profession for which s/he is academically prepared. The employer must obtain appropriate “Labor Certification (LC)” from the U.S. Department of Labor.

The LC must indicate that the position offered is one that requires the advanced degree to perform the job. If the profession as a rule requires a doctoral degree, the job offer and the credentials of the applicant must indicate / reflect it.

Aliens of Exceptional Ability in the Sciences, Arts, or Business

(Employer and Labor Certification Required )

INS has specified “exceptional ability” in the sciences, arts, or business as “a degree of expertise significantly above that ordinarily encountered.” To prove such exceptional ability, the INS regulations propose submitting at least three of these kinds of documentation:

• A license to practice the profession or certification for a particular profession or occupation
• Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which s/he is being sought
• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning, relating to the area of exceptional ability
• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.Evidence of membership in professional associations. Here, the applicant must have a job offer in the profession for which s/he is academically prepared.

The employer must obtain a permanent Labor Certification (LC) from the Department of Labor. The LC must indicate that the position offered requires the advanced degree to perform the job duties. If the profession as a rule requires a doctoral degree, the job offer and the credentials of the applicant must indicate / reflect it.

In most cases, applicants are in H1B status while applying for greencard through EB2. Due to prolonged processing time for LC, most applicants run out of six-year yet still has not got greencard application. Under the previous INA, H1B holders can only work in the US for six years. He has to leave the country if he reaches his six-year limitation but not obtained his greencard.

On November 2, 2002, President Bush signed into law the Twenty-first Century Department of Justice Appropriations Authorization Act (AC21). One section of this new law removes the six-year limitation on H1B status for certain aliens on whose behalf an alien Labor Certification or employment-based (EB) immigration petition has been pending for 365 days or more.

Prior to the AC 21, alien in H1B status has to leave the country or change to other status when 6-year limitation is reached and if he/she has not obtained permanent residency. This new law allows H1B holder to extend his H1B status on a yearly basis, if:

• 365 days or more have passed since the filing Labor Certification application
• 365 days or more have passed since the filling of an EB immigration petition (I-140).

EB2: National Interest Waivers

Individuals who possess an advanced degree (Master’s level or above) and/or who can demonstrate exceptional ability in their field may be eligible to apply for a “National Interest Waiver”.

Employment Based Second Preference (EB3)

This is for individuals who are “skilled workers, professionals, and other workers.”

There must be a job offer by a United States employer for skilled workers and professionals. The job must be in the occupation for which he/she has received training or education, or a closely related occupation. The employer must obtain a Labor Certification (LC) from the U.S. Department of Labor.

The LC must indicate that the position offered requires the education, training, or experience of the prospective employee. After the LC is approved, the employer may file an employment-based immigrant petition on behalf of the prospective employee.

The category of “skilled,” “unskilled,” or “professional” is determined by the type of job and the background of the prospective employee.

Skilled Workers

The applicant must show capability in an occupation that requires at least two years of training or experience in order to qualify for the third-preference category under “skilled worker.”

Professionals

Applicants must demonstrate the accomplishment of at least a U.S. baccalaureate degree (or its foreign equivalent) to be classified as “professional” for the third-preference category. The degree should be a minimum requirement in order to enter the profession. Qualifying jobs for E32 are similar to the specialty occupation for H-1B.

Other Workers

The other worker category is for occupations that require less than two years training / experience. The quota for this category is severely backlogged due to large numbers of applicants and low numbers of visas issued each fiscal year.

In most cases, applicants are in H1B status while applying for greencard through EB3. Due to prolonged processing time for LC, most applicants run out of six-year yet still has not got greencard application. Under the previous INA, H1B holders can only work in the US for six years. He has to leave the country if he reaches his six-year limitation but not obtained his greencard.

On November 2, 2002, President Bush signed into law the Twenty-first Century Department of Justice Appropriations Authorization Act (AC21). One section of this new law removes the six-year limitation on H1B status for certain aliens on whose behalf an alien Labor Certification or employment-based (EB) immigration petition has been pending for 365 days or more.

Prior to the AC 21, alien in H1B status has to leave the country or change to other status when 6-year limitation is reached and if he/she has not obtained permanent residency. This new law allows H1B holder to extend his H1B status on a yearly basis, if:

• 365 days or more have passed since the filing Labor Certification application
• 365 days or more have passed since the filling of an EB immigration petition (I-140).

Employment Based Second Preference (EB4)

Non-Immigrant Visas

The non-immigrant visa classification covers a broad range of visas used to enter the United States for work, pleasure or study. These visas require that the applicant has permanent residence in the home country which s/he has no intention of abandoning, that the person enters the U.S. for a temporary period, and that s/he engages in activity relating to business or pleasure (no employment). Some visas are considered ‘dual status’; you may attempt to obtain permanent residency (a green card) while under that classification, such as H1B visa. Most non-immigrant visas, however, require you establish non-immigrant intent. Therefore, in such cases one must demonstrate that they have a permanent residence in their home country that they have no intention of abandoning. The duration of time that a beneficiary of a non-immigrant visa may spend in the U.S. can range from a few days to several years, depending on the visa. In most situations, the benefifiary’s spouse and unmarried children under the age of 21 may accompany them on a derivative visa. Specific non-immigrant visas are as follows:

HIB:Specialty Occupation

What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

For individuals educated outside the United States, an educational evaluation is necessary. For individuals who lack the equivalent of a four-year degree in the United States, three years of specialized experience (properly documented) may be substituted for each one year of education.

The H1B status is for foreign workers who will hold specialty occupations. A specialty occupation is one which “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.”

Basic Requirements:
First, the employer must demonstrate a need for someone in a specialty occupation as the minimum capability to perform the job; and second, the foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

Under the regulations, the need for a person in a specialty occupation can be shown by one of the following:

• a bachelor’s or higher degree is normally the minimum requirement for entry into the particular position;
• the degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;
• the employer normally requires the degree for the position; or
• the nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

How long can an alien be in H-1B status?

As one of the key immigration law firms in Southern California Chinese community, we speak English, Mandarin, and Cantonese. More importantly, we are familiar with your cultural background, and we understand how the legal system works here.

Who can an H-1B alien work for?

Our attorneys give each single case equal personal attention and effort because we know you trust us. To provide efficient services to our clients, our law firm utilizes advanced office technology for document creation, client case management, communication and internal coordination. This allows us to successfully manage client casework from a brief, simple process to a long-term, complex case.

What if the alien’s circumstances change?

We carefully analyze your case and make recommendations on the most appropriate process for you or your company to pursue.

Must an H-1B alien be working at all times?

We understand that costs are one of the concerns of our clients in their decision making process. We are trying every effort to minimize your monetary cost while providing the highest quality professional services to you.

Can an H-1B alien travel outside the U.S.?

We understand that costs are one of the concerns of our clients in their decision making process. We are trying every effort to minimize your monetary cost while providing the highest quality professional services to you.

Can an H-1B alien intend to immigrate permanently to the U.S.?

We understand that costs are one of the concerns of our clients in their decision making process. We are trying every effort to minimize your monetary cost while providing the highest quality professional services to you.

O: Extraordinary Ability

O-1 visas are based on a petition filed by a U.S. employer offering a specific job in the U.S. that requires a person of extraordinary ability. Membership in a group or team that has received recognition for extraordinary achievement is not sufficient; the beneficiary must qualify on the basis of individual merit. The petitioning employer must submit evidence that the prospective employee meets the established O-1 criteria, that the position offered requires an individual of extraordinary ability, and that the individual is coming to the United States to continue to work in the area of extraordinary ability. O-1 status may be granted for a maximum of three years at a time, and may be renewed indefinitely.

L1: Intra-Company Tranferees

L-1 visas are available to executives, managers and specialized employees moving to their employer’s U.S. affiliate sites. Executives and managers holding L-1 visas may be eligible for permanent residency without the need for a labor certification. See article entitled, “E13 Category for Multinational Executives and Managers.

J-1 :Exchange Visitor

People coming to the U.S. through an approved exchange program may be eligible for the J-1 Exchange Visitor’s visa. These are students, scholars, job trainees, faculty, professors and research scholars, specialists, medical residents, government visitors, etc. Sometimes, a J-1 program will require that the beneficiary spend at least two years outside of the U.S. before being permitted to switch to a different nonimmigrant visa or to permanent residency.

TN: Trade NAFTA Professionals

A special visa category for nationals of Canada / Mexico under the North American Free Trade Agreement.

H-2B: Non Agricultural Worker

H-3: Trainees

P1, P2, P3 – Athletes and Group Entertainers

For athletes, artists and entertainers

F1: Academic Student

Persons enrolling in a full course of study at an educational institution in the United States may be eligible for a visa for the course of their study and a period for practical training (P/T) in their field.

J-1 :Exchange Visitor

People coming to the U.S. through an approved exchange program may be eligible for the J-1 Exchange Visitor’s visa. These are students, scholars, job trainees, faculty, professors and research scholars, specialists, medical residents, government visitors, etc. Sometimes, a J-1 program will require that the beneficiary spend at least two years outside of the U.S. before being permitted to switch to a different nonimmigrant visa or to permanent residency.

M – Vocational Student

B1/B2 – Visitor for Business/Visitor for Pleasure

For coming to the U.S. for business or pleasure. B-1 business visitor visas are for brief visits and do not allow employment. Nationals of some countries are allowed to visit the U.S. for up to 90 days without a visa.

E1:Treaty Trader

The E-1 Visa is issued to individuals known as ‘treaty traders’. A treaty trader is a national of a country with which the United States maintains a treaty of commerce and navigation. An individual applying for the E-1 visa should be coming to the United State to carry on substantial trade, or to develop and direct the operations of a business in which they have invested or will soon invest a substantial amount of capital. Additionally, the individual must also be a national of a treaty country and must be involved in international trade. The individual’s spouse and children may join him/her under the same status. The individual’s employees, or the employees of his/her treaty company, may also receive E-1 visas.

E2:Treaty investor

The E-2 visa is issued to individuals known as ‘treaty investors’. A treaty investor is a national of a country with which the United States maintains a treaty of commerce and navigation. A treaty investor should be coming to the United States to involve themselves in a substantial investment. The investment may be less than that demanded for the EB-5 ($500,000). However, if the investment becomes equal or greater than $500,000, the treaty investor may petition for permanent immigration status. The traety investor’s spouse and/or children under the age of 21 may accompany him/her under E-2 status. The treaty investor’s employees may also be eligible for the E-2 Visa.

K-1: Fiance(e)

The American citizen should first file a petition, Form I-129F, Petition for Alien Fiance(e), with the BCIS office having jurisdiction over the place of the his/her residence in the U.S. The approved petition is then forwarded by the BCIS to the American consular office where the beneficiary will apply for his/her visa. A petition for K-1 status is valid for a four months from the date of INS action, and may be revalidated by the consular officer. The consular officer will then notify the beneficiary when the approved petition is received and provide you with the necessary forms and instructions to apply for a K-1 Visa. Because you are an intending immigrant, you must meet certain requirements similar to the requirements of an immigrant visa applicant.

K3/K4 Visa

The K-3 and K-4 visas were introduced by the Legal Immigration and Family Equity (LIFE) Act of 2000 and allow the spouses of U.S. citizens and the children of those spouses to come to the U.S. on K-3 / K-4 nonimmigrant visas. Once in the U.S., they would file to adjust to permanent resident status. These visa categories were introduced to enable qualified family members to wait for their immigrant visas in the U.S., reunited with their U.S. citizen family member, rather than awaiting an immigrant visa abroad.

R: Religious Workers

Religious workers include ordained clergy and those who have taken religious vows, as well as religious professionals such as choral directors, teachers of religion, and so forth.

Q: Cultural Exchange

V: Spouse and Dependents of a US Legal Permanent Resident