The H-1B to Green Card Transition Through PERM Labor Certification

One of the main benefits of H-1B status is its tolerance of “dual intent” — the ability of an H-1B worker to apply for and obtain permanent residence in the US without having to leave the US and wait abroad for an immigration visa to be approved. It is even possible to continue working without a break if you are careful about preparing and filing your application. The petition process involves quite a bit of paperwork, however. Following is a brief overview of the process.

Step By Step for H-1B to Green Card Transition

Step One: Find a Sponsor

For many if not most H-1B employers, their sponsor is their H-1B employer who wishes to retain their services permanently. In any case, it is your sponsor who must initiate the permanent residence procedure on your behalf — you cannot do it yourself. Although the entire process takes quite some time and can vary greatly on a case-by-case basis, you will be in legal immigration status as soon as your sponsor receives a USCIS Receipt Notice.

Step Two: Obtain PERM Labor Certification

The Program Electronic Review Management (PERM) system is an electronic system that allows you to obtain a labor certification from the US Department of Labor. Like the LCA that the H-1B employer obtained as a part of the H-1B petition process, PERM certification is designed to assure the Department of Labor that the employment will not adversely affect US workers.

To obtain PERM labor certification, you must:

• Register with the Department of Labor. You will receive a login ID and a password
• Obtain a prevailing wage certification from State Employment Services or the State Workforce Agency and file it with the DOL. This certificate sets the minimum wage that your employer is allowed to pay you.
• Conduct recruitment to seek a US worker for the position and show that no qualified US worker was willing to accept the position. Recruiting involves placing a newspaper ad and at least one other form of recruitment (a website ad, for example). The process takes about three months, and your employer will have to fill out a report for the DOL.
• Fill out and file ETA Form 9089, Foreign Labor Certification. There is no filing fee.
• Obtain a favorable decision from the DOL. The entire process, from registration to approval, takes about six to ten months.

Step Three: File the I-140 Petition

The employer must file Form I-140 with the USCIS. The employer will probably file the I-140 in the second or third employment preference, because it is these two preferences that generally correspond to the skill level of an H-1B worker. In many cases, this means no special delay before processing begins. Workers from China, Mexico, India, or the Philippines can face delays of several years before a visa number is issued and processing begins.

The filing fee for Form I-140 is $700, and approval means that the USCIS has classified the employee as eligible for permanent residence. It does not grant permanent residence by itself, however.

Step Four: File Form I-485, Adjustment of Status to Lawful Permanent Resident

The H-1B worker himself must file Form I-485 with the USCIS to adjust his status to permanent resident. The total filing fee, including the biometric services fee (for fingerprinting), is $1,225. Once this petition is approved, an employee located in the US is allowed to live and work permanently in the US. The employee must be in legal status at the time he files Form I-485.

Concurrent Filing

The USCIS permits Form I-140 and Form I-485 to be filed together, at least for most H-1B visa holders and certain other applicants. If you file Form I-140 and the USCIS replies that you will have to wait for a visa number to become current before processing can begin, you can file Form I-485 as soon as your visa number becomes current. Once you file the I-485, you can apply for advance parole, which will allow you to leave the US temporarily and return.

Consular Processing If You are Located Outside the US

The USCIS must issue a Receipt Notice for Form I-485 while you are still in legal immigration status for the employee to remain in legal status.. Once this occurs, the employee may remain in the US while waiting for the I-485 to be approved. If the employee’s status expires earlier, he will be expected to leave the US and wait for approval of the I-485 while located abroad. In this case, an additional step will be required — the employee must apply for an immigration visa at a US embassy or consulate abroad. This step will involve a significant amount of preparation.

Talk to a Seasoned Immigration Lawyer

Since the transition from H-1B to permanent resident can take anywhere from a year to over a decade, committing a serious mistake in the application process is not an option — the stakes are simply too high for that. It is critical that you contact an experienced immigration lawyer well before your current H-1B status expires.

Changing Jobs in Midstream: H-1B Portability

The global economy has changed. The old has given way to the new and as always, the law struggles to catch up. When it comes to H-1B status, however, US immigration law is making a valiant effort to keep up with the times. If you are in the US in H-1B status, you enjoy a benefit called “H-1B portability” — subject to certain restrictions, you can change jobs without having to leave the US and start the H-1B visa process all over again.

H-1B Transfers

Strictly speaking, there is no such thing as a legal transfer from one job to another on the same H-1B visa status. What you can do, at least under certain circumstances, is have your new employer petition for a new visa and wait for the USCIS to issue a Receipt Notice for the petition, indicating that it has received it. You can start working as soon as you receive the Receipt Notice, as long as you are in legal status at that time.

You generally don’t need permission from your old employer to have a new employer file a new H-1B petition on your behalf (although some employees are subject to non-compete agreements, etc.). If things go smoothly, you won’t be required to leave the US while you are waiting for the Receipt Notice. A new H-1B petition will not extend the total amount of time you are permitted to stay in the US, however.

The 60-Day Grace Period

If you lose your job, the USCIS allows you an automatic 60-day grace period, during which you can apply for new work without falling out of status and being required to leave the US.

A few caveats apply:

• If your I-94 expiration date is earlier than the end of the 60-day grace period, the I-94 governs and you will be expected to leave the US by your I-94 expiration date.
• The USCIS can shorten or cancel the 60-day grace period in its sole discretion (this discretion is seldom exercised, however, unless the H-1B worker is fired for misconduct or breaks the law in some way).
• If the 60-day grace period or the I-94 deadline (whichever is applicable) expires without you receiving a Receipt Notice, you will be out of status as soon as the deadline expires, and you will be expected to leave the US immediately. Talk to an immigration attorney if you anticipate this scenario.

Denial of Your H-1B Transfer Request

If the USCIS  denies your H-1B transfer petition, you can remain at your old job if your employer will accept you. You can also appeal the denial, or you can leave the US and apply for a new visa from abroad. Keep in mind that if you are attempting to transfer to a new job because you anticipate that your old employer is planning to lay you off, your old employer may be willing to help you make a smooth transition because that would relieve him of the responsibility of paying for your trip home.

“Bridging” Petitions

H-1B “bridging” means submitting more than one H-1B petition through more than one employer so that you have two or more H-1B petitions pending at the same time. You might want to do this if you seek multiple jobs offers so that you can choose the best offer among them.

Certain limitations apply. You won’t be able to use bridging to keep resetting the 60-day grace period clock to zero, for example. Additionally, multiple petitions are not considered independent of one another — a later petition can be rejected based on the rejection of an earlier petition.  A single employer is not allowed to file more than one H-1B petition for the same employee (for two different positions, for example) unless the position is not subject to any H-1B cap.

H-1B “Benching”

Some employers, especially in the IT industry, try to game the system by hiring an H-1B worker for the purpose of outsourcing him to various third-party employers on a project basis. Many of these employees are not working and remain unpaid most of the time. The USCIS considers this “benching” behavior an abuse of H-1B status, and if you submit a new H-1B petition, it is likely to demand pay stubs to prove that you and your employer are not involved in “benching.”

We’re Here to Help

Despite the great increase in flexibility generated by H-1B portability, limitations do exist, and a major mistake could not only shut down a promising opportunity for you, in some cases, but it could also result in you losing legal visa status in the US and being ordered to return home. A skilled H-1B immigration lawyer can help you drastically reduce these legal risks.

The Labor Condition Petition (LCA) for H-1B Workers

Obtaining H-1B status requires a lot of paperwork. Before you even apply for H-1B status, for example, you must be cleared by the US Department of Labor to make sure that your employment will not adversely affect US workers. This clearance takes the form of the Labor Condition petition (LCA).

The LCA is filed on ETA Form 9035. It is the employer who files this application, not the H-1B worker, and it must be re-filed and re-approved every time that an H-1B worker seeks an extension of his H-1B status.

The LCA Attestations

In the LCA, the employer must attest (guarantee under oath) that:

• Employing the H-1B worker will not cause any harm to US workers with respect to either wages or working conditions;
• The employer will pay the H-1B worker at least the higher of the “actual wage” and the “prevailing wage” for the particular type of job;
• The employer will provide notice to its workers that it has filed an LCA; and
• There is no strike, lockout, or similar activity in the occupation for which the H-1B worker will be employed.

Any misrepresentation of the foregoing attestations can result in civil or criminal penalties.

Step by Step Guide

Following is a general overview of the steps you need to obtain and use an LCA.

1. Determine the “required wage”. The required wage is the higher of the “actual wage” and the “prevailing wage” (see below).
2. Obtain required information, such as:
   • The job’s three-digit occupational group code (see the LCA instructions);
   • The title given to the job by the employer;
   • The number of workers sought for H-1B status;
   • The gross wage;
   • The period of employment (up to three years); and
   • The location of employment.
3. Log onto the iCERT Portal System, fill out the petition and submit it. There is no filing fee. An LCA petition can only be submitted within six months of the H-1B worker’s proposed start date.
4. Within one working day of filing the LCA, post notice of the LCA filing at no less than two conspicuous locations at the employer’s workplace, and keep the notices up for at least 10 days.
5. Wait for certification of the LCA (it should take about a week). Once you receive it, have the operations manager sign it.
6. Proceed with the H-1B application, for which you will need the LCA.
7. Comply with LCA record-keeping requirements.

Determining the Required Wage

As an employer, you must pay your H-1B worker a minimum “required wage”, calculated in accordance with Department of Labor guidelines, even if this amount is above the legal minimum wage (which it almost certainly will be). You are free to pay more than this amount, but not less.

The purpose of this rule is not so much to protect the H-1B worker, although that certainly is a consideration, but to protect US workers from being “undercut” by cheap labor from overseas. If you fail to pay the required wage, you can become liable for back pay (the difference between the required wage and the H-1B worker’s actual wage) plus a $1,000 fine per violation.

Classifying the Position

You can classify the H-1B worker’s position by comparing the job description with the Department of Labor’s Dictionary of Occupational Titles (DOT) found in the LCA instructions.  Be careful, this can be tricky and it is important to get it right.

Determining the actual wage

The actual wage is the wage rate that the employer pays to all workers at the H-1B worker’s place of employment who possess experience and qualifications that are equivalent to those of the H-1B worker.  You can calculate this using company records.

Determining the prevailing wage

The prevailing wage is within five percent of the wages paid to workers in the same location who are similarly employed in an identical or similar occupation. This calculation requires access to industry-wide information. The Department of Labor of your state government may have compiled such statistics; otherwise, you will need to do some research. Be certain to use authoritative information to back up your claim.

The final determination of the required wage

Once you have determined the actual wage and the prevailing wage, simply choose whichever one is higher. That is the required wage.

Some Important Notes

Please keep in mind the following:

• The LCA is submitted to the USCIS together with Form I-129 in the H-1B visa application.
• If the Department of Labor rejects your LCS application, you are free to revise it and refile it.
• The LCA, if certified, is valid for no longer than three years.
• Since a new LCA must be obtained to extend an H-1B worker’s period of employment for longer than three years, and the required wage must be re-calculated based on updated information at this time.
• You should strictly comply with record-keeping requirements because an audit could take place years after you submit the LCA.

Professional Legal Assistance Can Maximize Your Chances of Success

The risk of submitting a defective LCA petition extends to more than just rejection of your application, which can always be re-submitted. Even if your LCA is accepted, completing it in a less than ideal fashion might significantly limit your options over the next three years. Contact an experienced immigration lawyer to answer any questions you might have.

H-1B Visa: The Complete Guide (2019)

The H-1B visa is popular because of its low entry barrier (a bachelor’s degree), its portability (allowing the holder to change jobs) and its tolerance of the candidate’s “dual intent” (by allowing an H-1B holder to transition to a permanent residence without returning home). Its main weakness is the annual cap on the number of visas approved, which renders the process quite competitive.

How Does the H-1B Process Work?

The H-1B allows an employer to hire a highly skilled worker, even if the worker is not a citizen or permanent resident of the US. The employer may file a petition on behalf of someone already in the US (on an F-1 student visa, for example) or someone located abroad. It is the employer who must file the petition, not the candidate, and the candidate cannot be issued an H-1B visa without the support of the employer.

The H-1B visa allows an employee to work in the US for up to three years, and in most cases, it is renewable once and only once, for a total term of six years. To be eligible, the candidate must have received a firm job offer from a US employer for:

• A “specialty occupation” that normally requires a bachelor’s degree or equivalent 
• A research and development project administered by the Department of Defense; or
• Work as a fashion model of exceptional merit and ability.

Processing time averages four to seven months unless Premium Processing is selected (see below for details). An employer is not allowed to begin the H-1B petition process less than six months prior to the candidate’s intended start date. Visa processing runs from April through October of each year.

Preliminary Preparation: Ensuring that the Job is a ‘Specialty Occupation’

US law defines “specialty occupation” as an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge.” Typically, the job must require a bachelor’s degree, and the candidate must possess a bachelor’s degree or its overseas equivalent. It is sometimes possible to obtain an H-1B visa without a bachelor’s degree, but in that case, the candidate should have at least 12 years of experience in a related field.

Preliminary Preparation: Establishing an Employer-Employee Relationship

To establish a legitimate employer/employee relationship, the employer must have issued a definite, full-time job offer to the candidate, and the candidate must have accepted it. The candidate’s proposed duties must be specific, the job must be a ‘specialty occupation’, and the candidate must be qualified to perform it.

The candidate cannot be an independent contractor in disguise — the employer must have the right to control when, where, and how the candidate performs the job. The USCIS will make its decision on a case-by-case basis based on the totality of the circumstances.

Preliminary Preparation: Salary Issues

The employer must not pay the candidate any less than he would have paid a US citizen employee. This is required not only to protect the candidate from exploitation, but also to protect US workers from being laid off in favor of cheaper noncitizen employees, and from being forced to accept lower pay to compete with them.

The Labor Condition Application (LCA)

Employment in the US under H-1B status requires certification from the US Department of Labor (DOL) before the H-1B petition is sent to the USCIS. The application must be submitted online through the DOL iCert website on Form ETA-9035.

In the LCA, the employer must affirm that:

• The employment will not harm the wages and working conditions of similarly employed US workers;
• The employer will pay the candidate the “actual wage” or the “prevailing wage” for the occupational classification in the field, whichever is higher;
• The employer will notify its employees of the filing of the LCA; and
• There is no strike, lockout, or work stoppage arising from a labor dispute in that occupation.

Misrepresenting any of the foregoing can result in serious penalties against the employer, including criminal penalties. There is no fee for filing an LCA application, and processing takes roughly a week.

Filing Fees

Filing fees can be a significant consideration in an H-1B petition: Following is a list of current frees.

• The standard filing fee is currently set at $460. This fee applies to each submission of a petition, a re-filing, an amendment or a renewal.
• Training fee: The training fee is $750 for employers with 1-25 full-time employees and $1,500 for all other employers except for certain exempt employers. Many cap-exempt employers are exempt from the training fee.
• Fraud prevention fee: First-time H-1B employee applicants, and H-1B employees seeking to change employers, must pay a $500 fraud prevention fee. This fee does not apply to extensions with the same employer.
• There is a $4,000 fee for companies with more than 50 employees. if more than half are on H-1B or L immigration status.
• Fees also apply to certain optional services such as Premium Processing and H-4 visa petitions (see below).

The fee must be paid with a check or money order drawn on a U.S. bank in U.S. dollars, payable to “USCIS.” It is against US law for an employer to ask a candidate to pay any of these fees himself.

Filing the H-1B petition

H-1B employers cannot file a petition or a request for an extension for their candidate more than six months before the candidate’s projected start date (typically October 1). Following is a rough overview of the process:

• The employer must deliver a definite, full-time written job offer to the candidate, and the candidate must accept the offer.
• The employer must submit a Labor Condition Application(LCA) to the DOL, wait for approval, and comply with intra-company employee notification requirements.
• The employer must prepare an H-1B petition and gather supporting documentation.
• The employer must file the H-1B petition, along with the filing fee, with the appropriate USCIS service center.
• The USCIS will notify the employer if the petition was selected in the H-1B lottery.
• If the petition is selected in the lottery, it will be reviewed by the USCIS. If it is not selected, the USCIS will return the filing fee.
• After examining the petition, the USCIS will either approve it, deny it or send a request for additional evidence (RFE).
• If the candidate is located abroad, he or she must make an appointment for an interview with the appropriate US embassy or consulate, and bring all H-1B documentation and his/her passport so that the embassy or consulate can stamp the visa on the passport.
• WARNING: Multiple filings for the same candidate by the same employer are not allowed and can be penalized.

Required Documents

The following documents are required for an H-1B petition:

1. Form G-28 (if the employer is represented by a lawyer or an accredited representative).
2. Form I-129, Petition for a Nonimmigrant Worker.
3. H Classification Supplement to Form I-129 H Supplement (or Free Trade Supplement for petitions supporting Chile-Singapore workers)
4. H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement
5. Supporting documents required by the instructions for the above forms, such as evidence of the candidate’s educational qualifications (transcripts, etc.), along with a table of contents for ease of reference.
6. Form I-94 (Arrival/Departure record) if the candidate is currently in the US.
7. Form ETA 9035, Department of Labor certified Labor Condition Application.
8. Cover letter from employer/attorney.
9. Other supporting documentation may be required (for example, the I-20 if the candidate is a current or former student present in the US on an F-1 visa).
10. A copy of all of the foregoing forms and documents, if the candidate will be applying for an H-1B visa at a US embassy or consulate abroad. Clearly, mark it “COPY”.
11. A check or money order for all applicable filing fees.
12. Additional documentation will be required if the petitioner is located outside of the US and therefore requires consular processing to have a visa stamped onto his passport so that he can enter the US.

Caps (Quotas)

Although the total annual H-1B visa cap is set at 85,000, several annual sub-caps apply, including:

• The Regular Cap: The standard cap is 65,000 approved petitions per year.
• The C/S Cap is 6,800 for Chile/Singapore H-1B1 petitions, taken out of the 65,000 regular cap (1,400 for Chile and 5,400 for Singapore).
• The U.S. Master’s Degree Cap is 20,000 approved petitions for candidates with a US master’s degree or higher and a job offer that corresponds to this level of expertise.
• Cap-exempt employers: Some employers are not subject to the H-1B cap at all. These employers include colleges and universities and non-profit organizations associated with them, as well as non-profit and government research organizations. It might even be possible to apply for a cap-exempt visa if the candidate will work primarily with a cap-exempt organization that is not their direct employer.
• Cap-exempt petitions: H-1B amendment, renewal/extension and employer transfer petitions are not subject to any annual cap.

The H-1B Lottery

H-1B petitions are accepted beginning on April 1 of each year. Since the caps are usually reached within the first week of April, and since the visa process is very competitive, you must submit your petition during this short time window. Beginning in 2020, employers will have to register before the filing season begins on April 1.
Among those petitions subject to the cap, the USCIS will select the appropriate number of petitions to process through a random lottery, and it will return the rest without processing, along with a refund for the application fees.

Typically, between 30 percent and 50 percent of petitions are accepted for processing. A petition that is accepted for processing can still be rejected for deficiencies in the petition itself, and no refund of fees will occur simply because a petition was rejected. Processing will be completed by October 1.

Dependents (H-4 Visas)

If the candidate has dependants who wish to travel with him, it is possible to apply for H-4 visas for his dependents. It is also possible for an H-4 visa holder to apply for employment authorization. Processing could take as long as processing for the H-1B petitioner, however, and the fee is currently set at $190.

H-1B Petition Processing

During H-1B processing, the USCIS will review the job description, proposed salary and the qualifications of the candidate. It will also carry out a background investigation of the candidate.

Premium Processing

The Premium Processing fee is currently set at $1,410. If Premium Processing is selected, case processing will take no more than 15 days after the visa lottery takes place, unless a Request For Evidence (RFE) is issued. Note that:

• The 15-day period begins when the visa lottery takes place, not when the USCIS receives Form I-907;
• If the applicant is not selected in the lottery, the petition will be rejected and the filing fee will be refunded;
• If a Request for Evidence is issued, the 15-day period will be recalibrated to start when the applicant’s response to the RFE is received by the USCIS;
• A refund of Premium Processing fees will not be issued for a rejection, but will be issued if a response is delayed beyond the 15-day limit; and
• Premium Processing is frequently suspended, especially during periods of high USCIS workload.

Requests for Evidence (RFEs)

An RFE (and, more ominously, a Notice of Intent to Deny) is a document sent to an applicant after processing has already started. It requests further evidence that must be submitted in a timely manner; otherwise, the USCIS will consider the petition abandoned and thereby reject it. The issuance of RFEs has greatly increased since 2017, although the RFE rate still has not reached 50 percent of all petitions submitted.

H-1B Extensions

An H-1B visa, initially granted with a term of up to three years, can generally be extended for another three years. After this six-year period expires, the employee must either return home or use some other status to justify remaining in the United States.

Amended H-1B Petitions

Any “material” change in working conditions will require the filing of an amended H-1B petition and the submission of new filing fees. A “material” change could mean a change in job duties, working hours or job location. You may need an immigration attorney to help you determine whether a particular change is likely to be considered “material” by the USCIS.

H-1B Portability

Portability is one of the main inherent advantages of the H-1B visa. It applies not only to employees in H-1B status but also to former H-1B holders who are awaiting adjudication of their petitions for permanent residence. With portability, an employee in valid H-1B status can start a new job with a new employer as soon as the employer files a new H-1B petition for him, without delaying his start date until the USCIS accepts his petition and without waiting for his original H-1B visa to expire. Additional filing fees will be necessary.

If the employee’s petition is rejected, or if he gets fired or laid off from his job, he enjoys a 60-day grace period before he must leave the US, during which time he can seek further employment with another employer willing to sponsor him for H-1B status. This setup can work well for the original employer as well since if an H-1B employee changes jobs, the former employer is excused from paying for the employee’s return flight home even if it the former employer laid him off or fired him.

Alternatives to the H-1B

If H-1B status should turn out to be inappropriate for some reason, you might consider one of the following alternatives:

• The O-1 visa: Available to outstanding professionals with advanced degrees, who have achieved prominence in their field.
• The TN visa: Based on NAFTA, this visa is available to citizens of Canada and Mexico.
• E-3 visa: Similar to the H-1B and available only to citizens of Australia.
• L-1 visa for intra-company transferees who are managers or executives, or who posses specialized knowledge.

These are not the only options — another type of visa might be available, depending in the circumstances.

From H-1B to Green Card

One of the major attractions of the H-1B program is the ability to adjust status to Lawful Permanent Resident. Following is a brief description of three possible pathways:

• The Program Electronic Review Management (PERM) process: The employee must advertise for the position and show that he could not fill it with a US worker.
• EB-1: This status is available to employees with advanced degrees or prominence in their field, but it is also available to certain skilled workers and professionals.
• National Interest Waiver (NIW): This status is available to an employee with an advanced degree and exceptional ability in a field that is of substantial intrinsic merit to US national interests.

H-1B Status: A Constantly Shifting Regulatory Environment

Like it or not, the H-1B visa is a political football and the rules keep changing. Under the Trump administration’s “Buy American, Hire American” directive, H-1B visas are under increased scrutiny, and adverse changes to law and policy are reasonably likely. Recent developments include:

• The Trump administration has been targeting entry-level positions for increased H-1B scrutiny.
• The USCIS is now issuing NTAs (“Notice to Appear”) to applicants who were turned down for visa extensions or permanent residence petitions.
• The USCIS is cracking down on the use of the H-1B to outsource jobs through subcontracting, especially to foreign IT companies.

More developments are likely, although they might not all be negative. Nevertheless, it is more important than ever to keep current on what is going on with H-1B law and policy before filing an H-1B petition.

Software Engineer Receives H-1B Status

Client: Marketing Company in Cleveland, Ohio
Client’s Country of Origin: India
Case Type: H-1B Visa
Date of Application: February 18, 2015
Date of Approval: March 11, 2015

Background:
Herman Legal Group was retained by our client’s parent company. We first applied for labor certification for this beneficiary’s position, and acquired approval early in March, 2015. Upon receiving the labor certification, we quickly submitted H-1B application on behalf of our client.

Challenge:
Time was of the essence. Labor certification must be filed timely so that the approval to hire an alien may arrive before submitting the application. We filed the labor certification early, received the approval in time, and filed the H-1B application on time.

Action:
We helped our client prove that the choice candidate met all criteria. She received advanced training, was a member of a profession that required application of a specialized body of knowledge, and the offered salary satisfy the prevailing wages of the intended area of occupation. Moreover, with the passage of labor certification, we already helped prove that there was no able, willing and qualified U.S. worker available for the position at the time.

Result:
In less than a month, our client’s choice software engineer was granted H-1B status to work for three more years in Texas.