Immigration Law Frequently Asked Questions
- I am a U.S. citizen married to a foreign national and we live together. How long does it take before s/he gets a work permit and green card?
- If I am approved the day of the interview, do I immediately get the green card?
- I am a foreign student on an F-1 visa and my spouse is on an F-2. Can you tell me what options I have to work after graduation and can my spouse work?
- What is the H-1B visa?
- How long does it take to obtain the H-1B?
- Can I work for a cap-subject and cap-exempt employer at the same time?
- I have recently obtained a Ph.D. and been offered a position as an Assistant Professor. The school is obtaining the H-1B for me but they told me I was responsible for the green card. What can I do? And, can you provide me with a typical timeline for this type of green card?
- Is there a time limit to file the labor certification with the Labor Department?
- How do I obtain a labor certification if I am working for a private employer?
- I want to set up a company in the U.S. and do business here. How can I get the E or L visa?
I am a U.S. citizen married to a foreign national and we live together. How long does it take before s/he gets a work permit and green card?
The processing times from the initial filing with CIS until the actual green card interview vary depending on where you live. While waiting for the interview CIS will issue you a work/ travel permit. But, check with your attorney to make sure that it is safe for you to travel during the processing period. Please contact our office to determine the processing times in your city and the procedure to obtain your green card based upon marriage.
If I am approved the day of the interview, do I immediately get the green card?
If you have been married less than two years at the time of the green card approval, then you are granted what is called, "conditional permanent residence." The green card is valid for two years. Two years after you are granted this status you must submit through the mail Form I-751 and documents to CIS that establish that you are still residing together. You can apply up to three months prior to your two year anniversary of the approval of conditional permanent residence. Assuming that CIS has no other questions, it will approve the "removal of the condition" and grant you permanent residence. Then one year later you may apply to become a U.S. citizen. If you are divorced or separated there will probably be an interview at CIS to establish whether or not the marriage was entered into for "bona fide" reasons.
I am a foreign student on an F-1 visa and my spouse is on an F-2. Can you tell me what options I have to work after graduation and can my spouse work?
First, a spouse in F-2 may not be employed. However, your spouse might also qualify for a work visa such as the H-1B. After you graduate in F-1 status you are eligible for up to 12 months of optional practical training. This is a wonderful work permit as it only costs you the $380 CIS filing fee and takes about 3-4 months to obtain. You may work anywhere in America in your field and do not need permission from CIS each time you switch employers. Some students in the sciences, technology, engineering and mathematics disciplines (STEM majors) might qualify for an additional 17 months of optional practical training (OPT). I highly recommend discussing this option with your foreign student advisor.
While you are in F-1 practical training status you may apply for the H-1B work visa. This visa is what 95% of foreign students who wish to work in the U.S. obtain while in F-1 practical training status. This visa category is reserved for people who have at least a bachelors degree from anywhere in the world and have a job offer that requires the particular degree that they already possess. In some limited situations, where a person does not have a bachelors degree, but does have extensive work experience they may qualify, if they can establish that the work experience is equivalent to a bachelors degree.
The employer must also establish that you are being paid what is considered the “prevailing wage” for the job. You can obtain a prevailing wage determination by reviewing the U.S. Department of Labor website, or perhaps even using a private wage survey.
How long does it take to obtain the H-1B?
Obtaining the H-1B is a rather bureaucratic process and some employers are slow in signing the necessary CIS forms. Thus, we tell our clients all over America that the whole process, from the very beginning when we confirm the prevailing wage, through our preparing the papers for the employer to submission and ultimate approval can take approximately 6-12 weeks. But, if an additional $1,225.00 "premium processing" filing fee is paid to CIS then your case may be considered "premium processing" and the whole process will take a maximum of 3 weeks.
The H-1B is valid for up to three years and can be extended a final three years. You are allowed to change employers with CIS permission, but you cannot spend more than six years in H-1B status. Some of our clients first graduate and obtain one year of practical training. Then, they use a few years of H-1B and then go back to F-1 to obtain a graduate degree and then get another H-1B. This is a fairly common scenario. If you are in the middle of the green card process it might be possible to extend beyond the normal six year H-1B limit.
Can I work for an H-1B cap-subject and cap-exempt employer at the same time?
Yes. A person in H-1B status who is concurrently employed with an exempt and non-exempt employer will not be counted towards the H-1B quota. However, if the person ceases to be employed in the cap-exempt position, the H-1B petition with the private employer will end.
I have recently obtained a Ph.D. and been offered a position as an Assistant Professor. The school is obtaining the H-1B for me but they told me I was responsible for the green card. What can I do? And, can you provide me with a typical timeline for this type of green card?
Faculty may be sponsored either as an Outstanding Professor/Researcher or through what is termed, "Faculty Special Handling Labor Certification." Typically, CIS likes to see that you have had your Ph.D. for at least three years before they will consider approving you as an Outstanding Professor/Researcher. In fact, at this time the winning outstanding professor/researcher has normally obtained his/her Ph.D at least 5-10 years earlier and has many articles in print.
If you recently defended your dissertation successfully, I would probably recommend the faculty labor certification. This is a perfect avenue for new faculty. This type of labor certification only requires that you were chosen as the "most qualified" applicant for the job. In other words, as long as you "won" the recruitment and were offered the job then you will obtain the green card. This is established by a letter from the recruitment committee detailing the recruitment and why you were more qualified than the other applicants. We file many of these types of cases all over the U.S. for new faculty and the beauty is that you just have to be more qualified than the other applicants. This is dramatically different from the normal, non-faculty, labor certification.
As long as your university performed a national recruitment for your position, then our office can go ahead and seek the prevailing wage determination from the Department of Labor. This takes between 2-3 months. Meanwhile, we will collect all the documents needed for the labor certification. Once we receive the prevailing wage approval from the Department of Labor, then we can usually file the labor certification shortly after. At this time, the labor certification takes approximately 4 to 8 months to be approved.
The next step is the I-140. We will work with your university to file the I-140 on your behalf. Your Adjustment of Status (I-485) can oftentimes be filed simultaneously, or soon after the I-140 is filed. However, if your country of birth is India or China, you will have to wait to file your Adjustment of Status (please refer to the U.S. Department of State’s Visa Bulletin). We estimate that from the time we start with a “Faculty Special Handling Labor Certification” case to the time you obtain your green card is typically 12 to 18 months (except for India & China).
Is there a time limit to file the labor certification with the Labor Department?
Yes, the labor certification forms must be submitted within 18 months of the date of your “selection” as a faculty member. Please be aware that the “selection” date is not the date that you commence your academic employment. If you have already missed the 18 month filing deadline please call to discuss your options.
How do I obtain a labor certification if I am working for a private employer?
A private employer must advertise and recruit over a number of months and interview all job applicants in order to obtain a labor certification. A labor certification for a private employer is a determination by the U.S. Department of Labor that no U.S. worker could be found to perform the job. A labor certification is only granted when the U.S. employer has established through this recruitment process that it was unable to find a U.S. worker ready, willing, able and minimally qualified to fill the position.
I want to set up a company in the U.S. and do business here. How can I get the E or L visa?
If you are planning to set up a business in the U.S. and work here, you may be eligible for an "E" or "L" visa.
The "E" visa is available to citizens of certain countries that have treaties with the U.S. It allows individuals investing in a U.S. business or setting up a business to be employed by that business or you may be employed by a company that is owned by nationals of your treaty country. Qualifying for the "E" visa is quite difficult, as numerous criteria must be met. My associate or I will be happy to discuss with you whether you qualify.
The "L" visa is available for citizens of any country who are being transferred by a company in one country to work for a related business (such as a subsidiary) in the United States. To qualify, you must have been employed outside the US by the company for at least one year. Also, you must be coming to work either as an executive, manager or in a "specialized knowledge" capacity. Finally, you must have been employed in one of these capacities by the company overseas.
