If only there were an easy answer to how long you're likely to wait in total! Unfortunately, you won’t know for sure how long that is until your wait is almost over. Nevertheless, you can track the progress of people who applied before you, month by month, based on something called the "Priority Date," as this article will explain.
When Congress made the immigration laws, they decided to limit how many people could immigrate in certain categories. Actually, though we talk about the number of “visas” available, we mean the number of people who can be given U.S. permanent residency, through an immigrant visa or a green card. (People who adjust their status to permanent resident in the United States don’t need an actual U.S. entry visa in their passport to do so, but they still need to have a "visa number" or a green card space available to them.)
For each of the below categories of potential immigrants, there's a separate limit on the number of visas allotted per year. Here is how the family- and employment-based preference categories are arranged:
Each year, by law, the U.S. government allots a set number of immigrant visa numbers in each preference category. You don't really need to study the details, but might find the numbers interesting for purposes of understanding why you might face a wait.
For purposes of visa allocation, the U.S. government follows its fiscal year, which starts and ends in October. This might affect you if the government runs out of visas for your category before October. You will know at that point that you have no chance of advancing on the waiting list until the “new year” begins October 1.
Currently, the total worldwide numbers are as follows:
This might sound like a lot of visa numbers, but far more people want immigrant visas than can get them every year. The government gives out visa numbers month by month, making sure never to go over the annual limit.
There are also limits on the number of visas allowed for any one country. No more than 7% of the total visa numbers each year can go to any one country, and often the percentage turns out to be less.
There are more complexities to the allocation and numbers of these visas, but a full understanding of these numbers will not help you speed up your waiting time. The important thing to know is your Priority Date, and how to use it to chart your own place on the visa waiting list.
All prospective immigrants in the preference categories have a Priority Date, which establishes their place in line for a U.S. immigrant visa. This date comes from either:
You will find your Priority Date on your paperwork from one of these agencies.
Each month, the State Department publishes a Visa Bulletin, its main source of information on visa waiting periods. The bulletin comes out monthly, around the middle of the month, but not on any particular day.
After clicking the link above and accessing the latest bulletin, you will see two charts for “Family-Sponsored Preferences” and two charts for “Employment-Based Preferences.” These charts are full of Priority Dates, which tell people when they can apply for a visa (“Dates for Filing…”) and when the visa actually can be given out (“Application Final Action Dates…”).
Although it’s confusing at first look, you will be able to make your way through these charts. Here’s how:
Prospective immigrants whose Priority Dates are earlier than the cutoff date listed in that month’s chart will become eligible to apply for a visa (“Dates for Filing” chart) or receive a visa or green card (“Application Final Action Dates” chart).
The earlier your Priority Date, the better off you are, because it means you are in line ahead of other applicants. But the latest cutoff date doesn’t actually tell you how long it will be before your own visa or green card is available. It merely gives you a rough idea. If you subtract the cutoff date on the current month’s Visa Bulletin chart from today’s date, you will see how long previous applicants waited. You might figure you will face a similar wait, but things can change.
If following the Visa Bulletin charts month by month, you might notice that sometimes the U.S. government gets backed up with visa applications and the cutoff dates get stuck for months at a time. That basically means the government is trying to deal with the backlog. If the government hits a huge logjam, you might even see the cutoff dates go backwards.
If you’re lucky, the cutoff dates will advance several months from one month’s bulletin to the next. This is an indication that the State Department overestimated how many visa applications it had to process, or was able to work faster than anticipated.
Another odd thing you might see on the Visa Bulletin is a box that contains the letter C or U, instead of a date. The letter C (for “current”) means there are plenty of visas in that category and no one has to wait. It’s as if everyone’s priority date suddenly were current. For example, in early 2024, visa category 2A (spouses and minor children of lawful permanent residents) had a wait of over four years. Yet it had been listed as "C" (current) for many months in 2023, which meant that in this group, applicants could file for green cards as soon as their I-130 petitions were approved; or potentially even adjust status in the U.S. with a "concurrent" filing of Form I-130, Form I-485, and the rest. (See When an I-130 Can Be Filed at the Same Time as a Green Card Application.) But again, things later shifted dramatically.
The letter U (for “unavailable”) in the chart means that all the visas have been used up for that year. If, for example, this were February, and you saw a U in your category box, you would know you could forget about getting closer to a visa until October (when the new year starts in the visa allocation process).
* You can ask to have the Visa Bulletin sent to you monthly, by email. This is a great way to make sure you don’t forget to check how your priority date is advancing. To sign up, send an email to listserv@calist.state.gov and in the body of the message, type: Subscribe Visa-Bulletin.
If either you or your petitioning family member or employer change addresses, the place to contact is the National Visa Center (NVC), which keeps your case file until your Priority Date is close to being current. You can advise the NVC of your new address online with its Public Inquiry Form. Be sure to provide your case number, your U.S. petitioner's name, and the name and birth date of the principal visa applicant.
Sooner or later, your Priority Date will become current—in other words, you will finally see a later date, or the letter “C” on the “Dates for Filing” Visa Bulletin chart. Then it’s time to move forward with the process of getting your immigrant visa or green card.
When you see that your Priority Date is current on the “Dates for Filing” chart, don’t wait for the U.S. government to call you. If you don’t hear from it within a few weeks, contact the NVC and ask for the appropriate instructions (if you're currently overseas).
If you are already in the U.S. and eligible to adjust status (apply for your green card via USCIS)—which usually requires that you are either in lawful immigration status or are the immediate relative of a U.S. citizen—you don't have to wait for an invitation, you can submit your adjustment of status application to USCIS (Form I-485 and supporting forms and documents), but only if USCIS has said that you can use the Visa Bulletin filing date. (The Visa Bulletin will tell you whether USCIS has allowed you to use the filing date that month, and this information also can be found at http://www.uscis.gov/visabulletininfo.)
If your U.S. petitioner didn’t already tell USCIS on the I-130 or I-140 that you would be adjusting status, you should contact the NVC and tell it you’re in the U.S. now and will be adjusting status, so it can send your file to USCIS.
Once you file your application, whether it's for an immigrant visa for abroad or for adjustment in the U.S., the government can’t actually give you a visa or green card until your Priority Date is current in the “Application Final Action Dates” chart.
Some would-be visa applicants forget to check the Visa Bulletin, and their Priority Date becomes current without their noticing. Sometimes, the NVC has tried to notify them, but had only an old address. Or, the NVC might have failed to keep track of the person’s file. These problems can delay or destroy a person’s hopes of immigrating.
You have one year after your Priority Date becomes current in the “Application Final Action Dates” chart to pursue your visa or green card. If you do not, the government assumes you have abandoned it, and will give your visa number to the next person in line.
You might have an argument for getting the visa number back if the government completely failed to contact you, but it’s better to avoid such situations altogether. Keep track of your own priority date and take steps to pursue your application once it becomes current.
For personalized assistance with applying for U.S. lawful permanent residence, consult an experienced attorney. The attorney can analyze your situation to see whether there's any speedier way to get you into the United States, help with the paperwork, monitor your progress toward having a current priority date, and more.
]]>This waiver is basically a subset of the EB-2 employment based, category for obtaining U.S. lawful permanent residence. The key to obtaining this waiver, however, is understanding how to prove that your work truly will offer important benefits to the United States. Below, we discuss in more detail:
Normally, an EB-2 category green card process requires an employer to sponsor someone by offering a permanent job and also "testing" the labor market to see if there are any qualified U.S. workers who are available instead. This process, known as PERM labor certification, involves advertising the job through a rigid series of steps. It's a process that can be lengthy and expensive. What's more, the government agency reviewing the case can reject or deny it if it finds that the employer identified a suitable U.S. worker but did not offer the job to that person, or if there were inconsistencies in the application process.
With the national interest waiver, on the other hand, United States Citizenship and Immigration Services (USCIS) decides that the person's work is so important to our country that there's no need to give first priority to a U.S. worker. It will thus "waive" or set aside the requirements of employer sponsorship and labor certification.
There are several benefits to obtaining this waiver.
One, as mentioned, is that you do not need to find an actual job or have an employer sponsor your application. While it is possible to have employer sponsorship, you could decide to file the national interest waiver by yourself (a "self-petition") if your employer is unwilling, or if you do not have a specific job offer, or if you would like the flexibility of starting your own company or being able to change employment in the near future without jeopardizing your immigration status.
Two, you do not have to go through the labor certification, or PERM, process, as is normally required for EB-2 and EB-3 categories (referred to above). This saves time, money, and effort.
Three, while you do have to show demonstrated achievements in your field and that your work would be beneficial to the U.S., you do not have to prove you have "extraordinary" ability, as required in the EB-1 category. Therefore, some people believe that a national interest waiver is easier to obtain.
Four, if USCIS approves your national interest waiver application, and you are working in the U.S. on an H-1B visa, you might be able to extend your H-1B status beyond the usual six-year limit if you won’t have your green card by then.
Because of the amount of documentation required to prove that you merit an approval, it could take some time to prepare a persuasive NIW application. Also, USCIS officers have a great deal of discretion in deciding whose work is "in the national interest."
In the past, another issue was that expedited, 15-day adjudication of the petition in return for a supplemental fee, known as "premium processing," was not available from USCIS in this category. Therefore, the processing time could be much longer than for an I-140 filed under the EB-1 category, in which premium processing was available.
Although Congress authorized USCIS to expand premium processing to include NIW cases in 2020, it wasn't until 2022 that USCIS finally got around to implementing it. The premium processing timeline for NIW cases is 45 calendar days. The supplemental fee for this, starting February 26, 2024, is $2,805.
To be eligible for a national interest waiver, you must first qualify for the EB-2 category, by having either an advanced degree or exceptional ability. In addition, you must satisfy a rigorous set of criteria related to your area of expertise. Let's look briefly at each of these in turn.
To fit the advanced-degree requirement, you would need to have a Master's, Ph.D., or other post-baccalaureate degree (or a Bachelor's degree and five years of experience).
Alternatively, to fit the "exceptional ability" in your field requirement, you would need to assemble extensive documents including at least three of the following:
According to USCIS, "other comparable evidence" of eligibility is also acceptable, but the agency usually requires applicants to first show that evidence from the above categories is unavailable or inapplicable.
In practice, even if you choose to apply based on your advanced degree, you will likely have to show you are highly skilled in your field as well. That's because, to obtain a national interest waiver, you must demonstrate that your employment will greatly benefit the United States.
Moving on, after establishing you have an advanced degree or exceptional ability (or both), you will need to satisfy all parts of a three-prong test established in a case called Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). This involves proving that:
The documents demonstrating your qualifications for the national interest waiver should be submitted with the employer's or the applicant's I-140 petition to USCIS.
If a visa number is immediately available upon approval, as shown on the Department of State's most recent Visa Bulletin, you may also apply for a green card at the same time if you are in the U.S., through the process known as adjustment of status. You'll want to think carefully about submitting an adjustment application together with the NIW petition, however, because if USCIS denies the NIW, the adjustment application no longer has a supporting petition and therefore will be denied too. Because there is substantial discretion involved in the NIW petition, the conservative approach is to obtain the NIW approval before submitting an adjustment application.
If a visa number is not immediately available, you will have to wait until the priority date (date the I-140 is submitted) is reached. This somewhat complex process is explained in How Long Is the Wait for Your Priority Date to Become Current?
Since "substantial merit" and "national importance" are not clearly defined in the law, there is a great deal of flexibility in this category. It isn't so much one's broad profession that is important, but rather, the work that you normally do or focus on.
For example, although one might argue that teachers in general do work of substantial merit or national importance, teaching alone does not qualify one for an NIW. If the teacher, however, has developed a method of reducing educational inequalities in school systems, that might qualify as work of national importance to our country's educational system. Scientific advances or cutting edge technology work might also qualify.
Fields with "substantial intrinsic merit" tend to include those that improve the national economy; help the wages and/or working conditions of U.S. workers; contribute to the health of U.S. residents; contribute positively to education; improve access to affordable housing; or make a positive contribution to the environment or use of natural resources.
Finally, in January 2022 USCIS updated its Policy Manual to place particular emphasis on STEM graduates and entrepreneurs seeking national interest waivers. If you have a STEM graduate degree or are an entrepreneur, you will want to highlight this in your petition, because the new guidance explains that these are highly favorable factors in adjudicating NIW petitions.
Examples of successful national interest waiver cases include: an entrepreneur who developed an algorithm for an emergency response phone system to help 911 centers locate the caller more quickly and accurately, thereby saving lives; a researcher with graduate degrees in Biomedical Engineering and a Bachelor's degree in Electrical Engineering whose work led to greater understanding of sudden cardiac death; and an academic sociologist whose expertise in studying Balkan criminal syndicates in the U.S. assisted the FBI and the judicial system, and would thus improve safety and reduce crime.
The employment-based immigration process can be one of the most direct routes to obtaining a green card (U.S. permanent residence). However, the paperwork and legal requirements are intense, and it's easy to make mistakes that lead to denial. Normally, the employer of an immigrant would hire an attorney to assist. So if you hoping to go it alone, your best bet is truly to discuss your case with an experienced immigration attorney.
]]>One of the key components of the EO is to increase innovation and competition in AI, which means educating and hiring more STEM professionals. Significantly, the EO specifically instructs agency heads to attract foreign STEM talent by reviewing and revising visa eligibility rules and regulations. The agency heads were directed to take action within a few months of the EO’s release.
The EO directs U.S. federal agency heads to consider options for opening up immigration pathways for AI talent in general as well as in several specified categories:
As of early February 2024, no significant changes have gone into effect. The White House provided an update on January 29, 2024 on the actions that were to be completed within a 90-day deadline, which states that the Department of Labor complied with its directive to publish a Request for Information to solicit input on updating the “Schedule A” occupations list. The White House update also claims that the Department of State completed its directive to streamline visa processing, specifically regarding interview waivers.
In early January, the Department of State (DOS) provided an update on its worldwide visa operations, which does mention interview waivers as well as other ways the DOS has streamlined its processing efficiency. Although the update discusses “using new tools” and “technology” to improve efficiency and reduce consular visa processing times in 2024, it fails to mention anything concrete.
The actual data covered by the update refer to the entirety of Fiscal Year 2023. In fact, the update specifically mentions that interview wait times remain at historically high levels, and suggests visa applicants shop around for embassies with shorter wait times. It remains unclear what specifically the DOS completed as a direct result of the EO, if anything, or whether it merely continued implementing policies already in place.
If you are applying for a visa in the near future and you have experience in STEM, you might be able to use the EO to your advantage. If you have not already done so, you might wish to consider shifting your career goals towards AI or other critical and emerging technologies. Part of the EO includes a directive to create more government positions for experts in AI and other critical and emerging technologies, which means that more jobs should be available in these fields before long. Another possibility is to come to the U.S. to earn a degree in one of these fields on an F-1 student visa and later transition to a visa that will allow you to stay longer. (For more information on F-1 visas, see F-1 Student Visa to the U.S.: Do You Qualify? and Student Visa (F-1, M-1, or J-1) Application Process.)
It might also be possible to use the EO as evidence to strengthen your visa petition. A creative lawyer might be able find a way to reference the EO or otherwise incorporate it into your argument. For example, EB-2 petitioners seeking a National Interest Waiver in AI or other STEM fields might wish to include the EO as evidence that their field should be considered nationally important. (For more information on EB-2 visas and National Interest Waivers, see EB-2 Visa for Advanced Degree Professionals: Who Qualifies? and EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?.)
However, whether such a strategy is feasible depends on the specifics of each visa type and each individual petition. The best way to know if you can benefit from the EO at this early stage is to contact an experienced immigration attorney.
]]>The U.S. has five categories of employment-based immigrant visas (that is, permanent residence, “green card” visas). The EB-2 or “second preference” category is for non-citizen workers who either have advanced degrees or can demonstrate exceptional ability in the sciences, arts, or business. Typically, this visa requires the worker to have lined up a job offer from a U.S. employer. The employer then has to justify hiring a foreign worker by going through something called the “labor certification process” to prove that no qualified U.S. workers are available to take the job. This complicated process takes time and money, as further described in Procedures to Sponsor a Worker for a Green Card.
However, a worker can get around the labor certification requirement by asking for a National Interest Waiver (NIW). This requires demonstrating that the worker’s professional pursuits are so important to U.S. national interests that the government would be better off waiving the labor certification requirement and permitting the worker to come over and start work right away.
To obtain a green card through this path, a worker has to meet the qualifications for both the visa and the waiver, which have separate requirements. For more information on EB-2 and NIW, see EB-2 Visa for Advanced Degree Professionals: Who Qualifies? and EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?
Before an a National Interest Waiver can be granted, a petitioner first has to establish eligibility for the underlying EB-2 visa. It might be possible to qualify for an EB-2 visa as an airline pilot in one of two ways.
The first possibility is for pilots who meet the criteria for EB-2 “advanced degree professionals.”
The other way is to meet the criteria for a person of “exceptional ability.” This requires convincing United States Citizenship and Immigration Services (USCIS) that the pilot has expertise significantly higher than the average pilot, by providing specific types of evidence to meet certain criteria.
Even if a pilot can technically meet the criteria required for an EB-2 person of exceptional ability visa, that might not be enough. It does not in and of itself determine whether a pilot (or other worker) has exceptional ability. If the pilot’s qualifications are typical for an average airline pilot, or even above average pilot, USCIS will probably find them insufficient. Ultimately, the pilot has to prove expertise significantly above that of the average pilot.
In the past few years, the U.S. has experienced a shortage of airline pilots. Because of this, many pilots have filed EB-2 NIW petitions. So far, USCIS and the courts have consistently denied these . Many were rejected simply for failing to establish exceptional ability, even in cases where the pilot technically met the criteria. Even pilots with advanced degrees, however, were rejected for failing to qualify for the National Interest Wavier.
When some of these cases were appealed, the courts explained different reasons why the average pilot does not qualify for the NIW: Letting in a single pilot does not impact the shortage of pilots on a national scale. Flying for a commercial airline serves only the employer and employee, and also does not have a national impact.
Even if a pilot comes up with a creative “proposed endeavor” (planned professional pursuits in the U.S.) and USCIS decides it has “substantial merit” (it will contribute to important U.S. interests), the pilot still has to convince USCIS that it will have a national impact. Even pilots who proposed to train new pilots were denied.
As explained in one recent case, the reason even creative arguments fail boils down to the labor certification requirement: a labor shortage is exactly the kind of problem that the labor certification process is designed to address in the first place, so a pilot shortage does not justify skipping that process.
Despite all of the above, it remains possible USCIS would approve a petition for a pilot who will have a demonstrably drastic impact on the field, such as someone who plans to serve as leadership at a flight academy. Pilots with top qualifications might want to consult an attorney and ultimately give it a try. For typical commercial airline pilots, however, it seems certain that the EB-2 visa with a NIW is not a viable pathway.
]]>Some employers so fear the consequences of hiring an unauthorized worker that they go overboard in trying to avoid such hires. That risks unwittingly discriminating, which can result in an investigation (and possible fines) by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
Because it is such a balancing act, employers often wonder how closely they can or should look at the documents presented by employees to prove their identity and work authorization. We'll offer suggestions here.
Every employer should develop as clear a policy as possible when it comes to the Form I-9, which sets forth rules to follow when reviewing documents. Here are the basic legal parameters:
If a document does not pass your initial review, you can apply additional scrutiny, analyzing it more closely to list all of the reasons that you believe it to be a fake. Many employers opt to have an immigration expert review documents that don't pass the initial review; this gives them peace of mind that they have not rejected genuine documents.
If you reject documents that appear not to be genuine, you may either
If not otherwise required under federal contracting guidelines, signing up for E-Verify can be helpful to employers. This voluntary federal program allows employers to submit information from employees' I-9s to the U.S. government for confirmation that the employee is work-authorized.
The E-Verify system includes a photo-match tool for certain documents. This provides the photograph that the government has on file from an employee's document so that you can compare it against the document the employee provided. E-Verify is not 100% accurate, but it does provide additional assurance that an employee's documents are genuine and that the employee is authorized to work.
]]>First, let’s be clear on what part of the process we’re talking about. We’re not addressing the initial phases of qualifying for a green card, when an employer has offered you a job and is seeking labor certification on your behalf. That’s less likely to create problems (though you’ll need to keep a careful eye on the terms and expiration date of whatever visa allows you to stay in the U.S., so that you don’t fall out of status).
What this article primarily addresses is the situation of someone legally living and working in the U.S. who has already applied for “adjustment of status” (a green card) with U.S. Citizenship and Immigration Services (USCIS) based on employment. (This is done using USCIS Form I-485.)
Such a person would have either already received USCIS approval of, or have submitted as part of the adjustment application, an I-140 petition (the immigration form employers use to petition someone for an employment-based green card). Such a person would have a work permit and status in the U.S. based on being an “adjustment applicant,” and be awaiting a USCIS interview or decision.
Once you have filed for adjustment, and your case is pending, you'd be putting your application at risk if you switched jobs without following applicable rules.
Let’s understand the basic concept of employment-based green card sponsorship first. An employment-based green card is based on the idea that a future job has been offered to the foreign worker. That’s the legal concept even if that person is already working for the employer and sponsor. The employer offers a “permanent” position, which is set to start upon approval of the green card.
Similarly, the employee promises to accept that position upon approval of the green card. Thus, such employees are expected to work for the employer that sponsored them for a reasonable length of time after receiving green card approval. (There’s no set amount of time required.) Failure to do so can create serious problems for these employees later, particularly if they later attempt to naturalize to U.S. citizenship.
So, if failing to work for the sponsoring employer for a reasonable duration after the I-485 is approved could cause serious problems, logic follows that changing employers before the I-485 is approved could cause even more problems. In fact, it could lead to denial of your I-485, unless you fall into one of a few limited exceptions found under the portability rules of the American Competitiveness of the Twenty-First Century Act or AC21, discussed below.
The main issue is that, once USCIS discovers that you are no longer employed by the original employer/sponsor, it could naturally conclude that you no longer intend to work for that employer in the future. That would defeat the whole purpose of the employment-based green card process, which is for you to work for the sponsoring employer. Unless you intend to return to the sponsoring employer upon approval of your green card, or unless covered by AC21 as discussed below, you’d need to proceed with caution and seek immigration counsel before jumping ship from the green card-sponsoring employer.
And you'd of course need to make sure you have authorization, such as H-1B status, to work for the new employer.
If you have applied for employment-based visas in one of these categories: EB-1 Outstanding Researcher, EB-1 Multinational Manager, EB-2, or EB-3 worker, you might actually be able to switch employers while awaiting your adjustment-of-status decision, if you’ve been waiting for USCIS action for 180 days or more. However, you must carefully follow the “portability” rules when doing so.
In particular, you must find a job that is the “same or similar” as the one you have. If you fail to comply with the rules; for example, you go from a job as a tech analyst to a job as a restaurant manager; your I-485 application can be denied.
For more information on changing jobs while on one of these type of employment-based visas, please see How Soon After I Start Work With My Green Card Sponsor Can I Switch Jobs?
If USCIS denies your I-485 because you switched employers without either filing for proper work authorization or without complying with the above-described portability rules, this could ruin your chances of applying for a green card; or, for that matter, any other immigrant or nonimmigrant visa; in the future.
Here’s an example of why this might be:
Let’s say you are in the U.S. with H-1B status and, while awaiting a USCIS decision on your I-485, which was pending less than 180 days based on an approved I-140 from Employer A, you start working for Employer B. Your new employer files a new employment-based I-140 petition for you. What’s worse, you have reached the end of your H-1B six-year maximum, and no longer qualify to extend it while your new petition is pending. Your green card application will likely be denied. You cannot, after all, adjust status unless you are already in status. If you were to remain in the U.S. after your H-1B expired, you would have “overstayed” your period of authorized stay and be in the U.S. illegally.
To understand the legal effects of overstaying, read Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars.
Consult an experienced immigration attorney before changing jobs if your employment-based I-485 is pending; you’ll want to obtain a full analysis to determine the best course of action.
]]>By way of background, E-Verify compares information from an employee's Form I-9, Employment Eligibility Verification, against data in the files of the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA) in order to check whether the employee is eligible to work in the United States. When E-Verify issues a TNC, it means that the government was not able to confirm that the employee is authorized to work based on the information submitted. It does not necessarily mean that the employee lacks work authorization, only that the government needs more information to make a final determination.
First, check to confirm that you entered all of the employee’s data into the system correctly. If the query contains mistakes, you can terminate the query as invalid, correct the mistakes, and resubmit the query.
Assuming that you did submit the E-Verify query properly, you should print the TNC Notice from the E-Verify system. This is a document that explains the TNC to the employee and provides the employee with options:
What happens next depends on the employee's choice between these options.
An employee who chooses to contest the TNC is given an opportunity to contact the U.S. government to answer its questions and, depending on the facts of the situation, to provide additional documentation. Such an employee should sign and date the TNC Notice (as should you, the employer).
Next, you should indicate in the E-Verify system that the employee chose to contest. At that point, a Referral Letter will be generated, which you must provide to the employee. The Referral Letter gives the employee instructions for how to contact the government to resolve the discrepancy. It provides contact information and a deadline; the employee must contact the government within eight government workdays.
While working to resolve the matter, the employee must be allowed to continue to work. No adverse action may be taken against an employee based on the E-Verify TNC. Note that you must also refrain from asking the employee to provide updates to you during the TNC process. (Do not ask the employee to tell you once they've spoken to the government.) You should access the E-Verify system daily for updates.
Ultimately, the E-Verify query’s status will change to one of the following:
If the employee does not contest the TNC, or if the query ultimately results in a “Final Nonconfirmation,” you must terminate the worker’s employment or face possible fines and penalties for knowingly continuing to employ an unauthorized worker. Continuing to employ someone after a “Final Nonconfirmation” or after the person opts not to contest a TNC leads to a presumption that you are knowingly employing an unauthorized worker.
Regardless of the final outcome, you must close every case in the E-Verify system.
For “Employment Authorized” queries, you may simply close the cases, indicating that you continue to employ (or not to employ) the individuals as appropriate. For “Final Nonconfirmation” queries, you must indicate whether you continue to employ the workers. Remember that failure to notify the U.S. government that you are continuing to employ someone despite a Final Nonconfirmation can result in a fine and that continuing to employ the individual (even if you notify the government) can result in charges that you are knowingly continuing to employ an unauthorized worker.
Once you have handled a few TNCs, the process will seem much simpler. Until then, be sure to follow these instructions as well as those provided in the E-Verify system to ensure that you properly handle the situation.
]]>A total of 10,000 green cards are available each year for the entire EB-4 category. Of these, no more than 5,000 may be allotted to non-clergy religious workers.
Fortunately, the 10,000 limit is almost never reached, which means that applicants in this category wait far less time than those in other employment-based green card categories. As soon as the initial visa petition (Form I-360) filed by their employer has been approved by U.S. Citizenship and Immigration Services, they can typically go ahead with the rest of their green card application (either through consular processing abroad or adjustment of status in the United States.)
Another piece of good news is that no labor certification is required in this category. For more information on the lengthy procedure known as labor certification or PERM, see Procedures to Sponsor a Worker for a Green Card.
A minister is, according to U.S. immigration law, a person authorized by a recognized religious denomination to conduct religious activities.
This includes not only some of the traditional roles that might come to mind, such as ministers, priests, and rabbis; but also salaried Buddhist monks, practitioners and nurses of the Christian Science Church, commissioned officers of the Salvation Army, and ordained deacons.
The law does place some limits on who can call themselves a minister, however. The person must have formal recognition from a qualified religion with which affiliated. Such recognition might include a license, certificate of ordination, or other qualification to conduct religious worship.
Also potentially qualified under this subcategory are “other religious workers,” that is, workers in a “religious vocation” or “religious occupation.” These workers must be authorized to perform normal religious duties, while not actually serving as part of the clergy. Examples include liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. It does not include workers performing nonreligious functions such as maintenance workers, receptionists or clerical staff, fundraising and development staff, or even singers. It also does not include volunteers.
USCIS also requires that religious workers be working in traditionally permanent salaried positions within the organization and be assigned only religious duties.
To qualify for a green card as either a member of the clergy or a religious worker, the applicant must be able to show membership for at least the past two years in the religion. During those two years, the applicant must have been employed continuously (though not necessarily full time) by that same religious group. The applicant’s single purpose in coming to the U.S. must be to work full time (35-plus hours a week) as either a minister of that religion in a situation where the denomination needs additional ministers, or at the request of the organization, to work in some other capacity related to the religion’s activities in the United States.
The religion itself must be both recognized and have a bona fide nonprofit organization within the United States. It will need to prove this, such as with an IRS determination of tax-exempt status.
The primary EB-4 applicant’s spouse and children, if any, may apply for green cards as derivatives under this category. Children must be unmarried and under the age of 21.
This provision of U.S. immigration laws is disfavored by some in the U.S. Congress, who periodically try to eliminate it as a path toward U.S. permanent residence. The eligibility of non-clergy religious workers for a U.S. green card is set to expire each year, and often reaches its expiration date, only to be extended by Congress at the last minute. No guarantees can be made as to future extensions, however. Double check the latest information on the EB-4 page of the USCIS website.
This expiration date will not affect the eligibility of ministers and members of the clergy for an EB-4 green card.
Talk to an experienced attorney for a full analysis of your case's potential, any strategies that might help you qualify for a U.S. green card successfully or more quickly.
If you work in a management position for a U.S. company that involves completing I-9s for new employee hires, you have probably seen several types of identity and work documents come your way; from passports to work permits to official pieces of paper from the U.S. government. This article will address one specific but not entirely unusual situation: being shown a Social Security card that has what looks like an expiration date on the front, which date has passed. Can you accept the card for the employee’s I-9?
Interestingly enough, this card is likely a valid one. Beginning in April 2007, the Social Security Administration (SSA) began printing the date of issuance on the face of Social Security cards. The date appears beneath the signature line. The date is not an expiration date (and, in fact, should always be a date in the past).
So long as the card otherwise appears to be genuine, you can accept it as a List C document when completing the Form I-9 Employment Eligibility Verification.
If your company doesn't have an in-house attorney, you might want to retain a private attorney for questions about recruiting and hiring workers, some of whom might be foreign-born and thus possess documents that you aren't familiar with.
Who qualifies as a “priority” worker? This visa category is definitely reserved for highly capable people. It’s actually divided into three subcategories, including:
Obtaining a U.S. green card for a priority worker is typically easier than doing so in any of the other employment-based visa categories. The reason is that the employer does not need to start out by attempting to recruit U.S. workers for the job and then seeking labor certification (confirmation that no such workers are available) on the employee’s behalf. This process tends to take many months and involve staggering complexity. (For more information on labor certification, see Procedures to Sponsor a Worker for a Green Card.)
In fact, within the subcategory for workers of extraordinary ability (described below), the foreign national does not even need a job offer from a U.S. employer at all.
A worker with extraordinary ability in the sciences, arts, education, business, or athletics, may qualify for a green card as a priority worker. The person’s achievements must have been publicly recognized, and resulted in a period of sustained national or international acclaim; leading to this category having been nicknamed the "Einstein visa." The application process often involves showing that the foreign national is a widely acknowledged leader in the particular artistic, educational, business, or athletic field.
No job offer is needed in this subcategory so long as the foreign national will continue working in the field of expertise after arriving in the United States. If, however, the worker has received a job offer from a U.S. employer, that employer can help with the EB-1 application by filing the required initial petition with U.S. Citizenship and Immigration Services (USCIS) on Form I-140. This agency seems more willing to place confidence in, and therefore approve, “extraordinary ability” petitions when they’ve been submitted by an employer-sponsor.
If a foreign national has an international reputation for being outstanding in a particular academic field, that person may, with an offer of work from a U.S. employer, qualify for a green card as a priority worker within the outstanding professors and researchers subcategory.
The foreign national will have to show at least three years’ experience at either teaching or research in the relevant academic field.
The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Or, if the position is at a research organization, it must be a permanent position. (Showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year – but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding.)
Not every type of employer can make use of this visa category. It must be a “qualified employer,” meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research.
This subcategory of the EB-1 priority worker category is limited to executives or managers who have been working for a qualified company outside the U.S. for at least one out of the past three years. Or, if the person is already in the U.S. on a temporary visa, it’s possible to qualify based on having been employed as an executive or manager at that company for one of the three years before arrival in the United States.
The foreign national must now be planning to take a managerial or executive position with a U.S. branch, affiliate, or subsidiary of the very same company. The U.S. office will need to show that it has been in business for at least one year. (The prerequisites are similar to those for L-1 intra-company transferee nonimmigrant visas.)
Not only does the foreign national need to meet the various qualification requirements under this subcategory, but the employer, including its foreign and U.S.-based offices, must also meet certain qualifications, including that the two are either:
Care must also be taken to ensure that the job position, both inside and outside of the U.S., is demonstrably “executive” or “managerial.”
A manager, under the immigration laws, is said to be a person who:
All four of the above criteria must be met for the foreign national’s job to be considered managerial. A supervisor below the level of middle management, often called a first-line supervisor, is not normally considered a manager for EB-1 qualifying purposes. However, an exception may be made if the employees being supervised are themselves professionals, with university degrees.
The immigration law’s definition of an executive is someone who:
This is simply a summary of the law, and it’s not always easy to tell what type of job offers, or individual applicants, will successfully qualify in the EB-1 category. For more information, consult with an immigration attorney with specific experience in employment-based green cards.
]]>Typical cases of who qualifies for an EB-2(B) visa might include economists, lawyers, doctors, veterinarians, physicists, market research analysts, geographers, mental health workers, and marriage and family therapists.
The exceptional ability subcategory is easily confused with the employment first preference priority worker subcategory for persons of extraordinary ability, but the requirements are slightly less narrow. (However, people with jobs in education and athletics are left out of this second preference subcategory.)
The main benefit of the EB-2(B) subcategory is that the foreign worker need not have received international acclaim in the field of specialty. Proven sustained national acclaim will meet the required standard. The worker must, however, still be considered significantly more accomplished than the average person in the same profession.
If the EB-2 worker’s presence can be shown to hold benefit for the U.S. in the future, it may be possible to submit an application in this category without first getting a job offer or labor certification, through what’s called a national interest waiver. (Labor certification is a long and complex process described under Procedures to Sponsor a Worker for a Green Card.)
In order to demonstrably “benefit” the U.S., applicants will have to show that their work there will favorably impact the U.S.' economic, employment, educational, housing, environmental, or cultural situation, or some other important aspect of U.S. life.
The impact must be national in scope: A public health researcher at a federal agency or a university might pass, for example, while the same person coming to provide direct services at a community clinic would probably not.
Applicants will also have to show that the field of work has “substantial intrinsic merit”—in other words, that it is worthy in and of itself. In addition, applicants will need to demonstrate that the work will prospectively benefit the U.S. national interest to a substantially greater degree than that of a similarly qualified, available U.S. worker would. (Unfortunately, USCIS often reinterprets this requirement to mean showing that being forced to go through the labor certification process would actually have an adverse impact on the U.S. national interest. A local labor shortage is not considered to be an adverse impact.)
Because the combination of the above criteria is difficult to satisfy, obtaining a national interest waiver is harder than applicants usually expect, and a lawyer’s help is definitely in order.
]]>The main reason for this is that employers generally have little incentive to go through all the time and effort involved in bringing a foreign national to the U.S. on a permanent basis, with a green card, as described in Will Finding a Job in the U.S. Get You a Green Card?
If you’re looking for a stepping stone to an employment-based green card, your best bet is a nonimmigrant visa or status that authorizes employment. One reason for this is obvious: You and your employer can check each other out through a temporary work arrangement before committing to the onerous green card application process.
A less obvious reason arises from the numerical limitations governing the yearly distribution of employment-based green cards. In many if not most cases, even after the approval of a labor certification and the employer’s petition based on that labor certification, the last step of green card processing must wait for a slot to open up under the numerical limitations. (For more information about the process, see Procedures to Sponsoring a Worker for a Green Card.) An employer might be more likely to go through all this with you if you are authorized to work during this waiting time.
Two kinds of limitations apply to employment-based green cards:
The demand for employment-based green cards tends to far exceed the supply in the preference categories covering most jobs. Thus, backlogs often develop, which are worse for workers from some countries because of the historically high demand from those countries. The wait for a green card can take years, then, depending on where you’re from and what kind of work you do; or sometimes there is no wait at all!
Take a look at the U.S. State Department Visa Bulletin, which is published monthly, to get a sense of the waiting times for the various categories of jobs under the numerical limitations. (A preliminary word of caution: The availability of green card slots, as reflected on the Visa Bulletin, can change in sudden, unexpected ways as immigration officials adjust their assessment of the demand in the various categories each month.)
According to the November 2019 Visa Bulletin, for example, someone from the Philippines with an advanced degree coming to the U.S. to perform a job that requires that advanced degree (a “second preference” worker) will not have to wait at all to apply for a green card, whereas an unskilled worker (“other workers”) from the Philippines will have to wait almost two years. And workers from India in most categories have longer to wait than any other worker from anywhere; up to around ten years.
The more you study and follow the Visa Bulletin, the more unexpected patterns you might observe.
Relatively few nonimmigrant categories have been established to authorize employment, and each category authorizes a fairly narrow and specific type of employment. The L-1 visa category, for instance, is for intracompany transferees; R-1 is for religious workers; P-1 is for internationally recognized athletes and entertainers; and O-1 is for “persons of extraordinary ability.”
The E-1 and E-2 categories are defined a little more broadly as to the work they contemplate—supervisory, executive, or specialized knowledge work. Nonetheless, the E-1 and E-2 remain relatively narrow because of specific characteristics the employer itself must demonstrate in order to employ people in the category.
The H-1B category seems fairly broad compared to these other categories, authorizing work in professional occupations requiring at least a bachelor’s degree in a relevant field. The E-3 and TN categories are also for workers in professional occupations, but they are limited to people from certain countries—E-3 to Australians, TN to Canadians and Mexicans.
The H-2A and H-2B categories authorize seasonal work where labor shortages exist, and these categories contemplate unskilled as well as skilled workers—but it is virtually impossible to move from these categories to a green card.
(For complete descriptions of nonimmigrant categories, see Temporary Work Visa Options.)
Basically, your qualifications, the terms of the job offer, and the characteristics of your prospective employer will determine which of these categories, if any, you can use. You will want to study the list and investigate further if any category seems a possibility for you.
Aside from the types of work they authorize, some nonimmigrant categories are easier to use as stepping stones to a green card because Congress has specifically made them easier to use this way: Workers in H-1B or L-1 status, for instance, can extend their status beyond the ordinary limits for continuous stay in those categories if an employer has started the green card process for them.
In order to get a nonimmigrant visa, you typically have to convince the U.S. government that you intend to leave the U.S. at the end of your short stay, rather than staying on permanently. But how do you deal with the apparent conflict if you really do want to stay permanently? For the H-1B and L-1 categories, Congress has explicitly recognized “dual intent”—a rather magical concept by virtue of which you can both mean to stay only temporarily in the U.S. and to live here permanently. Dual intent is a fairly recent adaptation, in recognition of the fact that many people work in a nonimmigrant status while pursuing a green card.
For some other work-authorizing nonimmigrant categories, the law has softened the nonimmigrant intent requirement without quite reaching the outright dual intent recognized for the H-1B and L-1. With reference to E-1, E-2, P-1, and O-1 status, for example, immigration lawyers sometimes talk about “quasi nonimmigrant intent.”
Though this might all sound like abstract philosophical musing, it can affect you. Once you’re in the U.S. on a nonimmigrant visa, you’ll find that practical consequences flow from these properties of work-authorizing nonimmigrant categories, both for your travel and for your maintenance of legal status in the United States. Be aware of the intent issue if you are using a nonimmigrant status to bridge to a green card; and consider consulting an immigration lawyer about the implications.
]]>I am rehiring an employee who worked for our company last summer. Do I need to do a new I-9 for her?
It depends on company policy and on the completion date of the previous I-9.
Employers must make a policy decision: to use Section 3 of the existing I-9 when possible (doing new I-9s only when legally required) or to skip the analysis and simply do new I-9s for all rehires.
You may use Section 3 of the I-9 (instead of doing a new I-9) if you are rehiring the employee within three years of the date that the previous Form I-9 was completed. (Note that, if the employee previously indicated that she was an alien authorized to work for a limited period, and that period has expired, you will also need to see a List A or C document and must record the document information in Section 3; this is known as reverification. If you are using Section 3 to reverify, you must ensure that you are using the most recent version of the Form I-9, which as of early 2014 reflects a revision date of 03/08/13 and an expiration date of 03/31/2016.)
If it has been more than three years since the original I-9 was completed, you must complete a new I-9, treating the employee as a new hire for I-9 purposes.
For employers who do not feel that the analysis above will be consistently followed throughout the organization, a policy of completing new I-9s for all rehires may be desirable.
As explained below, your new employee can work in a situation such as this.
For I-9 purposes, employers are allowed to accept a receipt for an official application to replace a lost, stolen, or damaged document. The receipt only works for 90 days, though. After that, your employee will need to present an original document or documents.
The important rules to remember in this situation are:
*Note that in certain situations, foreign nationals may continue to work for an employer based on an application to extend status. You should confirm that the document is acceptable and confer with your immigration counsel regarding proper I-9 completion prior to accepting a receipt for such a petition.
Attorneys disagree about whether the employee must present the actual replacement document at the end of the 90-day period (or may instead present a different I-9 document). In the situation described above, an employee who did not receive the replacement passport before the end of the 90-day period may wish to present a new driver’s license and Social Security card to the employer.
According to U.S. Citizenship and Immigration Services (USCIS) guidance, the employee should not be allowed to do so. However, many attorneys disagree, citing concerns about discrimination claims. As such, you should speak with an attorney if you face such a situation so that you understand the risks of accepting or not accepting alternative documentation.
USCIS also indicates that the employee may not present another receipt at the end of the 90-day period; the employee is required, at that point, to present an original document. Again, attorneys may disagree about whether employers face more risk by following this guidance or by accepting a second receipt. Speak with an attorney if you face this type of situation and are unclear about how to proceed.
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