H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE

H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE.

It took only five days for the yearly visa quota for the H1b professional visa to be used up this week. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2020.

So what are your options if you or your employee have submitted your H-1b application in time?  What if you are not eligible for an H-1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H-1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, San Rafael, Ukiah, Napa, Walnut Creek, San Jose, Sacramento and Los Angeles.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by “Super Lawyers” www.SuperLawyers.com.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Can winery workers get a visa ?

By Christopher Kerosky, Esq.

This article was published in this month’s Immigration Stories column in the  Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-can-winery-workers-get-a-visa-february-2019

All of us see the workers in the fields tending the vineyards throughout the year as we drive our beautiful Sonoma County roads.  You may wonder: can a person working in those fields get a green card by way of their job at the winery? The answer might surprise you.

Yes, if you are a winemaker.

The federal government has a special visa for temporary foreign professionals hired by a U.S. employer, known as the H-1b.   The H-1B visa is frequently used to hire IT professionals in Silicon Valley or elsewhere; it also works for winemakers (and their assistant winemakers). 

The application period for the H-1b visa starts on April 1^st.  Because there is a limited annual quota (65,000) of H-1 visas for the entire country and because there is high demand for these visas, the allotment of these visas has been used up  immediately after April 1^st for the last 5 years.  Last year, over 200,000 people applied in the first few days of April.  The government has to hold a lottery every year to decide which 65,000 envelopes they were going to open; the other 135,000 applications were sent back. 

Even for the highly-paid and highly educated, the visa system is basically broken.

Employment at a winery can be a basis for permanent residence for enologists, if they prove that no qualified American wants that job.  There is a complicated process known as PERM, whereby the winery must advertise and recruit for the position and prove to the government that no qualified U.S. citizen responded to the job opportunity.  An H-1b visa can allow a winemaking professional to stay and work legally in this country while they apply for a green card. 

But persons are eligible for an H-1b only for "specialty occupations”.  Generally speaking, that means jobs requiring a college degree.  No degree, no H-1b visa.

Maybe, if you’re an intern or trainee.

There are certain internship opportunities for foreign workers.  The requirements are fairly stringent but if a winery offers training to a college graduate or a current student studying winemaking, the foreign national may be eligible for what is known as a J-1 visas.

The J-1 internship or trainee visa application must be filed by an employer with an approved training program in winemaking or related skills.  The visas are typically valid for 6-18 months only.  An independent agency – paid by the applicant-- checks to make sure the training program is legitimate and processes the paperwork. 

The visa is not available for what the government considers “unskilled workers” and persons here without documents are ineligible.

No, if you are a field worker.

What about all the other winery workers like those who tend the vineyards or pick the grapes?  In short, no path to a green card exists for them and temporary visas are extremely limited.

There are some field workers who can qualify for an agricultural worker visa known as an H-2a.  But these visas are granted to groups of workers after an employer has shown that there is shortage of farm workers available in their geographic area.  There is a rather long, cumbersome process to apply for the visa, involving proving a labor shortage in a procedure with the U.S. Department of Labor.  If eligibility is shown, the worker is granted a visa for one year, and the employer must renew the visa every year by showing a continuing labor need.

Most importantly, those farm workers who are already here illegally need not apply.  They are not eligible. 

Frequently in my work as an immigration lawyer, I have to inform willing employers of this little-known fact about our immigration laws: there simply is no way for an undocumented worker to obtain legal status through employment.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

O VISAS

FOR ARTISTS, ATHLETES, ENTERTAINERS AND OTHERS

The “O” category of visas is a special category for highly talented or nationally or internationally acclaimed foreign nationals who may not qualify for other types of work-related visas.  This category is often used by artists, athletes, entertainers, skilled high-end chefs, and business professionals who lack professional degrees.

The O category can be a useful alternative to the H-1B program because it lacks many of the restrictive features and has no cap. This article will give a general introduction to O visas. 

Who qualifies for an O visa?          

The O category is not for everyone.  O-1 beneficiaries in the sciences, arts, education, business, or athletics must demonstrate extraordinary ability, as shown by “sustained national or international acclaim.” This is a high standard where business persons, scientists, educators, and athletes are concerned. But “extraordinary ability” is a much lower standard as applied to artists and entertainers.  You must also show that you are coming to the U.S. to continue working in your area of extraordinary ability.

What achievements show extraordinary ability?

Individuals applying based on achievements in the sciences, arts, education, business, or athletics must show “a level of expertise indicating that the person is one of the small percentage who have arisen [sic] to the very top of the field of endeavor.”  This means showing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize,” or documentation of at least three achievements, such as:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts; or
• Published material in professional or major trade publications or major media about the alien.

For those in the arts, “extraordinary ability” means “distinction, which means “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”  The arts are broadly defined to include “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.”  These applicants must show either that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award,” or meet at least three additional criteria, including performances in a critical production; national or international recognition for achievements; and/or demonstrating a record of major commercial or critically acclaimed success.

How long can I stay on an O visa?

There is no limit on the amount of time you can stay on an O visa, except that the stay is authorized for the period of the “event” that is the basis for the trip.  CIS will grant O visas initially for an initial period of up to three years to complete the event or activity in question.  Extensions are then available for one year at a time.

Can I get a green card?

It is possible to apply for permanent residence through another channel without risking losing O-1 status. However, O-2 holders can only come to the United States temporarily and must maintain a residence abroad they do not intend to abandon.

How do I apply?

A U.S. employer or U.S. agent must petition for the foreign worker. The foreign worker must provide extensive documentation of her accomplishments. Also, a consultation from a labor union is required before an O petition may be adjudicated if a union has a collective bargaining agreement in the field that the O petitioner seeks to work in.

Can I bring my family with me?

O-1 visa holders can bring their spouse and children through the O-3 category.  In addition, the O-2 category is for certain aliens accompanying O-1 aliens in the arts or athletics who will assist in the O-1’s performance.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

IT’S TIME TO BEGIN PREPARING YOUR H-1B VISA APPLICATIONS

By Christopher A. Kerosky, Esq.

The H-1B visa is a very commonly used visa for foreign national professionals hired by a U.S. employer – covering everyone from IT professionals to winemakers. 

Under current law, no more than 65,000 H-1B visas can be issued each year.  This quota has been used up in the first week of the application process for each of the last 5 years.  So, in truth, applications are due on April 1^st and it’s time to consider your plans and get any H-1B applications ready soon so that they won’t be submitted too late.

What is an H-1B visa?

H-1Bs can be hired only for what the government calls "specialty occupations," -- jobs requiring the equivalent of at least a bachelor's degree in the field.  

This is a visa commonly used for IT professionals of all types – computer programmers, engineers, computer assisted design professionals.  It also includes all variations of other professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists and a host of other jobs.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

Employers must also pay a wage to every H-1B worker the “prevailing wage”, that is at least as much as what is typically paid in the region for that type of work   Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

The H-1B visa is issued for 3 years, but can be extended up to 6 years.  Presently, the processing of such visas takes between 4-6 months. 

What is required to obtain an H1B visa?

An H-1B visa requires that the job qualify as a “specialized occupation” which requires a bachelor’s degree.  The applicant must also have a bachelor’s degree in the same or similar field or its equivalent.

Am I eligible for an H-1B visa?

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

What can I do on H-1B visa?

·       May legally work in the U.S.

·       Travel to and from the U.S. and reenter as many times as you wish during the validity period of the H-1B visa, as long as you have a valid stamp in your passport.

·       H-1B visa holders may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family.

What are the limitations of H-1B visa?

·       If you change jobs you must reapply for a new visa, under the new position

·       You can only work for the company with petitioned for you.

Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children are entitled to a H-4 visa and they can stay as long as you maintain valid H-1B status..

How long can I stay in the U.S. on an H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended, up to six years total.

Can I transfer my H-1B visa to another company?

Yes, but a new petition must be filed by the company.

What if there is a change in my working conditions while I'm on  H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new visa application before you start work.

Is there an annual quota on the number of H-1B visas issued?

Yes. The current annual quota on the H-1B category is 65,000 for each Fiscal Year.

Is everyone covered by the annual quota for H-1B visas?

There are certain exceptions to the annual cap:

• Persons who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

• Also, there is a special allocation of H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap for each year.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.