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.

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.