How to persuade your employers to sponsor H1B for you?

Hi all,

I received calls from students asking about how to talk to boss about H1-B too. I advise four characters: K.I.S.S.

For those who don't know this American Slang yet, they are short for Keep It Simple (Otherwise) Stupid.

I was a boss in US for years. I worked with bosses as a professionals. I testify to you that bosses were not born yesterday. No matter what you are about to say, they know it. I assure you.

So what you need to say to him? Simple, two things.

1) I love this job. I am grateful for this opportunity you gave me. I am confident I can contribute a lot to this company (Prepare a little details about the base)

2) I will be grateful if the company may sponsor me H1B so that I can accomplish what is laid out for me and my team. As far as the procedure about H1B, I can retain a lawyer to take care of everything.

It is important to remember, like all negotiation in life, it is important to make small. compromise to achieve your goal. In this case, don't be shy to pick up lawyer's tab.  Look at the big picture. Don't be short sighted.

Trust me, if you put your eyes on the ball like I said, you will persuade almost everybody.

For more questions and consultation on immigration matters, please feel free to contact this firm at 954 892 5517.

Linda Liang
Attorney At Law
8201 Peters Road Suite 1000
Plantation Fl 33324

Maintaining Permanent Residence

Many people ask us whether they can stay in their own country (to make money) even after they get a green card. Of course, they come with a lot of hearsay too. Different people have different answers to them. 

Here is the standard explanation because this is what the law says: You may be considered having abandoned your green card and thus your green card will be forfeited at the entry of port if: 

1. Move to another country intending to live there permanently
2. Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year
3. Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year
4. Fail to file income tax returns while living outside of the United States for any period
5. Declare yourself a “nonimmigrant” on your tax returns

Permanent resident is eligible to apply for US citizenship if, among meeting other requirements, he or she may establish that he or she has continuously stayed in US for 5 years or 3 years (if having obtained green card through marriage). Exception exists when he or she may establish the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence.
  

H1B For Entrepreneurs

The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. August 2, 2011, USCIS outlined series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs in the United States.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS clarified that immigrant entrepreneurs may obtain an employment-based second preference (EB-2)  immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States; They also clarified when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

As far as what factors does USCIS consider when evaluating the employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  No one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

EB1: Extraordinary Ability

You may be eligible for an employment-based, first-preference visa if you have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Each occupational category has certain requirements that must be met. We talk about extraordinary ability category in this blog only. 

The alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, may petition for green card without an employer. 

USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability.  Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor.

The regulation provides that a petition for an alien of extraordinary ability must be 

accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise.  Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).

In adjudicating the petition, USCIS officers are required to evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description applicable to that type of evidence (referred to as “regulatory criteria”). USCIS officers are then required to  evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.
  

This firm offers initial consultation to evaluate your situation to determine whether EB1 based on extraordinary ability is the best immigration strategy for you and whether you have other options, such as NIW. You are encouraged to work with experienced immigration lawyers like us to obtain green card through self-petitioning. 

National Interest Waiver

National Interest Waiver is a waiver based on national interest. But waiver of what? We have the answers as follows: 

Generally speaking, immigrant visa shall be made available to qualified immigrants if the employer obtain labor certification from department of labor. Yet, the Attorney General may, when he deems it to be in the national interest, waive the requirement. 

Neither the statute nor Service regulations define the term “national interest.”  Supplementary information to Service regulations implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: “The Service believes it appropriate to leave the application of this test as flexible as possible, The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits.”

RFEs reveal that an alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification; General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue; A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.

Because of the complexity and high standards involved with an NIW petition, we strongly recommend that you to seek assistance from experienced NIW immigration attorneys, which is the key to your success, especially under current immigration conditions.

H1B

H1B is the most popular non-immigrant visa aliens in US seek after. It leads to green card in a few years as described below. 

If an individual can find a job that requires Bachelor’s or higher degree, and this individual holds a bachelor’s degree or its equivalent, the prospect employer may petition H1B for the prospect employee. The prospect employer must agree to pay the individual prevailing wage (higher salary than average for similar position. Amount varies with the position)

In addition, as an approach to “Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth”,  USCIS clarifies in one of its recent memo that  a sole employee-entrepreneur can be qualified for H-1B non-immigrant visa as long as it can establish a valid employer-employee relationship.

With this being said, an individual may obtain H1B through open up a new company in US. Even if the company is only one man show. The individual may pay himself prevailing wage and withhold taxes as he is the only employee. H1B will be valid for 3 years and can be extended to another 3 years. An individual could be in US holding H1B for 6 years in total.

Divorce During Immigration Process

Thanks to fast-food style online dating, many cross-border marriages end in a hurry as how they start. Many aliens are devastated when their marriage hit the rock. Can they continue to stay in US?

The answer is, as usual, depends. 

If divorce happens shortly after conditioned green card is granted, generally speaking,  divorce terminates conditioned green card. However, depends on circumstances, the alien could obtain a waiver of termination. 

If divorce takes effect after the alien obtains permanent residence unconditionally,  the only effect divorce may have on the alien is that it may delay the alien in obtaining citizenship. If a permanent resident is married to a U.S. citizen, he has a three year residency requirement for U.S. citizenship if the marriage is still in effect at the time of exam, if not, he will then have to wait until he has been a permanent resident for five years before he is eligible to apply for U.S. citizenship.

What if the divorce happens before AOS is filed? Aliens who can prove as battered spouse may self-petition. Battered spouses are those who are abused verbally and physically in marriage. Proving such is not an easy work. A lawyer’s professional assistance is strongly recommended.