How businesses approach legal immigration can determine whether or not they are able to hire key people to fill vital roles. Business plans for immigration can be immensely beneficial. Some questions to consider are whether or not there are policies in place, is there a standard or is each case addressed on an individual basis?
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For most work visa petitions, there is a petitioner and a beneficiary. Such visas include the H1-B, O, P and L visas in addition to the employment-based green cards. In most cases, the petitioner will be the company. There is an exception for some O, P and EB1 visas where agent-based petitions can be used. In some cases, an individual can be a self-petitioner, but it still requires the person to work with a company or agency.
Companies look at immigration challenges from a business perspective and employees from a personal one. But in either case, we, as immigration attorneys, can represent both. This means that if a company wants to get an H1-B for someone, then we also work with that person. We present the case for both the employer and the employee. Conversely, if the employee wants to get an H1-B, then we work with the employer to petition for them.
It’s no secret that getting a U.S. visa has become more difficult. Thus, a good strategy has become an essential component of immigration cases. In the last two years, we have developed a method that helps companies analyze the strategies and processes they use to hire somebody from another country.
There is a cap of 65,000 for regular H1-B visas and another 20,000 for advanced degree professionals from U.S. universities. That is 85,000 in total. The H1-B visa becomes effective on the first day of the fiscal year, which is October 1. Immigration regulations allow people to apply for any visa six months prior. So, April 1 becomes this date for H1-B petitions. The rules state that the H1-B visa application period must stay open for at least five days. All 85,000 of the available slots fill up in those first five days for the fiscal year that starts six months later.
Getting through the lottery and then getting the case approved are the main obstacles that companies face when trying to hire someone on an H1-B. In the event the petition is not selected or approved, visa strategy becomes critical for companies seeking to hire somebody six months in advance.
What we do is go through different visa options with the company. For example:
In other cases, companies want to bring in students under the Optional Practical Training (OPT) or Curricular Practical Training (CPT) programs. All regulations must be strictly followed in these types of cases.
More businesses have had H1-B visa petitions denied because the OPT or CPT was filed incorrectly. If there is any mistake along the path, USCIS can come back and deny the petition later. USCIS may also determine that the person has been out of status for a long time, and then that person becomes immediately deportable.
We’ve seen a couple of cases, not the ones we worked on, but people who came to us later that had worked on OPT, gotten an excellent job, got through the lottery, and were in the process of getting their H1-B approved when they were suddenly put out of status for having worked improperly under their OPTs. In some cases, they were marked out of status for such a long period of time that they had to be deported.
People can suddenly be put out of status for very long periods of time because “unlawful presence” begins to accrue at the time of the violation instead of accruing when there is a formal finding of a violation.
In the last several years, immigration has started to analyze the evidence to make the visa process more difficult. Some immigration attorneys just take whatever evidence is given to them, put it in the petition and hope for the best.
We have a very holistic approach. We look at all the documents, i.e., offer letters, contracts, business plans, etc., to see if there is something in there that is going to be a “gotcha” for immigration officials. We also write 30-page briefs where we identify and justify issues.
We identify the good things about the company as well. For example, a startup in Silicon Valley may have a small number of employees and may not even be profitable yet, but there is a lot of good press about them. Maybe the company has won some awards, turned some heads, and has some buzz. We’ll add that in there.
In a case where we may have a company that’s doing in-house projects for H1-B visas, we’ll use some techniques that immigration likes for the L visa. We take photographs of the facility to show that real people are working at this place.
We take another look at all of the documents to suggest some language for immigration, such as the right to control and to cite corresponding evidence of the day-to-day organizational document.
The letter that says what you’re going to do needs to interpret the actual evidence instead of just stating what the business/employee is going to do. What we often do for our corporate clients is talking through a case. We look at the evidence and determine whether a potential employee’s petition will get approved. We also advise on what the company needs to do for it to work before we get involved.
About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., a revolutionary Immigration platform and global Immigration network. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at firstname.lastname@example.org or 405-310-4333 office or 405-821-5959 mobile.