Immigrating as a Foreign Worker (Part II) Working While Waiting for Your Priority Date

By: Aurora Vega-Buzon, Esq.

Foreign professionals wishing to immigrate to the US (as permanent residents) may do so under 3 general classifications:

1. 1st Preference (EB1) extraordinary ability foreign professionals; outstanding researchers and professors; and multinational executives and managers known as "priority workers"
2. 2nd Preference (EB2) foreign professionals with advanced degrees and professionals of exceptional ability in the sciences, business or arts
3. 3rd Preference (EB3) foreign professionals (those with BS or BA degrees) and skilled workers (including nurses)
Except for EB1, all workers need to go through a labor certification process which is now being done under what we call PERM (Program Electronic Review Management). Our previous articles have discussed labor certification/PERM, the procedures and processing time. In a nutshell, the labor certification/PERM is a process where the Department of Labor certifies there is a shortage in the foreign professional's intended area of employment or there is no US worker who is able, qualified or willing to perform the proposed employment; and the foreign worker's proposed employment will not displace a US worker and/or will not negatively impact the labor market.

The date of filing the labor certification/PERM application is the priority date for the sponsored foreign professional. The "priority date" determines when the foreign professional will get an immigrant visa at the U.S. Consulate of the country of his citizenship. If the foreign professional is already in the US, the priority date determines when he can file for his green card through an "adjustment of status" application. Eligibility for adjustment is normally based on maintaining lawful status. Thus, a foreign professional whose stay has expired (whether as tourist, student, H-1B worker, J-1) is NOT ELIGIBLE to adjust unless a prior petition (whether by a family member or a US employer) was filed for the foreign professional either before January 14, 1988 or April 30, 2001. As of September 2010, the priority dates for employment-based categories (including other workers like caregivers, cooks, housekeepers, etc.) are:
Employment- Based All Chargeability Areas Except Those Listed CHINA - mainland born DOMINICAN REPUBLIC INDIA MEXICO


1st C C C C C C
2nd C 08MAY06 C 08MAY06 C C
3rd 15DEC04 22OCT03 15DEC04 01JAN02 U 15DEC04
Other Workers 22MAR03 22MAR03 22MAR03 01JAN02 U 22MAR03

Most foreign professionals immigrate under the EB-3 category, and if they are already in the US, they need to maintain lawful status while waiting for their priority date. Normal wait time for an EB-3 visa is 6 years. There are non-immigrant visas available that allow a foreign professional not only to remain in the US, but also to work; while waiting for his priority date that allows him to file for adjustment/green card application.

H & L Visas

Before or at the same time that a labor certification application is being processed, the foreign professional can be sponsored by a US employer through a petition for a non-immigrant worker under the following visa categories: H-1B visas are given to foreign professional workers of exceptional skill and merit and there is a US company that requires the services of such a highly skilled worker. 65,000 H-1B visas are given out every October 1st of each year worldwide, but filing starts as early as April 1st every year. Once the H-1B petition is approved, the foreign professional can apply for an initial 3-year H-1B visa in his home country, or change his status if he's already in the US, renewable for another 3 years for a total of 6 years. L-1A visas are available to executives and managers of a "multinational company" - an international company with offices in both a home country and the U.S., or which intends to open a new office in the U.S. while maintaining its home country interests. The visa allows such executive or managerial workers to relocate to the corporation's US office after having worked with the related foreign company abroad, for a continuous period of at least 1 year within the 3 years before the filing of the L-1A application. L-1A visas are valid for an initial period of 3 years with 2 year extensions but with a total maximum period of 7 years. L-1B visas are available to specialized knowledge employees of a "multinational company. The visa allows such specialized knowledge workers to relocate to the corporation's US office after having worked abroad for the company for at least 1 year prior to being granted L-1B status. L-1B visas are valid for an initial period of 3 years with 2 year extension, with a total 5 years maximum stay. E Visa A foreign professional can also apply for an E-2 visa available for investors who substantially invests in a new or ongoing business in the US. "Substantial investment" is at least $100,000 or more. To qualify as an E-2 investor, the foreign professional (or any investor) must "develop and direct" an investment enterprise, under and pursuant to a treaty of commerce and navigation between the U.S. and the foreign state of which he is a national. The sole purpose is to "develop and direct" the operations of an enterprise in which the foreign professional/investor must have or in the process of investing a "substantial amount of capital". which should be over 50% ownership of the enterprise. For small or newly created enterprises, ownership should be 75-100%. There is no limit of stay for an E-2 investor as long as the business is ongoing. Spouses and Minor Children of H, L or E The spouse and/or minor children of an H, L or E visa holder can accompany the foreign professional as dependents and enter the U.S. either on H4, L2 or E2 visas for the duration of the visas of the principal H, L or E holder. H4 spouses or children cannot work in the US. L2 spouses can work with USCIS authorization, but not L2 children. E-2 spouses can also work in the US with USCIS authorization but E-2 children are not allowed to work with their E-2 classification. Any violation of status by a dependent spouse or child of an H, L or E may render such dependents ineligible to file for adjustment/green card application.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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