iJOBS Seminar: Advice from an Immigration Attorney

By E. Beyza Guven

For international students planning to seek employment in the U.S. after graduation or for postdoctoral researchers, navigating the visa process to obtain work authorization can be an appalling and exhausting experience. While this article does not provide legal advice, its goal is to offer helpful information regarding different types of work visas and permanent residency so you can make a more informed decision when the time comes.

On February 19th, iJOBS invited Michael Goldstein, an attorney and partner at Goldstein and Cheung LLP (New York), specializing in immigration law, to present a seminar on various visa categories available to international students and postdoctoral researchers. He specializes in employment-based immigrant (EB-1 and EB-2) and non-immigrant (O-1 and H-1B) visa petitions in academic, business, and family areas. In addition to his private practice, he provides immigration policy advice and services to students and international scholars at numerous educational institutions, including Rutgers University.

Before we dive into the various visa categories, it’s crucial to grasp the distention between two key immigration terms: visa and status. This understanding will equip you with the necessary knowledge to navigate the complex U.S. immigration system.

• Visa is a travel document or stamp placed in your passport by a U.S. consulate or embassy that allows you to request entry into the United States. For instance, many readers may hold an F-1 or J-1 visa.
• Status, on the other hand, refers to your legal standing while physically in the U.S. It’s determined by the type of visa you used to enter the country or your current activity. You can request a change of status without leaving the U.S., but your visa will not automatically update unless you leave and reapply. For example, if you enter the U.S. on an F-1 visa, you will hold F-1 status while studying. If you later begin working under an H-1B visa, your status will change to H-1B, but your passport may still show an F-1 visa until you travel abroad to obtain the new visa.

In the first part of the presentation, Michael Goldstein focused on the H-1 B Visa process and cost, along with other alternative work visas for students and postdoc researchers.

H-1B Visa Overview:

The H-1B visa is among the most sought-after work visas for foreign professionals. It allows U.S. employers to hire foreign workers in specialty occupations requiring specialized knowledge and at least a bachelor’s degree (or equivalent).

Eligibility:

• Jobs must require specialized knowledge and can be full-time (40+ hrs) or part-time (less than 35 hrs/week).
• Applicants must have a four-year degree or higher (from the U.S. or abroad) in a related field.
• Employer-driven process: The employer files the petition on behalf of the employee—self-petitioning is generally not allowed (unless you are a beneficiary-owner, such as an entrepreneur).
• To work with multiple employers, each must submit its petition.
• USCIS Requirements: Employers must have a legitimate job offer, a legal presence in the U.S. and an IRS tax identification number.

 Cap & Lottery System:

• Annual Cap:
  
  • 65,000 spots under the regular quota. Additional 20,000 spots for applicants with U.S. master’s degrees or higher.
• Lottery System: Due to high demand, a lottery determines who can apply.
• Lottery Process:
  
  • First lottery: For bachelor's degree holders (65,000 spots).
  • Second lottery: For advanced U.S. degree holders (20,000 spots).
  • Advanced degree holders are eligible to enter both lotteries.
• Registration Fee: $215 per applicant.

Cap-Exempt Employers:

Some employers can file H-1B petitions year-round without lottery restrictions:

• U.S. institutions of higher education and their affiliated nonprofits.
• Nonprofit research organizations.
• Government research organizations.

Duration & Portability:

• Initial Validity: 3 years, extendable to 6 years.
• Extensions beyond 6 years: Possible if pursuing green card processing.
• Portability: You can change employers without re-entering the lottery.

Petition Process Overview:

The H-1B visa process begins with the employer filing a Labor Condition Application (LCA) with the Department of Labor. Once the LCA is approved, the employer submits Form I-129 to the United States Citizenship and Immigration Services (USCIS). If the petition is selected in the lottery (if applicable) and subsequently approved, the beneficiary receives an H-1B approval notice (Form I-797). Employment under the H-1B visa typically begins on October 1 of the fiscal year.

Obtaining H-1B Status:

You can obtain H-1B status via:

• Change of Status: While in the U.S. (no consular appointment needed).
• Consular Processing: Apply abroad; you may enter the U.S. up to 10 days before your start date.

You might be asking, “Well, it seems like a straightforward application process. Why are most employers hesitant to provide sponsorship then?”. I kindly suggest you look at the costs below.

H-1B Fees (Employer Responsibility):

Table Source  1; Table Source  2

 Employers are legally required to pay certain fees—they cannot charge the employee. Hence, it is an expensive process for employers.

Alternative Nonimmigrant Work Visas:

If the H-1B doesn’t suit your needs, consider these alternative visas:

Table Source  3; Table Source  4

In the last part of his presentation, Michael Goldstein quickly discussed the Green Card categories. The Green Card (Permanent Resident Card) allows foreign nationals to live and work permanently in the United States. Hence, if you apply for a Green Card, you are expressing an immigrant intent, which is a separate and distinct process from non-immigrant petitions. Michael Goldstein emphasized two of the main Green Card categories: family-based and employment-based.

Green Card Categories:

1. Family-Based Green Cards:

These are for individuals sponsored by family members who are U.S. citizens or lawful permanent residents (LPRs).

Immediate Relatives of U.S. Citizens (no cap):

• Spouses, unmarried children under 21, parents (if the petitioner is 21+).

Family Preference Categories (subject to annual caps):

• F1: Unmarried adult children of U.S. citizens.
• F2A: Spouses/children of lawful permanent residents (LPRs).
• F2B: Unmarried adult children of LPRs.
• F3: Married children of U.S. citizens.
• F4: Siblings of U.S. citizens (petitioner must be 21+).

2. Employment-Based Green Cards (EB Categories):

EB-1: Priority Workers (no sponsor required):

• Extraordinary ability in arts, sciences, business, or athletics.
• Outstanding professors and researchers.
• Multinational executives/managers.

EB-2: Professionals with advanced degrees or exceptional ability (requires a job offer or NIW).

EB-3: Skilled workers and professionals (require PERM labor certification).

Final Thoughts:

Immigration processes can be complex and overwhelming. Your chances of working in the U.S. significantly depend on choosing the right visa category. Michael Goldstein recommends hiring a reputable immigration lawyer to guide you through the process.

🔍 Tips for Choosing an Immigration Lawyer:

1. Member of the American Immigration Lawyers Association (AILA).
2. Specialized in immigration law or a relevant subfield.
3. Prioritizes client confidentiality and builds trust.
4. Offers a fixed legal fee for transparency.

Lastly, don’t hesitate to seek information from your international student office, foreign student advisor, or reliable sources like Rutgers Global and the USCIS website. This article aims to be a helpful starting pointfor your visa journey—best of luck! 🌟

This article was edited by Junior Editor Janaina Cruz Pereira and Senior Editor Joycelyn Radeny.