Choosing the Best Employment Visa Option: H-1B or U.S. Employment-based Residency

This time every year, our attention turns to the H-1B category. Last year, the H-1B Visa petition process introduced a brand-new initial step: the registration process, which included a $10.00 fee and preceded the lottery selection. This year the process will be no different, and so the deadline for employers to decide whether to complete the registration process is coming up (between March 9 to March 25). If selected after the registration, employers may submit a full-fledged H1B petition to USCIS.

The question many employers will face is what to do if their registration is not selected, or in some cases, if their petition is not approved. One compelling alternative is sponsoring an employment-based residency petition (Green Card) for the employee or prospective employee (referred to as beneficiary). If successful, the beneficiary would become a Lawful Permanent Resident of the U.S. and be allowed to work and live in the U.S. indefinitely and their immediate family (spouse and children) may as well. In general, a residency petition is a 3-step process:

1. The Labor Condition Application (LCA). The LCA is filed with the Department of Labor after the employer completes a series of recruitment steps and obtains a prevailing wage determination (based on the prevailing wage for the type of position in the location where job will be performed). Generally, it takes 9 – 14 months to complete this step. If the LCA is certified, then the employer can move on to the next step;
2. The Form I-140 petition (Immigrant Petition for Alien Worker). The I-140 petition is filed with the Department of Homeland Security (DHS) and requires that the employer not only provide a certified LCA, but also show that it has the ability to pay the salary (as determined by the prevailing wage determination), that the beneficiary is qualified for the job, and that there are no qualified Americans willing and available to perform the job. Generally, it takes 8 – 12 months for DHS to process a Form I-140 petition.
3. Adjustment of Status (I-485) or Consular Processing (DS-260). If the Visa Bulletin lists the Priority Date as current, then the beneficiary can file an I-485, if they are lawfully in the U.S., or form DS-260 if they are outside the U.S. and the I-140 has been approved. An I-485 may be filed even before the I-140 has been approved and it provides the beneficiary with a work permit and a travel permit that can be used in place of their non-immigrant visa.

If successful, the residency petition process has an important advantage: there is no need to file any future petitions on behalf of the beneficiary because they are now a Lawful Permanent Resident. In contrast, the approval of an H-1B petition means the beneficiary has been granted H-1B status for 3 years and the employer must later file another petition if they wish to extend the H-1B status for the beneficiary. With an H-1B visa sponsorship, the employer also has a number of additional obligations if elements of the beneficiary’s job change. It is important to note that an employer may initiate a Permanent Residency petition before, at the same time, or after they have applied for an H-1B visa.

Every business is different and it is important to identify what best suits its needs, including how to retain foreign talent. The experienced team of employment immigration lawyers at FitzGerald Law Company can help to identify whether an H-1B petition, a U.S. residency petition or both make sense for your particular situation

To schedule an appointment with one our Boston employment immigration attorneys please call our office at 617-303-2600 or schedule your appointment online.