You’ve got questions; we’ve got answers. Click on the FAQs below for fast facts about immigration law.
1Change of Address
Non-U.S. citizens are required to report a change of address within 10 days of moving within the United States or its territories. Click here to report your recent address change.
2H-1B Change of Employer or Portability Petitions
What is the change of employer or portability rule?
Individuals already holding H-1B status for one employer may request to “port” their H-1B status to another company under current regulations. In order to be eligible for the portability benefit, the new sponsoring employer must first file an H-1B change of employer petition with USCIS. Once the petition pendency is confirmed by USCIS’ issuance of a receipt notice, the new H-1B employer may proceed with on-boarding the employee rather than waiting for petition approval. The portability benefit based upon the receipt notice will continue indefinitely until the petition is adjudicated. In the event of a petition denial, the receipt rule no longer applies and employment authorization based upon the portability benefit would cease.
How long does it take for USCIS to issue a receipt notice?
Typically, receipt notices are issued within 3 to 5 days of filing the petition. However, there are at times exceptions where generation of receipts takes longer.
I was laid off by my prior employer before my new employer was able to file the H-1B change of employer petition to USCIS. Will this impact my eligibility for H-1B portability?
Eligibility for the H-1B portability benefit may be impacted, even though the layoff was at no fault of your own. The regulations require that the beneficiary of the H-1B portability petition be maintaining H-1B status at the time the new petition is filed with USCIS (i.e., maintaining his or her H-1B employment). If you have been laid off, you are no longer maintaining status and this could impact the likelihood of petition approval.
In instances such as these, we will disclose the unique factors surrounding your layoff to the USCIS and request their exercise of adjudicatory discretion to essentially set aside your failure to maintain status. If the USCIS declines to exercise its discretion but the petition is otherwise approvable, the petition approval will likely be issued for consular notification. A consular notification approval would require your departure from the U.S. and re-entry in H-1B status.
3I-94 Arrival/Departure Records
Entries of nonimmigrants to the United States arriving through air or sea ports-of-entry are recorded by U.S. Customs and Border Protection (CBP) automatically from electronic travel records. Upon arrival to the United States, a CBP officer will stamp the travel document of each arriving nonimmigrant with the admission date, the class of admission, and the date that the traveler is admitted until. Such travelers should click here to obtain proof of their authorized status. Following each U.S. entry, please ensure to promptly forward Mehlman Barnes LLP your new admission stamp and electronic I-94 record to ensure you were admitted properly and to record your status expiration.
Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.
4PERM Labor Certification
In order to start the green card process, I have been told that I need to first obtain a PERM labor certification. What is this?
As a general matter, in order for a nonimmigrant worker to be able to obtain a green card through employment, it must be demonstrated to the U.S. Department of Labor that the permanent hiring of the foreign national worker will not displace U.S. workers. Towards this end, the PERM labor certification application is the employer’s means to request certification from the Department of Labor that U.S. workers will not be displaced. As part of this process, the employer is required to conduct a labor market test by actively recruiting for the position and completing various pre-filing steps prior to submitting the application. If the application is approvable, the Department of Labor will issue a “certification” that the employer has met its burden of proof in the labor market test conducted. The certification serves as the basis for the next step in the green card process, which is the I-140 Immigrant Petition.
How long will it take to prepare the PERM Labor Certification and file the application with the U.S. Department of Labor?
The U.S. Department of Labor regulations set forth specific timing requirements that must be satisfied during the course of the labor market test. In most instances, a PERM labor certification takes 4 to 6 months to prepare and file given the regulatory timing requirements. However, this estimation can be extended greatly due to a variety of factors that could arise during the course of preparing the application. There are many pre-recruiting steps that are dependent upon coordination with management, HR, the beneficiary employee, and with the government before the recruitment process may begin. Additionally, there are post-recruitment circumstances that could come into play and impact timelines such as the results of the labor market test.
Why are the minimum requirements for my job used in the labor market test when I possess very unique credentials which set me apart from most others in my industry?
The U.S. Department of Labor’s role in the PERM labor certification process is to protect the U.S. labor market. Therefore, the regulations strictly require that U.S. employers use the job requirements that are minimally necessary for any worker to function in the position offered as this allows U.S. workers ample opportunity to potentially qualify for the position.
What if my employer finds a qualified U.S. worker in the course of conducting the labor market test?
The U.S. Department of Labor regulations prohibit an employer from filing a PERM application where an able, willing, qualified and available U.S. worker is identified during the course of the labor market test. Therefore, the employer may not file the application if such an individual is found.
If I change jobs or employers, is my PERM still valid?
Labor certifications are specific to the employer, the position and the location of employment. In most instances a change in your employer, position, or location of employment will necessitate a new PERM labor certification to support your green card processing. However, this is a general rule and an independent legal analysis needs to be conducted of every such change as there are some exceptions which do rarely apply.
5Visa Stamps and Travel Documents
If you are a nonimmigrant present in the United States, unless you are Canadian you will require a nonimmigrant visa to facilitate United States re-entry following any travel abroad. Visa stamps must be applied for at U.S. Embassies or Consular posts, there is no state-side processing available. As a general matter, first instance visa stamps must be issued in the home country. Visa renewals may typically be applied for in the home country or in a third country.
If your nonimmigrant status was authorized pursuant to a petition based process (H, L, O, P, Q), as a general matter visa stamping requirements include:
- DS-160 Nonimmigrant Visa Application;
- Payment of visa fees and reciprocity fee (if applicable);
- Original I-797A Approval Notice issued by USCIS;
- Complete copy of underlying petition filed with USICS by the employer;
- Valid Passport (generally, a validity of at least 6 months remaining);
- Copies of recent pay-stubs if currently employed and verification of employment letter to prove maintenance of status.