FAQs
We often receive questions regarding whether or not it is possible to bring family members to the United States with an H-1B visa. Fortunately, it is possible for an individual’s family to accompany them to…
We often receive questions regarding whether or not it is possible to bring family members to the United States with an H-1B visa. Fortunately, it is possible for an individual’s family to accompany them to the United States if they hold an H-1B visa! Immigration law only provides for certain immediate family members, however. Specifically, H-1B visa holders are able to bring their spouse and children (unmarried and 21 years of age or younger) to the United States with them. Married children, parents, siblings, and other family members may not travel to the United States with the employee under this visa category. Those other family members must pursue their own visa, such as a B-2 visitor visa.
The spouse and unmarried children (21 years of age and younger) of an H-1B visa holder may travel with them as H-4 dependents or, alternatively, may pursue their own employment-based visa. The children of H-1B visa holders may attend school in the United States. It’s important to note that H-4 status for children will expire when they reach the age of 21 or when they get married. Moreover, H-4 status is contingent on the validity of the H-1B employee. This means that if the H-1B employee’s visa is no longer valid, neither is the H-4 status of their family members.
To apply for an H-4 visa while outside of the United States, Form DS-160 is required. This form is an online application used to obtain nonimmigrant visas to the United States. The visa holder’s family members will be required to supply details about their passports and travel itinerary, any previous travel to the United States, and basic personal information. There is a $160 filing fee for the DS-160. After filing Form DS-160, the family members will be required to attend a visa interview at the appropriate United States embassy or consulate. During this interview, they can anticipate being asked questions about their relationship with the visa holder as well as their proposed activities in the United States. The interview and application will be used to determine whether a person is eligible for an H-4 visa.
To apply for an H-4 visa while inside the United States, a family member may file a change of status form. Change of status must be applied for before their current visa status expires. It is recommended to apply for a change of status at least 45 days and up to six months before the expiration date to allow for adequate processing time.
Can an H-1B Visa Holder’s Spouse Work if They Hold an H-1B Visa?
It is possible for an H-1B visa holder’s spouse to work if they hold an H-1B visa. If the spouse is an H-4 dependent, they may apply for employment authorization. For an H-4 dependent spouse to work in the United States, they must have an Employment Authorization Document (EAD). To request an EAD, you must first complete and submit Form I-765, Application for Employment Authorization. This application should be submitted while inside the United States.
Additional evidence is requested alongside Form I-765. This evidence will include confirmation of the H-1B visa holder’s current visa as well their spouse’s current H-4 status. It is also necessary to pay the filing fee of $410. It takes approximately 90 to 180 days to process Form I-765 and there is currently no option to expedite the H-4 EAD process via Premium Processing.
Importantly, their spouse is not allowed to work until they have obtained their Employment Authorization Document. Once they have secured their EAD, they may begin looking for employment in the United States. Their EAD work permit will be valid for as long as the H-1B visa is valid. There is an option to extend the spouse’s work permit if the H-1B visa holder files for an extension of their visa.
Connect with an Experienced H-1B Visa Lawyer at Founder Law Today
Pursuing employment in the United States under the H-1B visa is an exciting opportunity for many individuals and their families. Between navigating the H-1B visa lottery and the application process, however, obtaining legal immigration status for H-1B family members can become overwhelming. At Founder Law, we work closely with H-1B visa holders and their loved ones to secure H-4 status as well as other employment-based visa classifications based on their independent work. With offices in Mountain View, CA, and New York, NY, we offer comprehensive immigration services to individuals located across the United States and abroad. To learn more about how we can help, consider contacting us at +1(855) 546-0015 today.
The H-1B visa is initially valid for a period of three years and can be extended for an additional three years thereafter. To be granted an extension, the United States employer must file a new…
The H-1B visa is initially valid for a period of three years and can be extended for an additional three years thereafter. To be granted an extension, the United States employer must file a new Form I-129 and pay the relevant filing fees. Fortunately, the annual cap on H-1B visas does not come into play in these cases. Extensions are already accounted for in the annual cap. This means that there is no need to register in the H-1B visa lottery again to obtain an extension of this visa.
Generally, an H-1B employee is allowed to remain in the United States for a cumulative maximum of 6 years. Once the 6-year maximum has been met, the employee must exit the United States and remain abroad for one uninterrupted year before they may apply for a new H-1B visa. Once the one-year requirement has been met, the employee and their employer may reapply for the H-1B visa. To reapply, the employee must register for the H-1B visa lottery again.
Under circumstances, H-1B status can be extended beyond the 6-year limit. According to Sections 104 and 106 of the American Competitiveness in the 21st Century Act, one may obtain an extension past the 6-year limitation in the following cases:
- One year (or more) has passed since any Labor Certification has been filed to secure status for the employee, or;
- One year (or more) has passed since the filing of the I-140 immigrant petition, or;
- The employee has had their immigration petition approved but cannot file to adjust their status to permanent residence due to the unavailability of green cards.
The rules and regulations surrounding H-1B visa extensions are complex and it can be helpful to speak with an experienced immigration attorney at Founder Law to ensure that you remain in good legal standing during this process.
What Is the 240-Day Rule?
Individuals who qualify for an extension under these provisions may also benefit from the 240-day rule. As long as the employer files a new petition for the extension of your H-1B visa, the employee may continue to work for an additional 240 days beyond their current visa status. This is referred to as the 240-day rule. Their continued employment is still governed by the same limitations on their original H-1B visa and only comes into play when their extension application is pending. It is important to note that international travel is not advised when the 240-day rule is in effect. Traveling abroad may force the employee to remain outside of the United States until the extension has been approved.
Can I Transition from an H-1B Visa to a Green Card?
Yes, it is possible to transition from an H-1B visa to a green card in certain circumstances. While the majority of temporary, nonimmigrant visas do not provide a path to permanent residence in the United States. The H-1B visa, on the other hand, is considered a “dual intent” visa. This means that foreign professionals who hold an H-1B visa may be temporarily present in the United States with the intent of becoming permanent residents down the line. This is a major advantage of the H-1B visa and allows a valuable opportunity for H-1B visa holders and their families to obtain a green card in the United States.
H-1B visa holders typically apply for an employment-based green card. There is an extensive application process to change an individual’s visa status from H-1B to a green card. Depending on the green card category that they are applying for, the applicant may need an employer to sponsor their petition. Their United States employer will file a Form I-140 petition on their behalf, as well as a PERM Labor Certification. Once the petition has been approved, the applicant may then file Form I-485, Application for Adjustment of Status. If the process is successful, the applicant and their family may live and work in the United States on a permanent basis.
Consider Contacting Founder Law Today
At Founder Law, we work closely with startups, companies, H-1B visa holders, and their families to extend their visa status and transition from the H-1B visa to a green card. Through our proven approach, we have helped numerous individuals and their employers navigate the United States immigration system as efficiently and expeditiously as possible. With offices in Mountain View, CA, and New York, NY we have the experience, resources, and connections necessary to achieve successful results for your case. To learn more about how we can help, consider connecting with an experienced H-1B visa attorney at +1(855) 546-0015 today.
The H-1B visa is a highly sought-after visa classification for foreign professionals who wish to work in the United States. In 2022, 87,500 individuals were selected to apply for an H-1B visa out of the…
The H-1B visa is a highly sought-after visa classification for foreign professionals who wish to work in the United States. In 2022, 87,500 individuals were selected to apply for an H-1B visa out of the 308,000 people who registered for the H-1B lottery. Due to the fact that demand exceeds the number of available visas, H-1B hopefuls are required to register for the H-1B lottery in order to be considered. This is a necessary step for anyone who wishes to apply for an H-1B visa in a given year.
Through the lottery system, prospective applicants are required to register with the United States Citizenship and Immigration Services (USCIS) using the Electronic Registration Process. Only basic information is required on the registration form, including general details about the foreign professional and their United States employer. Registration is open for a minimum of fourteen calendar days. For 2023, for example, prospective H-1B applicants may register to start on March 1, 2023, and end on March 17, 2023.
Once the registration window is closed, the USCIS will carry out the lottery. Individuals from the registration pool are selected at random until the cap, or limit, is reached. It is important to note that lottery selections are determined at random. Individuals are not selected based on when they registered nor is there any objective assessment of merit to determine who gets through the lottery.
Only those selected in the H-1B lottery will be able to apply for a visa. Individuals who are not selected must wait until the following year to register again for the lottery. Moreover, being selected by the H-1B lottery does not automatically mean that a visa will be granted. Rather, it means that the individual is invited to apply for the H-1B visa. Their application will still be evaluated based on eligibility criteria and other requirements, meaning approval is not guaranteed.
How Can I Check the Results of the H-1B Lottery?
The H-1B lottery is conducted electronically, meaning the results will be available on the registrant’s USCIS online account. The USCIS will notify individuals who were selected in the lottery to file their H-1B petition. The results for the H-1 lottery are typically available shortly after the registration window closes. Either you or your immigration attorney can obtain the results of the H-1B lottery when they are available.
When you or your attorney checks the results of the H-1B lottery, your USCIS online account will display one of five labels, which relate to the status of your registration. These labels include:
- Submitted: registration has been successfully submitted and the individual is eligible for selection in the H-1B visa lottery.
- Selected: the individual has been selected by the H-1B lottery to submit their application.
- Not selected: the individual has not been selected by the H-1B lottery to submit their application.
- Denied: the individual has registered for the visa lottery multiple times and therefore their registration is considered invalid and denied for this fiscal year. It is not possible to appeal a denial.
- Invalidated: the individual submitted their registration, but the payment method was declined or otherwise considered invalid.
If a person has been selected by the lottery to apply for an H-1B visa, they can then proceed with the application process. First, their United States employer will be required to submit a Labor Condition Application (LCA) to the United States Department of Labor for certification. The LCA will confirm that your proposed pay is adequate and that the employer will not disparately impact American workers.
After this step, the employer is invited to submit Form I-129 Nonimmigrant Worker Petition. Once this form has been approved, the applicant may file the Form DS-160 Nonimmigrant Visa Application and eventually attend their visa interview at the appropriate United States embassy or consulate. If their application is successful and they are eligible to receive an H-1B visa, they may begin working on October 1st at the earliest.
Contact Founder Law Today
Navigating the H-1B lottery can be stressful and daunting. At Founder Law, we work closely with H-1B hopefuls and their employers to navigate the lottery process and, if selected, submit the strongest application possible to optimize their chance of approval. Through our proven method and approach, we have secured successful results for thousands of foreign professionals. With offices in Mountain View, CA, and New York, NY, we have the experience and resources available to ensure that you will feel confident in your legal representation. To connect with an H-1B visa attorney, consider contacting us at +(855) 546-0015 today.
It is difficult to place a rigid timeframe on green cards. Their processing times vary greatly, depending on a range of factors, including the priority date of the application as well as the service center…
It is difficult to place a rigid timeframe on green cards. Their processing times vary greatly, depending on a range of factors, including the priority date of the application as well as the service center that is reviewing the petition. The priority date refers to the date on which the United States Citizenship and Immigration Services receives the petition. The priority date will matter greatly as it essentially reflects an applicant’s place in the queue. When their priority date becomes current, they will be able to file the I-485 Application for Adjustment of Status to apply for permanent residence or apply for an immigrant visa abroad. An up-to-date listing of the current priority dates can be found on The Visa Bulletin, which is published monthly.
The final action dates, which determine when an individual can file the I-485 for Adjustment of Status, are categorized based on the preference level of the green card classification as well as the country. If the green card that the individual is applying for is facing backlogs, as is currently happening for applicants from India and China, there will not be much movement in the final action date. If the backlogs are severe enough, the United States Citizenship and Immigration Services may take years to process a Green Card.
What Is the I-140 Processing Time?
The service center that is responsible for reviewing the petition plays a critical role in the I-140 processing time. If the service center is experiencing a large caseload, it may take longer to process petitions. The service center that reviews your petition depends on the state and zip code from which the application is filed. The locator tool available on the United States Citizenship and Immigration Service’s website may be used to determine which service center will process the petition.
It is possible to check the I-140 processing times for your specific green card using the USCIS Check Case Processing Time tool. This tool will provide an estimation of how long it takes each service center to process the majority of cases. Currently, the following are rough estimations of the current processing times for the primary visa categories that we handle:
- EB-1 Extraordinary Ability: the majority of cases (80%) are completed within 20 months to 22 months.
- EB-2 Outstanding Professor or Researcher: the majority of cases are completed within one year to 13 months.
- EB-2 Advanced Degree or Exceptional Ability: the majority of cases are completed within 10 months.
- EB-2 NIW: the majority of cases are completed within 16 to 19 months.
- EB-3 Multinational Executive or Manager: the majority of cases are completed within 12.5 months to 13.5 months.
- EB-3 Skilled Worker or Professional: the majority of cases are completed within 17.5 months to 20.5 months.
Again, processing times vary greatly depending on the unique circumstances of a case. Your immigration attorney can provide greater detail regarding the processing time for an I-140 petition. Furthermore, there are ways to expedite the process. This can be accomplished either through the implementation of a targeted legal strategy to ensure that a case is processed as quickly as possible or through the Premium Processing Service for the I-140 petition.
What Is the Premium Processing Service for the I-140 Petition?
The Premium Processing Service allows for faster processing of the I-140 petition. Not all I-140 petitions allow for premium processing, however. Currently, the following I-140 petitions are guaranteed a decision within 15 days using premium processing:
- EB-1A Extraordinary Ability
- EB-1B Outstanding Professors and Researchers
- EB-2 Advanced Degree or Exceptional Ability (not the NIW)
- EB-3 Skilled Workers and Professions
- EB-3 Workers
As of January 2023, the United States Citizenship and Immigration Services expanded their premium processing services to include EB-3 Multinational Executive and Manager petitions as well as EB-2 NIW cases. This expansion represents an effort to increase efficiency. For these two types of I-140 petitions, premium processing guarantees a decision within 45 days. To apply for premium processing, Form I-907 is necessary. There is a $2,500 filing fee required for this service.
Contact Founder Law Today
At Founder Law, we work diligently to ensure that the employment green card petition and application process is as efficient and expeditious as possible. Through our services, we create a tailored legal strategy to ensure that cases are processed as quickly as possible, mitigating all potential risks along the way to prevent costly delays. With offices in Mountain View, CA, and New York, NY, we help green card applicants from across the country and abroad. To learn more about how we can help, consider contacting us at +1(855) 546-0015 today
The H-1B visa processing time can vary greatly depending on a range of factors. Once your employer has completed the preliminary steps of the application process, including securing a Labor Certification Application, and has successfully…
The H-1B visa processing time can vary greatly depending on a range of factors. Once your employer has completed the preliminary steps of the application process, including securing a Labor Certification Application, and has successfully submitted an H-1B petition, the processing is largely in the hands of the United States Citizenship and Immigration Services (USCIS).
Due to the annual cap on H-1B visas, employers are typically required to submit the petition six months before the employment is set to begin if using the lottery. This should, in theory, provide adequate time to receive approval for the visa and ensure that the employment begins according to schedule. Unfortunately, it is not always this straightforward. In some cases, the USCIS takes longer than six months or even a year to process H-1B visa applications.
In general, it takes between 5 to 8 months to process an H-1B visa application. It should be noted that this is merely an estimation. It can take much less time to process an application or, on the other hand, it can even take over a year in some situations. USCIS has an online tool to check the case processing times for various visas, including the H-1B visa. When using this tool, be sure you know which service center is handling your application.
Ultimately, it is advised to prepare for even the most unideal situation. It may take longer than anticipated to process an H-1B application. Be sure to account for potential delays and ensure the proposed employment is not put in jeopardy due to longer-than-expected processing times. Otherwise, it may be beneficial to consider taking steps to expedite the H-1B visa process.
Can I Expedite My H-1B Visa Process?
It is possible to expedite the H-1B visa process. There are a few strategies that can be used to speed up the processing time of your visa. One of the most common strategies that individuals and their employers use to expedite the H-1B visa process is premium processing. Employers who are willing to pay an increased fee can enjoy the guarantee of a decision (or a Request for Evidence, if necessary) within 15 days of filing. The 15-day window begins when the USCIS receives your petition. If a decision or RFE is not given within the 15-day window, the Premium Processing service fee will be refunded to the applicant’s employer.
The premium processing service has been a great relief to many hopeful H-1B employees. While optional, premium processing allows petitioners and their employers to move through the application process and secure H-1B visa status as quickly and expeditiously as possible. To request premium processing, Form I-907, Request for Premium Processing Service is required. The premium processing fee for H-1B applications is $2,500 and is paid in addition to all other applicable filing fees.
We often receive questions from H-1B hopefuls and their employers about whether or not it is possible to expedite the process by bypassing the lottery system. Using the lottery system, potential H-1B applicants register and are chosen at random to file their visa applications. Individuals who are not selected cannot submit their applications and must wait until the next fiscal year. Fortunately, we have created an opportunity for individuals to obtain their H-1B visas without using the lottery via our partnerships with the Open Avenues Foundation. Open Avenues promotes STEM education in the United States for underrepresented students. This opportunity is a cap-exempt solution for individuals who do not want to waste time registering for the lottery and waiting for the results of the lottery selection. Rather, H-1B hopefuls are able to apply directly for their visa with sponsorship from the Open Avenues Foundation.
Contact an Experienced Attorney at Founder Law Today
For many, the H-1B visa lottery and application can be a time-consuming and arduous process. Understandably, many people want to complete this process as quickly and efficiently as possible. At Founder Law, we help to connect the best and brightest talent in the world with leading American companies. We have developed a proven methodology for achieving approval and have fostered opportunities to help expedite the visa process, therefore making us better able to assist our clients in securing an H-1B visa. With offices in Mountain View, CA, and New York, NY, we have the experience and resources required to ensure success for your case. To connect with an immigration attorney, consider contacting us at +1(855) 546-0015 today.
Securing a green card through employment is one of the most common ways to immigrate to the United States. There are several opportunities available to skilled foreign professionals to pursue a green card, but many…
Securing a green card through employment is one of the most common ways to immigrate to the United States. There are several opportunities available to skilled foreign professionals to pursue a green card, but many require sponsorship from a United States employer. For business owners, startup founders, and other individuals who do not have a qualifying job, petitioning without a United States employer is often necessary. In some cases, there are green cards that have specific educational requirements, such as the EB-2 NIW.
The EB-2 green card is designed for individuals who possess exceptional ability in their respective fields as well as professionals who hold advanced degrees. Typically, EB-2 green cards require sponsorship from an employer and a PERM Labor Certification. The National Interest Waiver (NIW) allows EB-2 applicants to bypass these two requirements by demonstrating that their future work will greatly benefit the United States. The EB-2 NNIW is an attractive option for self-employed entrepreneurs and professionals who operate their own private practice. As long as an applicant is able to prove that their work will benefit the national interest of the United States, they may apply for an EB-2 NIW.
What Degree Must I Have to Obtain an EB-2 NIW?
There are also additional educational requirements and criteria in place for EB-2 NIW cases. These requirements include:
- For Advanced Degree-holders: the desired job must require an advanced degree for entry into the position. To prove this, documentation must be submitted to show that the applicant holds an advanced degree from a United States institution or its foreign equivalent. Alternatively, official academic records may be submitted to demonstrate that the applicant has a United States baccalaureate degree or its foreign equivalent and letters from current or previous employers stating that the applicant has a minimum of 5 years of professional experience in the profession. If a doctorate is traditionally required to perform the occupation, it must be demonstrated that the applicant holds a United States doctoral degree or its foreign equivalent.
- For individuals with exceptional ability: the applicant must prove that they possess extraordinary ability in the sciences, arts, or business. This can be demonstrated by submitting a range of evidence, including academic records, letters from current or past employers documenting ten years of experience in the profession, professional licensure, or membership in a professional organization, for example.
In addition to these requirements, the evidence must also be provided to support the following:
- The applicant’s proposed activity (proposed endeavor) in the country has national importance and substantial merit.
- They are well-positioned to advance their proposed endeavor.
- It would be beneficial for the United States government to waive the requirements for a PERM Labor Certification.
If the applicant meets the educational requirements and is able to sufficiently prove that the three criteria for the NIW are met, they may self-petition for an employment green card in the United States using Form I-140, Immigrant Petition for Alien Workers. An Founder Law attorney will work closely with EB-2 NIW applicants to craft the strongest application possible to enhance their likelihood of success in this lucrative visa category.
Can I Have Another Petition While Applying for an EB-2 NIW?
It is possible to have another petition while applying for an EB-2 NIW. An individual may apply for a National Interest Waiver if they have a PERM Labor Certification pending, for example. These two processes are handled by distinct organizations: the United States Citizenship and Immigration Services oversees NIW applications while the Department of Labor manages PERM Labor Certification applications. Applying for both at the same time could be an opportunity to optimize the chance of success. If the labor certification is denied, the applicant may still have hope for approval via an NIW application.
Alternatively, individuals with extraordinary ability in their field may choose to file their EB-2 NIW petition concurrently with an EB-1A petition. Generally speaking, if a case is incredibly strong, an applicant may have a faster route by applying via the EB-1A Extraordinary Ability classification, as this category is first priority for green cards. If there is any doubt regarding the strength of their case, the NIW is a valuable option. The NIW petition allows for greater opportunity to craft a tailored case and gather an array of evidence to support the fact that their work will benefit the United States and is worthy of waiving the PERM Labor Certification.
Consider Contacting Founder Law Today
A major aspect of our practice involves working closely with United States companies and startups to secure top talent from across the globe. With offices in Mountain View, CA and New York, NY we have the resources and experience necessary to successfully manage all aspects of your immigration case and secure your employment green card. To learn more, consider connecting with Founder Law today at +1(855) 546-0015 today.
What Is a PERM Labor Certification? There are several requirements that must be met before a person can be granted an employment green card in the United States. One of the most common requirements is…
What Is a PERM Labor Certification? There are several requirements that must be met before a person can be granted an employment green card in the United States. One of the most common requirements is the PERM Labor Certification. The Program Electronic Review Management (PERM) system is used to secure this labor certification and is typically the first step to obtaining permanent residence for foreign professionals. Then EB-2 Professionals with Exceptional Ability and EB-3 Skilled or Professional Worker visa classifications require a PERM Labor Certification. National Interest Waiver (NIW) cases do not require the PERM Labor Certification.
The PERM process is overseen by the United States Department of Labor’s Employment and Training Administration. This process requires United States employers to perform a series of recruitment activities to assess whether the employment of a foreign professional would detrimentally impact the working conditions and/or wages of United States citizens working in similar positions. These recruitment activities include placing a job order with SWA for at least 30 days, printing two advertisements in separate Sunday editions of a popular newspaper, and three additional recruitment methods.
A PERM Labor Certification will be granted when the employer proves that hiring a foreign professional will not negatively impact the American labor market. To secure a PERM Labor Certification, the employer must file Form 9089, Application for Permanent Employment Certification. This form can be filed electronically or via mail. According to Section 656.10(c) of the Code of Federal Regulations, the employer must confirm the following:
- The job listing was accessible to American workers
- The wages offered to the foreign professional are more than the prevailing wages for the position
- The employer has the means to put the foreign professional on payroll by the date of their arrival in the country
- That U.S. workers have not been denied for appropriate, lawful reasons
- The wages are not contingent on bonuses or other financial incentives
- The working conditions meet legal standards
- The position is full-time and permanent
- The job did not become available due to a strike or labor stoppage
Although processing times depend on a range of factors, it takes an average of 6+ months to one year to process a PERM application. Once the PERM certification is approved, the employer may begin completing Form I-140 to initiate the green card application process. It is recommended that all documentation associated with the PERM Labor Certification are kept on hand for at least five years following the application process for auditing compliance purposes.
What Are the Most Common Issues with PERM Audits?
Roughly one-third of PERM Labor Certification cases are selected at random by the Department of Labor each year for auditing. These audits are designed to ensure that PERM applicants were honest in their application, acted in good faith and that all guidelines were properly followed. Employers will be notified if they are chosen for an audit, and they will have 30 days from the date of notification to gather all necessary evidence and information. Extensions are available in certain circumstances.
Audits are typically either random or targeted. There is no way to anticipate random audits. Targeted audits, on the other hand, are triggered by issues in the application and occur when the Department of Labor identifies something suspicious about the case. Some of the most common issues that trigger PERM audits include:
- The prospective employee has an existing relationship with the employer or has ownership in the company, including stocks or equity.
- The main requirement for the position is less than a bachelor’s degree or, alternatively, the sole requirement for the position is a degree but no work experience.
- The position requires subjective skills that cannot be properly measured, such as a foreign language requirement or require credentials that are above what is typically required in the market.
- The foreign professional received prior training or experience with the employer.
Once the requested evidence has been submitted, the certifying officer will review the information and make a decision about whether or not the application is approved. If the certifying officer determines that the evidence is incomplete or inconsistent, they may deny the application altogether. An experienced immigration attorney will understand how to navigate PERM audits and ensure approval of your application.
Founder Law with Offices in Mountain View, CA, and New York, NY
At Founder Law, we work closely with employment green card applicants and their employers to secure PERM Labor Certification and respond to audit requests. Through our comprehensive services and tailored approach, we have secured approval for thousands of clients. To learn more about how we can help, consider contacting us at +1(855) 546-0015 today.
What Is Supervised Recruitment? In order to petition for many employment-based green cards, a PERM Labor Certification is required from the sponsoring employer. There are several steps that go into obtaining a PERM Labor Certification,…
What Is Supervised Recruitment? In order to petition for many employment-based green cards, a PERM Labor Certification is required from the sponsoring employer. There are several steps that go into obtaining a PERM Labor Certification, all of which are designed to prove that there are not enough qualified, willing United States workers to fill the position that is being offered to the foreign professional. One aspect of the PERM process includes a recruitment process according to the rules and regulations set forth in Chapter 20, Section 656.17 of the Code of Federal Regulations. This law states that United States-based employers who wish to obtain a PERM labor certification must conduct a comprehensive recruitment process to ensure that there are not enough American workers for the role and that the hiring of the foreign professional will not adversely affect the wages and working conditions of United States workers in similar positions.
Roughly one-third of all PERM applications are selected for audit. If selected for an audit, the United States-based employer will be required to submit additional evidence or otherwise respond accordingly. If the response is unsatisfactory or if the employer fails to respond to an audit request altogether, supervised recruitment may be requested. Supervised recruitment is used to oversee the recruitment process in order to assess whether an employer is eligible for a PERM Labor Certification.
During supervised recruitment, the Department of Labor will play an active, supervisory role in the employer’s recruitment activities and make a decision about whether to issue an approval or denial of their PERM Labor Certification. This differs majorly from the traditional recruitment process, wherein the employer may conduct their recruitment activities on their own timeline. Supervised recruitment is more demanding and time-consuming than unsupervised recruitment.
One of the most integral components of the recruitment process is the use of advertisements in news sources. There are specific guidelines placed on these advertisements in the supervised recruitment process. First, the employer is required to submit a drafted advertisement to the certifying officer who oversees the supervised recruitment process. This proposed advertisement must be submitted no later than 30 days after being notified of supervised recruitment. An extension may be available at the certifying officer’s discretion.
This advertisement must contain the following:
- A full description of the position
- Offered wage rate that is greater than or equal to the prevailing wage for other similar roles in the same industry
- Details of the minimum job requirements for entry into the position
- Specifications about any necessary job training for the role
This is contrary to the typical unsupervised PERM recruitment process, which requires less detailed information in the advertisement. The certifying officer may also require additional information. Moreover, job applicants must be directed to send their resumes and application materials to the certifying officer, who will then share the documents with the employer.
After the supervised recruitment process, the employer is required to create and submit a recruitment report that includes specific details of the activities and results of the process. If the employer fails to submit this report, the certifying officer may deny the PERM Labor Certification. Given the complex and time-consuming nature of the supervised recruitment process, many employers seek assistance from experienced immigration attorneys to ensure that all activities are completed according to federal law and that all paperwork is completed accurately and on time.
What is a DOL Request for Reconsideration?
Per 20 CFR § 656.24, if your PERM Labor Certification is denied, it is possible to submit a Request for Reconsideration to the Department of Labor. This request is used to ask for a reassessment of the case. A Request for Reconsideration must be submitted no later than 30 days following the denial of the PERM Labor Certification.
In the DOL Request for Reconsideration, the employer must only submit documentation that was already submitted to the certifying officer during the audit process or paperwork that was included in the employer’s original PERM Labor Certification application. The employer is not permitted to include any new evidence or information. If the Request for Reconsideration is denied, the employer will be notified and may opt to file a Request for Review with the Board of Alien Labor Certification Appeals.
Contact Founder Law Today
At Founder Law, we work closely with United States businesses to successfully secure their PERM Labor Certification and hire the world’s top talent. With offices in Mountain View, CA, and New York, NY, we have the experience and resources necessary to help you navigate the PERM supervised recruitment process and file Requests for Reconsideration as necessary. To learn more about how we can help, consider connecting with a knowledgeable attorney at Founder Law Law at +1(855) 546-0015 today.
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