The H-1B Visa and the Employment based Green Card: Explaining the Difference

Among the various ways in which foreign nationals can enter and legally work in the United States are two similar but distinct pathways.  First, there is the H-1B non-immigrant visa, and second is the employment based green card or immigrant visa.  Some aspects of the two programs are similar and even overlap, but there are other features that are radically different.  Whether you are a business that is interested in employing a qualified foreign professional, or you are a professional who is seeking to explore options for employment in the United States, this article will answer your questions regarding the two programs.

There is often some confusion among employers and employees alike regarding the criteria for the two programs, which unfortunately can sometimes result in failing to utilize them.  Part of the motivation to write this article is the fact that most H-1B petitions must be filed in the first week of April 2017, which is coming up soon.  The other reason is to provide a clear and concise explanation to employers and employees so that they can utilize the program that best suits them and not shy away from them because they have not understood the programs fully.

Don’t forget the April 2017 deadline for H-1B applications! You must be ready

Employers who have their eyes set on new workers or need to file an H-1B petition for current workers will need to have their paperwork finalized and ready for submission well before the April deadline.  Filing is only permitted between April 3rd and April 7th and that is for 2018 entry.  In recent years the cap of 65,000 is filled very quickly.  USCIS is expected to keep the filing open until the closing date and then use a random lottery to select those petitions that go on to the processing and adjudication stage.

The H-1B Employment Visa

H1BThe basic criteria for a H-1B employees is detailed in guidance issued by the U.S. Citizenship and Immigration Services (USCIS):[1]

  • Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
  • Requirement 2 – Your job must qualify as a specialty occupation by meeting certain specified criteria.
  • Requirement 3 – Your job must be in a specialty occupation related to your field of study.
  • Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
  • Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

An H-1B visa holder is allowed to also pursue a permanent residence application while in valid H status.  The H-1B visa is what is known as a “dual-intent” visa because it is one of the few temporary visas that can be held while a person applies for permanent residency.  This is in contrast to some other visa categories, such as the B-1/B-2 visitor visa, which does not allow a person to enter the United States with the intent of becoming a permanent resident.

Who can apply for the H-1B visa?

The applicant must be a well-qualified person who has been offered a job in the United States for a term of three years or less at the outset.  If the visa is granted, it can be extended for a further three years if the employer still requires the visa holder’s services at that stage.

The types of jobs that can qualify for an H-1B visa are quite broad and include those in the following fields:  sciences and mathematics, information technology, engineering, architecture, medicine, business and accounting, theology and the arts, education, the law, and other fields.

The H-1B annual lottery

Each year, there is a cap on the number of people who may be granted am H-1B visa.  In the last few years, the cap was immediately met on the first day. The cap at present is 65,000 a year, although this might change with the incoming Trump administration. The actual number of H-1B visas issued each year tends to be a lot higher than 65,000, as people who work at universities, non-profit research centers and government research centers are not included in the cap.  In addition, the first 20,000 applicants who already hold U.S. master’s degrees or higher are also not subject to the cap.

To participate in the H-1B visa lottery, applications must be submitted during the first week of April for employment start dates in the following October.  An employer must obtain approval of what is known as the Labor Condition Application, or LCA, from the Department of Labor (DOL).   This verifies that the employer is offering the H-1B worker during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

Processing times

As long as there is sufficient preparation time before the April 2017 filing deadline, H-1B applications can be submitted and processed in a matter of weeks.  This is much quicker and less time consuming than a traditional employment based green card application.  Once the employer and employee agree that they would like to pursue an H-1B visa application, the attorney needs some time to complete the LCA electronic filing.  The approval of the LCA can take 10-15 days, though it can happen sooner.  Then the attorney prepares and files the I-129 form with the H petition supporting documents.  Applicants requesting expedited processing by USCIS can pay an extra fee for “premium processing” and receive a two-week processing turn around.  Therefore, the H-1B application can be prepared, filed and approved fairly quickly.  This is in contrast to the employment based green card application, which can take months in preparation, filing and approval.

Identify potential candidates as soon as possible

Sometimes, overseas candidates who have obtained US degrees might be given positions. They will be to start with on Optional Practical Training (OPT), but when this relatively short period is over and the employers still wants to retain the person’s services H-1B sponsorship will be required.

The Labor Condition Application (LCA) is the most important document, as this must get Department of Labor Approval (DOL) before the petition for the H-1B visa can be filed. You have to allow more than the 7 business days allocated for the approval as this time of the year is busy resulting in likely delays. There might be more applications than usual with the possibility of reforms imposed on the H-1B category by the present Trump Administration in the years to come.

There can be delays if the USCIS is not satisfied

USCIS can submit Requests for Evidence (RFEs) if it is not satisfied with the contents of an application.  These cause delays that most employers cannot afford if they want to get their staffing right for the next year. There are important issues like the job description, job category, where the job is located and what duties are involved in the position that the petitioner has to get correct.

 

The Employment Based Green Card

GCWhile the H-1B visa generally authorizes the employee to work for the sponsoring employer for up to 6 years, the employer may also petition for permanent residence for the employee.

Obtaining a green card through employment is a longer and more intense process than the H-1B process.  However, obtaining a green card is ultimately more rewarding as it allows the holder and any dependent family members to live permanently in the United States.  Further, permanent residents can generally apply for U.S. citizenship after 5 years of living in the U.S. as permanent residents.

As with the H-1B visa, the first step is taken by a U.S. employer who must submit what is called “Labor Certification” with the Department of Labor.  Information supplied must be able to confirm, with suitable evidence, that there is a lack of availability of a U.S. citizen or permanent resident for the position.   This is the key difference from the H-1B visa, where there is no requirement to demonstrate that qualified U.S. workers are unavailable.  Further, there is no specified time of the year when employment based green card applications must be filed as is the case with the majority of the H-1B petitions that must be filed in the first week of April.  Further, the quota limitations that may prevent some H-1B applicants from even being accepted are not an obstacle to work based green card applications.   But for green cards there are annual caps on employment based visa categories, resulting in significant waiting lists for certain nationalities.

Advertisements in Newspaper or Professional Journals

The U.S. employer must generally place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers.  This is not a requirement for an H-1B visa and can make the employment based green card more difficult to obtain.

Recruitment Report

The U.S. employer must also prepare a recruitment report signed by the employer or the employer’s representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The DOL Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.

Can be working for another employer on H-1B

If the employee is already in the U.S. on an H-1B visa, the petitioning employer does not necessarily need to be the same employer as the H-1B employer.  It can be another employer who wishes to employ that person after they obtain their green card.  After the Labor Certification is approved by the DOL, the same employer files an I-140 immigrant petition.  The person applying for the green card will have to wait for visa availability and will need to fill in a form to change their visa status if they are already living in the United States, or go through consular processing in their home country.

Green card annual number restrictions by country

There is a fixed quota of green cards issued every year which depends partly on the country and partly on the category of employment.  Currently, the annual number of green cards issued is 145,000.  Countries such as India and China are subject to long backlogs due to the huge number of applicants that belong to these countries.  In comparison, applicants from less populated countries have a shorter wait period to obtain a permanent resident visa.

Green card employment categories

There are five different green card categories and the number of green cards allocated to each category is also fixed as follows:

  • EB1: 28.6% of quota: Priority workers. There are three sub-groups: 1. Foreign nationals with extraordinary ability in sciences, arts, education, business, or athletics; 2. Foreign nationals that are outstanding professors or researchers with at least three years’ experience in teaching or research and who are recognized internationally; 3. Foreign nationals that are managers and executives subject to international transfer to the United States.
  • EB2: 28.6% of quota: Professionals holding advanced degrees (Ph.D., master’s degree, or at least five years of progressive post-baccalaureate experience) or persons of exceptional ability in sciences, arts, or business;
  • EB3: 28.6% of quota: Skilled workers, professionals, and other workers not in the above two categories;
  • EB4: 7.1% of quota: Special immigrants (e.g. religious workers, those working or previously working for the U.S. government or as U.S. Armed Forces translators);
  • EB5: 7.1% of quota: Immigrant investors who are prepared to invest a minimum of $U.S. 1 million into an approved business in the U.S. and employ at least 10 workers. (these minimum investment thresholds are slated to change shortly.)

As has been already mentioned, both the H-1B visa and the employment based green card application processes are lengthy and involve significant information and documentation to be provided. Confusing the process, or presenting insufficient or incorrect information can derail, prolong, or even lead to rejection of the applications.  It can help significantly if you have the assistance of an experienced U.S. immigration attorney to advise and assist you with each step of the visa process.

[1] https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

LITIGATION, INTERNATIONAL BUSINESS, IMMIGRATION