February - 2014 - issue > Attorney Insights

Know the Truth about Employment-Based Immigration

Tessy Ortiz
Monday, February 10, 2014
Tessy Ortiz
As with other complex topics, there are many myths in regards to employment-based immigration. Deep inside, we all want to play doctor or lawyer. We think we know how to treat any illness or tackle any legal problem even though we may not have expertise in such areas. Similarly, employers and employees fall into traps by mistakenly relying on information that is generally perceived to be
correct but that could potentially harm their cases. Here are three of the most common myths in employment-based immigration.

A foreign worker must be a current employee before his or her employer initiates the permanent residence process.

This is false. In a typical case, a foreign worker is working for the employer at the time of starting the process of permanent residence. However, a foreign worker could be living in his country, or working for another employer during the pendency of the permanent residence request. What is required at the beginning of the process is the intent to employ the foreign worker once the permanent residence is approved. In other words, there should be an employment offer at the time the residence is being adjudicated, but not actual employment. However, due to the lengthiness and complexity of the immigration processes, most employers prefer that the worker be employed by the company to make sure that he will be a good asset to the company.
Once a foreign worker obtains an H-1B visa, there is a waiting period before the employer can initiate the permanent residence process.
This is incorrect. In fact, waiting too long can be harmful to a case. The process of obtaining permanent residence is long. Generally, H-1B status can only be granted for 6 years. A foreign worker can maintain his H-1B status beyond 6 years if the permanent residence process is initiated at least 365 days prior to the expiration of the initial 6-year H-1B time limit. Therefore, I always recommend clients to start the residence process as soon as possible so that there will be no gap in their eligibility to work. In other words, they can either get the permanent residence before the 6-year limitation or extend the H-1B beyond the 6th year if they apply early enough.

A foreign worker must have an employment offer in order to be able to get permanent residence.

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