Interplay between H-1B And Immigrant Visas
Dual Intent Doctrine
Foreign nationals seeking to establish permanent residence in the United States, by definition, have immigrant intent and typically hold immigrant visas. Certain nonimmigrant visas including the H 1B visa, though, allow for dual intent. The dual intent doctrine provides that foreign nationals holding certain nonimmigrant visas can demonstrate future immigrant intent while present in the United States without invalidating their nonimmigrant status. Thus, H-1B visa holders can lawfully maintain their nonimmigrant status while completing the H 1B to green card process.
Employment-Based Immigrant Visas
Pursuant to the Immigration and Nationality Act, a minimum of 140,000 employment-based immigrant visas are available each year. The visas are issued based on the five employment preference categories outlined below:
- The first preference category is for priority workers including (1) persons of extraordinary ability in the sciences, arts, education, business, or athletics; (2) outstanding professors and researchers; and (3) certain multinational executives and managers.
- The second preference category is for professionals with advanced degrees or persons of exceptional ability in the arts, sciences, or business.
- The third preference category is for skilled workers, professionals with Bachelor's degrees and other workers.
- The fourth preference category is for special immigrants including, but not limited to certain broadcasters, employees of the U.S abroad, foreign medical graduates, and religious workers.
- The fifth preference category is for employment creation investors or foreign nationals who invest $500,000 to $1,000,000 in a commercial enterprise in the U.S. and create at least 10 new full-time jobs for non-family member U.S. citizens, permanent residents or other lawful immigrants.
H-1B immigration primarily involves the second and third employment-based preference categories and, therefore, requires a labor certification prior to filing the I-140 Immigrant Petition for Alien Worker in the H-1B green card process.
To hire an H-1B employee to work permanently in the United States, the H-1B employer must obtain a labor certification from the Department of Labor (DOL). Labor certification involves testing the U.S. labor market for qualified U.S. workers available to fill the H-1B job. The H-1B employer must conduct recruitment for the foreign national's permanent position, including setting forth the minimum requirements for and advertising the position pursuant to DOL regulations. The results of the H-1B employer's recruitment are reported to the DOL through the filing of Form ETA 9089. Generally, the DOL will certify the employer's ETA 9089 application if the employer has adequately shown the minimum requirements for the position are not too restrictive, U.S. workers were recruited for the position in good faith and there were no qualified U.S. workers available or willing to accept the position.
H-1B Extensions Beyond The Sixth Year
A pending or certified permanent labor certification may entitle a foreign national to H-1B extensions beyond the six year maximum. Pursuant to the American Competitiveness in the Twenty-First Century Act, foreign nationals under the following circumstances are entitled to H 1B extensions, in one year increments, beyond the six year maximum:
- Foreign nationals for which a permanent labor certification application was filed and has been pending for 365 days or more; or
- Foreign nationals for which a permanent labor certification application has been certified and, within the validity period of the approved labor certification, an I-140 Immigrant Petition for Alien Worker has been timely filed.
Moreover, foreign nationals that are eligible to adjust to permanent resident status but for per country limitations on immigrant visas are eligible for three year H-1B extensions until the time their green card application has been adjudicated.