In this video, attorney Jacob Sapochnick discusses the advantages and disadvantages of the H-1B temporary work visa versus the EB-3 immigrant visa for professionals.
We will dive into the differences between them and the factors that you may want to consider when evaluating which process might be right for you.
If you would like to know more about this topic, we invite you to watch our video.
Overview
If you are looking for opportunities to live and work in the United States, it is a good idea to carefully research the visas that are available to you and speak with a qualified immigration attorney to help you navigate through any visa alternatives that could benefit you.
Narrowing your search and having a thorough understanding of the most suitable visas for you will give you the knowledge and insight that you will need to comfortably approach a U.S. employer for a potential job offer and employment sponsorship.
Foreign workers typically find that U.S. employers, especially start-ups and smaller companies, are unfamiliar with the process of sponsoring a worker for a visa. That means that the worker will need to be familiar enough with the process to put their best foot forward during negotiations. Workers must be prepared to present different options to employers.
Our employment-sponsorship videos provide tips to empower you and make your job search more efficient in 2024. We hope you will share them with anyone who may benefit.
The H-1B Work Visa
We begin our discussion with the H-1B work visa. This is a temporary nonimmigrant work visa type that allows U.S. employers to petition and hire foreign workers with specialized skills for a specific period of time. To qualify for this visa type, foreign workers must have at least a bachelor’s degree or its equivalent and be employed in a specialty occupation relating to their field of study.
H-1B workers are typically employed in STEM fields, as scientists, engineers, computer programmers, software developers, and technology workers, but other fields may qualify that require specialty knowledge. This visa type also allows employers to sponsor professional fashion models of distinguished merit or ability.
H-1B Duration of Stay
H-1B workers can be admitted for a period of up to three years. At the conclusion of those three years, workers can apply for an extension of their status for another three years. Generally, workers cannot go beyond a total of six years in H-1B status, although there are certain exceptions under the law.
H-4 Dependents
H-1B workers can bring spouses and children under the age of 21 to live with them in the United States as their dependents, under the H-4 visa classification while they are working in H-1B status. However, spouses are not eligible for work authorization as H-4 dependents.
The H-1B Visa Lottery and Electronic Registration Period
One of the major drawbacks of the H-1B visa is that there is a congressionally mandated cap limiting the issuance of H-1B visas to 65,000 per year, and 20,000 for beneficiaries with a U.S. master’s degree or higher. Certain U.S. employers may be exempt from the cap such as institutions of higher education, non-profit entities which are “related to” or “affiliated with” institutions of higher education, nonprofit or government research organizations, and for-profit companies, if the employee will work at an approved nonprofit or qualifying institution.
This “visa cap” essentially means that H-1B cap-subject petitions are selected by a randomized lottery conducted by the U.S. Citizenship and Immigration Services (USCIS) to reach the numerical limit.
To participate in the lottery, each year employers (also known as petitioners) seeking to file H-1B cap-subject petitions on behalf of workers, must first electronically register and pay the H-1B registration fees for each beneficiary. The electronic registration period typically begins in March and generally lasts 14 to 21 days. Once the registration period ends, and USCIS has received enough registrations to reach the cap, usually in late March or April, it conducts the randomized lottery to select among eligible registrations submitted.
In fiscal year 2024, USCIS received 780,884 total H-1B registrations during the electronic registration period, and a total of 188,440 petitions were selected.
Unselected registrations are kept on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the annual cap and select additional registrations, it will do so from those on reserve.
Once selected in the randomized lottery, petitioners have 90 days to submit their H-1B visa applications to USCIS.
Multiple Registrations are Prohibited
Submission of multiple registrations on behalf of the same beneficiary by the same employer is strictly prohibited and will disqualify a petitioner from participating.
Combating Against Fraud
Each time an electronic registration submission is made, U.S. employers (petitioners) are required to swear under oath that the information contained in the registration is complete, true, and correct, that the registration reflects a legitimate job offer, and the submission is not being made to unfairly increase chances of selection for the beneficiary.
If USCIS finds that an attestation is not true and correct, the agency will find the registration to not be properly submitted and the prospective petitioner would not be eligible to file a petition based on that registration. USCIS has the discretion to deny a petition, or revoke a petition approval, based on a registration that contains a false attestation and was not properly submitted.
USCIS may also refer the individual or entity who submitted a false attestation to appropriate federal law enforcement agencies for investigation and further action including criminal prosecution.
The H-1B Bottom Line
The H-1B visa is a good option for employers seeking to hire skilled workers in a specialty occupation that requires at least a bachelor’s degree. Employers and their workers must discuss the H-1B requirements well before the March electronic registration period to ensure their eligibility.
EB-3 Employment-Based Green Card
The EB-3 is an immigrant visa which allows foreign nationals who are skilled workers, professionals or other type of workers to obtain permanent residency (a green card) through sponsorship by a U.S. employer. Professionals are defined as persons whose job requires at least a U.S. bachelor’s degree or foreign equivalent and fall under the EB-3(B) subcategory.
Typically, H-1B workers with a bachelor’s degree and less than five years’ experience will be competing for green card sponsorship under the EB-3 employment preference category. Unlike the H-1B visa, EB-3 visas are not subject to a “lottery” and employers can petition for workers at any time even if they are residing overseas.
As an example, if you are an F-1 international student in the United States, an employer can choose to sponsor you for a green card under EB-3 instead of going through the H-1B visa process. This would benefit those who are on STEM Optional Practical Training (OPT), which grants a student the ability to work for up to three years post-graduation. During this period, the employer could undergo the sponsorship process.
Who is eligible for EB-3(B) Professionals?
- You must possess a U.S. bachelor’s degree or its foreign equivalent
- Hold a permanent job offer from a U.S. employer that requires a bachelor’s degree or higher
General Application Process
The EB-3 employment sponsorship process generally consists of the following three steps:
- PERM Labor Certification
Before applying for the EB-3 visa, your employer must obtain a PERM labor certification from the U.S. Department of Labor (DOL). The labor certification process requires your employer to prove that there are no qualified U.S. workers available for the job that is being offered to you. Obtaining a labor certification is the first step of the employment sponsorship process and involves advertising the position to U.S. workers. This is not required for the H-1B visa process and is unique to the EB-3 visa.
Exceptions: Registered Nurses (RN), Licensed Practical Nurses (LPN), and Licensed Vocational Nurses (LVN) are not required to undergo the PERM labor certification process, because the government recognizes that there are not enough U.S. workers to meet market demands. However, employers are still required to complete the remaining steps on their behalf, and demonstrate their qualifications.
- Form I-140 Petition
Once the labor certification is approved by the Department of Labor, your employer may file Form I-140 Immigrant Petition for Alien Worker, with USCIS on your behalf. This form establishes your eligibility for the EB-3 visa and must be accompanied by supporting documentation for your employment sponsorship.
- Green Card Application
Once Form I-140 is approved by USCIS, if your priority date is current on the Department of State’s Visa Bulletin under the EB-3 category, you may proceed with filing your green card application. If you are residing outside the U.S., you’ll need to apply for an immigrant visa at a U.S. Consulate or Embassy in your home country. If you’re already in the U.S. on a valid nonimmigrant visa, you may file Form I-485 to adjust your status to permanent residence with USCIS.
What does it mean for a priority date to be current?
Before you can apply for your green card, your priority date must be current on the Visa Bulletin for your category and the particular month when you wish to file your green card application. That is because the issuance of visas under the employment based, and family preference categories is subject to annual numerical limits set by Congress.
Your priority date is the date when your I-140 petition for an immigrant visa was filed with USCIS. It serves as your place in line for visa availability. It is used to determine when you can proceed with your green card application based on the final action dates listed in the Visa Bulletin. An earlier priority date generally you a better chance of advancing in the immigration process.
Depending on your country of nationality, it may take several years before your priority date becomes current on the Visa Bulletin.
The EB-3 bottom line
The main advantage of employment sponsorship under EB-3 is that you receive permanent residence at the end of the process, without the need to compete for a visa through a lottery process. Additionally, employers can sponsor workers at any time, even if they are outside of the United States at the time of filing, for instance where the applicant is residing overseas. It is also a good option for U.S. employers that do not want to wait to until March to petition for the employee, or where the beneficiary may not qualify for the H-1B visa.
EB-3 is also a great option for unskilled workers who may not qualify for the H-1B visa because they do not have the required education or experience.
Contact Us. We hope you found this information helpful. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.
Helpful Links
- The H-1B Visa
- The EB-3 Employment Based Green Card
- EB-3 Nurses
- H-1B Electronic Registration
- PERM Labor Certification
- February Visa Bulletin
- Adjustment of Status Filing Dates from Visa Bulletin
- USCIS Processing Times
- USCIS Announces End of COVID-Related Flexibilities
- Immigrant Visa Backlog Report
- DOS Visa Services Operating Status Update
- ImmigrationLawyerBlog
- ImmigrationU Membership
- Success stories
- Youtube channel
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