In Part 1 of a two-part article series, Ana María Mieles, counsel for the immigration law firm Fragomen, discussed how U.S. manufacturing companies can navigate the complex immigration landscape to help close the skilled labor gap with nonimmigrant foreign workers. Here in Part 2, Mieles shares insights into the long-term retention of nonimmigrant foreign workers who are already here on a temporary basis.
“Now we have to consider visa programs that allow a foreign national to permanently reside here,” Mieles said during a June 18 AEM Member Education Webinar.
The thing is, there is a limit of approximately 675,000 immigrant visas each year. And according to Mieles, there is far more demand than there are visas, resulting in a substantial waiting queue.
“The U.S. Department of State issues something called the Visa Bulletin each month,” Mieles pointed out. It announces when visas are becoming available based on the FN’s immigrant visa category and place of birth.
There are three different pathways to green cards:
- Family-based visas
- The diversity visa program (aka green card lottery)
- Employment-based visas
Of these, Mieles said, the annual visas available for employment-based applicants is caped at 140,000.
Types of Employment-Based Visas
Mieles said there are predominantly three employment-based visas a manufacturer can look to:
- EB-1 for priority workers. These visas are reserved for: persons of extraordinary ability in science, arts, education, business or athletics; outstanding professors and researchers; or multinational executives/managers. Consider, for instance, a FN employee that has demonstrable “extraordinary ability” in the sciences by having developed patented piece of innovative equipment key to the industry. Many employers seek this type of visa because a labor certification isn’t required.
- EB-2 for exceptional professionals. This type of visa is reserved for individuals offered positions that require an advanced degree and who hold corresponding advanced degrees. However, Mieles said individuals may qualify if the individual is offered a position that requires a bachelor’s degree plus five years of progressive responsible experience and the individual meets the same criteria. This category is also available to those with exceptional ability in the sciences, arts, or business. A labor certification must be completed for individuals in this category, unless the individual’s work is in the “national interest.”
- EB-3 for skilled, unskilled, and professional workers. Mieles said this is the most commonly used of the three employment-based visa categories and can generally experience the longer wait times due to the annual limit. It is available to individuals filing positions requiring at least a U.S. bachelor’s degree (or foreign equivalent) and who hold the corresponding degrees. It is also available to workers in a job that requires at least two years of training or experience, as well as to those in unskilled jobs. A labor certification is always required under this category.
A number of strategies exist to help attract and retain the right people in the right roles, and AEM is here to help bring them to light through its Workforce Development Committee. Learn more.
Steps to Obtaining an Employment-Based Visa
1. Complete labor certification. For EB-3 visas and most EB-2 visas, the first step is a labor certification.
“Employers should realize that labor certification can take a long time.” Mieles pointed out. At this point, the whole labor certification process has typically been taking 18-24 months, and even as long as 29 months in some instances.
It’s also important to understand that there are strict advertising, recruitment, and posting requirements. An employer must obtain a prevailing wage determination from the U.S. Department of Labor and maintain thorough records of their recruitment efforts for the offered role.
2. I-140 form. Once the Department of Labor issues a Labor Certification, the employer must submit an I-140 “Petition for Alien Worker” to the U.S. Citizenship & Immigration Services (USCIS). Mieles said processing can taking anywhere from 2.5 to 25 months, depending on the visa category and premium processing options.
Given those potentially lengthy processing times, Mieles recommends employers start the process as soon as possible.
3. Adjustment of status. When an I-140 has been approved, the FN (employee) can apply to change/”adjust” his/her status in the U.S. to that of permanent resident by filing form I-485, provided an immigrant visa is available for the foreign national’s category and country of birth according to the monthly Visa Bulletin.
Mieles said it’s possible that wait times could exceed the time left on a foreign national’s underlying nonimmigrant visa. However, one visa category, H-1B, allows foreign nationals to file for an extension beyond the six-year limit if they are in the green card process.
Alternatively, Mieles said there is the option of completing this final stage at a U.S. Consulate in the FN’s home country. Additional documentation may be necessary, and the timeline will be longer.
This last step has also seen its share of scrutiny, according to Mieles. Back in May, the USCIS announced a policy emphasizing that the adjustment of status pathway to permanent residence (i.e., filing form I-485 in the U.S. rather than returning to the FN’s home country) is a matter of discretion and instructing officers to weigh all positive and negative factors before excising this discretion.
It is essential for employers to properly understand risk factors before deciding on the best pathway to permanent residence for their FN employees.
Tips for Building a Workforce Immigration Strategy
With the changes and increased scrutiny of immigration-related programs, Mieles said manufacturers need a well-thought-out immigration policy that can withstand investigations and audits. This must include, well maintained I-9 records. “This is critical.” A carefully executed I-9 audit can help uncover deficiencies and ensure that employers are in compliance. Mieles explained.
Second, keep abreast of changing restrictions on various work authorization programs. This can be easier said than done given all of the changes and court challenges taking place. A good immigration attorney will help.
Employers must ensure compliance with the terms and conditions of an employee’s particular visa. If a foreign worker’s job role, wage, or work location changes, it’s important to talk with an immigration attorney about how these changes might impact the foreign worker’s visa status and work authorization. Mieles said.
Employees must also understand their compliance requirements. Mieles said they should print and retain copies of their I-94 admissions records, register online with the U.S. Department of Homeland Security (Form G-325R) (if required), and always file Form AR-11 with the USCIS within 10 days of have a change in home address.
As is readily evident, navigating the current immigration landscape requires effort from both the employer and employee. But it can be done, Mieles said, providing a viable platform to help manufacturers fill a variety of skilled, high-demand roles that are essential to their operations.
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For more information on the upcoming series of member education webinars, contact your Account Success Advisor.
