Immigration Pathways from Studies to Employment
While attorneys play a limited role in assisting foreign nationals in obtaining visas to study in the U.S., it is never too early to advise an international student about the manner in which they might pursue employment following the conclusion of their studies. The processes are not intuitive, and developing a strategy in a timely manner can be essential to the student’s ability to remain in the U.S. This course will provide strategies for transitioning international students to temporary and/or permanent employment-based visas, and assist counsel in providing answers to the questions that international students typically present. What is the legal framework for seeking employment-based visas in the U.S.? How do the processes differ in pursuing temporary (nonimmigrant) and permanent (immigrant) visas? What are the most suitable categories within each? What if the client is from a country for which there are no immigrant visas available? What strategies are available for moving from a nonimmigrant to an immigrant visa? What considerations should a foreign national be considering while pursuing their studies in the U.S.? In the course of addressing these issues, we will survey the most common immigrant- and non-immigrant visas, discuss how to evaluate your client’s suitability for particular pathways, and identify special issues that should be addressed from the outset to provide your client the best chance of success.
Matthew Blaisdell - Hello, and welcome to the Quimbee Continuing Legal Education course, Immigration Pathways From Studies to Employment, progressing from student visa categories to employment based categories. My name is Matthew Blaisdell and I'm a general immigration practitioner in Brooklyn, New York, whose practice includes troubleshooting with international students as well as advising and representing them in regards to employment based options. Today's goals are threefold. We're going to find out what employment-based options are out there, learn how to identify the options that best apply to a particular student and anticipate potential problems including issues related to SEVIS registration, backlogs, dual intent and consular processing among others.
First, let's step back and take a look at the big picture at the broad categories of employment-based visas, but first a word on terminology. NIV, Non-Immigrant Visas means temporary visas, whereas IV, Immigrant Visas refer to green cards. We'll also spend a bit more time on the topic of H-1B Visa as that's the one you'll probably get asked the most about, and then touch on the rest, as well as identify student visa related issue that you'll need to know about as well. Then we'll hit the employment-based pathways to a green card including labor certification and the categories that do not include labor cert such as Schedule A: Groups I and II and National Interest Waiver and self petitions. We'll talk a little bit about processes and strategies including consular processing versus adjustment of status and go a bit more into detail in those if we have time, but if not, we will reserve those slides for the end of the program. So if we don't get to them within the hour, the content is there for you to peruse.
So what is the H-1B Visa? That is for specialty occupations, which is generally referred to as a specialized bachelor's degree for a specialized field and you're coming here to do that thing. Of course, the statutory and regulatory definition is a bit more specific which is the theoretical and practical application of a body of highly specialized knowledge in the attainment of a bachelor's or higher degree in this specific position or it's equivalent as a minimum for entry into the occupation in the US. And you must have achieved the bachelor's and come to the US to perform a job requiring such in the similar field as the degree. So you're coming here to do the thing that you have the bachelor's for in a specialized field. Now the degree requirement is crucial to the definition of specialty occupation, whether your client fits that, in which one year of a bachelor's degree can be substituted for three years of experience. Or as it says in the statute and regulation, you can substitute three years of professional level experience for one year of academic training in the specialty occupation a.k.a the three for one rule. Now what counts as the foreign equivalent of a bachelor's degree could be the topic of an entire sub-training, so for now, just note that in each case, you'll have to engage in that analysis of whether the foreign national's foreign bachelor's degree is the equivalent of a US bachelor's degree. So that's the broadest definition. Starting over.
So now that we've defined specialty occupation in the broad sense, what are the benefits? Why do your clients want this visa? Well, for one, they can get up to six years in H-1B time, possibly more if they've spent some of that time outside the United States or if they have a pending green card application, we'll touch on both of those situations a bit later. But other benefits include the fact that this can be part-time. They can have multiple employers, several at the same time, and they can switch between employers so it's very flexible. It is also considered dual intent. So it's one of the very few temporary employment based visas in which you can say I'm also going for a green card at the same time as I'm here on temporary work visa. For most of these options we're going to explore, you cannot do that. Drawbacks however, include the fact that it's difficult to get, not just for difficulties in fitting these specialty occupation definition, but also because demand far outstrips the supply. There's a hard cap on the number of these that are available in each fiscal year leading the government to basically auction them off in a kind of lottery. So people subscribe to the lottery and recently, probably less than one out of three are actually getting picked. And those are the only people who get to apply. Not every H-1B applicant is subject to this lottery, we'll discuss those in a minute, but most of them are.
However Chile and Singapore, foreign nationals from those countries, are able to get around this. And that is through what is called the H-1B1 visa, slightly different, we'll touch on that as well. But first we must be aware of the fact that as the attorney you're representing the employer, you're filing a form called an I-129 that is a petition. The employer is petitioning for the worker. And as such, there's a few things that you really must communicate to the employer. And one is that they must make an attestation regarding wage and labor conditions, specifically, that the working conditions for the foreign national will not adversely affect those of US workers, that there's no strike or lockout at the place of employment, that the appropriate union's been notified and if there's no such union, then copies of the Labor Condition Application are posted. That it will maintain a presence in the US and that it will pay the required wage. And you must also communicate to the employer that there are very specific penalties for failing to live up to these attestations, which is right there at the bottom of the slide.
In the last of those bullets, we mentioned that the employer must attest that they will pay the required wage to the foreign national, but what is the required wage? It's basically the greater of the actual or prevailing wage. So what do those two terms mean? The actual wage is what the employer is paying to other employees with similar experience and qualifications. And the prevailing wage is what the Department of Labor has determined that the going rate is for that particular job in that particular geographical area, which you can look up through the Department of Labor websites before you even start the case. Essentially, if the employer is paying employees who are doing a similar job more than the prevailing wage, then that is going to be the required wage for the foreign national, they must pay the higher of either the prevailing wage or what he's actually paying their employees.
We also mentioned the posting of the Labor Condition Application or LCA. What is that? It's basically something that's filed online with the Department of Labor to certify the basics of the case and the labor conditions that will be present in the application, including the wage and location. This must be filed online before the petition is actually filed. It needs to come back certified and it's included as part of the petition. Petition must also include evidence of the foreign nationals' qualifications and evidence that the proposed employment constitutes a specialty occupation as discussed earlier. And the other certification that the employer makes is that, of course, all statements are true and correct. They will abide by the assertions made in the LCA and that they will pay repatriation expenses if the foreign national is fired during the time of the petition.
As I mentioned, the foreign national can get up to six years in H-1B time in the US in one shot, however, once they've stepped outside the US for an entire year, the six o'clock restarts and they can start over. Also time spent outside the US during those six years can effectively be added back. So if they had spent three and a half years in H-1B time, stepped out for one year and come back, they won't be at the four and a half year mark. They'll still be the three and a half year mark and can pick up the rest of the time once back in the United States. Also if an LCA and or petition for lawful permanent residence is filed by the end of the fifth year of status, and by LCA I mean the PERM process. So basically if they started a green card process before their fifth year, the foreign national can continue to renew that H-1B on a year by year basis. So say they hit the end of the six years and they've got the green card application pending, it's been pending for one year at the time, they can continue to renew H-1B status for the remainder of the time until they obtain the green card in one year increment. So they'll just continue to file extensions every single year until they're able to obtain the green card. If the petition for alien worker, the underlying basis of the green card is approved, they can extend that to up to three years. This is important if you have clients stuck in the backlog, particularly those from India and China, for whom a wait for a green card in employment-based categories is very, very long. So they want to continue to renew these H-1B visas to keep them here working in the US up until their place in the line is up. reached.
As mentioned, there are a very limited number of these visas, in fact 65,000 per fiscal year, and far more than that number apply for them every single year. However, this is called the H-1B cap, but there are a few classifications of people who are exempt from the cap. So they can just assume that a visa is available for them at any time, should they be eligible for it and approved for the visa. And these include J-1 exchange visitor physicians, beneficiaries of employment at institutions of higher education. We'll touch on the definition of that in a little bit, but essentially think colleges and research institutions. People who have earned a US master's degree or higher, actually they're subject to a separate cap, but their odds are better in a master's cap than in the bachelor's. Those already counted against the cap. So if you were successful in the lottery once, you do not have to go back and do the lottery again in the future. And it also includes the spouses and children of H-1B holders and those on H-1B extensions. What constitutes a related nonprofit entity could also be the subject of a smaller training. Feel its sufficient to just put in the regulatory definitions, and for the time being, just note that it's a nonprofit entity connected or associated with an Institute of higher education, whether through shared ownership or control by the same board or otherwise. Note that there's case law on it, it's a much bigger topic than we can touch on here.
So what exactly is a research institution or related nonprofit entity? I'm just gonna drop the regulatory definitions here in this slide, because it's a much larger topic that should be better addressed through again, a smaller training. But for here, just note that it's typically an entity related to an Institute of higher education. I will however touch on a simple test for determining whether the entity might qualify as a nonprofit attached to a research institution. And that's a three-prong test. The first being, whether it's connected or associated with an Institute of higher education through a shared ownership or control through the same board or Federation, whether it's operated by an Institution of higher education or, this is disjunctive, it is attached to an Institution of higher education as a member, branch, cooperative or subsidiary. So some examples of that include private employers if the employee physically works at the Institute of higher education or related nonprofit, and there is a nexus between the work performed and the nominal purpose of the nonprofit. Also nonprofit research organization primarily engage into basic research and or applied research, that's kind of the classic definition, as well as simply government research organizations or US government entities. Now if the foreign national member, they can have multiple employers at one time, if one of them counts as such an institution and the other is not, they get the benefit of that. They are able to skip the lottery on the basis of just one of those employers qualifying as a nonprofit.
Now quickly before we turn our attention to some of the other visas, I mentioned that there are a few countries that have variations on this. Again, Chile and Singapore, with the H-IBA visa, in which case, there is no petition but they do need an LCA and they only get one year at a time but that one year is unlimited. As well as the E-3 visa, which is available for Australians. Again, that's not an H-1B visa, but if you have a client foreign national from Australia, take a look at the E-3 because there are substantial similarities. Although with the E-3 and the H-1B1, there are lots of little differences. And that's all we're gonna say about H-1B.
Now we're gonna turn our attention to the J-1 visa for exchange visitors. It's typically the first one you look for for people who might have been a really good fit for an H-1B, but weren't able to get through the cap or through some other small difference were not eligible. The thing to know about the J-1 is it's all about the program. It's an exchange visitor program run by an exchange visitor visa administered by an exchange visitor program. So that sponsor the program is administered by the Department of State. They receive designation from the DoS and enroll in the SEVIS, which is a registry used by ICE to track students and ensure that they're in compliance with their exchange visitor or student visas. The J-1 Sponsor runs the program and places the student in the program and they issue, well, student or visitor, they issue the foreign national the relevant immigration documents including the DS-2019, the Certificate of Eligibility and the other entry documents which will be valid for the duration of the program.
So you read the face of the DS-2019 and you understand what the conditions are and the duration of that visa will be tracking the program that they're entered in. As for the time limits, depends on the program. As for what type of programs are covered, it's very broad. You need to read the regulations. It includes, the major categories being trainees and interns, secondary school programs, travel-work exchange programs, Au Pairs in EduCare, teachers, camp counselors, professors, research scholars, temporary scholars, foreign medical grads and physicians, college, university and graduate students, government visitors are international visitors and many others. They may also be engaged in a full-time prescribed course of study, non-degree up to 24 months, and should receive financial support and health insurance for the duration. Now, something to note, if your potential client might be interested in a green card down the road, and trust me it's safe to make the assumption that they will be, you must consult on this point. Certain of these categories are subject to a two year home residency requirement before they're eligible to go for adjustment of status here in the United States.
So say they are reaching the end of their J-1 program, maybe they're married to United States citizen or some other family member is able to sponsor them or an employer is willing to sponsor them for a green card, you need to find out if they're subject to this requirement, 'cause if so, they need to step out of the United States and remain outside of the United States for a full two years before they reenter. And you really should point this out to the foreign national before they start going down this road. The major categories would include government funded programs, medical education or the infamous skills list. Now fortunately, that skills list is published, you can take a look at it to see what particular professions are subject to the two year home requirement. But this is not written in stone, you can submit an inquiry to the Department of State regarding the specific program ahead of time to figure out if it's subject. And depending on what they say, you can even argue that the Department of State is wrong, but you need to know this in forming your strategy. There are waivers available for this requirement in a number of different categories, but even if your client might be eligible for a waiver, some programs are more difficult to obtain these than others.
So say government funded education programs quite often is subject to a higher level of scrutiny in submitting the waiver. So you'll want to have an idea of what you're looking at, what the likelihood is of being subject to the requirement and the likelihood of obtaining a waiver if they are subject to the requirement and incorporate that into your strategy from the outset. Now one thing to know about J-1s is particular to exchange students because they very much are gonna be interested in whether or not they can work and to what extent. They are able to engage in on-campus employment, they do not receive an employment authorization document or work permit, they just get that DS-2019 and on their I-94, their entry, they are in what's called D/S status, Duration of Status. So that means that they're eligible to be in the US for as long as they are in compliance with their visa as long as the J-1 program lasts. They are eligible for 18 months of academic training which is the equivalent to Optical Practical Training, OPT, now you might not know what those terms are, but trust me, your clients if they're international students, they will, and either pre-completion or post completion, so CPT beginning within 10 days of the conclusion of the program. So once the J-1 program ends, they might be able to get into this advanced training or CPT. This includes 36 months in post-doctoral training or a for non-degree, it cannot exceed the time spent in the program of study. Now J-2 spouses, so the spouses and children of the J-1 holder can work if their income does not go to the J-1 holder. So the J-1's not supposed to be making money off of it during this particular time. There are restrictions and requirements for certain programs, but those are again, going to be specific to the program. So do your research before going down that road. And that's all we're gonna say about J-1s.
Now we're gonna turn our attention to the other major category of dual intent visas. Remember the H-1B is the major one in which you can say, yes, I'm here on a temporary work permit but I'm also going for a green card at the same time. The other one, the other visa that enables you to say that is the L-1 for intra company transferees, and that's exactly what this is. It's to transfer employees of foreign entities to the US parent, affiliate or subsidiary. And that employee has to fit within one of these specific categories. They have to contribute executive managerial or specialized knowledge skills. So those are broken down as the L-1A, that's for managerial or executive assignments for initial period of three years, and they get two extensions of two years each. They can get up to seven years in the L-1A for managerial or executive assignments. There is the L-1B, which is for specialized knowledge assignments. These are people who have special knowledge of the employer and the business and the type of work being done. They can get an initial period of three years and one extension of two for a total of five. And spouses and dependents of the L-1 holder are L-2s and they can get work authorization as well. And similar to the H1, you can recapture time spent outside the US. So if the L-1B is here for four years, and in the fifth year they step out for a year, they don't lose that fifth year, they can come back and recapture that at the end.
Now, what are the eligibility requirements for these two categories, the L-1A and the L-1B? How do you define them? For the L-1A for the transferee, they must have obtained that executive, managerial or specialized knowledge in employment outside of the US. So they're coming to apply the experience and knowledge that they got outside the US and their assignment in the US must require the application of that executive, managerial or specialized knowledge. And of course, you must establish the corporate relationship between the foreign and the US companies. This criteria can sometimes be defined very narrowly by USCIS. So it can be difficult to get into but it's a nice one to have. And one of the reasons aside from the similarities to the H-1B and the ability to stretch out the length of this is that it provides a nice transition to one of the green card options we'll talk down the road, which is the EB-1C category.
But let's just drop a note for that right now, and move on to the O-1 visa we're gonna have. I'll hit a few more of these temporary visas before we get to those green card employment-based categories. The O-1 is for those who have demonstrated extraordinary ability or achievement, specifically in the sciences, education, business, athletic, arts or in the motion picture and TV industries. I basically break these down into three categories. There's the science, education, business and athletics, we call that SEBA. That's the O-1A visa. There's the arts, which is O-1B, and film and TV which are also O-1B, but have somewhat distinct eligibility requirements from the arts. So it's basically two categories of the O-1B and three total. This visa is valid for up to three years with no limit on the number of extensions. And you can bring in support staff. That's the O-2 visa. These are the people who are accompanying the O-1 principal to assist with artistic or athletic performances and the O-3 for spouses and dependent children. However, they do not get work authorization through this O-3 visa. The benefits, this is very broad, it's somewhat abstract. It does not include requirement for wage maintenance. There's no overall limit on the time, as mentioned you get unlimited extensions and there's no cap on the numbers. So for a lot of clients who don't fit within H-1B, say they didn't make the cap, or they don't fit the criteria for J-1 or L-1, if they're extraordinary enough, this is an ideal alternative for them. Basically, are you extraordinary and are you coming here to do the thing that you're extraordinary at? If they can potentially meet that in the affirmative, it's worth taking a good long look at the O-1 visa. Essentially, that's about it. It's the opposite of the technical requirements and limits of the H-1B and the L-1.
Now what is extraordinary ability in the sciences, education, arts, business or athletic? That's defined as sustained national or international acclaim and a level of expertise indicating that the person's one of the small percentage who have risen to the very top of their field of endeavor. For artists and entertainers and those in the television motion picture industries, they must show a demonstrated record of extraordinary achievement. So in the arts, extraordinary ability is understood as sustained national or international claim and recognition for achievements in their field with distinction being defined as a high level of achievement in the field demonstrated by skill and recognition, substantially both most artists, to the extent that the person is described as prominent, renowned, leading or well known in the field, whereas for O-1B film and TV, they must show extraordinary ability through a record of extraordinary achievement in the field, which is understood as a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable or leading in the field. Those are the statutory and regulatory definitions leading a lot to interpretation.
So that's a very different skillset here in the O-1s, one of storytelling and documentation as opposed to fitting very specific, narrow and technical-legal requirements that we've seen in the previous visas. As for what those eligibility criteria are, we're not going to get into that now, again, proper for another training. But generally speaking, they need to show receipt or nomination depending on the category of a major internationally recognized award and or hit three out of a number of other enumerated criteria. Again, the number of possible criteria depends on the type the O-1A versus the O-1B, but they need to hit three of those. And there's also a category for comparable evidence. We're not gonna get into all of that. Suffice it to know, it's all spelled out in the regulations, go ahead and take a look. You can also find it spelled out very clearly on the USCIS website that list the criteria for the various visas, the O-1A and the two types of O-1B.
But enough said about O-1s, we're gonna move on to the very last non-immigrant visa options, starting with the TN for NAFTA professionals. This visa is for Canadian and Mexican citizens on professional assignments pursuant to NAFTA, which I know has been replaced but the visa remains the same. And it specifies occupations and the corresponding educational or licensure requirements for these. It's valid for up to three years. And the major difference between Canadian and Mexicans is the manner of applying for it. Canadian nationals can basically show up at a port of entry whereas Mexican nationals must apply for a visa at the consulate, and then actually take that literal visa to the port of entry and apply there. There is a TD visa which is the version for their spouses and children. And extensions of the TN can be filed with USCIS at the port of entry, so I say, port of entry, meaning at the border or airport or wherever it is that the person is entering the United States, or at the US Embassy or consulate overseas. The requirements are fairly straightforward. Must be a citizen of one of those two countries, on a professional assignment within a specific list of occupations. It, with limited exceptions, does require bachelor's degree similar to the H-1B and applicable professional license.
So if you're coming to perform in an area that requires a license in the United States, you must actually have that license. You need to know what the particular occupations are. There is a list, the occupations list at the 8 CFR 214.6, they spell it out very clearly there. And if it's not on that list, then your foreign national will not be a eligible for the visa, time to look elsewhere. As for the application itself, it's pretty straightforward. It's pretty simple actually. Again, you can look uscis.gov for more detail, but it's basically a letter with the evidence. And of course there's an art to it but take a look at the website, do a little research, it's much more straightforward, a little much more basic than the other options we've covered. But if your client is not able to obtain an H-1, L-1 or the others, they are a citizen of Mexico or Canada and they're coming to perform an occupation that's on the skills list, this is a fantastic alternative for that narrow group of foreign nationals. We typically think of a visitor visa as a visitor for pleasure. That's the B2 visa.
However, it's the same as the B1, they're just different categories but on the same visa, the same physical document. And the B1 is visitors for business purposes. So those would be temporary work pursuant to a foreign employer's international transactions. The important thing is you cannot work on a B1 but you can proceed to do stuff if it's in the service of the foreign company. So these would be business activities that are not actual work. And we'll go over some examples in the next slide, but the gist is that you must perform these services on the premises of the US company pursuant to a business relationship between the US company and the foreign employer. So you must demonstrate, again, this is a visitor visa, visit means temporary and only to engage in legitimate activities. You must demonstrate adequate financial resources to carry out the purpose without US employment. So again, they really, really, really wanna make sure you're not working here. In order to make sure you're not working here, you need to show that you don't need to work here because you have sufficient resources. You also need to show compelling ties to the business sponsor, a foreign residence that you do not intend to abandon, and that the function is necessary and in incident to international trade or commerce. Now there's a number of examples here on the next slide, but you can also for shorthand, now just skim the bullets and look at some of the sources cited at the bottom of the slide. And that is all we are going to say about the B1 visitors for business purposes.
Now there are, I just wanna touch on a few other non-immigrant... Actually, there's a number of other non-immigrant temporary visas, but we don't have time to go into all of them so I just wanna touch on the other major categories. There's the P visa for performers. There's a couple different categories. There's one for cultural workers, for athletes, for other types of performers, those in the theater with the Reciprocity Agreement with the United States,. They get very specific so you need to have it a very good idea of what your client's background is and what they're looking to do in the US and continue to look through the various visa classifications. There's the E-1 visa for treaty traders. Treaty being countries that have a specific treaty agreement with the United States and have come here pursuant to that treaty in order to conduct trade activities. And the E-2 for investors and entrepreneurs from countries that are also subject to a treaty with the United States.
So these are all very specialized visas. Can't fit them in here, but just dropping that as a note that we're not covering the entirety of the universe, but again, know what it is that your client is coming to do, what their background is, and that's the best starting point. And now with that said, we're gonna gonna turn our attention to some of the legal issues facing students looking to transition from student or exchange visitor status to green card status through employment-based sponsorship in the United States. The first of these major legal issues are the single and dual intent doctrines found in INA section 214 , shorthand 214 issues meaning dual intent.
Now we touched on this a little bit already. There's a couple things to know which is the presumption of immigrant intent doctrine. Essentially all foreign nationals seeking to enter the US are assumed to have the intent to permanently reside in the US meaning to be admitted as immigrants. So they are inherently suspicious of you entering the US on a temporary visa. Now, there are certain categories that require the foreign national to overcome this presumption, and they do this by showing they have domicile in a foreign country to which they intend to return at the conclusion of their permitted stay in the United States. So basically you have to convince the Department of State and Customs and Boarder Protection that you will return at the end of your permitted stay. So, for example, if you enter on a student visa and on the I-20 issued by the school, it says, valid till this date, you have to show when you enter the United States that you do intend to return to the foreign country or anywhere outside of the US by that date, even if it's just for the day, you need to show that you plan on stepping out at the end of that stay before you come back into the United States.
Now we've noted some exceptions of that, the dual intent doctrine. Some visa categories are considered dual intent meaning that the foreign national may be admitted through the non-immigrant visa while stating non-immigrant intent and then pursuing permanent residence. So basically they can say, yeah, I'm coming here temporarily. I think I might go for the green card as well. And if you're in one of these dual intent visas, they have to admit you as such assuming you meet all the other requirements. Now, if you're not on one of those dual intent visas such as the H-1 or L-1, and the O-1 is considered quasi-dual intent but that's a story for another day. If you're on what's known as a single intent visa, which is all the other ones we've talked about, you do have to show that you are domiciled, you basically have a home and keep your stuff outside the US and that's where you're going to go once your permitted stay has terminated. Now, how do you maintain non-immigrant status? So once you're in the US, if you're planning on extending that temporary employment-based status or perhaps going for green card when it's over, you have to maintain non-immigrant status all the way through. So maybe you are on a student visa, and I say, you when I'm referring to a foreign national, they're thinking of changing from the student visa to one of these employment-based categories or simply extending their student visa, or maybe extending an employment-based temporary visa or at the end going for adjustment of status, going for the green card.
In either of those three scenarios, they have to maintain their non-immigrant status all the way through. So you kind of think of this as keeping the ball in the air. So it's like a balloon or a volleyball, you wanna keep hitting that ball. You don't wanna touch the ground. You don't want to fall out out of non-immigrant status for even a day if you can help it. So think of it as basically keep filing stuff. Specifically though, this is the requirement of maintaining lawful status typically required for the entire period leading to the time at which the new status becomes operative. So you have to file this extension or this change or this adjustment while you're still in your valid non-immigrant status. So say the student visa or temporary work status is going to expire on the 15th of the month, you need to file the extension change or adjustment by the 15th. If filed later than status, and the authorized stay expires while the application's pending, you do fall out of valid non-immigrant status but you are in a period of authorized stay, a stay authorized by the Attorney General.
So obviously if you file the application to extend change or stay the day before your status expires, it's not gonna get approved by the next day but it will be pending. And during that period, during which it's pending, you're not considered to be entirely outta status but not invalid non-immigrant status either. You're in this kind of immigration limbo known as a period of stay authorized by the Attorney General, which is basically just good enough to let you stay until a decision is made on that pending application. However, if you depart the United States while it's pending the pending application will be deemed to be abandoned. What is a change of non-immigrant status? You file what's called the I-539, that's an application found on uscis.gov. That's for visitors and students looking to change from their current student status to a temporary employment-based status. If it's for an employment-based, if your client is in employment in this category, they're filing I-129, a petition to get into that status.
So a non-immigrant can apply for a change of non-immigrant status pursuant to immigration action at section 248 or an extension by filing that application with USCIS. You cannot apply if you are inadmissible. So there's a number of grounds of inadmissibility in INA 212, if you're subject to any of them, you cannot change or extend status within the United States. You need to step out and apply for a visa at a US Embassy abroad. And again, it must be filed where you're still in non-immigrant status. However, if you do fall out, there is a narrow exception, and there were a lot of these during COVID. So people fell out, you were planning on returning to their home country, they fell out a status and they didn't know what to do. So they're frankly looking around, many of them filed applications for B2 visitor status in the meantime, but there was a gap. There was a gap between when their last stay expired and when they were filing this new application. It is allowed if you meet this exception, basically show that the delay was due to extraordinary circumstances that were beyond your control and you filed it basically as quickly as you could afterwards. A little more complicated than that but the criteria laid out there and you can read the regulation for more detail.
As for extending status, basically again, for the exception chart, it's not your fault and that you to mitigate and fix it. And from there, we're gonna move on to the slide, maintenance of non-immigrant status. And we're gonna talk about the concept known as bridging. So we touched on the fact that an application to extend or change will be pending while you're out of status. So again, you file it day, week, a couple months before your current status expires and it's not approved by that date. So you're in that limbo that we talked about, a period of authorized stay. Because the processing time for these applications exceeds the period of authorized stay that it would've covered, so in this case, think about you're applying for an extension of a visitor stay. You're asking for six months.
Now the application to extend may take more than six months for them to adjudicate. So that's a little confusing, but say you're here from January and you're asking for an extension of the visitor status until July, they might not even approve the application for extension until July. So what do you do? You have to file another one before the date that you asked for in July. So it's something of a legal fiction. You're pretending that you're still in status, even though they haven't actually approved that application yet. Basically they go back and back fill it. So all of these pending applications, remember keep filing stuff, it's called bridging the gap. You're bridging that gap by filing more and more of these extensions until they start approving them and until you decide to either adjust status or to leave the United States. So again, that status is backfilled and eventually fades away.
So the first applications for extension will someday get approved even though you're past that period and you'll retroactively be considered to have been in status during that time. And eventually at some point you will decide to adjust status to a green card or step out of the US in which case those pending bridge applications will fall away. They'll basically be abandoned to no prejudice to you. And now that we've discussed bridging and dual intent, let's transition to the actual green card categories themselves. And we'll start just by touching on the different categories of green cards. There's five preference categories, the first being priority workers. So those of extraordinary ability an idea we've touched on, outstanding professors and researchers and multinational executives and managers, that's the EB-1C category that we referenced from talking about the L-1 visa. In the second preferenced-base category, so this would be EB-2, those are advanced degrees and those of exceptional ability, EB-3, skilled workers, professionals and others, EB-4, special immigrants and EB-5 is employment creation, sometimes referred to as the millionaire visa that's for large investments. So EB-1 through five.
And with that said, we are going to move onto how those visas are allocated. As with the H-1 visa, there's a limited number, although it's a little more complicated than that. There's not only a limited number of visas in these categories, but they're also limited by the country that you are from. So they're are specific numerical limits, both by category and country. However, there are as with H-1B a few exceptions to this, and one of those being the EB-1 category, the priority workers. Typically you're able to get out of this if they're of extraordinary ability, little higher standard than the O-1. And there's also a few for certain master's degrees or those who excel at certain areas of business or science are able to get out of the recruitment phase of the petitioning process. But there's a lot of detail on that slide, and we're gonna skip over all that. You don't need know that for now, what you do need to know but are the processes which you are gonna move onto in the next slide. The first step is you file a petition. Approval of that petition is what gets you in line. It's the underlying basis for the green card. That's petition for alien worker, the employer files it, says I've done all things I need to do in order to hire an alien worker. And once that's approved, the alien worker can then go on and file their application for a green card.
So it's corollary in the family based categories would be an I-130, petition for alien relatives. So say you were doing it on a marriage, basis of marriage, the US citizen file or the permanent resident family member, whatever it is, files a petition proving the relationship, once that underlying basis is approved, the foreign national can then go on and apply for the green card if they're otherwise eligible. So same thing in this context, the I-140 is filed by the employer unless it's in the EB-1 category in which the aliens that are extraordinary, they can sponsor themselves and they file their own I-140. But essentially this petition is a request to USCIS to show that the foreign national is eligible for the preference classification, and if they're eligible, the visa number will be assigned. So again, there's a limited number of visas available so if there's not one immediately available once the I-140 is approved, that approval gets you a place in the line waiting for the availability of that visa. Other thing to know about the petitioning process is that before you even file it, most of these classifications require a labor certification demonstrating that no US worker is able, willing, qualified and available for the position and that the foreign national meets the minimum qualifications for that position.
As I touched on the last slide, last two slides, there are some people who are exempt from this requirement, those being priority workers defined in the next three bullets and those qualified for a National Interest Waiver. And the National Interest Waiver applies to a few of those in the EB-2 category. Now I mentioned the need for an employer to file the petition, there are exceptions, individuals of extraordinary ability, EB-1, or those qualified for a National Interest Waiver, which is a sliver of people eligible in the EB-2 category. If labor certification is obtained, or if they're exempt, the petition can then be filed. And if the foreign national is lawfully present in the US, steps one and two can be taken at the same time, so they can file the petition and the green card application altogether with USCIS, form I-485 application to adjust status and you're adjusting status to lawful permanent residence. You're adjusting the status from temporary to permanent. Otherwise if a visa's not available, or if they're just otherwise not able to apply for adjustment, they do it one step at a time. The I-140 once approved by USCIS is forwarded to the Department of State for consular processing of the immigrant visa. So the petition's approved, they start moving it from USCIS over to the US Embassy. You apply for the application for the immigrant visa there, try to get scheduled, that's the National Visa Center. It's a mess but once you complete that process, the embassy will notify you of your interview date.
Now, with that broad note about process, let's get to the categories themselves. So EB-1A, extraordinary ability, very similar to the O-1 extraordinary ability in SEBA science, education, business or athletics or arts. Also obtained through sustained national or international claim. No offer of employment is required. So this is not like the O-1 we split into O-1A where you have science, education, business, athletics in one category. Arts and athletic, arts in one and film and TV in the other, it's all EB-1A. It does not require employment sponsorship. So as mentioned, you can petition for yourself as long as you're coming to work in the field. So you're telling them I'm so extraordinary, I don't need a sponsor. I'm gonna generate work all on my own and I'm not gonna prejudice the labor market because I'm not like the labor market. I am extraordinary. However, if you are coming, how do you demonstrate you're extraordinary? As with the O-1, you must have the big award or established three of the following, which for brevity we're not going to discuss in detail but just note that the ten criteria are listed here on the slide. If you don't have the big award, you need to hit three of them. Now, EB-1B, not extraordinary ability but outstanding researcher and professor. There's also EB-1C, we're gonna skip two slides down, and that is for the multinational manager or executive. So we touched on that with the L-1, very similar, except you must have been employed outside the US within the last three years and by one year for the firm corporation or the affiliate, et cetera, in a managerial or executive capacity and must be a US employer. It's all we're gonna say about the EB-1 category, more detail can be found again in the slides or at uscis.gov.
But so we can get through this timely, we're gonna move on to EB-2, members of the professions with advanced degrees. This means members of the profession holding an advanced degree or aliens of exceptional ability in sciences, arts or business. There are multiple routes to the EB-2 category. So you can do PERM, you can test the labor market to show that no US workers are willing, available and able to take the job, or you can skip that by obtaining a National Interest Waiver, or if your particular occupation falls on this very specific list called Schedule A: Group II. So again, this means that the EB-2 category like EB-3 it means you have to test the labor market, which is a lot lengthy process with the Department of Labor unless National Interest Waiver or Schedule A. So basically just know that this labor market test, this what we call PERM for shorthand adds a lot of time and risk to the case. So if your client might be eligible to get out of it through Schedule A or National Interest Waiver, absolutely take a long hard look at that. Now we're gonna skip the next slide and move to the one describing the threshold requirements for EB-2 which is essentially that you need a master's degree or a bachelor plus five. That means the bachelor degree plus five years of progressive experience. Progressive being defined in this slide. And that progressive experience cannot be also used as the qualifying experience, you can't double dip. Plenty more to say about this, proper for another training for one day, but just keep in mind for EB-2 think masters or bachelors plus five.
And on that note, we'll skip to the next slide, which is the criteria for EB-2 not advanced degree but exceptional ability. What is exceptional ability? It's a degree of expertise significantly above that ordinarily encountered in the science, arts or business that will substantially benefit perspectively the US economy, cultural or educational interests or welfare of the US. Crucially, it must be a US employer, you have to be able to explain the benefit and know that the degree does not need to be in the same field as the exceptional ability, but they must relate to each other. For that much desired National Interest Waiver, again, you can wave of the labor certification process or the PERM process where you can demonstrate that the work is of substantial intrinsic merit, national interest in scope, and you need to hit all three of these, it's in the national interest not to require labor certification. So it's in the interest of the US to allow the person to skip that Labor Conditioned Application, that PERM process. It's in the interest of the US that they not have to test the labor mark with all that extra time and risk involved. It's in our best interest to let that person in. They must still possess an advanced degree in the field or demonstrate exceptional ability. And like EB-1, it allows for somebody to petition for themselves. So all that similarities between National Interest Waiver and EB-1 but different criteria.
The other that doesn't require the PERM process is Schedule A Group: II. That's pretty straightforward. It's defined at the Department of Labor at this regulation, go there to find out who qualifies. It's for persons of exceptional ability in the sciences, arts and university teachers, and the PERM application must be filed but you don't need to run the labor market test. So you do need to file the PERM application but you get to skip the lengthy process and risky process of showing that no US worker is available and able and willing to take the job. So if your client's in one of those exceptional ability type fields or more straightforward, if they're a university professor, please do take a long look at Schedule A: Group II.
Now, which is this Labor Certification Application? What is this PERM process we're talking about? As mentioned as test of the labor market, you should know US workers willing, able and qualified for the position. And this is basically a statement by the employer in which they must show that they have applied with the recruitment requirements, basically showing that they've advertised the job in the required manner, a manner required by the Department of Labor. That they have considered and evaluated the qualifications of all US applicants. Basically means that they've interviewed everybody who was or tried to interview everybody who was eligible and qualified for the job that applied. That they filed this application with the Department of Labor, the PERM applications filed online with DOL, and that the employer must pay all costs associated with this process, not the immigrant visa itself, but the underlying basis, this PERM application, and that includes the advertising costs. So if they run newspaper ads, radio ads, job site ads, whatever, if there's a cost associated with that, that must be borne by the employer. And they must retain the file of all related documents for five years. So all the attempts to find, advertise the job, to interview people, keep the results of all of that, et cetera. They need to keep that in a file for five years and just be aware the Department of Labor can audit this process. Quite often, it's random, sometimes it's triggered by a particular type of case or a particular thing in the application will cause Department of Labor to say, all right, we need to look at everything, show us everything you did.
So the DOL can approve the PERM, they can audit it or they can deny it. As mentioned, this is a lengthy process. So you'll see in the next slide, the number of steps include obtaining a prevailing wage determination. That's the very first thing you do. You say, "Hey Department of Labor, this is the job I want to hire for. These are the requirements. This is where it's at, the geographic location. These are the duties. Tell us what the required wage is." And when you get that or while it's pending, you start advertising the job. That's called recruitment, you're running recruitment. And then once you've done all of those things, so you got the prevailing wage determination, you've completed recruitment, you can submit the 9089, the PERM application, through the PERM website, that's where it gets the name. And if the Department of Labor certifies it then they send it back on a blue piece of paper with a signature. You get that signed and you can file that with the I-140 with USCIS, and once approved or if you're filing them concurrently here in the United States, you can apply for the immigrant visa by consular processing, or again, if it's concurrent, adjustment of status, adjusting status from temporary to permanent. Some steps may be conducted simultaneously depending on circumstances. So simultaneously, I mean, concurrent filing. And that's all we're gonna say about PERM. If you'd like to know more about PERM, you can read the next handful of slides.
But again, in the interest of time, we're gonna skip to the very last stage, procedures becoming a lawful permanent resident. We're just gonna touch on this for one minute. There's two different pathways. We've discussed consular processing, applying outside the US in an embassy or adjusting status here in the United States with USCIS.
Now we noted earlier, if you want to adjust status, you need to show that you maintained lawful non-immigrant status all the way through your time in the US. Just noting that there's a few very narrow exceptions to that, which you'll see at the bottom of the slide. You only need to look at these exceptions if your client had an interruption in status, but for the most part not really relevant to our purposes. Now for the following slides, if you've never practiced immigration before, you do wanna spend some time reviewing those, if you are already familiar with immigration practice in the family based or humanitarian context, then you're pretty familiar with most of this stuff already and don't need to spend a terrible amount of time reviewing. The processes are very similar in either context, employment-based or family-based.
And then on that note, we're going to conclude this CLE course titled Immigration Pathways From Studies to Employment. Again, my name is Matthew Blaisdell, thanks for spending the last hour with me. And if you have any questions, comments, concerns on anything covered, please feel free to reach out to me at any time. Thank you and thanks to Quimbee. Have a great day.