Employment Based Immigration: 3 Steps to Understanding the Process</h1> <article> <h1>Employment Based Immigration: 3 Steps to Understanding the Process</h1> <p>MySolutionSpot Editor — Sat, 12 Jul 2008 03:39:13 GMT</p> <p><br />EMPLOYMENT BASED IMMIGRATION </p> <p>A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition. </p> <p>There are 5 categories or preferences within the Employment Based (EB) system, e.g. EB-1, 2, 3, 4, and 5. The vast majority of applicants will likely fall into the EB-2 or EB-3 category. EB-1 petitions involve foreign nationals of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. EB- 4 and 5 pertain to certain special immigrants and investors respectively. </p> <p>Generally, EB-2 and EB-3 Petitions require a labor certification from the Department of Labor and a job offer. Workers hoping for permanent residency on the basis of an EB-2 or EB-3 petition must generally undergo a three step process. </p> <p>STEP 1 - THE LABOR CERTIFICATION </p> <p>A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which a U.S. employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management). </p> <p>A Labor Certification is NOT an Application for Permanent Residency </p> <p>Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and, H, etc. </p> <p>STEP 2 - THE VISA PETITION </p> <p>Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents. </p> <p>The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and educational level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will file a petition for either EB-2 or EB-3 classification. </p> <p>Who Qualifies for EB-2? </p> <p>A foreign worker qualifies for an EB-2 petition, if he or she: </p> <p>1.) Has an approved labor certification, unless waived through a National Interest Waiver; AND </p> <p>2.) Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the foreign worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR </p> <p>3.) Possesses an exceptional ability and the job offer requires a person of exceptional ability. </p> <p>Under the EB-2 classification the Labor Certification requirement may be waived if the criteria can be met through documentary evidence that it is in the national interest to do so called the National Interest Waiver. </p> <p>Who Qualifies for EB-3? </p> <p>A foreign worker qualifies for EB-3 if he or she: </p> <p>1.) Has a labor certification approved, AND </p> <p>2.) is a professional where the worker holds a U.S. baccalaureate degree or equivalent foreign degree and evidence that a baccalaureate degree is required for entry into the profession; OR </p> <p>3.) Is a skilled worker who possesses the minimum requirement of 2 years of training or experience. </p> <p>STEP 3 - ADJUSTMENT OF STATUS </p> <p>A foreign worker may file an application for Adjustment of Status to gain permanent residency if he or she is in the United States, have not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her in his or her Employment Based Preference category. Visa numbers represent the numerical limitation established by the State Department of persons allowed to immigrate to the United States within each preference category. If too many petitions are filed subscribing to a particular EB category, then visa numbers for that category may run out resulting in a backlog, i.e. a waiting list develops. </p> <p>Concurrent Filing of Visa Petition and Application for Adjustment of Status </p> <p>The visa petition (Form I-140) and application for Adjustment of Status (Form I-485) may be concurrently filed if visa numbers in a particular Employment Based preference are currently available. Otherwise, only the Visa petition (Form I-140) may be filed but not the Application for Adjustment of status (Form I-485). </p> <p>CONCLUSION </p> <p>There are many elements to consider when hiring a foreign national. A missed element or mishap in procedure is the difference between a successful and unsuccessful application or petition. A basic understanding of the immigration and labor certification process allows an employer to be become better informed to make decisions in meeting the challenges of global recruitment. </p> <p><br />About The Author </p> <p>John Mei is an immigration attorney and partner with the law firm of Danziger and Mei, LLP located in Woodland Hills, California. Mr. Mei provides clients with solutions in the area business immigration law. He represents multi-national corporations, start-ups, publically traded companies, hospitals, universities, and foreign investors. Mr. Mei has authored numerous articles related to business immigration. He is admitted to practice law in California and is an active member of the immigration and business law sections of the Los Angeles County Bar Association. Website: <a href="http://www.danzigermei.com/">http://www.danzigermei.com/</a> Email: <a href="mailto:johnmei@danzigerlaw.com">johnmei@danzigerlaw.com</a> </p> <p><br /><a href="http://www.articlecity.com/articles/legal/article_1079.shtml">http://www.articlecity.com/articles/legal/article_1079.shtml</a></p> </article> <article> <h1>Are you ready for EFCA?</h1> <p>Victoria Wors — Sun, 04 Jan 2009 20:33:50 GMT</p> <p> </p> <p> Very shortly we will install Barack Obama as the new President fo the United States, certainly we are all anxious for a new appraoch to the problems we are experiencing and as a people we have great hope in his leadership. There is, however, a piece of legislation awaiting passage in the Senate which he has stated he will sign when he becomes president, this legislation is known as the Employee Free Choice Act or EFCA. Many business organizations refer to this act as "card check". Mr. Obama was an original sponsor of this bill which in it's present form will eliminate the right of employees to a secret ballot election monitored by the National Labor Relations Board in union organization attempts. </p> <p>As a seasoned Human Resources and Organizational Development professional having negotiated over 80 labor agreements and having worked with over 12 different unions in my career, I am concerned that the business community is not prepared for the inevitable passage of this bill. In essence, the bill will reduce an employer's ability to address issues that arise out of a union organizing campaign, it will expose employees to pressure tacitcs by union organizers to sign authorization cards whether they want to or not, it increases severely penalities upon employers for actions taken during organization, and it will force acceptance of a labor agreement within 120 days of a union becoming certified or risk having an arbitrator set the wages, conditions and hours of employment for the employer.</p> <p>My consulting business has been contacted by other groups to work with businesses that are "targets" for unionization. We will review human resources practices, assess personalities of managers and supervisors to identify areas of weakness and we will guide and coach our clients to build better communication with employees. Imporving communication with employees is the essential element to remaining "union free". </p> <p>Don't be caught off guard, be aware of your employee's needs and address these needs before a third party offers to address them. The best defense is a great offense.</p><div style="clear:both;"></div> </article> <article> <h1>Termination in the Advent of New Life</h1> <p>MySolutionSpot Editor — Sat, 12 Jul 2008 03:39:13 GMT</p> <p>If you are an employee, one of the greatest news that could ever be delivered to you is the fact that you are about to rear a new child. This coupled with the fact that you have been preparing all your life for that other individual to enter your life. Be that as it may, knowledge that you are pregnant, may actually bring about contradicting opinions and actions from people around you. Let us consider how your employer would react at this situation. </p> <p>Two things may happen upon your employer acquiring the said knowledge. First, if your employer acts in consonance with the laws set forth on the protection of the working women in the production environment then he would squarely follow the laws of the land and give you the rights afforded by law. Maternity leave, which are paid days off from work, and the fact that after your pregnancy you will be retained to your previous work position. Or the other thing that may happen, is that your employer can find a way to terminate your services on the sole basis of your pregnancy. As per experience, and with the capitalist society we are living in right now, the latter is the obvious reaction of your employer. </p> <p>Discriminating an individual on the basis of pregnancy is an unfair labor practice which the law abhors. The Fair Employment and Housing Act outlines the protection afforded to the pregnant employee for disability brought about by pregnancy, childbirth and other related medical conditions. The law favors in fact that they may be transferred to duties that would require lesser strain, and is medically advised to have the same. </p> <p>Yet employers always find a way of having acts that run counter to this substantive law. They may either find proofs to show that with the present physical condition of the employee she can no longer comply with the essential rigors of her work. Or that reasons removing her are far fetched from her physical condition. </p> <p>Ultimately, if the employee is removed having her pregnancy as a factor for her termination, then the employer would be liable for unlawful discrimination, and a cause of action may be had against it. </p> <p><br />About The Author </p> <p>Atty Gabriel Cosh is a legal advocate and a practitioner of law for over 10 years now. He is also an expert in the field of social legislation and personal injury cases. </p> <p>For more information about Retirement benefits and Employment law please log on to <a href="http://www.mesrianilaw.com/Employment-Law.html">http://www.mesrianilaw.com/Employment-Law.html</a> </p> <p><a href="http://www.articlecity.com/articles/legal/article_1033.shtml">http://www.articlecity.com/articles/legal/article_1033.shtml</a></p> </article> <article> <h1>Wrongful Termination in an At Will Employment Scheme</h1> <p>MySolutionSpot Editor — Sat, 12 Jul 2008 03:39:13 GMT</p> <p>In most states in the U.S., terminating an employee without any clear and formal basis is illegal. Companies, organizations and even government agencies that will be found guilty of such actions may be held liable in a wrongful termination lawsuit filed by the discharged employee. This is to recover damages from the employer including loss of wages and “fringe” benefits. </p> <p>On the other hand, in an “at will” employment system such as in California, proving a wrongful termination claim is definitely difficult and complicated. “At will” employer-employee relationship scheme indicates that any employer may terminate an employee from his job position even without any reason except those that are specified under the law. This gives the freedom for most companies to decide whether to lengthen the services of an employee or terminate him without the risk being charged of wrongful termination. </p> <p>“At Will” Employment Exemptions </p> <p>Although “at will” employment scheme is not prohibited in California, terminating an employee on the following bases are considered violations of the law and can be subjected in a legal action: </p> <p>• Ethnic group, gender, marital status, national origin, disability and religious and/or political affiliation </p> <p>• Retaliation for a whistle blowing feat or testifying against the company </p> <p>• Overtime pay demands including lunch and rest breaks </p> <p>• Lodging requests </p> <p>• Seeking for pregnancy, family and/or medical leave </p> <p>• Refusal to work in a hazardous workplace </p> <p>• Refusal to sign an illegitimate non-compete agreement </p> <p>In addition, an “at will” employment scheme may be nullified in the presence of a contract that specifies the terms and conditions of employment. These agreements include stipulations such as job description, work hours, compensation and benefits, dispute resolution, tenure of employment, etc. If duly signed by both the employer and the employee, this will prevent the employers from terminating the employee without any grounds stated in the contract. </p> <p>Legal Actions </p> <p>If in case an employer has terminated an employee due to any of the abovementioned bases, the discharged worker may file the corresponding lawsuit against the employer or the company. Yet, in seeking for justice, it is always advisable to have consultations with a wrongful termination attorney especially if an employee does not have sufficient understanding of the Labor Law provisions. </p> <p>Illegally terminated employees must understand that the filing a case require basic knowledge about legal procedures. This explains the importance of hiring a credible legal counsel for assistance and representation. Attorneys who are experts in the field of Labor Law will definitely improve a wrongful termination claim’s winning potential. </p> <p><br />About The Author </p> <p>Rainier Policarpio </p> <p>Seek only expert Attorney services in resolving wrongful termination issues. Visit <a href="http://www.attorneyservicesetc.com/Wrongful-Termination.html">http://www.attorneyservicesetc.com/Wrongful-Termination.html</a> </p> <p><a href="http://www.articlecity.com/articles/legal/article_1069.shtml">http://www.articlecity.com/articles/legal/article_1069.shtml</a></p> <p> <br /> </p> </article> </main></body></html>