I’m an engineer from India currently working in the United States on an H-1B visa. I am in the process of applying for an EB-1A green card and have a few questions regarding reference letters from my current employer.

1)      Is it necessary to get a reference letter from my current employer for my American green card/visa application?

2)      How can I ask my current employer for a reference letter without jeopardizing my current job?

3)      What should I do if an employer is reluctant or refuses to provide a reference letter for my green card/visa application?

4)      Are there alternative sources for reference letters if I cannot get one from my current employer?

5)      How important is a reference letter from a current employer compared to those from previous employers or colleagues when applying for an American green card/visa? 

6)      Do you need to get a reference letter for a job that you just started at?

I would greatly appreciate your guidance on these matters, as I am concerned about the potential implications of requesting such letters from my current employer. Thank you for your time and assistance.

Thank you for your inquiry.  I get emails, direct messages, and phone calls with similar questions all the time.   Typically, it is impossible if not impractical to answer them all outside the context of a full consultation.  However, in this case I will attempt to give some general guidance (not legal advice) that I hope applies to your case and many others. This advice is not only relevant to immigration matters but can also be applied to employment in general.

I generally recommend a reference letter from your current employer (if possible) for almost all employment-based petitions and even some family ones as well. Showing you are currently employed and therefore currently in demand is almost a given to show the proper qualifications for most work visas or green cards.   At a minimum you should be able to obtain documentation to verify your current employment and how long you have been working in that job.   How can you ask for this?  Have some sort of template or outline they can use so they can save time.  Give them some guidance and structure on what you hope to see.  Your attorney can help.

You can be more conservative and simply ask your employer for a reference letter just to have in your back pocket as you never know with downsizing, layoffs, and economic downturns.  It is easier to ask for a letter when you are employed than after you are let go (or worse terminated).   You could go a little bit farther and tell employer that your eventual dream is to work in the United States and that the process, if successful, will take at least several years.  With employers realizing that nobody stays in the same job forever, there should be nothing wrong or surprising with a dependable highly skilled employee eventually looking at or planning for their future options.    

If your employer is reluctant to provide a reference letter I do have a few tricks or suggestions.   Suppose they are hesitant to put anything on letterhead or through official channels, you can always ask for a letter that is more of a personal than company endorsement.   You also don’t have to get the highest-level person you report to.  A mid-level manager who knows you better or is more receptive to your request is another possibility.  Another option is to ask a co-worker instead of a supervisor.  While this endorsement may not have the same weight it is still better than providing nothing at all.  On the bright side, a colleague may know you better and be able to describe more specific examples of your talent and skills.   You could also ask for someone in your field, profession, or industry at another company who knows your work record and can independently verify who you are and what you have done at your job. 

If you just started at a new job having a letter of reference from that employer may not be as necessary as if you have worked there for years.   Also, asking for a letter of reference during the first year or so at a new job is not usually a good look so use discretion.  Know your audience.  You know who are your friends and supporters are at your place of work.   Some of them will have your back and always be there to help you advance your career.  Approaching them is usually not all that challenging.  

When applying for an EB-1A, EB-2 NIW, O-1, L-1, E-2, or H-1B you sometimes have to think outside of the box in your evidence.  We all have ideal references that we “wish” to have but even if you know you can get such letters how long will it take to get them?  People may be hard to reach, busy, or initially be reluctant to provide you with what you need.  What do you do then?  How long are you willing to wait before you ultimately seek other options?  If you have a filing deadline, like for an H-1B visa, you may not be able to wait until they provide you with your letter.

Even if you have a timeline you want to meet for your EB-1A or EB-2 NIW you have to decide how important this one letter is to your case.  Is it worth delaying your petition until you get this letter?  Does this one letter make or break your case? These questions are dependent on your case, and an immigration attorney will be able to help you answer them.

In conclusion, there are no simple or easy answers to which letters you should and shouldn’t include.  Most would recommend that you reach out to many potential references well ahead of time to make sure that enough of them are willing and able to assist you in your petition.  In general, it is better to have more options or more choices than less.   Letters of reference are an important part of any employment-based immigration application.  However, don’t forget, you may even find them useful for marriage-based petitions as well.  Good luck! 

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About the Author:

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA.  Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (305)-707-8787 or by email at seth@finbergfirm.com or www.finbergfirm.com.

Most immigration attorneys would likely immediately discount the possibility of such a case. However, top attorneys thrive on our creativity and “outside the box” thinking with atypical clients. We always love a challenge. I would at least entertain the consultation and then see what can be done. Sometimes a complicated or less obvious case may require several client meetings to truly research and understand the idea. Don’t immediately refuse a case or a client before investigating sufficiently. Others ask “why?” and I ask “why not?”

For those who follow soccer (football) in Brazil, you may remember that everyone in Brazil has only 1 name: Pelé, Ronaldo, Neymar, Kaka . Imagine how hard it would be to be a postal worker or a postal supervisor in Brazil with a population of over 217 million and ZERO last names. Delivering mail quickly and accurately over a large country with a greater area than the continental U.S. would be quite a difficult task even with last names. What if you already created a company or plan to create a company that could use your extensive experience in Brazil and translate it to the United States.

Make the United States Postal Service Great Again

All jokes aside, what if you had a proposed endeavor to create your own delivery system or company? What if you had an aviation or engineering background as well and wanted to incorporate drones for delivery? Improving our national mail delivery system sounds like it would have both substantial merit and national importance.

What if you were not just an average every day postal worker in Brazil but a supervisor, a leader, and an innovator. Are you someone who has created more efficient distribution patterns and systems by your clever business methods? Could you have imaginative intellectual property such as a patent or a trade secret?

What if you have an advanced degree in business administration, aeronautical engineering, management, or other relevant field that could increase efficiency and production? What if you already won many awards for your service and were recognized as a leader or innovator in your field? What if your salary was significantly higher than others in your profession? These last questions can help show exceptional or even extraordinary ability. Remember, National Interest Waivers don’t have to be just in the STEM fields or exclusively in the STEM fields.

Let’s take it a step further. What if you had similar qualifications and experiences but did your job in India, a country with 5 times the population of Brazil.

Remember Federal Express? FedEx was founded by Frederick M. Smith, a Vietnam War Veteran and graduate of Yale University who had a system specifically designed for urgent deliveries. What if Fred was Canadian, British, Australian, or Indian and had this same novel idea? Could Fred have presented his “proposed endeavor” in an EB-2 NIW petition? Did you know that Fred only received a “C” for his idea while in college. Sounds like an RFE to me. The USCIS will often default and issue a request for evidence if they do not fully comprehend or appreciate the merits of your case.

Often the USCIS, just like your economics professor, may not necessarily understand the full scope of your “proposed endeavor” nor will they necessarily consider your abilities or achievements as exceptional or extraordinary. It is your job and your lawyer’s job to prove your case. Sometimes a business or professional plan may be in order to better lay out your idea in a clear, concise, and convincing manner.

The lesson here is to not to discount any idea, plan, or case just because you don’t immediately understand it. Take the time to learn more about it and make sure you are in the position to make such a call. If you aren’t in a position, then refer the case/client to an expert or at least bring in someone else to assist you in your decision.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About the Author:

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA. Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (305)-707-8787 or by email at seth@finbergfirm.com or www.finbergfirm.com.

Social media is a good and bad thing, right? We try to watch how much time we spend on various platforms and limit screen time for our kids. However, not all social media is bad or inherently dangerous. LinkedIn is a professional platform that provides business networking opportunities and helpful information. Additionally, short-form video platforms such as TikTok, YouTube Shorts, and Instagram inform and entertain. 

How can Immigration Law be covered properly and appropriately on social media? Let’s start with the positives. I have a moderate social media presence in my own practice, and it’s helpful in attracting new clients. I can give out free and limited but accurate information about my expertise. A lot of what I post about relates to employment-based immigration, specifically immigration in the field of aviation along with those with extraordinary and exceptional abilities. You may hear the terms EB-1A and EB-2 NIWs floated around a lot on the various mediums. Without social media, many talented individuals (often my potential clients) will never learn about self-petitioned green cards. 

Immigration trends, tips on how to file stronger cases, and debates on the best visa options make up many of the social media searches. Even some “less complicated” areas of immigration law are covered in depth, such as student visas, visitor visas, and many marriage and family-based immigration paths. I say “less complicated”  lightly, because nothing is super simple regarding U.S. Immigration Law.  However, some visas and green cards are slightly more straightforward than others. 

Many experienced and qualified immigration attorneys post on social media. Some, like me, come up with our own unique content. Others like to re-post helpful posts from their colleagues or other trusted sources.  Even the comments can be a great source of questions and additional insight from informed followers. Many of my fellow attorneys are great sources of information, and sometimes they get the news before I do.  Social media is like having your own team of experts. You just have to ensure you properly vet who you rely on in your inner circle.

Now let’s discuss the negatives. As you probably already know, not everything on social media is accurate, properly researched, or written without harmful bias or agendas.  You have to know who to trust. Who is a reliable source?  Do you trust anyone who calls themselves an immigration attorney?  What about an attorney who started practicing last month?  

How do you know they are even an attorney?  People can pose as attorneys or call themselves immigration “consultants” or “experts” with very little regulation or policing. Now there is nothing wrong with following non-attorneys.  Some of them have some very helpful and interesting posts, especially experienced paralegals. Just make sure you don’t rely on legal advice from those not qualified to provide it.  

“I see videos all the time online that might be funny or clever but are full of incorrect or misleading information. Beware of scammers or those looking simply for clicks and advertising revenue, especially in the monetized platforms. Just these past few months there were probably tons of posts on the H-1B lottery along with its problems and challenges. “

Following someone who went through the H-1B or NIW process themselves might be a worthwhile information source. However, their past experiences are not necessarily what you will experience, their case may be vastly different than yours, and they might not be telling you the whole truth.  

“Some people were lucky.  Some only post about their successes and good fortune.  Do you ever hear about their failures? Just keep your eyes and ears open for stories that sound too good to be true. There are also downfalls to running a social media account for your own work or practice. Your account may become inundated with direct messages. The worst part is spam.”

Desperate people (or bots) have enough abundant free time to flood your mailbox with solicitations. Additionally, you get connection or follow requests from people who end up simply trying to sell you something, often repeatedly.

Often, legitimate messages or inquiries from colleagues or potential clients get lost in the sea of spam. I always encourage real communication, such as contacting me directly rather than simply contacting my social media account. However, some people prefer to communicate via DMs, so don’t discount that option entirely without thinking it through.   

Do what feels right, of course. Experiment with trial and error as a source of information and your own social media fact-gathering. There is no perfect solution. Follow accounts on social media to get some of your information. Maybe you first heard about an EB-1A green card from social media. When you are finally ready to learn more, you should contact a qualified immigration attorney for a fair evaluation of your case.  

If you follow someone knowledgeable on social media, perhaps schedule a consultation but ensure they are a lawyer and not just a social media lawyer. Ensure they handle your case and not just farm it in some referral program. Remember, no one can give legal advice outside of an attorney-client relationship.  

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About the Author

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA. Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (305)-707-8787 or by email at seth@finbergfirm.com or www.finbergfirm.com.

“Raj is his name and stars are his game”.
Many of you might recognize Dr. Rajesh “Raj” Koothrappali as a fictional character from the popular show The Big Bang Theory. I decided to use a fun and creative way to explain what immigration options might have been available for this extraordinary astrophysicist. His hypothetical immigration story is not all that uncommon, and the show makes many references to immigration from India.

“Raj was born in New Delhi, India in 1981. At the young age of 5, he “discovered” a celestial object which later turned out to be the moon. Fortunately, he would go onto bigger and better things. For college he went to Cambridge University in England to study astrophysics.”

Raj then earned his Ph.D. in astrophysics from Cal Tech. He likely used an F-1 student visa while studying in his doctoral program. After graduation, how would Raj stay in the U.S. and work? The show is rather vague on Raj’s immigration path and while it has many humorous situations involving his visa, they are mostly exaggerated for comedy and/or are inaccurate. Here is where I like to speculate as a fan of the show and practitioner of immigration law.

Raj’s easiest path to employment after graduation from Cal Tech would be via OPT (Optional Practical Training). Dr. Koothrappali could have used his 1 year of post completion OPT to work for up to 12 months. Since astrophysics is clearly a STEM field (Science, Technology, Engineering, Mathematics), Raj could then get another 2 years of STEM OPT via the 24-month STEM extension. Essentially, Raj could work for up to 3 years after graduation while still on his original F-1 student visa.

The show hints that Raj may have had an H-1B visa. If so, Caltech would have had to sponsor Raj and probably would have had in-house university attorneys help with the H-1B or hire outside legal counsel for the H-1. However, H-1Bs have many other challenges. No, it wouldn’t be hard to prove that a researcher in astrophysics would be a specialty occupation. No, it wouldn’t be hard to prove that Caltech is a legitimate employer and that they have the ability to pay him the prevailing wage. Yet, Raj would still have to be selected in the H-1B lottery even if his U.S. Ph.D. gave him a better chance.

I believe that Raj was a top scientist who was special enough to get an O-1 extraordinary ability visa. An O-1 visa is the Caltech of non-immigrant visas. There is no lottery, no annual cap, no long labor certification, and O-1s can be renewed multiple times but they never will directly lead to a green card. Remember, O-1s are still non-immigrant visas.

Once Raj discovered 2008 NQ17 the planetary object beyond the Kuiper belt, which he named “Planet Bollywood”, he was included in People magazine’s “30 Visionaries Under 30 to Watch”. This award would have convinced Cal Tech to sponsor him for an O-1 visa and the award was an instrumental piece of evidence in obtaining the O-1. O-1’s are essentially the Hollywood of U.S. visas. Still, why didn’t Cal Tech look into EB-1B green card sponsorship as an outstanding researcher/professor? Why didn’t Raj self-petition for an EB-1A or an EB-2 NIW green card?

If Raj had received proper legal advice he likely would already have his U.S. green card or would be well on the way to obtaining one. Even his friend/colleague, Dr. Sheldon Cooper might have pointed out that Raj should have contacted an immigration attorney or at least relied on Sheldon’s knowledge of everything including U.S. immigration. Likely it made for a better show if they kept the dry immigration details out of the dialogue and instead inserted more random scientific or pop culture references simply for humor.

Raj’s story, while fictional, is a testament to the journey of many international students and researchers. His story is a blend of common immigration pathways for academics and Raj’s character from the show. His dedication to his field of astrophysics and the challenges he overcame highlight the resilience and contribution of immigrants to the scientific community. In real life, each individual’s U.S. immigration journey can vary greatly based on personal circumstances, legal advice, and current immigration policies.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

We are all very excited to learn more about the newly elected British Prime Minister Rishi Sunak.  What do we know about his U.S. Immigration journey?

This is a very interesting and timely question and one I was asked a few times over the last few days.  While I don’t know the exact facts concerning his immigration journey, I can speculate approximately how and when the various steps were taken.   Did he follow a common International Student Path from F-1 visa to an H-1B visa to a Green Card?  Sunak’s story may be a bit complicated to understand for non-immigration attorneys, but it is fascinating to investigate, and I really enjoyed researching and writing this article.

Common Green Card Paths for International Students 

• Path #4 is less common and generally occurs with students having advanced degrees and/or extraordinary ability                                                                                                                                                 © Finberg Firm PLLC

The Honorable Rishi Sunak was born in England to parents of Indian descent.  Instead of coming to the United States for college on an F-1 visa, he stayed home to attend prestigious Oxford University.   After graduating from Oxford in 2001, Mr. Sunak began working for Goldman Sachs in the U.S. as an investment banker.    Goldman Sachs likely sponsored Sunak for an H-1B visa under a specialty occupation specifically to the financial field.   Since the H-1B lottery was not created until 2007, obtaining an H-1B or sponsoring an employee for an H-1B was a much simpler process back then.   Like clockwork in 2001 Sunak would have received his H-1B visa (which typically last 3 years) and then worked for GS from 2001-2004 in H-1B status.

Since we know that Mr. Sunak was a U.S. Green Card holder (before he recently renounced it in 2021), he would have likely obtained his permanent residence by means of an employer sponsorship.    So, when did he get his U.S. Green Card?   H-1B visas are “dual intent visas” where you can adjust your status to a lawful permanent resident (green card).  It is possible that the future British PM got his Green Card while working for Goldman Sachs.  However, I don’t think that is the case.   If Goldman Sachs sponsored him for an employment-based green card (EB-1, EB-2, EB-3) he would have been ineligible for a Fulbright Scholarship.   “Persons applying for or holding U.S. permanent residence in the United States are not eligible”.

We know that Sunak studied at Stanford as a Fulbright Scholar so he would have had to have instead “entered” the U.S. under the J-1 visitor exchange program run by the State Department.   Therefore in 2004 he was still not a U.S. Lawful Permanent Resident but, on a J-1 visa.  As on script, Sunak then returned home to England upon graduation from Stanford in 2006, a condition of the 2-year foreign residency requirement for J-1 visas.  Many J-1 exchange visas require the student to leave the United States and return to their home country for two years before returning to the U.S. for education or work.

In 2009 he came back to the United States to launch a new hedge fund firm called Theleme Partners.  Based on my research Rishi likely entered the U.S. on an investment visa such as an E-2 or under an L-1 visa for executives and managers.   It is also possible that he could have even self-petitioned and applied for his own EB-1 or EB-2 green card as an individual with extraordinary or exceptional ability.  Based on his already impressive education and work experience in the U.S. and back in the UK, he would have been a strong candidate for an extraordinary ability visa.

Therefore, the new occupant of 10 Downing St. likely obtained his U.S. Green Card sometime after 2006.  I am sure the details will emerge in the near future once more in-depth biographies are requested and created.    While the U.S. Green Card is the goal for so many, why on earth would he ever renounce his U.S. residency?  Let’s not forget there are tax consequences and sometimes political restrictions for those holding U.S. permanent residence.   I think in this case it worked out okay for the UK’s new PM to eventually give up his U.S. status.  Interestingly, I have had clients consult with me about trying to get back their U.S. residence or citizenship after renouncing them.   Remember that renouncing or abandoning your U.S. residence is a decision you should make only after carefully consulting with both a qualified international tax specialist and an experienced U.S. Immigration Attorney.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About Author

Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law and is a member of the Georgia Bar and the American Immigration Lawyers Association (AILA).

He is the owner and founder of Finberg Firm PLLC located in Ft. Lauderdale, FLPLL (located in Ft. Lauderdale, FL), and he represents clients nationwide and internationally in the areas of business, employment, and family-based immigration. Mr. Finberg is an active member of the Miami Asylum Office Committee for AILA South and Central Florida, and he serves as a legal captain in pro bono clinics for Temporary Protected Status.   Seth has been recognized for his outstanding pro bono service by the South Florida chapter of the American Immigration Lawyers Association, winning their 2021 Pro Bono Champion award. He can be reached by phone at (954) 249-6603 or by email at seth@finbergfirm.com

Every year there is an annual cap for H-1B visas set at 85,000 and this past Spring, we had a record number of lottery registrants.   Normally when companies enter employees or prospective employees into the H-1B lottery, most are not selected and those that are not selected either have to explore other options or wait for the next H-1B season.  Employersusually hire a law firm and complete the H-1B petition process for selected employees.   What if you were not selected?  Every year creative immigration attorneys explore various alternative routes to achieve the visa goals for their clients whose H-1B dice did not roll a lucky “7”.   The Cap-Exempt H-1B visa is another less-known immigration solution for such clients.

How does this work?  Since the Cap-Exempt H-1B is very complicated, explaining the entire process is quite difficult and best reserved for a consultation.   However, I will do my best to briefly break it down.

Advantages of the Cap-Exempt H-1B visa:

1.       There is no lottery or annual cap
2.     A Cap-Exempt H-1B visa can be filed at any time (there is no 90-day deadline)
3.     Once you are in Cap-Exempt H-1B status, you can then file for a concurrent H-1B visa from your company and soon start working for your chosen employer.  (This essentially means the employee can get an H-1B visa once they are currently working with a Cap-Exempt H-1B visa)
4.     You get to mentor U.S. college students, work on innovative educational/research projects in your field, and your company can find a direct source of future employees that you already know.
5.     This fellowship can be used to build up your qualifications for a green card or another visa.

How do you qualify for a Cap-Exempt H-1B?  My law firm collaborates with several educational non-profit organizations that offer part-time fellowships as Cap-Exempt employers.  After a consultation and screening, if my client is deemed a good fit, I will have the employer nominate their employee to apply for one of these fellowships.  If they are accepted into the program(s), we collaborate together on a Cap-Exempt H-1B petition.   Once the H-1B is approved and he starts his fellowship a) David will work part-time (at least 5 hours per week) for the foundation and get paid the prevailing wage according to his job level and b) David’s full-time private employer can then petition for his concurrent H-1B visa.

Remember

1.       You still must meet the same H-1B qualifications (the job must be a specialty occupation, you must be offered/paid the prevailing wage, and the U.S-based company must be able to pay the prevailing wage)
2.     You can work with your concurrent H-1B as long as you are still employed in Cap-Exempt H-1B status but you then have to plan to register for future H-1B lotteries or find other visa options once you are no longer employed in cap-exempt H-1B status.
3.     Not all H-1B candidates are good fits for a cap-exempt H-1 visa and your employer has to really want “you”. Your employer has to be willing to spend the additional time, resources, and money (filing fees, legal fees, premium processing fees, foundation fees) to get your cap-exempt H-1B.

We are fortunate that the USCIS is forward thinking to allow us this unique ability to team up employees with non-profit educational and government research institutions.    As employment-based Immigration Attorneys, we serve several important functions.  1) we help U.S. employers hire and retain foreign talent, 2) we help innovative foreign employees come to the U.S. to start their careers and build their American Dream, and most importantly,3) we directly help the U.S. economy innovate and grow with this international influx.    Let’s not forget the complicated Cap-Exempt H-1B visa process and requirements really need to be fully understood by both the employee and the employer.  It is best to contact an experienced immigration attorney who handles such cases and can explain and analyze your options and propose appropriate immigration solutions.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA. Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and family-based immigration. He can be reached by phone at (954)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or www.finbergfirm.com.

About Author

Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law and is a member of the Georgia Bar and the American Immigration Lawyers Association (AILA).

He is the owner and founder of Finberg Firm PLLC located in Ft. Lauderdale, FLPLL (located in Ft. Lauderdale, FL), and he represents clients nationwide and internationally in the areas of business, employment, and family-based immigration. Mr. Finberg is an active member of the Miami Asylum Office Committee for AILA South and Central Florida, and he serves as a legal captain in pro bono clinics for Temporary Protected Status.   Seth has been recognized for his outstanding pro bono service by the South Florida chapter of the American Immigration Lawyers Association, winning their 2021 Pro Bono Champion award. He can be reached by phone at (954) 249-6603 or by email at seth@finbergfirm.com

Question: “I’m a 40-year-old airline captain from New Zealand with over 15 years of aviation experience currently flying in the Middle East.  While my parents are from India, I was born in Auckland. Could I qualify for an EB-2 NIW? What is an NIW and what are my chances of getting an EB-2 NIW?

Great question!  I currently represent experienced foreign airline pilots in your exact situation.Since my father was a pilot and a US Air Force Major and Vietnam Veteran, I grew up around aviation and really enjoy working with pilots.   It is challengingbut also exciting to determine whether youwould likely qualify and if it is worth applying.  No attorney can (or should) give a guarantee on your exact chances of approval since the decision by the USCIS is completely discretionary and seemingly has some elements of randomness.It is very important to realistically manage client’s expectations and remain transparent throughout the entire process.   After an in-depth consultation of your C.V., work experiences, and possible references, I will give you my honest appraisal on whether you have a strong case, weak case, or something in between.  Once I assess your chances, I will tell you the strengths and weaknesses in your case.While I like challenges, if on its face you do not have the qualifications and experience, I will advise you about other options.

One advantage with the EB-2 NIW is that you do not need an offer of employment or an employer sponsor … you can “self-petition”.Because you can self-petition, the strength of your application is matters even more than usual. The first burden of an EB-2 NIW for a pilot (or any other profession in this category) is proving exceptional ability.  This is defined by the USCIS as having, “a degree of expertise significantly above that ordinarily encountered”. Experience alone is generally not enough.We will need to be able to prove your talents and demonstrate your quality.

The second burden of an EB-2 NIW is the National Interest Waiver (NIW).  If the job or “endeavor” would be in the National Interest of the United States, the NIWallows you “self-petition”.  Unfortunately, which jobs and applicants would qualify for a national interest wavier are not specifically defined by statute.  The USCIS uses a 3-part test to prove National Interest and we use evidence that your profession is both important and essential along with being in short supply.    As an Immigration Attorney who specializes in such visas and waivers, I use my own experience and intuition to determine if youwould have a reasonable chance of success with your NIW.  Obviously, the stronger your application the better your chances.

Question:“I’m a 35-year-oldnurse in India and my cousin told me there’s a hospital in St. Louis that desperately needs to fill its nursing shortage.  Could I qualify for an EB-2?”

Yes, there is a nursing shortage all over the United States.Medical facilities are looking for solutions to hire more qualified nurses, including sponsoring foreign talent like yourself.If you hold an advanced degree or possess exceptional ability you could qualify for an EB-2.  Since the EB-2 is an immigrant visa (and leads to a green card) all applicants are still subject to the visa bulletin.  If you were born in India, regardless of your current citizenship or nationality, you would be subject to the long visa bulletin wait times from India (estimated at almost 8 years for the 2^nd employment preference under an EB-2 classification). Unless you are currently in the U.S. working with another visa or can get one (such as an H-1B) and can work here while waiting for your priority date on the visa bulletin to become current, applying for an EB-2 green card as a nurse from India is challenging.

Sep 2022 Visa Bulletin

I can think of one possible solution to get around the long EB-2 visa bulletin wait … the EB-1 (which was covered in more depth in the July 2022 issue). If you are a nurse with extraordinary ability including exceptional experience, qualifications, achievements, and awards you might qualify for an EB-1 green card.The September 2022 visa bulletin for the 1^st employment-based preference category (EB-1) from India is current.Yes, an EB-1 approval for a nurse will be quite challenging and it may not have a high chance of success, but a strong applicant combined with the work of an experienced and creative immigration attorney could result in a successful petition.

As unfair as it might seem, if you were born outside of India, you could potentially qualify for an EB-2 green card as a professional nurseavoiding the long wait time for your green card to become available.Due to the labor shortage in certain occupations, nurses (and physical therapists) can apply for an EB-2. However, you still would need a petitioner with an offer of full-time employment at the prevailing wage.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About Author

Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law and is a member of the Georgia Bar and the American Immigration Lawyers Association (AILA).

He is the owner and founder of Finberg Firm PLLC located in Ft. Lauderdale, FLPLL (located in Ft. Lauderdale, FL), and he represents clients nationwide and internationally in the areas of business, employment, and family-based immigration. Mr. Finberg is an active member of the Miami Asylum Office Committee for AILA South and Central Florida, and he serves as a legal captain in pro bono clinics for Temporary Protected Status.   Seth has been recognized for his outstanding pro bono service by the South Florida chapter of the American Immigration Lawyers Association, winning their 2021 Pro Bono Champion award. He can be reached by phone at (954) 249-6603 or by email at seth@finbergfirm.com

One of my favorite areas to practice immigration law involves representing exceptional individuals with extraordinary abilities.  I first use a personally created and detailed analytical analysis of my client’s (or potential client’s) specific profession, skill set, and unusual talents to determine their chances of successfully petitioning for an extraordinary ability visa. After a rather rigorous screening process involving one or more consultations, we determine if it is in the client’s best interest to apply for such a visa or green card. We always ensure to appropriately manage a client’s expectations and balance the risks and rewards of such an important decision.  While any attorney could manage Elon Musk or Lionel Messi, a confident and creative attorney may be willing to take on certain challenging or less obvious cases.

One example of an unusual EB-1 client would be Polish glider pilot Sebastian Kawa. A glider pilot would require a little more effort not because he won’t necessarily qualify, but because he doesn’t fit the typical EB-1A mold.  Sebastian was a 9X World Champion, the world (FAI) leading glider competition pilot (currently number two in the world rankings of the FAI Gliding Commission), and the current World Champion in 15m Class.  Kawa has associated with the Mountain Gliding School “ar” in southern Poland. Sebastian is also known in the Polish gliding community for numerous blogs and films popularizing the sport.  His autobiography and advanced gliding tutorial “Sky Full of Heat” (English and Polish language editions) were published in December 2012.

I recently began representing an artist on an EB-1A petition.  My client “Jonathan” is an internationally famous painter from China who has built his career over the last 20-plus years while living in France.  Jonathan studied at one of the most prestigious universities in all of China and afterwards he was sponsored by a French art school and academy to continue painting and teaching in Europe.  His works are displayed at expensive homes and offices all over Western Europe and his patrons include well-known attorneys, businessmen, and diplomats. While Jonathan is happy as a citizen of France and enjoys the freedom of movement that an E.U. passport brings, he wants to come to the United States to further his career and open up his art gallery.

Indian Entrepreneur Peyush Bansal, the CEO of Lenskart, is a great case study for a solid EB-1A applicant.  Peyush co-founded Valyoo Technologies Pvt Limited (Lenskart) in 2010.   In 2012, Valyoo Technologies won the Red Herring Top 100 Asia Award.   His company won the Marketing Sherpa Email award in 2014 and in 2015 Peyush was awarded the India TV Yuva Award in Business Cadre.   Mr. Bansal’s other entrepreneurial endeavors included solving college students’ housing and related problems through an online portal called searchmycampus.com.   In 2019, he was listed in Fortune India’s Best 40 under 40 entrepreneur and Bansal is currently judging India’s first-of-its-kind reality show Shark Tank season 1 (an accomplishment that would likely resonate strongly here in the States).

Advantages of the EB-1A: 

1.  The EB-1A allows for premium processing (where the EB-2 currently does not)
2.  The EB-1A allows you to self-petition (meaning you do not need to have a job offer to petition for you)
3. The EB-1A also does not require a permanent labor certification.  Other employment-based green cards like the EB-3 require the PERM process.
4. Most importantly, the August 2022 visa bulletin for green cards is current for both India and China in the 1st employment-based preference category (EB-1).  Unfortunately, the wait is approximately eight years for EB-2s from India and over ten years for EB-3s from India.

The EB-1A is one of the most challenging visas for approval. To qualify for an EB-1A green card, you must prove that you have extraordinary ability in one of the following fields: a) Science, b) Art, c) Education, d) Business or e) Athletics.  Additionally, you must possess a level of expertise in your field that indicates that you are one of the small percentage of people who have risen to the upper echelon of your area. Finally, your professional achievements must have received national and international recognition.

My previous article covered O-1 non-immigrant visas for those with extraordinary ability.  Sometimes I recommend that a client first apply for an O-1 visa and then wait a few years before petitioning for an EB-1A. If the applicant wants to come to the U.S. to work in the short term, is relatively young, or has some significant research breakthroughs on the horizon, I often will suggest they apply for the O-1 visa first. Another suggestion is to keep innovating, remain in their home country (or status), and wait for these new significant accomplishments or recognitions to materialize. Hence, they have an even stronger C.V. before applying for the green card.

The EB-1A application requires hard work, a curious mind, and strategic planning. While a successful outcome is not guaranteed, it is important to maintain complete transparency with the client throughout the process and do your best to create a substantial profile that will likely achieve positive results. An EB-1 application (just like an O-1) is a real team effort between the client and the attorney where both share the work and share the reward.

**Stay tuned for next month’s article regarding EB-2 Visas and National Interest Waivers for those with exceptional abilities**

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.    

About Author

Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law and is a member of the Georgia Bar and the American Immigration Lawyers Association (AILA).

He is the owner and founder of Finberg Firm PLLC located in Ft. Lauderdale, FLPLL (located in Ft. Lauderdale, FL), and he represents clients nationwide and internationally in the areas of business, employment, and family-based immigration. Mr. Finberg is an active member of the Miami Asylum Office Committee for AILA South and Central Florida, and he serves as a legal captain in pro bono clinics for Temporary Protected Status.   Seth has been recognized for his outstanding pro bono service by the South Florida chapter of the American Immigration Lawyers Association, winning their 2021 Pro Bono Champion award. He can be reached by phone at (954) 249-6603 or by email at seth@finbergfirm.com

In life, we often seek guidance when faced with decisions or challenges. As an immigration attorney, I assist people in such situations. For instance, imagine Jesper, an international pilot who’s been flying for a foreign airline for almost a decade but now wishes to pursue his career in the United States. Jesper has little knowledge of the specific visa requirements for pilots here in the US and the complex immigration system he has to go through. With this, a consultation from a knowledgeable professional is his best bet in finding the right remedy for his predicament. In a professional consultation, people ask a knowledgeable professional on a particular subject for advice, direction, or an expert opinion. It frequently involves a client or a person looking for support, knowledge, or answers for a specific problem or circumstance. The objective of a consultation is to gather information, discussion of issues, consider choices, and receive advice or insights from the professional.

Jesper wants the reassurance that his career and future plans will be well guided by a professional, so he books a consultation with an immigration attorney. Throughout the consultation, Jesper talks to his attorney about his background, credentials, and professional aspirations. The best visa choices for his circumstance are determined by the attorney after considering his pilot licenses, flight hours, and experience. They describe the many visa categories that are open to foreign pilots and go over the requirements, potential difficulties, and application procedures for each one.

Through the consultation, Jesper got a better understanding of the measures he must follow to pursue his career as a pilot in the US. He now has more faith in the visa application procedure, his ability to meet the requirements, and his chances of finding work in the US aviation industry. The session gave Jesper the knowledge and direction he needed to make well-informed choices regarding his potential career and future here. This is what attorneys do. We play a crucial role in assisting and guiding pilots like Jesper with their immigration needs and career aspirations. In a consultation, an attorney’s duties extend beyond only offering legal counsel and knowledge. The special set of abilities, expertise, and experience that attorneys offer in consultations greatly enhances its value and effectiveness. It’s instrumental in providing clients with comprehensive guidance, advice, and solutions for their unique situations. Clients tend to forget this. I often observe that there are people who can’t comprehend just how much effort and time it takes for a professional to be adequately equipped with the right tools in order to offer proper advice. We dedicate years to education and honing our skills, all in order to present tangible results and information on the table before our clients.

Clients gain from expert advice and condensed knowledge, which enables them to make well-informed choices as they navigate the complexity of the immigration process. In some instances, clients may unknowingly attempt to solicit free advice without realizing the necessity of compensating attorneys for their valuable services. It is not uncommon for clients to inadvertently overlook the fact that attorneys’ time, expertise, and knowledge come at a price. While it’s normal for clients to want clarification and seek advice, it’s important to recognize that such consultations require the lawyer’s time and expertise. Attorneys should be compensated for their valuable counsel and direction, just as clients expect fair recompense for their own specialized abilities. By doing this, clients show respect for the legal profession and develop a relationship based on mutual trust and a just exchange by acknowledging the need to pay attorneys for their knowledge and counsel through consultations. This allows attorneys to continue offering their vital services with commitment and professionalism, benefiting clients by ensuring they receive the finest advice possible.

Let’s take the moment to acknowledge and appreciate the knowledge, work, and time attorneys devote to their craft through these consultations. Clients receive a great level of service and counseling as they work to accomplish their immigration goals or other applications because of their dedication to remaining at the forefront of their practice. By appreciating the efforts attorneys make for consultations, clients demonstrate gratitude for the extensive knowledge, preparation, and commitment attorneys bring to the table. It is important to not only search for professionals who are leading experts in their field but also to recognize that these individuals leverage their years of experience and expertise to assist you in achieving your plans and attaining success. I advise you to keep all of this in mind as you seek a professional to consult with.

About Author

Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law and is a member of the Georgia Bar and the American Immigration Lawyers Association (AILA).

He is the owner and founder of Finberg Firm PLLC located in Ft. Lauderdale, FLPLL (located in Ft. Lauderdale, FL), and he represents clients nationwide and internationally in the areas of business, employment, and family-based immigration. Mr. Finberg is an active member of the Miami Asylum Office Committee for AILA South and Central Florida, and he serves as a legal captain in pro bono clinics for Temporary Protected Status.   Seth has been recognized for his outstanding pro bono service by the South Florida chapter of the American Immigration Lawyers Association, winning their 2021 Pro Bono Champion award. He can be reached by phone at (954) 249-6603 or by email at seth@finbergfirm.com

I recently had a consultation with Vikram, a film director from India, who was studying advanced film production and technology in the United States.   Often clients will come with a specific visa in mind.   Vikram had done some research and was interested in an O-1B visa for persons of extraordinary ability in the arts (specifically the category of movies and TV).   While many of my clients think they are impressive or believe they have a strong case for such visas, I rely on my experience, training, and research to help determine if they are a good candidate.  Unfortunately, the USCIS definitions of “extraordinary ability” or “extraordinary achievement” were not the same as Vikram’s.   Just because there were some film studios in California who were interested in his services, his career was not long enough, he had not accomplished enough, he had not earned enough, and therefore was not qualified for an O-1B visa.

There are 2 classifications of O-1 visas for Individuals with Extraordinary Ability or Achievement

1. O-1A for extraordinary ability in the sciences, education, business, or athletics
2. O-1B for extraordinary ability in the arts (which would include music) OR extraordinary achievement in the motion picture or television industry.

Advantages of an O-1 visa:

1. The approval time is relatively fast and allows for premium processing
2. An approved petition can last for up to 3 years and can generally be easily renewed for increments of up to one year
3. Most importantly, there is no annual cap for O-1s like there are for H-1Bs

Remember:

1. An O-1 visa is a non-immigrant visa and does not lead to a green card
2. Like most employment-based visas, you still must obtain a petitioner who can be either an employer or an agent

One good example of a strong O-1A applicant would be Indian cricketer Unmukt Chand, a right-handed top order batsman.   Unmukt was the captain of India’s U-19 Cricket World Cup winning team and was also the “Man of the Match” for the Final.   Chand rose to a level of extraordinary ability by captaining India’s first U-19 World Cup win outside of Asia.   Additionally, 1) he successfully authored his memoirs in a book titled “The Sky is the Limit” (2013) and 2) did commentary for the 2020 U-19 World Cup along with commentary for the Caribbean Premier League on Star Sports 1 Hindi.  If this relatively young star would be offered a cricket playing/coaching/or commentary job in the United States, he would likely merit O-1 approval with a well-prepared application.

Another great example of an ideal O-1B would be Atif Aslam, a Pakistani playback vocalist, lyricist, composer, and actor best known for his popular songs in both Pakistan and India. Aslam primarily sings in Urdu, though he also occasionally sings in Hindi, Punjabi, Bengali, and Pashto. He was awarded the Tamgha-e-Imtiaz in 2008, the Pakistani government’s fourth-highest civilian honor. After being nominated for the best singer in Pakistan, Aslam was awarded a star in the Dubai Walk of Fame in 2019.  Being featured in 2020’s Forbes Asia’s 100 Digital Stars also further strengthened his exceptional achievements.

Switching to more academic professions, the O-1A category is generally considered for outstanding foreign workers in education, business, or the sciences.   A textbook case for likely O-1A success would be Senior Indian attorney and former Solicitor General Harish Salve.    Mr. Salve represents clients at the Supreme Court of India and gained notoriety by representing Kulbhushan Jadhav in court proceedings at the International Court of Justice (ICJ). Salve was appointed as a Queen’s Counsel for the courts of England and Wales and routinely appears for significant businesses like Reliance Industries Limited (owned by Mukesh Ambani). India Today magazine named him 43rd in India’s 50 Most powerful persons of 2017.

The cricketer (Chand), singer/songwriter (Aslam), and advocate (Salve) all would likely have a high chance of  O-1 approval.   While celebrities such as David Beckham, Jackie Chan, and Shakira would be fun to represent on an O-1,  Immigration Attorneys are most valuable when we can take a more challenging client and achieve desired results.    Sometimes an ideal applicant is obvious (“you know it when you see it”) but other times it takes some creative research, a ton of effort, and really getting to know the client and understanding their profession or industry.

* In next month’s issue of DeshVidesh, I will have in-depth discussion about immigrant visas of extraordinary/exceptional ability (EB-1/EB-2).

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter in a timely manner.