Pursue H-1B visa to pursue specialty career

Bryan Smith for New York Daily News

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Q: I have a Polish friend who is an electrical engineer. How can he pursue his career in the United States? My friend is married with two children. Can he come here with his family to work? Eventually he would like to live here permanently.

Richard, Mahwah, NJ

[/DNLEDETEXT] [DNLEDETEXT]A: Your friend’s best hope is to try to get H-1B temporary professional worker status. To qualify, he’ll need an employer to petition for him. The employer must offer a job that he qualifies for by virtue of his having attained at least a four-year college degree or the equivalent in education and experience. The job must require a degree in a particular field. Assuming he has the equivalent of at least a four-year degree in electrical engineering, he could qualify for H-1B status as an engineer, as an editor of a book on the topic, or as a math or science teacher. If the job requires just any college degree, no matter the subject, that job would not qualify him for H-1B employment.

With limited exceptions, an employer can’t petition for your friend until April 1, 2014 for employment to begin October 1, 2014. April 1 is when the U.S. Citizenship and Immigration Services (USCIS) will next accept petitions for new H-1B workers. The reason for the wait is that the USCIS has already reached the 85,000 annual cap (20,000 of which are reserved for workers with a U.S. Master’s degree or higher) for new H-1B petitions. If an employer petitions for your friend and his petition is selected and approved, he can begin work here on October 1, 2014. If your friend gets a job offer with an institution of higher education, a college or university, a nonprofit institution associated with a college or university, or a nonprofit or governmental research institution, he can get an H-1B visa now. The cap does not apply to individuals coming to work in those institutions.

An H-1B employer need not prove the unavailability of a U.S. worker to get your friend H-1B status. That’s different from the rule that applies in most employment-based permanent residence cases. However, the employer must pay an H-1B worker either the prevailing wage (the typical wage for that position in the area) or the wage received by other workers performing similar tasks, whichever is higher. If your friend gets H-1B status, he can work in the U.S. for at least six years in three year intervals. Sometimes, the USCIS will extend H-1B status beyond six years.

Experts say that the U.S. faces a shortage of engineers, so your friend might be able to find an H-1B sponsor. If he is successful, his wife and his unmarried children can accompany him to the U.S. Then, after proving himself valuable to his employer, he can ask the employer to sponsor him for permanent residence, that is, for a green card. Most likely, for him to get a green card, the employer would need to prove that no qualified U.S. workers are available to do his job. That won’t be too difficult with his degree and a few years experience.

[/DNLEDETEXT][DNLEDETEXT] Q: A U.S. consular officer in Santo Domingo, Dominican Republic denied my mother an immigrant visa because she had lived here without legal status. What can I do to get her here? I am a U.S. citizen and I petitioned for my mother. At the time, she was here with me having entered on a visitor’s visa. However, while waiting for the U.S. consul to call her for her immigrant visa interview, she fell out-of-status. By the time she left for Santo Domingo, she has overstayed more than six months. The consul denied her visa application as a person who had been unlawfully present in the United States. The denial letter advised her to apply for a waiver. She did so, but USCIS denied the waiver.

Rocio, Queens

[DNLEDETEXT]A: If you have evidence or arguments that your mother did not present with her waiver application, she can file a new one. Otherwise, she must wait three years before she can come to the United States. That’s because of the unlawful presence bar that applies to most individuals who leave after having been here unlawfully for more than 180 days.

It’s a shame that your mother didn’t simply apply for her immigrant visa here, the processed called adjustment of status. If she had, the unlawful presence bar would not have applied. The parent of a U.S. citizen who entered legally qualifies to adjust status even if he or she is here unlawfully. [/DNLEDETEXT]

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Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now! project. Send questions and comments to Allan Wernick, New York Daily News, 4 New York Plaza, N.Y., 10004 or email to questions@allanwernick.com. Follow him on Twitter @awernick.

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