First of all, what is an EB-5?  The EB-5 is known as the “Immigrant Investor Program”.   You have to a) make a necessary investment in a commercial enterprise in the U.S.  and b) plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.   EB-5’s can either be a direct investment or a regional center investment.  With a Direct Investment you either create a new company/project or buy an existing company/project and directly manage and control the enterprise.  There is also an EB-5 Regional Center Program which allows you to invest in commercial enterprises via approved USCIS “Regional Centers” designed for economic growth.

Advantages of EB-5s:

1. You can obtain a green card for you, your spouse, and minor dependent children with a sizable investment.
2. You can be from any country.
3. Even if you are born in India, the visa bulletin backlog is much shorter in the 1st employment preference category (EB-1A, EB-1B, EB-1C, EB-5).
4. You don’t have to demonstrate extraordinary ability or have an existing job or job offer or sponsor.   All you need is money and a plan.

Disadvantages of EB-5s:

1. They are expensive.  They are cost prohibitive for most investors.
2. There is still market risk as in any investment.
3. There is also a lot of EB-5 fraud out there.   Make sure you hire a qualified immigration attorney along with an investment/finance/accounting team to analyze your potential investment.  *** Plenty of companies purposely prey on people desperate for green cards.
4. Due diligence and research are most important in an EB-5.  Don’t rush into anything.

The EB-5 Direct Investment requires a more sizable initial investment.  However, you have many more options to choose from including starting your own business or buying an existing business.  You also have to be willing to run your company or at least play a more active role on the management side.   Since you have more flexibility in the type of business to start or purchase, you potentially can earn a lot more money in return.  If you invest in a hotel for 2.5 million dollars it could turn into both a green card and a very profitable enterprise.

On the other hand, the EB-5 Regional Center Program allows you to invest less money, sometimes even under a million dollars (U.S.), but you have much less control over the company.   EB-5 Regional Centers are projects designed to have numerous investors who passively invest in a project.   Essentially, you buy into an existing project but you don’t have much direct control.  These investments are more limited in options because they must be USCIS approved “Regional Centers”. Also, there is a greater chance for fraud or for your investment to lose money or outright fail.  For this reason, be careful which project you choose.

Don’t invest your entire life savings into a project simply to get a U.S. Green Card.  You should invest in an EB-5 because the project is vetted and seems like a good investment even without the green card.  However, be prepared to take some sort of loss.   I am not an expert in accounting, finance, or real estate like my law partner Hao “Howard” Li.   I don’t offer any tax, investment, or financial advice on any project.   Very few immigration attorneys have any type of financial background which would qualify them to give business advice on an EB-5 or even an E-2 project.   It is best to come to us once you have selected a suitable project.

What if you don’t have enough money for an EB-5 but still want to invest in a U.S. company or start a business in the United States?  The E-2 investment visa is a great option for that.   You just need to make sure you are from an eligible E-2 “treaty country”.   India unfortunately is not E-2 eligible.  Neither is China. However, Bangladesh, Pakistan, and Sri Lanka are in addition to countries such as Canada or the UK.    Did you know if you obtain citizenship from an E-2 country, you may then potentially be eligible for an E-2.  For example, if you were born in India but became a Canadian Citizen, you could then consider an E-2 visa.

An E-2 visa allows you to start or buy a business in the U.S. and live here with your family while running your business.  An E-2 is still a non-immigrant visa, meaning it does not lead to a green card but it can be renewed for years as long as your company is solvent.   Examples of E-2 investments could be buying a restaurant, a convenience store, or even a small software company.   You will still need to invest a substantial amount of money and have a solid business plan to present in your petition.   While there is no set minimum amount for an E-2, the more you put at risk the better your chances of approval.  Also, the better your plan is and the more business experience you have the better your chances are.

E-2 visas can also be tricky because of the different U.S. consulates you have to deal with.  Some are stricter, some have much longer processing delays, and each may have their own set of rules you must comply with in order to obtain your visa.   Some consulates may not even give out E-2 visas so you may have to apply at a third country consulate.   Overall, an E-2 visa is less risky than an EB-5 due to the much lower amount required to invest along with the greater flexibility in possible projects or business choices.  E-2s also can be obtained in a much shorter time period.  An EB-5 or E-2 can be a great solution under the right circumstances.

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 and the American Immigration Lawyers Association (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 info@finbergfirm.com or visiting www.finbergfirm.com.

Most people already know you cannot legally work in the U.S. without employment authorization.  Not all visas allow for the ability to work.   After your U.S. Consulate Interview, the officer will usually tell you or often outright warn you not to work while on a B-1/B-2 (visitor visa) or F-1 (student visa).   If this is the case, why do so many people still try to work without the proper documents?  Is it because they are unaware of the consequences, because they are desperate, or because they just don’t care or are at least willing to take the risks?

Even if you enter the U.S. legally, you still need to have the right to work legally.  Just like you cannot remain in the U.S. indefinitely while on a visitor or student visa, you cannot work without a work permit or a visa that includes employment authorization.   “Working under the table” unfortunately is common for both Americans and Foreign Nationals.  Both expose themselves to possible IRS tax consequences for not declaring their income but getting paid “off the books” can also jeopardize your immigration status.  If you are caught working without employment authorization it can cause you to lose your visa, harm your chances to get a green card, or potentially make you inadmissible to the United States and placed at risk for removal (deportation).

Employers can also get into trouble if they hire or continue to pay employees who do not have proper work authorization.   Employers are supposed to have each employee fill out an I-9 form and screen for both 1) Legal U.S. status and 2) work authorization.  I-9 compliance is required for all employees physically present in the United States.   Companies found to be intentionally or willfully violating immigration laws can face heavy fines and sanctions.  If you are an employer and have any questions about the immigration status of an employee, it is best to contact an experienced immigration attorney.   If their documents do not look legitimate or you just want to make sure you don’t have any questions, do the smart thing and get some legal advice.

Did you know that the U.S. Department of Labor actually performs audits and even surprise site visits if they suspect unlawful activity?  Why does the DOL care?  Immigration laws are in place to protect American workers but also prevent foreign workers from being exploited.  The Labor Department wants to ensure that all workers are paid fair (or at least minimum) wages and work under proper working conditions.  Additionally, if a foreign worker is on a work visa they must be paid at least the prevailing wage which is determined according to the industry, job title, and metropolitan area.  You can always legally pay a foreign worker more than the prevailing wage but never less.

H-1B visas, O-1 visas, E-2 visas,  L-1 visas, and even J-1 and R-1 visas are all work visas that have an official sponsor.  When you are on a work visa you are legally allowed to work for your sponsoring company but only for the company written on your visa.  It is not permissible to perform additional work outside of your work visa.  If you want or need a second job you must obtain a second work visa.  For example, if you play professional cricket in the United States and you are from India you will need a work visa such as a P-1 to be paid to play.  If you are a Hindu priest working at a Temple you will need an R-1 religious visa to work and remain in the United States.

What about if my spouse has a work visa, can I work?  The answer is … it depends on the  type of visa your spouse has.  Don’t assume just because your spouse can work it automatically means you are able to as well. Some work visas allow a dependent spouse to have work authorization.  Other work visas do not.  If you are on an H-1B visa, your spouse can usually obtain an H-4 dependent visa and be able to work.  If you are a researcher or a postdoc on a J-1 visitor exchange visa, your spouse can apply for a J-2 visa which allows employment authorization.

What about working while on a student visa?  This is one of the more complicated topics.  Students on F-1 visas generally have to apply for CPT (curricular practical training) or OPT (Optional Practical Training) before they can get a work permit.  The F-1 visa itself does not allow you to work in a paid “job training program” without going through your International Student’s Officer or speaking with your Designated School Official (DSO).  International students can usually work part-time on campus jobs under a work study program.  However, it is still best to always check with your school international office before you accept any employment.

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 and the American Immigration Lawyers Association (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 info@finbergfirm.com or visiting www.finbergfirm.com.

I get asked this question a lot.  I’ll be honest. Neither candidate in my opinion did a great job of addressing immigration so far.  It is obviously a very challenging issue to discuss.  If I were to guess, more of the U.S. likely feels that the Biden-Harris Administration has done a poor job at securing the Southern Border.   At the same time, most of the U.S. likely feels that former President Trump has not been particularly welcome to immigrants in his rhetoric.  One side is accused of being “anti-immigrant” and the other side is accused of “letting everyone in”.   The answer depends on who you ask.

As an immigration attorney who focuses on employment-based immigration (EB Immigration), this is where I think both candidates have lost an opportunity to make a difference and sway voters.   Talk more about employment-based immigration and investment-based immigration.  The largest group of voters who are interested in work visas and employment green cards are South and East Asians.  The party who can make inroads into this demographic will benefit.  Again, talk is cheap.   President Biden has had lots of Presidential Proclamations that talk about STEM and these STEM initiatives.  However, the USCIS, an agency of the Executive Branch, has not shown that they pay very little attention to these proclamations.

If I was either candidate, I would discuss how beneficial employment-based immigration is to the United States.   1) When we have critical labor shortages we often need both skilled and unskilled foreign workers to come into the U.S. and work in under-filled jobs.  2)  On the more exceptional side, they should discuss how scientists, researchers, entrepreneurs, investors, inventors, and other innovators can make a huge difference to our economy and country’s growth.

Trump or Harris should talk about “unicorns”.  What are unicorns?   A unicorn is a privately-held startup company valued at a billion dollars or more.  That is a billion with a B!   According to Forbes, immigrants have founded more than half (55%) of our nation’s unicorns. Almost 80% have an immigrant founder or an immigrant in a key leadership role.  When there is a pilot shortage, a nursing shortage, a trucking shortage, a mechanics shortage, or a teaching shortage is where employment-based immigration should be in the forefront of political discussions.

U.S. Universities (at least for now) attract the best and the brightest international students from all over the world.   Many of these bright young minds want to eventually settle here, get jobs, and start companies after studying in the States.  We need more H-1B visas to be available and other new or expanded work visas categories to be created to keep these students employed here after graduation.   OPT, CPT, and STEM OPT are wonderful programs.  However, they only last 1-3 years.  What will a graduate do to remain living and working in the U.S. if they can’t get one of the available visas?

International students are often forced to get additional expensive degrees, often ones they don’t even need, just to remain in the U.S. and get additional work authorization.   Some students even pay to attend marginal programs or ones that aren’t even accredited just for the chance at Day 1 CPT.   Many of these mostly private schools are benefiting from the lack of available work visas and green card opportunities for international students.  So the schools are perfectly satisfied with the current system.   However, are the students really benefiting?  Is our country really benefiting?

I represent companies in addition to talented individuals.  Some of my corporate clients wish they had better options to keep their valuable international students graduates for more than just a year or 2.   Yes some can win the H-1B lottery but most won’t.  Many would sponsor the students directly for green cards but the PERM process (labor certification) takes many years and is often unpredictable.  Additionally, Indian nationals, some of the best and brightest international students we have, face incredibly long visa-bulletin waits just to get a green card once the rest of the USCIS obstacles are overcome. If I were a politician, I would promote a quicker and more streamlined process for work visas and eventual green cards for these valuable employees.

What could be done?

1.  Make more H-1B visas available
2.  Create other types of work-visa categories
3.  Speed up USCIS processing times outside of Premium Processing (which often creates other roadblocks such as increased Requests for Evidence)
4. Speed up the PERM process for labor certification in sponsorship
5. Create more immigrant visas available on the employment-side so that the visa backlog for EB-2 and EB-3 cases are more acceptable.

While I am not trying to be political or show any support to a particular candidate, I do feel that it would be in everyone’s best interest to cover immigration on the employment side.    Interestingly, when I discuss my line of work to people of all political persuasions, the vast majority not only don’t object but actually support what I do.  It is refreshing to hear the support.  Now we just need more of it from our politicians.

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 and the American Immigration Lawyers Association (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 info@finbergfirm.com or visiting www.finbergfirm.com.

Photo Courtesy: Andrea Piacquadio

As a U.S. immigration attorney, some types of cases are resolved relatively quickly while others can take years if not decades to complete.   How do you account for a client whose matter might not be fully finished until 20 years from now?     How do you keep accurate records, case management, communication?   What do you do if you eventually retire, have health issues, or even ultimately change your practice area?  Your clients relied on you to complete their cases, but the longer the case drags out, the more risk the case has for unintentional oversight.

On the employment side, EB-2 green card petitions from India only have current visa bulletins if they were filed on or before October of 2012.    This means that EB-2 NIW and EB-2 PERM cases are expected to take about 12 years to be current from when the approved I-140 is first filed (priority date).    Will the visa backlog get better or worse?  If it gets worse, the wait could possibly lengthen (retrogress) to 15 years?  Even if it gets better, a 10-year wait is still a long time to stay organized as an attorney or an individual. 

Let’s discuss family-based immigration for a while.   Siblings (brothers and sisters) of U.S. Citizens take the longest to get approved.   If you are from India and you file an I-130 to sponsor your sibling, the current wait time is about 18 years.   It is 20 years for the Philippines and over 23 years for Mexico.   What happens when you hire an immigration attorney in 2024 to help sponsor your sister?   The visa bulletin at current rates would not be current until 2042.   How many firms of any type have plans to handle cases that can last 20 years?

If you are an attorney over the age of 45 or 50 do you simply not take an Indian immigration sibling petition?  If you are a client, do you only hire a younger attorney or one who is more likely to still be practicing in 20 years?   This doesn’t make sense, does it?  Even if your attorney is 35 and in perfect health and happiness in their practice, there is no guarantee anyone will still be working in 20 years.

Don’t forget, you always have to keep the USCIS and the U.S. State Department up to date on any change of address you may have.   It is your responsibility to notify the government any time you move when you are dealing with immigration.  Do not assume the postal service will automatically forward your mail.  It is a legal obligation for you to report any changes of residence in the U.S. or abroad while an immigration case is pending.  Your attorney also must update business addresses and contact information if anything changes.   

From time to time, I consult with clients who don’t remember who their attorney was from many years ago when a case may have been first filed.  They don’t always even know if the case was filed or if it was properly filed.   Make sure to document everything, save everything from the USCIS, and ask for any receipt notices so you know the status of your case.  Sometimes a client filed a case on their own or used one of these other “immigration services” to file their petition years back.   These are reasons why you should have a licensed and experienced immigration attorney as your authorized legal representative in front of the USCIS or State Department.

Many State Bars such as Georgia, suggest (or even require) each attorney to designate another attorney to handle their cases in case of any interruption in their ability to practice law.   Even if you don’t officially designate a legal successor, you should have in place who in your firm or in your professional network can be willing and able to take over if needed.   I would suspect physicians, accountants, and other client-based service providers have others listed to handle their patients or clients. 

Sadly, over the last two years, I remember at least two South Florida immigration attorneys tragically passing away.  While I did not know either of them personally, I always wondered what would happen to their clients?  Even if you don’t die prematurely, what happens if you have to go on extended medical or personal leave?  Unexpected things happen to the best of us.   We should all account for these risks and plan for the worst.   While many of us have contingency plans for our children and pets, how many of us have plans for our businesses, customers, and clients?  You don’t want to leave people hanging?   But even if you do plan on retiring, you always need to check for pending cases filed years ago, and assign them to other attorneys or let your clients know in advance and make sure their cases can be easily transferred.

Immigration law tends to have single and smaller lawyer firms on average compared to other practice areas.  The advantage of a smaller practice is the individualized attention you hopefully receive.    Additionally, it is often easier to specialize or have a very niche practice area when you are smaller.   If you work in a narrower field such as aviation, it is not always practical or possible to have a firm with numerous attorneys.   The only negative is greater need for a succession plan.  A large firm is not always as advantageous because you simply will turn the case over to internal attorneys and paralegals who likely didn’t work on the cases either. 

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 and the American Immigration Lawyers Association (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 info@finbergfirm.com or visiting www.finbergfirm.com.

Many folks know about the F-1.   The F-1 is the most common student visa to study in the United States as an international student.  However, there are other options to study in the States.   M-1 visas can be used to study a short term program such as a certificate or training program at a technical school or college.  But what is the J-1?

The J-1 visa is actually part of the U.S. State Department’s official visitor exchange program.  Instead of dealing with the USCIS, you actually deal directly with the Department of State.  The purpose of the J-1 is to “promote interchange of persons, knowledge, and skills, and the interchange of developments in the field of education, the arts and sciences.“. 

Because there has to be an “interchange of knowledge”, J-1 visa holders are typically required to return to their home country for at least 2 years before returning to the United States.

Why do they have to go back home?  Well, the main justification for the J-1 visa is to exchange ideas between visitors of other nations.  If the J-1 holder simply stays here in the States they arguably can never directly share their knowledge and experiences with their home country.  This limitation is usually marked on the bottom of the J-1 visa saying “subject to 212(e)”.  Now the 2 year foreign residency requirement doesn’t have to be 2 consecutive years but it has to total at least 2 years in the aggregate.  

My brother in law is a professor and researcher at a top U.S. University.  His STEM lab typically employs postdocs or students who have already earned their PhDs.  A postdoc is a great way to start your own professional research or teaching career and at the same time build up your O-1 visa or EB-1A green card profile.  The vast majority of his postdocs are international students and many of them obtain J-1 visas.

What are the main advantages of a J-1 visa?

1. You don’t have to be enrolled in a degree seeking program like a Master’s or PhD.
2. You don’t have to complete a labor condition application (LCA) like a H-1B visa.
3. You can get a J-1 visa much faster and much cheaper than an H-1B visa and there is no lottery or annual cap.
4. Spouses or dependent children of J-1 visa holders can work unlike those who are dependents of H-1B visas (in H-4 status).

What are the main disadvantages of a J-1 visa?

1. The 2-year foreign residency requirement
2. J-1 researchers and professors are only admitted up to 5 years (often less). Where an F-1 student researcher can have lawful admission as long as they are enrolled in a full-time program and can extend their F-1 status with 1-3 years of Optional Practical Training (OPT).
3. A J-1 visa is not a dual-intent visa (like the H-1B or the L-1) meaning you can not easily adjust your status to a green card while in J-1 status.

If you are considering a J-1 visa or your program offers you a J-1 you need to fully understand the consequences of 212(e)’s two-year foreign residency requirement. You need to go into your J-1 program with your eyes open about this 2 year rule.  It is possible to apply for a waiver of the 212(e) rule but these waivers take time and are challenging to get approved.  Therefore if you want to apply for a waiver of the 2-year foreign residency requirement of the J-1 visa you should contact an immigration attorney with experience in waivers.

Do you have to be a researcher or professor to get a J-1 visa?  No.  Are you aware that au pairs often can get a J-1 visa but these usually last only 1-2 years.  While au pairs are eligible to work on their J-1 visa, they are expected to learn American English and culture and then return home to their home countries with that knowledge.   There are many possibilities for a J-1 visa but they have to still qualify for the visitor exchange program.  Could a K-pop band like Black Pink get a J-1?

A creative attorney could make an argument that a foreign band like BlackPink could remain in the United States on an extended stay, possibly in a Las Vegas Residency, entertain Americans while at the same time learning English and studying American music and culture.  The ladies of BlackPink (Jisoo, Jennie, Rosé, and Lisa) could then go back to South Korea and promote and share their knowledge of American music, language and culture with their home nation.  What about the possibility of a Bollywood producer or actor justifying a J-1?

While the J-1 visa offers unique advantages over the more common F-1 student visa, such as faster processing and broader eligibility beyond degree-seeking programs, it comes with significant constraints, notably the two-year foreign residency requirement. This requirement underscores the visa’s primary goal of fostering international exchange, mandating that participants return home to share their acquired knowledge. For researchers, professors, and even entertainers like BlackPink, the J-1 visa provides a platform to contribute to American society while enriching their home countries upon their return. Despite its limitations, the J-1 visa remains a pivotal tool in promoting global cooperation and cultural exchange through education, arts, and sciences.

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 and the American Immigration Lawyers Association (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 info@finbergfirm.com or visiting www.finbergfirm.com.

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.

Before I practiced immigration law, I was a criminal defense attorney. My practice represented retained defense clients, and I served as a de facto public defender in Gwinnett County, Georgia. At the time, two of Georgia’s largest counties, Cobb and Gwinnett (both in Metro Atlanta), did not have their own Public Defenders Offices. 

“Private defense attorneys would apply to take on cases for their county of practice as part of the Georgia Indigent Defense Committee. We performed valuable public service and gained great experience, especially as younger lawyers.”

Many of the top criminal attorneys in the state were part of this committee, and the most serious cases received experienced, high-quality defense counsel. 

Did you know that most criminal cases never go to trial, and the vast majority (well over 90%) are pled out? Plea bargains were a fun but challenging part of my job. I remembered Lt. Daniel Kaffee, Tom Cruise’s JAG defense attorney character from A Few Good Men, and I aspired to be like him. No, I never was the greatest trial lawyer, but I prided myself in my ability to negotiate and obtain quick and beneficial plea bargains for my clients.   

This is a good thing, right? Not always. I started to notice that a growing percentage of my appointed indigent defense work consisted of immigrants – and many were undocumented.  Most offenses were rather minor in nature, were usually misdemeanors, and generally were non-violent offenses involving drugs, alcohol, or others of a prurient nature. I soon learned I would have to slow down my plea process and consider a new factor in the analysis.  My clients who weren’t U.S. Citizens had to consider their immigration future in any plea deal.  

After I began practicing immigration law full-time, I realized some of the real flaws and concerns with plea bargains for non-citizen clients. Even if you are a green card holder or lawful permanent resident, any arrest or conviction could impact your ability to maintain or renew your green card. It could even affect your ability to apply for citizenship in the future. Curiously, even the highly experienced attorneys were not necessarily adequately informed about 1) the immigration consequences of plea deals or 2) how important it was to go over those possibilities with their clients.  

I’m not here to point fingers at anyone but to create a teachable moment. A defense attorney is supposed to analyze the case’s strengths and weaknesses and advise the client on the best course of action. We are trained in this discipline and are very good at this practice. However, through no fault of our own, we aren’t sufficiently trained in immigration law.   

Defendants should understand the consequences of their plea agreements, such as 1) voluntarily waiving their right to a trial and 2) voluntarily pleading guilty to an offense. Their attorney must review their legal rights and ensure they understand all the risks of such an agreement. The principle of plea bargains is “negotiation.” The state offers a “deal,” which is supposed to bring a lesser sentence or offense. In return, the state saves time, resources, and money by not having to try the case but still obtaining some level of punishment, probation, or fine.    

There is another important factor to consider that many defendants and defense counsel don’t necessarily fully contemplate, cover, or understand: The immigration consequences of any arrest, conviction, or plea bargain. Whether the defendant is in or out of status (or never had a status to begin with), any conviction or plea bargain can affect their current status or immigration future. 

Unless you are a U.S. Citizen, any arrest, conviction, or plea can influence your visa, green card, or ability to get a future visa, green card, or even citizenship.  Some convictions or pleas can even result in removal (aka deportation). 

I recommend that anyone arrested or charged with a crime who isn’t a U.S. Citizen should at least consider consulting with an immigration attorney. No, the immigration attorney isn’t generally going to represent you in your defense unless they are one of those hybrid “crimigration” attorneys who plan to play both roles. However, your immigration attorney can consult with or co-counsel with your defense attorney to make sure that you both understand the immigration consequences involved with any plea bargain.   

In my experience, not enough criminal defense attorneys emphasize or even fully understand the immigration consequences of a plea deal involving an immigrant client.  Yes, the plea the state offers may be beneficial and advantageous to your criminal case but not necessarily to your immigration future. A criminal defendant should weigh all factors before agreeing to any such deal.  Sometimes, it may be worth it to fight a charge, especially if you are innocent, rather than simply quickly “pleading out” to avoid jail time or to “put the case in your rearview mirror.”

Another helpful tip is to retain your own defense attorney (if possible) or request a public defender. If your employer “offers to take care of it” by having you sign some papers, they may not necessarily be acting in your best interest.  Your employer may want a case to go away, or worse, they may be covering up for some of their own acts or omissions. For all you know, you are taking the blame for something you didn’t even do or have knowledge about.

Remember, there are potential criminal and immigration consequences to any arrest or charge. Additionally, it is required for you to properly and accurately disclose any past arrests or convictions here in the U.S. or another country when you are applying for any U.S. immigration benefits. 

“If you are unsure of a past offense or how to present it on an immigration form, consult an experienced immigration attorney. Your attorney can only help you with your future if they are informed and educated about your past. It’s understandable to want to save money when applying for immigration benefits.”

However, if your case has complications, such as a criminal background or past immigration violations, you are best served to hire qualified legal counsel.

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.

With chess you can only move a pawn or a knight to begin, so you would have to start with an F-1 student or an H-1B specialty occupation visa (chosen specifically because those are considered the standard opening visas for perspective clients).

Pilots like to fly  so they tend to prefer a knight opening and jump over a pawn on the way to landing in a more central square.

If you are using Vienna as your consulate do you continue with a Vienna opening game strategy?

The King ♚ is the most important piece in chess. Just like becoming a U.S. Citizen is the most important goal in immigration. However, you are limited in chess on how you can move your king and you are limited in when and how you can naturalize (N-400).

Queen ♛ EB-1A. The best, most versatile, and most extraordinary piece in the game. You can be in any profession or have any skill as long as you are near the top of it (and can prove it). You can fly along the board diagonally like a pilot. You can move forward as many squares as you want like an innovative entrepreneur. You can also move creatively to the side to avoid problems like a scientist.

Rook ♛ EB-2 NIW is the second best and still exceptional piece/visa on the board. Rooks are flexible and also can self-petition forwards or sideways but they are a little bit more limited. Demonstrating national interest prevents diagonal movement.

Bishop ♝ 0-1. A very aggressively extraordinary piece that can move far but only along the diagonals. It is limited horizontally and vertically because 1) you still need a sponsor and 2) it doesn’t lead to a green card but you don’t have to go through PERM so it is faster and can move many squares.

Knight ♞ H-1B. Some say equally as valuable as a Bishop. Some say more valuable. Opinions vary. Early on a specialized Knight tends to be more valuable because it doesn’t need extraordinary ability (just a specialty occupation) but it needs a sponsor and has to deal with the lottery. Others also prefer the H-1B Knight because of its dual intent (L movements). In late games some prefer a Bishop because of the long-term O-1 renewals.

Pawn ♙F-1 . You begin with 8 pawns just like you can have many student visas. F-1 pawns are often the basic building block of your immigration strategy. Pawns linked together can give you OPT or STEM OPT which is very helpful midgame. Promoting your pawn ♙ to a queen ♕ is a lot like the long journey of going from an F-1 to an EB-1A.

To quote Drake. Start at the bottom and now we’re here.

I am a halfway decent chess player and at least a halfway decent immigration attorney. Contact me and find out how we can help you win in immigration (chess) at info@finbergfirm.com

*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

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.