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.

By Attorney Hao Li.

Imagine arriving in a new country, filled with hopes and dreams for a brighter future. You work hard, you build a life, and you create opportunities for your family that you may have only once imagined. For many immigrants, the United States offers a fresh start—a place where effort and dedication can lead to success. But amidst the excitement of new beginnings, there is a crucial aspect of life that often gets overlooked: estate planning.

Raj came to the United States 20 years ago, filled with determination and a vision for a better life. He arrived with just a suitcase and a heart full of hope. Through sheer hard work and perseverance, he managed to build a thriving small business and buy a comfortable home for his family. He wanted nothing more than to provide opportunities for his children that he never had growing up. For Raj, every sacrifice was worth it if it meant his family could have a stable future.

But like many immigrants, Raj thought estate planning was something only for the wealthy or something he could worry about later in life. He always believed that there would be time. Unfortunately, life had other plans. Raj fell seriously ill unexpectedly, and the burden of managing everything he had built fell on his wife and children. They suddenly found themselves struggling—not only with the emotional toll of Raj’s illness but also with the financial and legal complications that came with it.

Without a will or any kind of estate plan, Raj’s family faced a complicated and prolonged probate process. His wife, Priya, found herself tangled in a web of legal procedures that she didn’t understand, while also trying to keep Raj’s business afloat. The lack of clear instructions or legal authority made even the simplest decisions overwhelming. Bills piled up, and uncertainty loomed over whether they would be able to keep the business that Raj had worked so hard to establish.

Raj’s story is not uncommon. It’s a vivid reminder of the importance of estate planning, especially for immigrant families who may face additional layers of complexity. Estate planning is not just about money; it’s about providing a clear path for your family in times of uncertainty. It’s about making sure that your children are cared for, your assets are distributed according to your wishes, and that your family members have the legal authority to make important decisions when you cannot.

By planning ahead, immigrants like Raj can protect what matters most: their family, their legacy, and the future they’ve worked so hard to build. Estate planning brings peace of mind, knowing that even in the face of life’s unexpected challenges, your loved ones will be supported and your hard-earned legacy will be preserved. For immigrants, estate planning is more than just paperwork; it’s about protecting what you’ve built and securing the future of your loved ones. Imagine spending years working tirelessly, saving for your children’s education, or building a home, only to leave the future uncertain. Without a plan in place, the assets you worked so hard to accumulate could be lost in legal disputes, heavy taxation, or lengthy court processes. Estate planning helps ensure that your legacy is safeguarded and that your wishes are honored, even when you’re no longer there to voice them.

Immigrant communities in Florida face unique challenges when it comes to estate planning. One significant challenge is navigating the complexities of U.S. laws, which often differ significantly from the legal systems immigrants are familiar with in their home countries. In some cultures, verbal agreements or informal arrangements may carry significant weight, while in the U.S., these need to be documented formally to be legally enforceable. Immigrants may also be unfamiliar with the probate process and the importance of having legal documents such as wills, trusts, or healthcare directives.

In addition to the legal differences, many immigrant families have cross-border considerations. They may own property or have financial assets in their home countries, which adds a layer of complexity to estate planning. Ensuring that assets in both the U.S. and abroad are properly accounted for and protected requires specialized knowledge and careful planning. For instance, some countries may not recognize U.S. legal documents like wills or trusts, making it essential to develop a plan that addresses both jurisdictions.

Another challenge is balancing family expectations. Immigrant families often have close-knit structures, and there may be expectations around supporting relatives in the home country or passing down assets in a specific manner. Estate planning must balance these expectations while ensuring compliance with U.S. laws and regulations. It’s important to work with an experienced estate planning attorney who understands the cultural nuances and the legal complexities that immigrant families face.

Estate planning for immigrant communities is not just about managing assets—it’s about bridging cultures, understanding legal differences, and making sure that your loved ones are provided for in the best way possible. Addressing these unique challenges head-on ensures that your family’s future is secure, no matter where they are.

As an attorney licensed in Florida and Minnesota, and an active advocate for Florida’s Asian community, I am committed to helping you navigate the challenges of estate planning. In today’s article, I will cover essential estate planning terms and the concept of comprehensive estate plan, along with how immigration status can impact your planning. Future articles will also dive into other key topics, including the probate process, trusts, and more, to provide you with a comprehensive understanding of estate planning.

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.

Yes. Having to leave your job or even losing your job while on an H-1B Visa is not necessarily the end of the world!! You will need to be able to secure new employment within the 60-day grace period, and then, your new employer will be able to file a petition for an H-1B Transfer. However, I want to stress that an H-1B transfer is not automatic, the process can take a few weeks to put together an appropriate petition, and there are additional filing fees and legal fees (if your employer retains legal counsel). I don’t want to sound self-serving, but an H-1B Transfer can be relatively complicated because of several reasons, and I usually recommend your new employer contact an experienced immigration attorney.

Your new job must also be in a “specialty occupation”. In other words, it must fall under the category of the already designated specialty occupations (such as a software engineer), or you must be able to prove that your new job description qualifies for a specialty occupation. Additionally, your new employer must prove that you are being offered the prevailing wage, and you must be able to show that you maintained your H-1B status while working for your original H-1B job.

Remember that these petitions take time to prepare and do have new filing fees in addition to legal fees (if your employer wisely retains legal representation for the process). I also want to point to the fact that this is not necessarily the most straightforward petition, and things are more challenging if your new job is not in the exact same specialty occupation as your old job.
The USCIS does issue RFE’s (Requests for Evidence) with H-1B transfers just like they can issue RFE’s with original H-1B petitions.

If I have an approved I-140 from my employer’s PERM application, can or should I still apply for an EB-2 NIW or an EB-1 green card?

Yes, not only you certainly can, but also, sometimes you should. Having an approved I-140 is a good start especially if you are from India. This is the first step in the long process of obtaining U.S. Lawful Permanent Residence (a Green Card). However, as some of you know, if you were born in India the wait time for an employment-based green card is many years. If your first I-140 (Petition for an Immigrant Worker) was approved under EB-3 PERM (the 3rd and most common Employment Preference Category), your wait time for a Green Card can be measured in decades and not years.

If you file an EB-2 NIW under the Second Employment Preference Category and your new I-140 is approved, you can speed up the process for obtaining your Green Card. How can this be done? Of course you would have to qualify for a National Interest Waiver and that is not easy. But if you are able to qualify for a NIW, the wait time for EB-2 green cards is much shorter than EB-3 PERM. You can actually use your priority date from your original Petition and apply it towards your new application (once approved).

For example, if you have an I-140 approved from 2019, you could essentially knock off 4-5 years of visa bulletin waiting time by getting a new I-140 approved in a better Employment Preference category. The wait time is even less for EB-1 Green Cards if you qualify under extraordinary ability. Is it worth taking the time, money, and effort to apply for a Second Employment-Based Green Card? What are your chances of approval?

If you are at all interested to see if you would qualify it may be worth a consultation with an experienced 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
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.

1. When can we expect the commencement of visa stamping within the United States?
In 2004, the U.S Department of State halted the renewal of U.S visa stamps due to heightened border restrictions following the events of 9/11. Initially, the U.S visa stamping process was established to provide a convenient option for applicants who couldn’t re-enter the United States without a valid visa stamp. The 9/11 attacks changed how the United States handles immigration and border security. After September 11 2001, the U.S. Increased border controls were put in place by the Department of State, including a suspension of the renewal of U.S. visa stamps. This choice was made to strengthen security precautions and guarantee that everyone entering the U.S. would be closely inspected. The stamping of visas, which was first intended to be convenient, has changed into a tool for enhancing security, which has resulted in longer processing times and changing standards for visa issuance.

In the recent past, the challenges posed by the Covid-19 pandemic, including lockdowns and travel restrictions, made it difficult to conduct in-person interviews with visa applicants. In addition, reduced staffing at overseas consulates resulted in significant appointment backlogs. Therefore, in response to these circumstances, The White House pursuant to release of a “Joint Statement from the US and India” on June 22, 2023 1 , announced plans to initiate a pilot program later this year to renew visas within the United States. This program will initially focus on offering visa renewal options within the United States for specific temporary work visas namely H-1B and L visas. The program’s scope is expected to expand to include other eligible visa categories in the future. Nonetheless, as of now, the State Department is yet to announce the precise details and procedures of this program. Further updates and information are anticipated in due course.

2. Why is the USCIS issuing such a large number of RFEs (Requests for Evidence), especially with EB-2 NIW petitions?  

“In the last several months, the USCIS appears to be getting some sort of policy directive on either limiting or restricting the number of approvals for employment-based visa and green card applications.”

 Of course this is just speculation, but why all of a sudden is it harder to get a National Interest Waiver than it was last year or even earlier this year?  A lot of my practice focuses on exceptional foreign pilots. Even stronger cases are getting requests for evidence and sometimes even denials.  If the USCIS keeps up this practice, I may have to rethink who is eligible for such petitions.   

Since we are now having to anticipate an RFE in advance as opposed to simply dealing with them if they come, I have to put in more work on the majority of my cases and have had to start charging more in legal fees as well. Most of my clients pay a flat fee for my services and I charge based on how much time I estimate a case will likely take.  For some of my more recent clients, I likely undercharged them because we did not anticipate such roadblocks. Recently, I have even turned away some clients in good faith because I did not think their cases were strong enough to overcome the more stringent standards that the Citizenship Services is implementing.  

I still believe that strong cases will still be viable options for an EB-2 NIW.  Extraordinary and exceptional applicants will get approved although the process may take longer if we still have to respond to a large number of RFEs. In fact the RFEs are even getting longer and more complicated, making our job a bit harder and more expensive for clients. While evidence of a labor shortage was never enough on its own, it seems that the USCIS isn’t even taking labor shortages into account when considering such applications.  

Are these changes a pattern, a trend, or just an unusual few months in what has been a very strange year for U.S. Immigration?  Hopefully things go back to how they were, because if they don’t we may be losing out on some key foreign talent who will choose to go to other countries like Canada.  If things remain this difficult, I may start asking my clients if they like hockey and maple syrup.  

*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 or www.finbergfirm.com.

Indian Nationals seeking U.S. Green Cards under the 1st Employment Based Preference or EB-1 category received a rude awakening from the recently published August 2023 Visa Bulletin. Unexpectedly and almost overnight, the wait time for green cards has increased exponentially by over ten years.

1. Until December of last year (2022) the visa bulletin for EB-1s from India was current.  This meant as soon as your challenging EB-1 petition was approved and all your documents were submitted you could immediately start the green card process.
2. Then at the start of 2023 the visa bulletin went from “current” to showing “2022”.  The wait increased to around one year, which is still quite manageable.
3. Now the latest August 2023 visa bulletin has priority dates showing the year 2012, a ten year retrogression!

Many Indian professionals, innovators, scientists, and entrepreneurs who have been avidly pursuing the EB-1 green cards (because of the significantly shorter green card wait period compared to EB-2 NIW’s) have had their aspirations dashed by this news.  Panic and frustration have gripped current and potential EB-1 applicants due to this retrogression, and it is necessary for the U.S. Government to address these concerns adequately and transparently. It is important to recognize that the current situation does not imply the death of the EB-1 category or the end of employment-based immigration from India. One suggestion is to label the bulletin as “U” or “unavailable” for the Indian category at least for the immediate future.  This might offer temporary relief by indicating the current status is over-subscribed and immigrant visas simply are not presently available, but it is not a long-term solution.

The retrogression has wide-ranging effects because it impacts not only the EB-1 category but also other immigration paths and possibilities. Many Indian citizens who might have previously chosen the EB-2 National Interest Waiver (NIW) green card category had been choosing the more difficult EB-1 category because of the much shorter green card wait time. However, with the latest news, both options are becoming less appealing to most Indian applicants now that both categories have over a decade long wait.  Interestingly, since the difference in green card wait times between the two categories (EB-1 and EB-2) is only around a year, many of my clients are now re-considering the slightly easier EB-2 NIW. These dangerous developments in the visa bulletin may be detrimental to both the highly-skilled Indian immigrants and to the U.S. economy. Our country thrives on economic contributions and innovation in technology, science, and business from immigrants with extraordinary ability.

Investigating other visa possibilities to work in the United States becomes necessary when the wait for the green card extends into double digit years. Clients who meet the requirements for the EB-1 category may also be eligible for the slightly easier O-1 visa, one of the best non-immigrant visas available. While this visa does not lead to a green card, it is renewable for a number of years. The O-1 visa can be a good choice for people who have extraordinary abilities, are ready to start working in the U.S., and are willing to wait the requisite number of years for their visa bulletin to be current.

Patience in immigration becomes essential because of the uncertainties surrounding upcoming visa announcements and the ever-changing regulations. It’s important to keep your composure and allow for cooler heads to prevail during this trying period, even though some people might be tempted to vent their annoyance by smashing the Visa Bulletin Printer. Better news may be contained in the October 2023 visa bulletin or future bulletins in 2024, with the potential for larger government allocations of employment-based immigrant visas or the availability of more green cards from other sources. The full level of relief won’t be apparent for some time.

The hope is that the recent retrogression in the August 2023 visa bulletin was the darkest hour for Indian EB-1 applicants as we navigate these difficult times, remembering the proverb, “The night is always darkest just before the dawn.” Even if it’s normal to feel defeated, it’s important to keep your positivity and patience. It is highly recommended that anyone who is about to file an EB-1 or is thinking about doing so consult with an immigration lawyer. Making rash judgments might have long-term effects, therefore you must have an expert lead you through this complex process. Having an approved EB-1 or EB-2 with a solid priority date can be advantageous compared to waiting and regretting not filing sooner, even with the current backlog.

It’s true that the visa retrogression has made things more difficult for applicants, but it’s important to maintain perspective. Consult with a knowledgeable and experienced immigration attorney to determine the best course of action, look at alternate visa choices, and hold out hope that upcoming visa bulletins will provide better news. Keep in mind that this difficult time will pass, and that there may be better days ahead for individuals who want to bring their talents to the United States.

About the 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, 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)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or at www.finbergfirm.com.

As an international student pursuing your studies in the US on an F-1 visa, Curricular Practical Training (CPT) can be a fantastic way to get immediate work experience in your field and even earn a paycheck. CPT is a job training program run through your international student’s office that allows students to participate in off-campus employment, internships, or other types of practical training related to their academic program that can either be full-time or part-time. The main point of pursuing this program is for students to gain practical experience and enhance their academic and professional skills.    

What is Day 1 CPT?   As the name suggests, Day 1 CPT is a Master’s or Doctoral degree program that allows students to participate in Curricular Practical Training (CPT) from “Day One” of their course. In all other programs, CPT eligibility can commence 90 days before the end of your first year of study.  Day 1 CPT is a good option if you are seeking to work in the US right away as you pursue your studies. While Day 1 CPT is an excellent opportunity for students to obtain real-world experience, you should consider several important factors before deciding to go down this path.

Let’s start with why students are enticed to apply to such programs in the first place. An evident advantage to this is that this form of work authorization gives F-1 visa holders a great opportunity to gain immediate hands-on experience in their field of study, and perhaps develop valuable relationships with potential employers. The key factor to a Day 1 CPT program is that it allows students to work as they complete their studies, as opposed to waiting much closer to graduation in order to gain practical work experience. Take note that if you are only in a 1-year program (such as a 1-year Masters), if it does not allow for Day 1 CPT, you can’t work at all during your brief program except for the last 90 days.  This is why most Masters students prefer to use their full year of post completion OPT (Optional Practical Training) after graduation instead of CPT during school.  

However, despite being a good opportunity for students, there are downsides to the Day 1 CPT that are important to keep in mind if you are considering this option.  Schools that offer Day 1 CPT are private and may charge very high tuition rates (especially for international students). While I am not an academic advisor or career counselor, I occasionally give out career advice to my clients in addition to legal advice. Are these programs the best career or educational choice?  Opinions vary.  It is hard to say as choosing a school or immigration program is very case specific, and you should consult different sources for advice.

Remember that CPT (Day 1 or regular) must be in your field of study.   If you are in a Masters of Business Administration program (MBA), you may have a hard time getting CPT approval to work for an engineering firm.  Another potential positive point and negative  drawback of Day 1 CPT is that your authorized employment is not subject to any prevailing wage requirement as with an H-1B visa or PERM.  Essentially you can work for any agreed upon wage without requiring your employer to match what is common in your geographic region for your job classification.

Should I consider a program that offers Day 1 CPT?   Ask yourself … “Do you want the degree or do you want the CPT?”  Sometimes you can get the best of both worlds.  However, some clients may consider applying to such a program just to get the CPT. Don’t forget that unpaid internships (even part-time ones) are considered CPT, and you need to contact your DSO or international students’ office and register your internship program. Most international students are unaware of this!

Day 1 CPT may also restrict students’ access to other programs like OPT. This is because students who have already used up their Day 1 CPT may not be eligible for other types of work authorization, as these programs have more stringent standards for work authorization. This implies that students who take part in Day 1 CPT might exhaust their allotted time for practical training, which might limit their future eligibility for various forms of work authorization. For instance, students whose Day 1 CPT has already been used up, would not be eligible for OPT or might only be eligible for a shorter period of time.

Additionally, students should be informed that Day 1 CPT might not be offered to all of them or for all programs, as there may be limitations or restrictions on who is eligible to participate. For example, certain colleges might only provide Day 1 CPT for specific programs or majors, such as STEM fields, while others might not. Universities may also have particular standards or prerequisites that students must satisfy in order to be eligible for Day 1 CPT, such as a minimum GPA or the completion of a particular curriculum.

To conclude, Day 1 CPT may provide international students with a fantastic opportunity to obtain job experience, but it is crucial to thoroughly investigate and weigh your alternatives before choosing, as certain colleges may have strict guidelines or restrictions on which programs qualify for Day 1 CPT. Carefully weigh the system’s possible downsides and problems before choosing whether to pursue Day 1 CPT or other forms of work authorization. I advise you to seek an immigration lawyer who can help you carefully investigate and guide you as you weigh your choices.

*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.   

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, 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)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or at www.finbergfirm.com.

The L-1 Visa. What if Bill Gates was Canadian?  

While H-1B season is right around the corner, I still get asked about other visas such as the L-1.   “What is an L-1 visa”?  “Am I a good fit”? “Are they hard to get”? “Who is eligible”? 

Let’s pretend for a moment that Bill Gates was Canadian from Vancouver instead of being American from Seattle.  Let’s also use the story that Gates co-founded Macrohard in Canada instead of the U.S.   Years later, Microhard eventually would want to expand into the U.S. market and would need to open up a U.S. office … for example in San Jose.  If Macrohard wanted to transfer Gates, their Executive V.P., to their new Silicon Valley office, how would they be able to do so?   An L-1 Executive Transfer would be a great option for Macrohard to bring the talents of Mr. Gates to the Golden Gate area.

As long as Mr. Gates worked in an executive or managerial capacity for Macrohard at their Canadian headquarters for at least one year, Macrohard could sponsor him for an L-1A visa to start a similar position at their new (or existing) U.S. office.   Macrohard’s experienced U.S. Immigration Attorney also told them that they could also sponsor Gates for a U.S. green card if they so desired.   If Macrohard’s U.S. subsidiary feels it is in their best interests as a company to sponsor Mr. Gates for a U.S. green card, this would be the best route.  An L-1A visa holder can apply to adjust their status to a lawful permanent resident by means of an EB-1C petition.

If you are from India or China, pay close attention. As many of you know, the visa bulletin and immigrant visa backlog are quite long for most green cards for those born in India or China. Applying for an employment-based green card in the 2nd employment preference category (EB-2) or 3rd employment-based preference category (EB-3) can take many many years for those from countries with long visa backlogs. Is there good news? A green card obtained in the first employment-based category (EB-1) has a much shorter green card wait time.  While most will not qualify for this category as an EB-1C can be obtained once you are on an L-1 visa.

Advantages of an L-1 Visa

1. Dual-Intent. Like the H-1B, the L-1 allows the employer to sponsor them for a green card while they are working in L-1 status.
2. No quota/cap, unlike an H-1B. There is no annual limit to the number of L-1 visas that can be issued.
3. No prevailing wage requirements. Unlike the H-1B, the L-1 visa does not require a labor condition application or required the US company to pay the employee/foreign worker a prevailing wage.  Although the employee still has to be paid a reasonable salary to be considered an executive/manager or a professional with specialized knowledge.
4. No educational attainment requirement. Unlike an H-1B visa that requires at least a bachelor’s degree (or equivalent), the L-1 visa doesn’t have an education requirement. However, the applicant has to possess the required skills and experience to serve as a realistic manager or executive.
5. Eligible for Premium Processing. 
6. Family Benefits. Your spouse and unmarried children under the age of 21 may travel with you to the United States if you are approved for an L-1 visa.  Spouses of those granted an L-1 visa are also work eligible.

Disadvantages of an L-1 visa

• Not indefinitely renewable. One of the main limitations of L-1 visas is this. The L-1A permits employees to work for a maximum of seven years however this period cannot be extended.

1. Your visa is tied to your employment. Since the L-1 status is dependent on employment, it expires the moment your employment does. If you lose your job (or your company goes under) you will lose your visa.
2. Limit on types of companies.  While you can work for any U.S. employer with other visas like the H-1B, the organization that sponsors you for an L-1 visa must be an international corporation that either already has or plans to open a branch, subsidiary, or office in the U.S.

The L-1 visa is a viable immigration solution for those in the corporate or business world whose foreign company will be transferring their job to a U.S. office.  L-1s allow the employee and their family to work and reside in the U.S. while performing their executive or managerial role. Is the L-1 right for you or your company?  Consult an experienced U.S. Immigration Attorney to find out if you and your company are both eligible for an L-1.  You may still be unsure if the L-1 visa is the best option for your situation despite knowing the L1A and L1B visa criteria and all the benefits and drawbacks it offers in comparison to other work visas. You can determine how to best proceed with the aid of an experienced 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.

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 (954)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or www.finbergfirm.com.

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, 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)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or at www.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.

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.