1) Question:

I have an H1-B. I also have a greencard application which is pending based upon an I-140 that was filed under the EB3 category, with a priority date from 2006. The I-140 was filed for the position of Supervisor when I only had a Bachelors degree. I have since earned an MBA and have been promoted to the position of Manager. Am I now eligible to change my application from the EB3 category to the EB2 category since now I have a Master's degree and a different role within the company?

Answer:

While you cannot change the category of the current petition, it may be possible for your company to file a new PERM application and immigrant petition (I-140) for you under the EB2 category.

The question is whether the new position requires an MBA or the equivalent. Not only must you have a Masters degree or the equivalent, but  the position must also require your Masters degree as a minimum qualification for the position. So if your position requires an MBA, it may be possible for your company to reapply for you under the EB2 preference category. But if you did not receive the MBA until after you started in the new position you are going to have a hard time showing that the MBA was required for the position, since you did not have the MBA when you started in the position.

Even if the new position is eligible to be filed under the EB2 category, since the original PERM application was filed under the EB3 category, your company will have to go through the PERM process again advertising the new position with the requirement of an MBA or the equivalent for the position. But if the original I-140 petition has been approved, you should be able to retain the priority date from the original petition to be counted toward the new petition.

2) Question:

Can a company ask an employee to pay for the attorney fees and filing fees for the company to sponsor the employee for an H-1B visa?

Answer:

There are several fees and costs associated with a company filing an H-1B petition. These include the legal fees, various expenses such as the cost of translations, and filing fees. There are several filing fees: 1) the I-129 filing fee (currently $320); 2) the Fraud Prevention Fee ($500 one-time fee); 3) the Training Fee ($750 or $1,500 depending on the size of the company); and 4) the Premium Processing Fee (an optional $1,000 fee to have the petition adjudicated in 2 to 6 weeks).

These costs are the responsibility of the company. In part, these costs are a penalty put on the company to make the H-1B less attractive so that companies will be more inclined to hire a U.S. worker rather than an H-1B employee. However, under certain circumstances some of the costs can be paid by the employee.

First, the company must pay the Fraud Prevention Fee and the Training Fee.

Second, the employee may not pay any of the other costs if it would bring the employee’s wage below the Required Wage. That includes attorneys fees.

All H-1B employees must be paid no less than a Required Wage. The Required Wage is the higher of either the local Prevailing Wage for the position, generally as determined by the DOL, or the Actual Wage paid to other employees of the company in comparable positions. This rule is required so that companies do not hire H-1B employees at a lower wage than they would hire U.S. workers, thereby suppressing wages.

The costs paid by the employee toward the H-1B petition will be counted as a reduction in the employee’s wages. This final wage must not be lower than the Required Wage.

USCIS is now conducting site visits for many H-1B employers and part of their questioning is about who paid the costs for the employee’s H-1B petition.

3) Question:

My wife and I are U.S. Permanent Residents. I have been spending a lot of time outside the U.S. due to work. My wife and I recently had a baby girl while outside the U.S. What is the baby's status? Is she a Permanent Resident like us, or do we have to file a petition for her to become a Permanent Resident?

Answer:

This is an important question, because depending on whether or not this is handled correctly, this could be a very simple process, or it could have tragic results.

There is a little-known rule in the immigration regulations that says that where a Permanent Resident woman gives birth abroad, the child is eligible to be admitted to the U.S. as a Permanent Resident, but only if the mother is 1) returning to the U.S. as a Permanent Resident and 2) brings the child with her on her first trip back to the U.S. after the child is born and 3) this trip is before the child's 2nd birthday.

Unfortunately many Permanent Residents do not know this rule and they either take a trip back to the U.S. without the child or they wait until after the child's 2nd birthday to bring the child to the U.S. Where this happens, the child is not eligible to enter the U.S. as a permanent resident under this rule, and the parent must file a petition for the child to enter the U.S. as a Permanent Resident. This can result in hardship for the family, as it can take many years for a visa to become available for a petition for the child of a Permanent Resident.