Word to the Wise


Many employers wait until one year before the end of the authorized nonimmigrant status or even afterwards to start the immigrant visa processing for H and L visa holders. Our staff is finding that the US Department of Labor processing of a labor certification will take more than one year to navigate through the various administrative procedures. Accordingly, we are recommending that the decision to sponsor the alien worker through the labor certification be made at least 2 years before the expiration of the nonimmigrant status. Such a decision for a foreign L-1 B visa holder is imperative as the worker may not be extended beyond the 5th year. It will also be helpful for the H visa holder to have the labor certification pending for more than one year as that can be the basis for an extension of the H status beyond the 6th year.

One of the first steps of the labor certification is to obtain a prevailing wage from the Department of Labor and our staff has found that processing to exceed one year. While we are hopeful that the Department of Labor will become more efficient, I recommend that our clients initiate proceedings earlier to avoid the potential delays which can result in the alien worker’s inability to maintain employment continuity.

The establishment of an earlier priority date for immigration is particularly important for aliens from India and China as there are substantial backlogs in the employment visa classifications for nationals of those countries. In the past we have recommended to our clients that they wait until the alien employee has demonstrated that they are keepers but with the lengthy administrative processing procedures, that decision should be made earlier to enable the alien worker to maintain employment continuity if possible. Should you have any questions in this regard please contact me or the attorney assigned to the alien workers case.

Harry Gee, Jr.