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San Jose California Immigration Law Blog

Why do employers need a labor certification?

Last week's post discussed the importance of a Green Card, a document that entitles the holder to work and reside legally in the United States. There are several ways of getting a Green Card, including through family relationship or special categories such as asylum-seekers and crime victims. One of the most common methods is by becoming employed in the country.

A labor certification is essential for getting Green Card through employment. A labor certification requires an American employer to demonstrate that there are no qualified or minimally qualified workers in the country to perform the job for which the individual in question is getting hired. The person must be hired as a full-time employee in a permanent position. The employer must specify reasonable educational and experience qualifications for the job in question. They cannot seem to be made specifically for the relevant employee.

What is a Green Card?

California is a state of diversity, with people of many nationalities coming there to fulfill their dreams. This is why many may have heard the term 'green card holder' when conversing with someone, but may not be aware of what the term really means. A Green Card Holder, also known as a permanent resident, is legally allowed to work and reside permanently in America. Depending on one's circumstances, a Green Card holder can be eligible to apply for citizenship in three or five years.

There are many categories of green card holders. While many get them due to their familial ties with American citizens, workers from other countries also get green cards that are sponsored by their employers. Within these categories, certain statuses get priority. For example, spouses and children may have a higher priority to receive a green card than siblings. Similarly, workers with extraordinary ability in the sciences or arts or multinational managers and executives may have priority over unskilled workers.

Immigration courts backlog stalls thousands of cases

The number of immigration cases clogging up the courts is unprecedented, according to the American Bar Association. In their recent report, they have issued the warning that the one million case backlog is causing an existential crisis. This number was at 262,000 in 2010 compared to 760,000 at the end of the 2018 financial year.

California residents might be surprised to hear that the group has claimed the court system is set to collapse if changes are not made quickly. The ABA is calling for a court system similar to the Tax Courts. An Article I court system would be independent from the Justice Department. This move is opposed by the Justice Department though, claiming it would cause more delays as financial hurdles to do so might be insurmountable. A spokesperson went on to say that the number of cases completed had increased for a third consecutive year and steps were being taken to restore the efficiency and impartiality of the court systems.

The increase of H-1B denials suggests a new standard of proof

A recent report from the National Foundation for American Policy (NFAP) explores a dramatic rise in the denial of H-1B petitions. Because this increased denial rate comes without changes in the law or regulations, it may also serve as evidence that U.S. Citizenship and Immigration Services (USCIS) have unfairly adopted a new, higher standard of proof.

A number of employers have already filed lawsuits against USCIS, arguing that the government has effectively rewritten the rules without changes to the laws or regulations that would justify their actions. However, the lawsuits are unlikely to change their hiring situations anytime soon.

Employment based visas harder to come by for tech workers

Despite stricter immigration policies in the last couple of years, major tech companies have continued to hire foreign tech workers. Demand for international workers remained high, and 80 percent of employers surveyed expected their headcount of foreign workers to either stay the same, or increase, even as employment based visa become more difficult to come by.

California residents may know that H-1B visas are high-skilled work visas. American companies who claim they are in need of specialized labor that is not available in the country back those who receive this category of visa. Generally, this includes a lot of tech workers. American companies state that they hiring international labor because of a lack of pertinent science education in the country-the number of STEM job openings is more than the number of unemployed STEM workers, according to research.

Immigration law can be complicated but we can help

California residents born and bred into the country may not realize how many people are attempting to come to America to pursue higher education, start a business, begin working at the job of their dreams or join family members who they have been separated from for a number of years. Citizenship or legal resident status affords individuals many privileges and therefore people want to ensure they are fulfilling all their legal obligations to come and remain in the country.

Regardless of what visa category one is coming to the country under, there are likely to be a number of forms to fill out and documentation to present. Simply coming into the country does not end one's obligations though-until one becomes a lawful citizen, there are still a number of forms that have to be completed and changing requirements to be kept up with. It can become overwhelming for an ordinary citizen to keep up with and the reality that a single misfiling or miscalculation can cost someone everything they have worked so hard to achieve can be worrisome.

Employment-based categories for immigration

While many California residents may think that immigration to the United States is only possible if a family member sponsors them, as discussed previously, this is not the case. it is possible to become a lawful permanent resident of the country based on an offer of employment. Employment based immigration has several different categories, as discussed below, but revolve around the employee's skill, education and work experience.

One of the categories for an employment-based visa is that of priority workers. These are people who have an outstanding ability in arts, the sciences, business, or are athletes who have national and international acclaim with recognized achievements. They could also be extraordinary researchers or professors, or key managers or executives of certain multinational companies.

What effect did the government shut down have on immigration?

The partial government shutdown, which was the longest in American history, had wide-ranging, unintended consequences for people across the country. One of the groups that suffered the most during the shutdown were regular, legal immigrants simply attempting to renew their status to continue working.

To understand the full scope of the problems that arose for immigrants it is important to look at the state of things before. We have written previously about rising numbers of employment-based immigration denials, but this was only one piece of the overall puzzle.

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Can investors get immigrant visas to America?

For a foreign investor looking to settle in America, there are investor-based visas available. They fall under the Employment Fifth Preference, EB-5 category, visas for individuals who are going to provide capital investment in new commercial enterprises in the country and this would create jobs.

The first type of investor immigration is that of regional center investment. The individual looking to immigrate would invest $500,000 in a government approved regional center for around five years. A conditional green card can be obtained within 18 months and the investor and his or her immediate family members can enter America.

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Basics about family immigration

While people born and raised in California may not think of it often, there are a number of immigrants who are waiting to get their green card and become residents of the country. A green card gives three important rights to those who have it: the right to live in the country permanently, the right to work legally in the country and the right to enjoy the protection of civil and federal laws.

However, to obtain a green card one must qualify. There are eight different categories under which an individual can qualify, including family, employment, victims of abuse, refugee or asylee status or human trafficking and crime victims.

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