FAQs

Business & Immigration Questions

I am an F-1 student who recently graduated with a Bachelor’s Degree and am working pursuant to OPT (Occupational Practical Training) with a company in the United States. My OPT expires on May 5 of this year. The company wants to hire me full-time and sponsor me for an H1-B visa. Can I continue to work while the application is pending?

Yes. H1-B petitions that are subject to the annual cap (20,000 for positions that require a Master’s Degree, and 65,000 for positions that require a Bachelor’s Degree) cannot be filed until April 1 of the calendar year and the validity period begins on October 1 of that year. If your OPT expires after April 1, you will get “cap gap” which allows you to work while the petition is pending. Assuming the petition is ultimately approved, you can continue working through the summer until October 1 when H1-B status will begin.

I have been working for a company in Europe for the past three years as a sale representative. I know the company has a branch or affiliate company in the United States and I want to transfer to the U.S. office. Can I obtain a work visa in the United States if the U.S. Company hires me?

Yes, but it depends on the position you will be offered in the United States. L visas are available to multi-national executives or managers (L1-A) or persons who have specialized knowledge of the company’s proprietary information (L1-B) provided that the person has worked for at least one year for the branch or affiliate company abroad. If you will be leading the sales team, you may be managing an essential function of the company, which qualifies – or perhaps you are selling company products that require you to possess specialized knowledge. Hykel Law can evaluate your case to determine if you meet the requirements.

I have my own company pursuant to E1 or E2non-immigrant status in the U.S.A. Can I file for a green card through my company?

Probably not. For most employment-based green cards, the regulations do not permit you to file a petition through your own company. If you want to file for permanent residence in the United States, you will need to find a U.S. employer who is willing to offer you a job. Sometimes business clients of E1/E2 status holders are willing to bring services provided by the E1/E2 Company in house by way of job offer. This may be a solution, but generally E visa holders need to find a job with a U.S. company to which they have no ownership interest.

I earned a U.S. Master’s Degree. My company wants to sponsor me for a green card. Because I hold a Master’s Degree, don’t I automatically qualify for EB-2 (employment based immigration, Second Preference)?

No. The petition for an employment based green card is based upon the requirements needed to perform the job, not the qualifications of the foreign national for whom the petition is filed. Therefore, unless the minimum requirements for the job include earning a master’s degree or the equivalent combination of education and experience, you will not be able to file for EB-2. However, even if filing for a lower preference, once approved, you will retain the original priority date for the visa queue and you can always upgrade later when promoted.

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