H1B Visa or Work-Based Green Card: Which is Easier?

Summary

Immigration lawyer Jim Hacking discusses the complexities of obtaining an employment-based green card versus an H-1B visa in the U.S. He outlines the H-1B visa process, noting its lottery system and the requirement for a specialty occupation, often limited to advanced-degree holders in fields like software development or medicine. Hacking contrasts this with the green card process, which involves a labor certification and recruitment process but offers permanent residency and a path to citizenship. He highlights the challenges and costs for employers in sponsoring visas and green cards, and provides resources for those seeking employment in the U.S.

Takeaways

• 😀 H-1B visas are designed for individuals in specialty occupations, typically requiring a specific degree, such as software developers, doctors, and lawyers.
• 🎓 The H-1B visa process involves a lottery due to an annual cap, which can lead to significant delays or uncertainty for applicants.
• 💼 Employers are responsible for all H-1B visa-related fees, including filing and legal fees, which can be a deterrent for some companies.
• 🔄 H-1B visas are initially granted for three years and can be renewed for another three years, allowing a maximum stay of six years in the U.S.
• 🏢 Unlike H-1B visas, employment-based green cards do not have a cap and are not subject to a lottery system.
• 🛂 Employment-based green cards require employers to file a PERM application with the Department of Labor, demonstrating that no qualified U.S. workers are available for the position.
• 💼 Employers may be hesitant to sponsor green cards due to the lengthy and costly process, including government-set salary requirements and recruitment regulations.
• 🏡 Employment-based green cards offer the benefit of indefinite stay in the U.S. and a path to citizenship, unlike the temporary nature of H-1B visas.
• 🌐 Green cards are available for a broader range of occupations, including those that may not qualify for H-1B visas, providing more flexibility for employers and employees.
• 🔗 For those seeking H-1B sponsorship, resources like 'myvisajobs.com' can help identify companies that have previously sponsored H-1B visas.
• 📞 The video encourages viewers with questions about H-1B visas or employment-based green cards to reach out to the immigration law firm for assistance.

Q & A

What is the primary difference between an H-1B visa and an employment-based green card?

The primary difference is that the H-1B visa is a nonimmigrant visa for specialty occupations and is subject to a lottery due to an annual cap, while employment-based green cards offer lawful permanent residency and a path to citizenship, including for non-specialty occupations.

Who is typically eligible for an H-1B visa?

Individuals with a specialty occupation, such as software developers, doctors, lawyers, and accountants, who have received a specific degree in a specific field, are typically eligible for an H-1B visa.

What is the annual cap on H-1B visas, and how does it affect the application process?

There is an annual cap on the number of H-1B visas available, which results in a lottery system to determine which applications are processed, as there are often more applications than the cap allows.

What are the financial responsibilities of the employer in the H-1B visa process?

The employer must cover all costs associated with the H-1B visa, including filing fees and legal fees.

What is the maximum duration one can stay in the U.S. on an H-1B visa?

The maximum duration for an individual to stay in the U.S. on an H-1B visa is up to six years, with the visa being granted in three-year increments and renewable once.

What is the process like for an employer to sponsor an employment-based green card?

The process involves filing a PERM application with the Department of Labor, determining the prevailing wage, ensuring no qualified U.S. workers are available for the job, and going through a good faith recruitment process.

Why might employers be hesitant to sponsor employment-based green cards?

Employers may be hesitant due to the cost, the lengthy and complex process, the requirement to have the salary set by the government, and the risk of the sponsored individual leaving the company after receiving the green card.

What are the benefits of obtaining an employment-based green card?

Employment-based green cards allow for indefinite stay in the U.S., do not require renewal like the H-1B, and put the individual on a path to citizenship.

How can someone find employers who are willing to sponsor H-1B visas?

One can visit myvisajobs.com to see a list of companies that have sponsored H-1B visas in the past, which can help identify potential employers.

What is the role of the Department of Labor in the employment-based green card process?

The Department of Labor is involved in the process by requiring employers to file a PERM application, which includes determining the prevailing wage and ensuring no qualified U.S. workers are available for the position.

What is the EB-3 category in employment-based green cards, and who is it for?

The EB-3 category is for workers, including those without advanced degrees, and it represents one of the categories of employment-based green cards available for sponsorship.

Outlines

00:00

📚 Understanding H-1B Visas and Employment-Based Green Cards

In this video segment, immigration lawyer Jim Hacking discusses the intricacies of obtaining employment-based immigration options in the United States. He starts by explaining the H-1B visa, which is designed for individuals with specialty occupations, typically requiring advanced degrees in fields like software development, medicine, or law. He notes that the H-1B visa is subject to an annual cap, leading to a lottery system due to high demand. Employers must cover all associated costs, and the visa is non-permanent, allowing stays up to six years with a maximum of two three-year extensions. In contrast, employment-based green cards involve a more complex process where employers file a PERM application with the Department of Labor, ensuring no available U.S. workers can fill the position. This process includes government-set salary requirements and a recruitment process to demonstrate the need for foreign labor. While green cards offer permanent residency and a path to citizenship, they are not without their challenges, including the cost, complexity, and the risk of sponsored employees leaving the company after gaining status.

05:03

💼 Employer Sponsorship: Challenges and Resources

The second paragraph delves into the challenges faced by employers when sponsoring employees for H-1B visas or employment-based green cards. It highlights the reluctance of employers to go through the costly and complex process, especially considering the risk of the sponsored employee leaving the company after gaining immigration status. The speaker suggests that most H-1B visas are granted to individuals already in the U.S. on student visas who have completed optional practical training and impressed their employers. Employers typically prefer the H-1B visa due to its shorter duration and lesser complexity compared to green cards. The speaker provides resources for job seekers and employers, including a website (myvisajobs.com) to find companies that have sponsored H-1B visas and contact information for his law firm for professional assistance. He also encourages viewers to engage with his law firm's resources such as the immigration answer show, YouTube channel, and the Immigrant Home Facebook group for further guidance and community support.

Keywords

💡H-1B visa

The H-1B visa is a non-immigrant visa program that allows U.S. employers to temporarily employ foreign workers in specialty occupations. These occupations typically require specialized knowledge in fields such as IT, engineering, mathematics, science, and healthcare. The H-1B visa is subject to an annual cap, which means there is a limit to the number of visas issued each year, and it is often obtained through a lottery system due to high demand. The initial period of stay is up to three years, with the possibility of extending the visa up to a maximum of six years. It does not directly lead to permanent residency, but H-1B visa holders may apply for a green card. In the video, Jim Hacking explains that H-1B visas are not available for all types of work and are subject to a lottery due to the cap on the number of visas issued annually [^1^].

💡Employment based green card

An employment-based green card, also known as a permanent resident card, is available to foreign nationals who have employment in the United States and meet certain qualifications. There are different categories of employment-based green cards, including EB-1 for individuals with extraordinary ability, EB-2 for professionals with advanced degrees or exceptional ability, and EB-3 for skilled workers, professionals, and unskilled workers. The process often involves an employer filing a PERM labor certification application with the Department of Labor, followed by the filing of an Immigrant Petition for Alien Worker (Form I-140) with USCIS. Unlike the H-1B visa, an employment-based green card leads to lawful permanent residency and does not have an annual cap, but it can involve a more complex and lengthy process [^5^].

💡Specialty occupation

A specialty occupation is a job that requires specialized knowledge and a higher level of expertise in a specific field, typically requiring at least a bachelor’s degree or its equivalent. Examples of specialty occupations include roles in IT, engineering, science, and healthcare. In the context of the H-1B visa program, only individuals in specialty occupations are eligible to apply. The video script mentions that H-1B visas are available to people with a specialty occupation, such as software developers, doctors, and lawyers [^1^].

💡PERM application

The PERM application, or Labor Certification Application, is a process required for most employment-based green card categories. It is filed by the employer with the Department of Labor to demonstrate that there are no qualified U.S. workers available for the job and that employing a foreign worker will not adversely affect the wages and working conditions of U.S. workers. The PERM process involves a series of steps, including prevailing wage determination, recruitment of U.S. workers, and filing of the actual labor certification application. In the video, Jim Hacking discusses the PERM application as part of the process for obtaining an employment-based green card [^5^].

💡Lottery system

The lottery system refers to the random selection process used for the H-1B visa program when the number of applications exceeds the annual cap set by Congress. Since the demand for H-1B visas often outstrips the supply, USCIS conducts a lottery to determine which applications will be processed. This system is mentioned in the video script as a key aspect of the H-1B visa program, highlighting the competitive nature of obtaining this type of visa [^1^].

💡Lawful permanent residency

Lawful permanent residency, commonly known as a green card, is the status granted to foreign nationals who are legally allowed to live and work in the United States on a permanent basis. It is different from temporary visas like the H-1B, which are non-immigrant and have a limited duration. The video discusses the distinction between the temporary nature of the H-1B visa and the permanent residency status that can be achieved through an employment-based green card [^1^].

💡Jim Hacking

Jim Hacking is an immigration lawyer practicing law throughout the United States with offices in Saint Louis, San Diego, and Washington, DC. He is the founder of Hacking Immigration Law and is married to an immigrant, which adds a personal perspective to his work. In the video, he provides insights into the differences between the H-1B visa and employment-based green card systems, offering his expertise to help viewers understand the complexities of U.S. immigration law [^4^].

💡Optional Practical Training (OPT)

Optional Practical Training is a period of employment authorization for F-1 student visa holders, allowing them to work in the United States in their field of study for up to 12 months (with potential extensions for STEM fields). The video script mentions that the majority of people who receive H-1B visas have come to the U.S. on a student visa and have participated in OPT, making a good impression on their employers, who then decide to sponsor them for an H-1B visa [^1^].

💡National Interest Waiver (NIW)

The National Interest Waiver is a provision under the EB-2 employment-based green card category that allows foreign nationals to self-petition and request a waiver of the job offer requirement if it is in the national interest of the United States. This means that individuals with advanced degrees or exceptional abilities who can demonstrate that their work is in the national interest can apply for a green card without a specific job offer. The video script does not directly mention the NIW, but it is a relevant concept within the context of employment-based immigration [^5^].

Highlights

H-1B visas are available for specialty occupations, such as software developers, doctors, and lawyers.

H-1B visas are subject to an annual cap, leading to a lottery system for selection.

Employers must cover all costs associated with H-1B visa applications.

H-1B visas are granted for up to six years, non-renewable, and do not lead to citizenship.

Employment-based green cards involve a PERM application to determine prevailing wage and availability of U.S. workers.

Employers face a lengthy process and government-set salary requirements for green card sponsorship.

Employment-based green cards require a good faith recruitment process to ensure no U.S. workers are available for the job.

Green cards offer permanent residency and a path to citizenship, unlike H-1B visas.

Green cards are available for a wider range of occupations, including those without advanced degrees.

Employers may be hesitant to sponsor due to the costs, processes, and the risk of the employee leaving after gaining status.

Most H-1B visas are granted to individuals already in the U.S. on a student visa with optional practical training.

Employers often sponsor for H-1B visas before considering employment-based green cards due to the latter's complexity and cost.

Myvisajobs.com is a resource to find employers who have sponsored H-1B visas in the past.

Employers and individuals can seek legal assistance for H-1B visas and employment-based green cards.

The immigration answer show and YouTube channel offer free advice on the immigration process.

The Immigrant Home Facebook group is a community for immigrants to ask questions and share experiences.

Transcripts

Which is easier to get an employment based green card or an H-1B visa.

Hi, I'm Jim Hacking, immigration lawyer, practicing law

throughout the United States

at our offices in Saint Louis, San Diego and Washington, DC.

In today's video, we're going to talk about people

who want to come to the United States and work in the United States.

How does it work?

Which system is easier?

So both systems, both programs, the H-1B system

and the employment based green card system have their pluses and minuses.

Let's talk about how they are different and then we can go from there.

So in H-1B visa is a special kind of visa that's available to people

with a specialty occupation, and that's sort of a more advanced occupation.

A lot of H-1B visas go to people like software

developers, doctors, lawyers, accountants.

This is people who have received a specific degree in a specific field.

You can't get an H-1B visa, for example, say, to run a restaurant

or make pizzas or work as a truck driver.

Those are not available for H-1Bs.

They're only available for specialty occupations.

And the main test is whether people in that occupation

have a specific degree, and often it's an advanced degree.

So H-1Bs are also subject to a lottery.

There's a cap on the number of H-1B visas that are available every year.

So there's a cap.

And whenever there's a cap, that means there's going to be

either a significant delay or a lottery.

And in this case, it's a lottery.

So most years there are way many more applications

submitted on behalf of employers who want to sponsor a worker from overseas

or foreign born to work in the United States on that H-1B visa.

And so that means that USCIS has to conduct

a lottery in order to figure out which cases get processed.

So the last piece of the H-1B that's a little bit different

from green cards is that the employer has to pay everything.

They have to pay all the filing

fees, the lawyer fees, all the fees associated with an H-1B.

H-1Bs are also not in perpetuity.

You can only get an H-1B in a three year stint.

You can renew it for another three years.

The maximum amount of time that someone can stay in the United States on an H-1B

in that status is up to six years total.

And so after that, they would have to leave the United States.

So an H-1B is a nonimmigrant visa.

It doesn't put you on a path to citizenship.

It is not lawful permanent residency.

So let's talk about employment based green card.

So there are different kinds of employment based green cards,

But for the most part, in most cases, this is going to involve an employer

filing a application with the Department of Labor called a perm application

to see what the prevailing wage should be for the occupation,

whether there are Americans who can do the job.

And then the employer has to go through a good faith recruitment process.

Now, all of these hurdles are things that employers don't like about

green cards and sponsoring people for employment based green cards.

They don't like having the salary set by the government.

And that's true for H-1Bs and for green cards.

They don't like the long, tedious process of getting the perm application

through from the Department of Labor, which can take seven or eight months.

They don't like the fact that they have to do a good faith recruitment,

which means they have to make sure that there aren't any American U.S.

citizens or lawful permanent residents who can do this job.

And they have to be prepared to demonstrate to the satisfaction

of the Department of Labor that there aren't any Americans who can do this job.

So there are a ton of regulations,

both with the H-1B, but especially with the green card application.

They have to publish it in the local newspaper of general circulation,

which means they're going to spend thousands of dollars

on this ad when they already probably have someone in mind.

So there are a lot

of aspects of employment based green cards that people don't like.

Now, green cards do have their pluses, though, too.

So if someone receives an unemployment based green card, they're going to be able

to stay in the United States for the rest of their lives.

They can stay in that status as long as they don't violate

the terms of that status or stay outside the United States for too long.

They're also on a path to citizenship.

And the real kicker is that employment based green

cards are available for non specialty occupations.

So if you are talking about the EB three category,

these are for workers and people who don't necessarily have those advanced

degrees EB twos or for people with advanced degrees or people doing

work in the national interest of the United States.

But generally you're going to be able to get an employment based green card

for someone that you might not be able to get an H-1B visa available for.

So those are some of the best things about the employment

based green card, that it gives employers greater flexibility,

it allows them to sponsor someone for the rest of their life

if they maintain their status with both an H-1B and a green card.

Another reason employers don't really like to get involved in

these is not just the cost, it's not just the hassle.

It's said many times when someone receives the H-1B or receives the employment

based green card, then they quit and go work somewhere else.

And so then the employer is left scratching their head,

Why did I go through all this hassle to give this person immigration status?

And now they've left me? So

getting an employer to sponsor you for an H-1B

or getting them to sponsor you for a green card is really, really tricky.

And it's really, really expensive.

And I think it's really hard to pull off from overseas.

The vast majority of people who receive H-1Bs are people who have

come to the United States on a student visa and have received

what's called optional practical training

and then made such a great impression on the employers

that they're willing to sponsor them for an H-1B.

Usually an employer

will want to sponsor someone for an H-1B if it's a job that's available for them

before sponsoring for the green card, because the green card

is so much longer and so much harder and so much more expensive.

So these are the ways that H-1B visas and green cards

based on employment can differ if you are looking for an H-1B employer.

I have a great resource for you.

If you go to my visa jobs dot com, you can see all the companies

that have sponsored people in the last I think seven or eight years for an H-1B.

That'll put you on track to find employers

who are willing and ready to sponsor people for H-1B.

The database doesn't work like that for employment based green cards,

but even so, it's going to show you what kind of companies are out there

looking for foreign nationals to work for them and to get a visa.

If you have found an employer,

if you're an employer looking to hire someone

and you have questions, you want to hire us to assist with your

H-1B visa or your employment based green card, feel free to give us a call.

3149618 200.

You can also email us info at hacking Immigration law.com.

Don't forget we have our immigration answer show where three or four

times a week I answer people's questions about the immigration process for free.

And then we also

have our great resources like our YouTube channel

that you should subscribe to so that you get updates.

Whenever we make videos like this one and our Immigrant Home Facebook group

where you can join and talk to immigrants going through the immigration process,

get your questions answered and go from there.

Hope you found this helpful and we'll see you next time.