Employment Immigration

Employment-based immigration is a long, layered, multi-agency process. The same green-card case can involve the Department of Labor (PERM labor certification), USCIS (I-140 immigrant petition), and the National Visa Center or USCIS again (consular processing or adjustment of status). Each agency has its own deadlines, its own evidentiary standards, and its own definition of what success looks like.

The danger is that a single missed step at one agency can wipe out years of work at another. A PERM application denied for an audit response missed by 30 days under 20 C.F.R. § 656.20(b) costs the priority date and forces the case to start over from recruitment. An I-140 denied because the supporting evidence did not establish ability to pay under 8 C.F.R. § 204.5(g)(2) costs the priority date as well — and may trigger an Iwomah-style fraud inquiry into related petitions. An H-1B violation of the LCA's wage or working-conditions terms can result in DOL back-pay liability, debarment from H-1B sponsorship, and rescission of the worker's status.

Consider a software engineer, Sandeep, whose employer filed an EB-2 PERM in 2021 with a priority date the worker has been waiting on for years. The employer is laid off in a reorganization. The I-140 is portable under INA § 204(j) if 180 days have passed since approval and the new job is in the same or similar occupational classification — but only if the I-485 has been pending. The strategy here is to file the I-485 the day a priority date becomes current and not before, so that portability becomes available the moment the layoff hits.

Consider a chief medical officer, Dr. Patel, who qualifies for EB-1A as an alien of extraordinary ability. Her record includes leadership of a department, peer-reviewed publications, citation count, and conference presentations — but no Nobel-equivalent prize. The case is winnable under Kazarian v. USCIS and the post-Kazarian USCIS Policy Manual two-step review if the evidence is organized by regulatory criterion and the final-merits analysis is preempted with a strong legal brief. Without the brief, the petition reads as a CV. With the brief, it reads as an extraordinary-ability case.

Consider a startup founder, Amir, on H-1B with an approved I-140 that is now portable. He wants to leave the W-2 job and start a company. Self-petition under EB-2 NIW (national interest waiver) is open after Matter of Dhanasar. His H-1B can be transferred to the new company through a properly structured employer-employee relationship. The path requires careful sequencing — but it exists.

The work is timing, sequencing, and documentation. There is no shortcut.

Nonimmigrant work classifications

• H-1B — specialty occupation requiring at least a bachelor's degree in a specific field; LCA required (INA § 212(n), 20 C.F.R. § 655 Subpart H); annual cap with cap-exempt categories (universities, nonprofit research, government research).
• H-2A / H-2B — temporary agricultural and non-agricultural workers; covered separately on the H-2A & H-2B Employer Compliance pillar.
• L-1A / L-1B — intracompany transferees in managerial / executive (L-1A) or specialized-knowledge (L-1B) capacity.
• O-1A / O-1B — extraordinary ability in sciences, education, business, athletics (O-1A) or arts, motion pictures, and television (O-1B).
• TN — Mexican and Canadian professionals under USMCA Annex 16 (formerly NAFTA).
• E-1 / E-2 / E-3 — treaty traders, treaty investors, and Australian specialty-occupation workers.
• P-1 / P-2 / P-3 — internationally recognized athletes and entertainers.
• R-1 — religious workers.

Employment-based green cards

• EB-1A — extraordinary ability (no labor certification required); INA § 203(b)(1)(A).
• EB-1B — outstanding professors and researchers; INA § 203(b)(1)(B).
• EB-1C — multinational managers and executives; INA § 203(b)(1)(C).
• EB-2 — advanced-degree professionals or aliens of exceptional ability; INA § 203(b)(2).
• EB-2 NIW — national interest waiver of the labor certification requirement; Matter of Dhanasar governs.
• EB-3 — skilled workers, professionals, and other workers; INA § 203(b)(3).
• EB-4 — special immigrants (religious workers, certain juveniles, certain government employees); INA § 203(b)(4).
• EB-5 — investors; INA § 203(b)(5); covered separately for clients with the qualifying capital.

The PERM process (most EB-2 / EB-3 cases)

PERM under 20 C.F.R. § 656 is a labor-market test that requires the employer to (1) obtain a prevailing wage determination from the Office of Foreign Labor Certification, (2) conduct prescribed recruitment to test for U.S. workers, (3) document that no qualified U.S. worker was available at the prevailing wage, and (4) file the ETA-9089. The DOL audits a substantial percentage of cases. Audit responses are due within 30 days. Late responses result in denial without recourse.

The LCA process (H-1B and related)

The LCA (ETA-9035) is the employer's written attestation about wage rate, working conditions, no strike or lockout, and notice posting. LCA violations can result in DOL Wage and Hour Division back-pay orders, civil money penalties under INA § 212(n)(2), and debarment from H-1B program participation.

Priority dates, the Visa Bulletin, and adjustment timing

Once an I-140 is approved, the worker waits for the priority date to become current on the State Department's monthly Visa Bulletin. EB-2 and EB-3 backlogs for India and (for some categories) China are decades long. The strategy is to (1) preserve the priority date through portability, (2) file the I-485 the moment the date is current, and (3) preserve the EAD and AP through the I-485 pendency.

The Mendoza Immigration approach

We treat employment cases as multi-year, multi-agency engagements that begin with strategy, not paperwork. Before we file anything, we map the client's full pathway: which classification, which category, which agency, which evidentiary burden, and which back-up plan if Plan A fails.

For H-1B and other nonimmigrant work cases, we draft Specialty Occupation memos that survive RFEs the first time. We do not write boilerplate. We write fact-specific arguments tied to the specific job duties and the specific candidate's specific credentials. For LCAs we keep a public access file that complies with 20 C.F.R. § 655.760 — so the employer can survive a DOL inspection.

For EB-1A and EB-1B cases, we structure the evidence around the regulatory criteria with a two-step Kazarian brief that pre-addresses USCIS's final-merits determination. We have built EB-1A approvals on records that other firms looked at and rejected.

For EB-2 NIW cases, we apply the Matter of Dhanasar three-prong analysis to the client's actual facts, with documentary support for each prong: substantial merit and national importance, well-positioned to advance the proposed endeavor, and balance of equities favors waiver. We do not file generic NIW packages.

For PERM cases, we treat the recruitment process as a closed-form audit defense — every recruitment step is documented in real time so an audit response is ready before the audit arrives.

We are also frank with employers about timeline and risk. Some EB categories take years, some require entire restructuring, and some require an alternative classification entirely. We tell the employer the truth on day one.