Cornered: Anne Miller on Employment Immigration

There's a lot of uncertainty around immigration policy in the United States, which can cause confusion for both potential employees residing outside of the country and domestic companies seeking global talent pools. Our guest this month, Anne Miller, provides immigration solutions to corporate clients at Masuda Funai and serves on the American Immigration Lawyers Association’s Department of Labor Liaison Committee.

Anne Miller is coauthor of a chapter on employment-based permanent resident petitions in Immigration Law (IICLE® 2026).

IICLE® is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

Transcript

Oh, you're an attorney. I have a friend who I've been meaning to update my will, but I just bought a new house. I want to start a business. My brother was fired, and I think my friend got divorced a while back. I just don't understand how you've been there. At a social function meeting. Friends of friends. Word gets out that you're an attorney, and suddenly your night is filled with partygoers asking you, quote unquote, simple legal questions. The questions are seldom in your area. Some of the stuff you haven't thought about since law school. You're being cornered out of court, in the corner, out of court. Podcast from IICLE. You'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered. There's a lot of uncertainty around immigration policy in the United States, which can cause confusion for both potential employees residing outside of the US and domestic companies seeking global talent pools. This month's guest provides immigration solutions to corporate clients, and is well positioned to cut through some of the noise and provide insight on employment immigration fundamentals. I'm Anne Miller. I've been working in business immigration since twenty seventeen. It was my first job out of undergrad, and so I've been working in business immigration for four years as an attorney. And then before that, I worked as a law clerk and a paralegal. So I became interested in the field even before going into law school. And so it's kind of guided my career journey. And I've practiced at Fragomen, Baker and McKenzie, Davis and Campbell, and now I am at Masuda Funai out in Schaumburg, a full service law firm that has a substantial immigration practice. What are the main paths for emigrating to the United States. The area that I practice in is business or employment based immigration. This allows US companies or qualifying individuals to self sponsor or to bring workers to the US. These are typically to fulfill skilled or professional labor needs. Professional loosely meaning someone who holds a bachelor's degree. Sometimes they're used to transfer people where a US company has a related foreign entity, that's actually a very common visa type. They can also be issued employment based visas based on investment of capital into the United States, or some sort of contribution of extraordinary ability, whether that's in the field of business sometimes for entrepreneurs, outstanding researchers. So you'll see that in the pharmaceutical industry. But business Immigration really focuses on the qualifications of the individual, the job that's being offered, or perhaps the project that they'll be working on, the research they'll be doing for those multinational transfers. It relies on the corporate structure, of course, and then certain employment based immigration requires a labour market testing of of the US labour market, which we'll get into a little bit later. What are the most common forms of employment based immigration as far as the non-immigrant visas go? The temporary work visas, the most common are the H-1b, the L, r E and then T s. So H-1b is what's called a specialty occupation visa. That means it must be a position that requires a bachelor's degree in a specific field of study, This visa type is very popular to talk about because it's lottery based. The lottery happens every March, and it's one of the main ways that individuals who come here and study at US universities can obtain sponsorship in the United States. So for nationals who are in F-1 or student status, typically will try to get selected in the H-1b lottery because they do require the bachelor's degree. Of course, the foreign nationals must hold that degree or potentially have an equivalent to that degree through a combination of education or experience, and the employer then enters them in the lottery. If they are selected, they file the H-1b petition. H-1bs have a lot of regulations around wage requirements, location requirements. So while it is a fairly straightforward process for US immigration attorneys, There's a lot of compliance on the employer side for H-1bs. L's are known as intercompany transferee visas. So temporary work visa again. So these are used where again a US entity has a related entity abroad whether that's a parent subsidiary affiliate. And so if the person who is coming to the United States to work has been working for at least one year within the last three years, um, continuously for the entity abroad, they may come to the United States to work for the US entity. There are two different visas. There's an L-1a, which is a managerial visa sometimes that can be used for executives as well, and then an l-1b, which is specialized knowledge. So the l-1a is is typically used for people managers, You know your standard vice president who manages the people below him and is perhaps coming to the US to perform that same role in a newer entity, or for some reason needs to support a US project and supervise individuals that way. There's also something called a functional manager l-1a, where someone might manage a specific department, and that department is so critical to the business that the the management of that department itself can qualify for that. L-1a. So a really common scenario where you might see that is in the pharmaceutical industry where someone manages a specific drug portfolio, or within a tech industry where someone manages an entire software platform and everyone working on that. Uh, those are more difficult to get approved, but they are not uncommon. the l-1b specialized knowledge, typically defined as something that is unique to the individual. It doesn't necessarily have to be unique to the company, but they stand out amongst their peers in the industry. So, for example, in manufacturing, if someone has advanced or specialized knowledge about a machine that's only used in, say, Latvia, and that machine's being brought to the United States to produce goods here, that individual could come here on an l-1b to, first of all, get that machine working for the company and then potentially train others on on how to use that machine. The L-1b is sometimes used in other circumstances, such as a technology roles IT consulting, where there is a need for on site support in a highly specific software. So in those situations, a lot of it, of course, relies on the qualifying corporate relationship, but then it also requires the employee to be qualified. One of the most common, uh, non-immigrant or temporary work visas is the E. There are E ones where a company has to have substantial trade between the US and the treaty country. That's one point about the EAS is that only countries with certain treaties with the United States qualify for the visa. So that's something that a person has to investigate based on the company. Certain countries include Italy, Japan, many others. But so there's substantial trade between the US and the treaty country. For the E one for an E-2, an applicant has to prove that they've made a substantial investment into a real and operating enterprise in the United States. So the two kind of categories are treaty trader or treaty investor. And then there can be smaller roles filled. It doesn't necessarily have to be the investor himself or herself. They can hire executive or supervisory roles to support the investment that they've made in the United States. Or they can hire individuals with specialized knowledge to support the enterprise going on in the United States. So, for example, if the E2 company is a candy manufacturer who's invested a lot in the United States to make their candy here and produce it, they may have someone from abroad come to support the enterprise who maybe makes a specific chocolate bar abroad, and they're going to introduce that chocolate bar in the United States. That would be a way that not the principal investor, but someone with specialized knowledge could come to the United States in E2 status. Lastly, there is the TN. The TN is really similar to the H-1b in that it requires a bachelor's degree and it's considered a specialty occupation visa. Because of that, the difference is that there's no lottery for the TN, but it's also treaty based. It requires the individual coming to the United States to be a citizen of either Canada or Mexico. Uh, because it's based on the United States-mexico-canada agreement, formerly known as NAFTA. So the individual must meet the, uh, bachelor's degree requirement. Of course, they do accept the bachelor's degree equivalent from Mexico, which is most commonly a titulo. And so you just prove that the individual holds that. And there's a list of professions that are allowed for the TN. So it has to fit within one of the professions that's outlined in the Usmca. One of those professions that's most commonly used is engineer. But there are other unique roles. There's, I believe, zoologist. Nursing is a big one. And then other various occupations. Sometimes I believe physical therapists. So it can get highly specific. And that's where the difficulty arises with teens for the most part. Some employers will think that just because someone is a Canadian or Mexican citizen, of course they'll fit into a TN. But not only do they have to have that degree, they also have to fit into one of the occupations in the list. So next question. How can a person get a green card through their employer? There are two main ways to get a green card through your employer. One of them is through perm. Perm is the most common way. So I'll talk about that. First. Perm is an acronym for the Department of Labor's portal, which is used for a labor market test. So Perm Permas is better understood as a labour market test. During this process, an employer has to essentially prove to the Department of Labour that there are no US workers available for the role that is to be filled by the foreign national. So it's a very long process. All in all, it takes about a year and a half to two years to even get a perm certified by the Department of Labor. And even after that, you have to use that Perm certification to apply for an immigrant visa on behalf of the employee. So it's a very long process, and it's one of those things that if an employer is really seeking to keep an individual, they should get started as soon as they can. Generally speaking, perms fall under two categories EB two employment based two or employment based three, and that depends on the level of skill and Education required for the role. A lot of people, um, applicants for perms or even the employer get confused and they think, oh, well, if the applicant has, you know, a master's degree and ten years of experience, then this must be an EV too, because they're highly qualified. However, the Department of Labor looks at what the qualifications are required for the role and the Department of Labor looks for in this process, the quote unquote, minimum qualifications. So it's an interesting process, and I think it's one of the more challenging parts of employment based immigration, because what it does is it asks employers to essentially recruit for the least qualified individual. And recruiters are not used to doing that. They're used to looking for the standout, the most qualified, overqualified. So it's hard to get employers to look for the least qualified candidate. But the way you do that is by defining those minimum requirements. So typically you want to define what education is required, whether that's a bachelor's degree, maybe an associate's degree, and then the years of employment experience required. So does this require two years of experience in manufacturing or maybe five years of experience in some sort of managerial role? Those are the basics. And then firms also can define specific skills that might be needed to perform the role. And during the perm process, what happens is you submit those qualifications to the Department of Labor through something called a prevailing wage request. You wait about four months, and then the Department of Labor says, hey, we've reviewed this job and we think this is the wage that would go with it based on the geography of the role and the job requirements, and then the employer has to recruit for the role based on the Dol requirements. Some of those requirements are Sunday newspaper ads, which everyone always finds little funny, since that's not really where people are looking for jobs these days, but they also include things like internet job boards or on the client career site. So you recruit for a minimum of thirty days and then have a break. A cooling off period is what the Department of Labor calls it, where you review all applicants and make sure you've not received any qualified applicants. If people do receive qualified applicants, they interview them and the perm process may need to stop. But if you don't receive any qualified applicants, you get to move forward in the process. You take all of that advertising, all of the resumes that you received and keep it on file, and then you file a form ETA ninety eight eighty nine with the Department of Labor. And that's the actual term form that then takes about fourteen months right now. Times vary to be certified, and then once certified, you get to move on and apply for that immigrant visa on behalf of your employee. So it is a very long process. It's very tedious, but it is a very secure way to obtain an employment based green card for an employee. There are pathways that allow employers or individuals to bypass the process. These pathways are very popular because people don't want to go through all of that labor market tests. Some of those categories are outstanding researchers or professors who have to demonstrate the international recognition for their international achievements. They have to show three years of research or teaching experience. Some people can self sponsor for an Eb2 national interest waiver Where are you? Explain that the work you're doing, whether that's with a company or on your own, is so in the interests of, you know, United States, maybe safety, increase in manufacturing, whatever the reason that a labor market test is not required. And so that's something we saw an uptick in, especially during Covid because perm processing times were taking a long time. But we're seeing lesser success with those now cases recently. And then the third kind of most common is the EB one multinational manager. That's a very common because it's sort of like an amped up version of that l-1a managerial temporary work visa we talked about. So a lot of people who come here on the L-1a will push for the EV one multinational manager. Those are much more highly scrutinized than the l-1a applications are. And so we've seen a lot of pushback from USCIS in the form of Rfis or requests for evidence, even where we have strong cases. So for the multinational manager petitions, you have to do more than just show the organizational chart of the entity abroad. And in the US, you also have to show things like signed contracts, evidence of this person's authority for the company. You also have to prove for permanent residency purposes that the employer has the ability to pay. So that will include corporate tax returns, perhaps payroll records, employee w-2s. It's a much more involved process, but it is a good path for those who had strong l-1a petitions. So in all of these cases, the employer has to show that a permanent job offer exists and that the individual qualifies. What are an employer's responsibilities when employing a person who is in the United States on a work visa? The number one responsibility not only for people on work visas, but for every person onboarded, is proper I-9 documentation. Employers must verify both the individual's identity and their work authorization in the United States based on the acceptable I-9 documentation, and they must maintain compliant I-9 records. So there is extensive guidance online and in the form itself on on what qualifies. But one thing we've seen an increase in under the current administration, especially, is employers being interested in doing an I-9 audit of their own records to make sure everything is compliant in the case that they receive some sort of site visit, whether that is Department of Homeland Security or Ice. For H1-bs, there is a strong requirement for wage. Employers are required to pay the prevailing wage for both the region and the occupation that the employment falls under, and so that can be really challenging, especially with remote work, where wages in California are so much higher than wages in Texas. If the company is based in Texas, but trying to hire an employee who will work from California. So the H-1b wage requirement is something that some employers run into issues with, but it is very important. Of course, they have to comply with all state and federal wage laws, because some of the visas we talked about the LS and the EES, they don't have prevailing wage requirements. However, that does not mean you can forego the state and federal wage requirements. Those do have to be adhered to the same as they would for for any employee for H-1b. Specifically, the employee has to receive the same benefits as any worker in that same occupation. We do see pushback even in other visa types like Els, where employees are not receiving the same benefits. So, um, you know, it's a good as a standard practice to offer the same benefits, but it is required by the H-1b. Um, and then as an employer, it's really important to know where your employee is working from, primarily for those H-1b employees. But also, you know, just as a matter of practice for any, any temporary work visa. But one example is that during Covid, so many companies allowed remote work, and then you find out that employees moved from, you know, say, Tennessee to New York. And while they may be working in the same role, the wages required by New York are much higher than the wages required by Tennessee. So because the H-1b is both location and wage specific, that a lot of people ran into problems where either they had to file amended petitions or the person had to move back because the employer could not pay that higher wage. So it is on the employer to know where their employee is working from, and then notifying counsel of any material changes in either the company structure and ownership, or material changes in the job that the person is performing. All employment based visas are based on the job duties and job title. Ultimately more on the duties than the title. And so if there's a change in that, you should notify counsel so that they can see if an amendment or, um, perhaps a new visa type may be more appropriate than the one that the individual is currently employed under. So we talked about the employer's responsibility. But what about the employee? What's the employee's responsibility when working as a non-immigrant? When working as a non-immigrant or on a temporary work visa? The employee, for all the reasons mentioned before, should inform their employer of any changes in work location. They should even inform them if it's going to be maybe a three month temporary thing. Maybe they're going to stay with their mom or something like that, just for counsel to assess if an amendment is needed, because an employer has to be aware of either a new work site or a remote work location so that the filings remain accurate and compliant on their end. Of course, the employee should only work pursuant to the terms of the petition filed. So if they're hired in a certain role, they should not be performing other job duties or other roles unless they have been specifically authorized to do so. And the employer is filing an amendment to accommodate for that. One thing is to not work for multiple employers unless you are authorized to do so. A concurrent employment is permitted under certain visa categories, so you can have multiple H-1b sponsors, multiple TN sponsors. However, you have to be sponsored by each employer who is employing you. And. Some of the work visas do not allow for concurrent employment. So it's very important to discuss with immigration counsel whether you could take on a second job, whether you're work authorized to do so. It's not that once you get work authorization, you're allowed to do anything. It is very specific to the role. It is specific to the employer. So unless your visa category allows for concurrent employment or unless you have a specific form of work authorization That may allow for work under any employer. Then you should be very careful about that. Um, self employment is something that can be troublesome for individuals working in a temporary work visa. And we're seeing that even more with investments, the remote work possibilities that are available. Performing work in the United States, whether or not you are paid by a US entity, can be a violation of status if you are not authorized to perform that specific work in the United States. Um, and additionally, some things that people think of as maybe hobbies or quote unquote side hustles like day trading. I know that people are getting more into that, maybe purchasing and reselling things. They can rise to the level of unauthorized employment if it goes beyond a certain point. So it's really important to consider is what you're doing self-employment. And is this violating the condition of my H-1b? Of my L1? There are very few temporary work visas that allow for self-employment, and where they do, there are much higher evidentiary standards to prove. And then probably the biggest thing is to inform your employer when you are traveling internationally. A lot of people think that, oh, I only need to tell my company if I'm traveling internationally, if it's for business, because they'll know and it's it's related to my work. So that's when I should tell them. If you are a foreign national and you are here on a temporary work visa, your employer should know every time you are traveling internationally for two main reasons one, in case you don't come back, and two, to make sure that you have all the documents required to re-enter. There are many different documents at play. A person might have a visa stamp in their passport. Um, they may not, depending on their status or how they gain their status, they might have an approval notice from USCIS. The specific visa type might require a support letter to be presented each time a person reenters. So it's critical that an employer be notified so that they can provide the employee with any documents that might be, um, not in the employee's possession, and that they can remind them of the documents required to travel. Then lastly, we always recommend both for the employee and the employer, that when an employee returns from international travel, they go on Customs and Border Protection website and download their most recent form, I-94. The form I-94 is what governs a person's period of stay in the United States. And for individuals here on temporary work visas, they are issued a new I-94 every time they re-enter the United States. So the reason that we suggest employees and employers review that form each time is because depending on, you know, the officer who did the entry of the form I-94, depending on someone's passport expiration, depending on the varying expirations between a visa or an approval notice, it might be incorrectly issued. And it could shorten the stay of the person in the United States. So an employer has to be aware of that because it governs work authorization. An employee has to be aware of that because it governs their ability to be lawfully present. And then once you notify council counsel can assist in either getting a correction of that or giving you a game plan on how to move forward with a shortened period of stay. How does remote work affect work visas. We did talk about the H-1b and remote work that has to be disclosed on the H-1b petition. As a work site, if you're going to work remotely in that Perm context or the labor certification context, it must be disclosed whether the job allows for remote work or telecommuting, whether it's one hundred percent remote, whether it's hybrid. It has to be very specific in the language when the employer is advertising for that role. And it's because the government sees remote work as a benefit. I mean, it is a benefit, right? So it has to be disclosed because it's potentially something that could influence someone to apply for that job when they may not have, if it weren't remote. So very important to treat it as a material term of employment. Another thing that comes up is that if you are here not on a temporary work visa. Maybe you're here on vacation, but it's quite a long vacation for months, and you work for an employer abroad and you brought your laptop with you. Well, depending on how much work you're doing and depending on how long you're staying, that could be considered unauthorized work. So essentially, you cannot work remotely unless it was disclosed on your application. And you should not work remotely unless you're authorized to do so. Even if it is so easy to just log in and answer an email. It can be considered unauthorized work, so people should be very careful if they're going to have an extended stay in the United States to look into whether they need authorized sponsorship to be performing that work. What are some common myths that you see around employment based immigration? The biggest myth or misunderstanding, maybe, that I see lately is that if there's a job offer, that's all that's required. I talked to a lot of employers who say, I can't find anyone who wants to work, and I need to fill this role, and this guy's great. Well, that's wonderful, and I wish that were enough. But we've talked about how so many of these work visas require a specific degree, require a specific occupation, require a specific wage. So if an individual and the role don't meet those requirements, then it may not be possible. Additionally, it's not always possible for someone who came here in humanitarian status, for example, to easily transfer to a work authorized status. So that presents another difficulty. One thing that kind of plays into that, too, is that US immigration law primarily favors professional or specialized roles. And we hear a lot of talk about needing increased labor force in lesser skilled positions. Agriculture, manufacturing on the floor type positions and unfortunately, the visa types for those specific roles are very difficult to get and only provide a very short period of employment. So it doesn't really help an employer who's trying to fill that role long term. But that's probably the biggest thing that we see, especially with the kind of discourse around immigration right now. Another thing is that getting a work visa is a quick and easy process. It is typically not. Most of the visas we've talked about include multiple agencies, whether it's the Department of State and USCIS, the Department of Labor and USCIS. And each of those has different backlogs, has different evidentiary requirements. With the recent federal shutdown, that It was a great example because the Department of Labor is not a fee based agency, and USCIS is well for an H-1b. You could complete the USCIS portion, but you couldn't actually submit it because it relies on a Department of Labor certification as well. And so without those Department of Labor certifications coming through, you were at a standstill. Even though one of those agencies was active. So it's not always a quick process, and especially where someone might need a visa stamp to enter the United States. Not everyone does. And some people can apply from within the United States. But if that's required, there are certain consulates with backlogs of up to a year or more. But more commonly a couple of months to obtain that stamp and enter the US and begin work. And a lot of employers, you know, want to move so quickly with recruitment. Well, if you can't wait three months for this person, then unfortunately you know you can't move forward with it. And then I think one thing too is that once, you know, once your work authorized, your work authorized forever, uh, that that relates to both employment authorization documents, which are issued on a variety of bases, uh, commonly issued for uh, F-1 students, uh, sometimes issued for those who are in temporary protected status, sometimes to those waiting for their asylum case to be heard. But that work authorization only lasts for as long as the underlying status lasts. So there is an expiration date on the card. But many people think that, oh, okay, the expiration date is there. So I can work until that date. Well, if you're a student and you somehow stop being a student during your employment authorization period, then you're no longer employment authorized. Or if you're in TPS and the government revokes the designation of TPS for your country, then unfortunately, your employment authorization ends. Similarly, speaking, a lot of people feel that if a visa was approved once, it will be approved again, they go into renewals with the idea that, oh, I did it. Like they're not going to ask me any questions. And I met the standard before and the standard hasn't changed. Well, the administration changes certain directives to the Department of State, change certain directives for USCIS change. And so a prior approval does not guarantee a future approval of either a USCIS petition or a visa stamping. And it's it's important for individuals to know that and to be prepared for questioning the same way they would for an initial application. Thank you. Anne. Anne C Miller is an associate attorney with Masuda Funai in Schaumburg, Illinois. If you have an idea for a topic you would like to hear discussed on the ICL podcast, we welcome your suggestions by email. Our address is info. That's info at. ICL is a five hundred one three not for profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of the law, with the generous contributions of time and expertise from attorneys, judges and other legal professionals. If you are interested in our many authorship and speaking opportunities, please give us a call at two one seven seven eight seven two zero eight zero or visit the Contributor Resource Center at ICL. Contributors. Thank you for joining us for another edition of Cornered Out of Court, brought to you by the Illinois Institute for Continuing Legal Education.