Although the term "working visa" does not exist in the law, it has come to refer to the class of visas that allow the alien to be gainfully employed in the United States. Usually the employment authorization is strictly limited to specific employer, occupation and period of time. However, since it can take several years for foreign-born individuals to become lawful permanent residents ("greencard status") it is often necessary to first obtain a temporary "working visa" before starting on applications for permanent residency. Often times the visa category is referred to by the section of the Immigration and Nationality Act (section 101 (a) (15)), which authorizes the status. Thus the abbreviated alias ("L-1", "H-1B" etc.) is also referenced below.
One of the nonimmigrant, visa categories we most frequently use to assist expatriate workers is the Intracompany Transferee Visa, which is also called the "L-1" visa because of the section in the Immigration and Nationality Act which created the status (section 101 (A)(15)(l)(1)). International corporations can transfer an executive, manager or employee with specialized knowledge to a parent, branch, subsidiary or affiliate office in the United States. These definitions are very precise and require analysis of the ownership of the American and foreign company as well as the past and future responsibilities of the person being transferred.
There are several requirements, which must be met in order to qualify for the visa. First, the structure of the multinational company must fit within the statutory definitions of "affiliate", "subsidiary" or "branch office". Both the American and foreign company must be actively engaged in business. There are provisions in the law to allow an individual to be transferred to open a new office in the United States providing certain conditions are met. Second, the foreign employee must qualify under the law as a "manager", "executive" or an employee with "specialized knowledge". The person being transferred to the United States must have been continuously employed abroad by the a qualifying foreign employer for one year within the three years preceding the time the visa petition is submitted. Finally, the foreign employee must be otherwise eligible for a nonimmigrant visa (e.g.: no serious criminal or negative U.S. immigration history).
The Immigration and Naturalization Service will only approve a petition from a qualifying American entity. The American business must be a parent, subsidiary, affiliate, or branch of the foreign company from which the employee is transferring. Each of these business relationships is defined by regulation and case law. Joint ventures and other non-traditional ownership relationships create uncertain qualification. Tasoff and Tasoff was instrumental in changing the law in regard to joint ventures qualifying to petition for an L-1 visa by participating as lead counsel in Matter of Smith Tools (Board of Immigration Appeals). The requirements regarding the control and ownership of the affiliated companies can be quite complex and we recommend consultation with an immigration attorney prior to the creation of any business entity in the United States.
Initial petitions for established U.S. business entities may be granted for a three-year period and renewed in two-year increments up to the maximum stay of seven years for an executive or manager. However, an employee qualifying under the "specialized knowledge" ground of eligibility may only receive a maximum stay of five years. Petitions for transfers to new offices are approved for a period of one year. Spouses and unmarried children under 21 years of age of the principal may be granted L-2 visas to remain in the United States for the same period as the principal applicant. If structured carefully, the intracompany transferee petition may allow easy transition to permanent resident status (see below).
The treaty trader (E-1) and treaty investor (E-2) visas are available to nationals of certain nations with which the United States has treaties of commerce. Not every treaty of commerce provides for both visas and for some countries only one type of visa is available. Nearly all the European nations, several Asian and South American nations and Mexico and Canada have such treaties with the U.S. Since there any many treaties nearing ratification, it is best to check our web site (www.tasoff.com) or contact our office for current treaty status.
Common to both visas is the almost unlimited length of time a person might be allowed to remain in the United States. Visas are initially granted for one year and can be renewed for periods not exceeding two years. As long as the treaty remains in effect and the trader or investor meets the current requirements for the visas he can maintain his status and continue to obtain extensions of his stay. Treaty traders and treaty investors are allowed to work, but only for the qualifying business. Spouses and children under 21 years enjoy the same benefits as the trader or investor, except for the fact that they are not allowed to work.
The basic requirement for the treaty trader visas is that the individual engaged in the trade must be a national of the country with which the United States has the appropriate treaty. The individual's activities in the United States must constitute "trade" of a substantial nature which is international. The "trade" must be principally between the United States and the foreign state of which the individual is a national. Trade not only includes the import and export of goods, but also of services such as engineering, banking, or designing computer software systems.
Ordinarily, the treaty trader is an individual. However, employees of qualified treaty trader individuals or firms may also obtain treaty trader status. To be eligible the employee must be engaged in supervisory or executive duties or have specific qualifications that make the employee's services essential. The employee must be of the same nationality as the primary treaty trader or company. The nationality of a company is established by a set of complex rules and guidelines. Generally, if 51% of the company is owned by nationals of the treaty country, who are not permanent residents of the United States, the company will qualify.
A treaty investor, like the treaty traders, must be a national of the country with which the United States has the appropriate treaty. If a company is the investor, the company must be of the nationality of the treaty country. The nationality of the company is established by the same rules as for treaty traders. The individual must have invested or be in the process of investing a substantial amount of "at risk" capital in an enterprise in the United States. The investment may not be passive, such as bonds, stocks and treasury notes. The investment must be in an enterprise. What constitutes a substantial amount depends on the nature of the business. The amount invested is compared to either the total value of the enterprise or the amount normally considered necessary to establish the particular enterprise. Occasionally the dollar amount of the investment alone will be so great as to afford treaty investor status.
The treaty investor is allowed to come to the United States to develop and direct the enterprise. To meet this requirement the investor must have an active role in managing the business. Thus, ownership of stock or an investment in unimproved land (assuming no development is contemplated) would not qualify. However, the E-2 investor does not have to be involved in the day-to-day affairs of the enterprise. As with any temporary visa, the treaty trader and treaty investor must have the intent to depart from the United States once their status has ended.
and TRAINEE (H-3) VISAS
The U.S. immigration laws allow employers to temporarily hire foreign "professional" workers provided that both the petitioning employer and the alien beneficiary meet certain conditions which assure that the foreign workers will not be adversely affecting labor conditions in the United States or lowering the wages of American workers. The H-1B visa is an excellent way for U.S. businesses and foreign companies with operations in the U.S. to employ the "best and the brightest" workers that the world has to offer. Although the category has been somewhat restricted in the last few years to college graduates or those with progressive experience that is the equivalent of a formal bachelors degree, it still has wide application, especially in high-tech fields such as computer and software development, engineering, or bio-medical research, and financial/business occupations.
The basic requirements are:
- The applicant must be offered a position in a "specialty occupation" by an employer with operations in the United States.
The applicant must qualify as a member of the "specialty occupation". Usually this requires the appropriate college degree or combination of education and progressive on-the-job experience.
The employer must first obtain an approved labor condition application in which the employer states to the Department of Labor that prevailing wage and working conditions apply to the job offer and other requirements of the law will be met. (We have prepared a separate "Summary of H-1B Labor Condition Application Procedures and Requirements" which provides more information about this requirement and can be viewed on our web site at www.tasoff.com.)
The law equates "specialty occupation" with the professions. A profession is defined as an occupation which usually requires the completion of a U.S. or U.S. equivalent bachelors degree or higher at an accredited university or college. Examples of "professions" which qualify as specialty occupations include computer programmers and system analysts, engineers, scientists, medical and health specialists, accountants, finance and business specialists, lawyers, teachers, etc. As with other "working visa" categories, spouses and unmarried children under 21 years of age of the principal applicant may be granted H-4 visas to remain in the United States for a concurrent period.
There currently is a quota limit of 115,000 newH-1B visa petitions, which can be approved by INS each year. It is possible Congress will increase that quota in the near future. This limit does not include individuals who have already obtained H-1B status and are extending their stay in the United States or changing employers. Due to the high demand for this visa category it is important that applications are prepared early in the fiscal year (October through April). If the limit on visas is close to being reached, alternative working visas must be considered.
In regard to aliens coming to the United States in order to be "trained" in specialized procedures or operations, it is possible to obtain a H-3 "Trainee" visa. In order to qualify, the petitioning company must show that it has a formalized training program and the purpose of bringing the alien to the United States is for training in a specialized field and not for providing services or productive labor.
On January 1, 1989 the immigration provisions of the United States-Canada Free Trade Agreement created the TC (Trade Canada) category to facilitate the movement of United States and Canadian professionals. On January 1, 1994 the TC category was supplanted by the North American Free Trade Agreement (NAFTA). Creation of the new Trade NAFTA (TN) category resulted in several changes to the prior treatment of Canadian citizens and the creation of new non-immigrant business visa alternatives for Mexican citizens.
The major benefits of TN status to Canadian citizens otherwise eligible for H-1B visa status are the streamlined application procedures at ports of entry, the lack of any limit on the number of extensions of stay or applications for readmission and the absence of a limit on the number of TN admissions that may be granted. This last benefit obviously becomes most important only if the 115,000 annual cap on H-1B visas is reached.
The benefits of the TN category to Mexican citizens are somewhat reduced due to additional paperwork that is not required of Canadian citizens and the need to apply for a visa at an American Consulate in Mexico. Canadians can apply at the INS pre-inspection posts at international airports in Canada or at the border.
Trade NAFTA status is available only to listed professions. A list of these professions can be view on our web site at www.tasoff.com. Note that the "management consultant" category is quite broad and only requires a Bachelor's degree or five years of experience. Only a United States employer can file an I-129 petition to classify a Mexican citizen as a TN professional, but either a United States or foreign employer may seek to have a Canadian citizen classified as a TN professional.
A TN applicant may be denied entry to the United States or denied approval of a petition or application for TN status if the Secretary of Labor certifies to the INS that a strike or other labor dispute involving a work stoppage is in progress and that the temporary entry of the Mexican or Canadian citizen in TN status may adversely affect the settlement of the labor dispute or the employment of any person involved in the dispute. A Canadian or Mexican citizen who has already started working in the United States and who is participating in a strike or other labor dispute will maintain TN status, but the period of participation in the strike or work stoppage does not lengthen the time period the individual is allowed to remain in the United States.
Spouses and unmarried minor children of TN professionals may apply for Trade Dependent (TD) status. Spouses and dependent minor children of TN professionals are issued an I-94 with a "multiple entry" notation. No fee is required for admission of a spouse or the dependent minor children of a TN professional at the port of entry. If the dependents are applying for a change of status, however, the normal fee and procedures are required. TD spouses and unmarried minor children may not accept employment unless otherwise authorized.
No annual limit on the number of Canadian nationals who may reside in the United States in TN status has been imposed. Canadian citizens may file an application for TN status with an immigration officer at a United States class A port of entry, a United States airport handling international traffic, or a United States pre-clearance/ pre-flight inspection station. No prior petition, labor condition application or prior approval is required. However, certain documentation establishing eligibility must be presented - most important are a letter from the professional's prospective employer and evidence of the individual's qualifications. A Canadian citizen TN applicant is not required to obtain a visa at a United States Consulate. Upon qualification for TN status, the Canadian citizen is issued a Form I-94 "Arrival/ Departure Record" and is admitted for a period not to exceed one year. The I-94 will indicate "multiple entry". A small fee is paid to INS upon admission to the United States in TN classification. If the TN application is denied, the applicant may present his or her case to an immigration judge.
No more than 5,500 citizens of Mexico may be classified as TN non-immigrants annually. The ceiling can be increased, however, by agreement between the United States and Mexico. In any event, the limitation will expire January 1, 2004, unless the two countries decide to remove the limit earlier. Mexican TN applicants must seek a United States employer to file an I-129 petition on their behalf with the INS Northern Service Center. A Mexican TN petition must be accompanied by:
- A certification from the Secretary of Labor on Form ETA 9035 (or Form ETA 9029 in the case of a registered nurse) that the petitioner has filed the appropriate documentation with the Secretary of Labor;
- Evidence that the beneficiary meets the minimum education requirements or alternative credential requirements of Appendix 1603.D.1 of NAFTA Annex 1603;
- A statement from the United States prospective employer describing the profession and job duties.
If the petition is approved the applicant must have approved a request for change of status in the United States, or must apply for a TN visa at a United States consulate abroad. The procedures for the issuance of the I-94 at the port of entry are the same as for Canadian citizens.
The O-1 category requires that extraordinary ability be demonstrated by sustained national or international acclaim. Case law has clearly announced that this category is open to business persons and "non professional" workers, including performers and artists, who can demonstrate that they have reached the top of their field.
Under the INS regulations, persons coming to the US to work in the sciences, education, business, or athletics must demonstrate "extraordinary ability" by showing they have a "level of expertise indicating that the person is one of the small percentage who have risen to the very top of their field of endeavor." Although the INS regulations sound somewhat exclusive, in practice, they are significantly broader. The key is defining the "field of endeavor" (e.g.: financial analyst specializing in corporate mergers vs. banker or businessman).
The INS regulations state the petitioner for the beneficiary must show the receipt of a "major internationally-recognized award, such as the Nobel Prize" or documentation of at least three of the following:
- Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
- Membership in associations in the field that require outstanding achievement of their members, as judged by recognized or international experts;
- Published material in professional or major trade publications or major media about the alien;
- Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
- Original scientific, scholarly, or business-related contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
- Other "comparable evidence" of eligibility.
Aside from meeting the evidence tests described above, a key requirement for O-1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The "peer group" (basically, an organization of person in the same field as the beneficiary (and this group is normally a union)) must normally provide a written opinion to the INS, but the opinion is not binding. The INS Operations Instructions provides a list of acceptable peer group organizations, but this list is not exclusive. There are circumstances where there are no appropriate peer groups in a given field. In those cases, the INS will normally make a decision without a peer group consultation. Also, the INS will not require a new consultation if the beneficiary is reentering the US in the O-1 category within two years of a previous peer group consultation.
The admission of an O nonimmigrant is limited to the period of time necessary to complete the event for which the person is admitted but for positions of a more permanent nature the status can be granted for a period of up to three years and extended thereafter in one-year increments to a maximum of six years. Spouses and children of O-1 and O-2 aliens may enter the U.S. in O- 3 status for a concurrent period as that granted to the principal applicant.
Finally, it is important to note that the requirements for the O-1 non-immigrant visa are very similar to the rules for the EB-1 "priority worker" permanent residency category for extraordinary ability aliens (see below). The two major differences are that a peer group consultation is not required in the permanent category and that in the permanent category the alien can self-petition. The main reason we recommend using the O-1 category instead of the permanent residency category is because the O-1 visa can be obtained more expeditiously than permanent residency based on priority worker eligibility.
An American company can offer on-the-job training to a foreign individual through the J-1 international exchange program. Although the individual can train with the American company for up to 18 months, the visa is obtained through sponsorship by an organization approved by the Department of State. This visa could be used to train an employee of a foreign affiliate at an American office. It allows the employee to be paid while being "trained" and can cover a wide variety of positions. Some occupations that have qualified for J-1 status include research associates, "nannies", Montessori school teachers, comic book artists, scientists, etc. Under certain circumstances even the spouse of a J-1 exchange visitor may be granted permission to work in the United States.
One draw back of the J-1 visa is that it might require the individual to return to his or her country of nationality for two years before becoming eligible for other types of temporary visas or permanent resident status. Spouses and unmarried children under 21 years of age of the principal may be granted J-2 visas to remain in the United States. However, they may be subject to the two years foreign residence requirement before obtaining other immigration benefits. It is very difficult, though not impossible, to obtain a waiver of the two-year residency requirement. Before obtaining J status, persons should determine whether they will be subject to the residency requirement and, if so, whether any alternative immigration status is readily available to them.
Generally, a citizen of a foreign country who wishes to enter the United States must either be from a country eligible under the "visa waiver program" (see below) or first obtain a nonimmigrant visa for a temporary stay. The "B" visitor visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). Persons planning to travel to the U.S. for a different purpose such as students, temporary workers, crewmen, journalists, etc., must apply for a different visa in the appropriate category.
Applicants for visitor visas must show that they qualify under provisions of the Immigration and Nationality Act. The presumption in the law is that every visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that: That the purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment; That they plan to remain for a specific, limited period; and That they have a residence outside the U.S. as well as other binding ties which will insure their return abroad at the end of the visit.
Applicants for visitor visas should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.
Each applicant for a visitor visa must submit:
- An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;
- A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;
- One photograph 1 and 1/2 inches square (37x37 mm) for each applicant aged 16 and older, showing full face, without head covering, against a light background.
Additionally, applicants must demonstrate that they are properly classifiable as visitors under U.S. law.
Evidence which shows the purpose of the trip, intent to depart the United States, and arrangements made to cover the costs of the trip should be provided. For example, persons traveling to the U.S. on business can present a letter from the U.S. business firm indicating the purpose of the trip, the bearer's intended length of stay, and the firm's intent to defray travel costs. Persons traveling to the U.S. for pleasure may use letters from relatives or friends in the U.S. whom the applicant plans to visit, or confirmation of participation in a planned tour. Persons traveling to the U.S. for medical treatment should have a statement from a doctor or institution concerning proposed medical treatment.
Unless previously canceled, a visa is valid until its expiration date. Therefore, if the foreign-born individual has a valid U.S. visitor visa in an expired passport, he or she may use it along with a new valid passport for travel and admission to the United States. A non-refundable $45.00 application fee is collected at posts, which issue machine-readable visas. If there is a fee for issuance of the visa, it is equal as nearly as possible to the fee charged to United States citizens by the applicant's country of nationality.
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States. If the consular officer should find it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, consular officers are not obliged to re-examine such cases.
However, eligibility in the visa waiver program (see below) or a visa does not guarantee entry into the United States. The Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the alien is authorized to remain in the United States is determined by the INS officer at the time of inspection at the airport or border and not the consular officer when the visa is issued. The Form I-94, Record of Arrival-Departure, which is issued to the person when he or she is inspected by the INS or U.S. customs official when they enter the U.S. states the length of time the alien is permitted to remain in the United States on that trip. Although frequently assumed, it is not the visa in the passport that determines the period of time the alien is actually allowed to legally stay in the United States. Of course, different visa categories allow for different maximum period of legal stay (e.g.: B-2 tourist can only get a maximum stay of six months but L-1 intracompany transferees should be able to obtain up to three years at the time of their first entry). Those visitors who wish to stay beyond the time indicated on their Form I-94 may be eligible to apply for an extension of stay prior to the expiration date. There are serious penalties for overstay the lawful stay which include automatic visa cancellation and the possibility of being barred from legally returning to the United States for three years (for an unlawful overstay of 180 day to 364 days) or ten years (for an unlawful overstay of over one year).
The Visa Waiver Pilot Program was established in 1986. Initially, the program allowed citizens of selected Western European nations and Japan to enter the U.S. without visas if their purpose was merely to visit for 90 days or less. They were prohibited from extending, changing or adjusting their status absent a marriage to a U.S. citizen. The program has been extended several times, and now includes several more countries in Europe as well as Argentina, Australia, New Zealand and Brunei.
Prior to the Immigration Act of 1990, the law allowed for the admission of 54,000 immigrants annually based upon offers of employment as professionals (3rd preference category) or as skilled or unskilled workers (6th preference category). In general, before a preference petition on behalf of a prospective immigrant could be submitted to the U.S. Immigration and Naturalization Service (INS), an employer had to obtain an alien labor certification issued by the U.S. Department of Labor. This labor certification represented a determination by the Secretary of Labor that no qualified U.S. workers were ready, willing and able to fill the job, and that the employment of an immigrant would not adversely affect the wages and working conditions of U.S. workers. The 1990 law replaced the former statutory scheme with a number of new categories. The 140,000 visas allocated to employment- sponsored immigration are distributed as follows:
- Priority Workers(28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused special immigrant and investor visas, if any).
Priority workers include (A) persons of extraordinary ability, (B) outstanding professors and researchers, and (C) certain executives and managers of multinational corporations. A person's extraordinary ability in the arts, sciences, business, education, or athletics must be demonstrated by sustained national or international acclaim, and his achievements must have been recognized in his field through extensive documentation. He must be entering the U.S. to continue work in his area of extraordinary ability, and his entry must substantially benefit prospectively the U.S.
To qualify as an outstanding professor or researcher, a person must (1) be recognized internationally as outstanding in a specific academic area; (2) have at least three years of teaching or research in the academic area; and (3) seek to enter the U.S. for (a) a tenured or tenure-track position within a university or other institute of higher education to teach in the academic area; (b) a comparable position with a university or other institute of higher education to conduct research in the area; or (c) a comparable position to conduct research in an area with a department, division, or institute or a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.
A multinational executive or manager must have been employed abroad as such during at least one of the three years preceding his application for priority worker classification and admission into the U.S. as a priority worker. He must be entering the U.S. to be employed as an executive or manager for the same firm, corporation or legal entity (or to a subsidiary or affiliate thereof) that employed him abroad. More details follow in the section below.
- Professionals With Advanced Degrees And Persons Of Exceptional Ability(28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from priority worker category, if any).
These visas are reserved for qualified immigrants who are (1) members of the professions holding advanced degrees or their equivalent, or (2) those who are of exceptional ability in the sciences, arts, or business. It is required that such immigrants will substantially benefit prospectively the national economy, cultural or educational interests of the U.S. and that their services are sought by an employer in the U.S.
In determining whether a person is of exceptional ability, the possession of a degree or license does not, by itself, constitute sufficient evidence of such ability. Unlike a priority worker, a person may immigrate to the U.S. under this category only after his employer has obtained a labor certification for his job. However, where it is deemed to be in the national interest, the Immigration Service may waive the requirements of a job offer and labor certification. A person holding a bachelor's degree and five years of professional experience will be considered to possess the equivalent of an advanced degree for purposes of this section of law.
- Skilled Workers, Professionals And Other Workers(28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from the two preceding categories, if any)
A qualified skilled worker is a person capable of performing an occupation that requires at least two years of training or experience, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. A person is a qualified professional under this category if he holds a baccalaureate degree and is a member of the professions. Other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.
Skilled workers, professionals and other workers may immigrate to the U.S. only after their employers obtain labor certifications for their jobs. Unskilled workers are limited to no more than 10,000 visas per year under this category. This limitation has resulted in dramatically increased waiting times for housekeepers and other unskilled workers.
- Special Immigrants(7.1% of the worldwide level of visas, or approximately 10,000 visas)
A variety of immigrants in this category include religious ministers, long time employees of the U.S. government employed abroad, certain investors and physicians who have resided in the U.S. for a number of years and many other categories of persons. Prior law did not provide for numerical restrictions upon special immigrants. The act imposed a ceiling of 10,000 visas annually for special immigrants. Two types of special immigrants (immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad, and immigrants who are former U.S. citizens) are exempt from this limitation. The law now adds several new categories of special immigrants: (1) religious workers for bona fide, tax-exempt, non-profit religious organizations in the U.S. (5,000 annual numerical limitation), (2) certain employees at the U.S. Consulate in Hong Kong, and (3) certain aliens who have been declared dependents of juvenile courts in the U.S.
- Investors:This is the so-called "million dollars" investor category. INS is investigating nearly all the cases now pending under this category and we do not recommend applying under this ground until new regulation or statutory law is enacted. Normally, individuals who can make a $1 million investment ($500,000 in designated "development zones") and hire 10 "U.S. workers" should also be able to qualify under one of the less controversial methods of eligibility for permanent resident status.
A multinational company must be able to rotate its cadre of management through a variety of situations and places so as to make a cohesive integration of its many international offices. Even a small foreign company may have the need to transfer a key employee to the United States. The United States government has created both a temporary visa category and a permanent resident status ("green card" status) preference category for multinational companies to use for transferring their executives and managers to offices in the United States. The nonimmigrant temporary visa category is called "L-1 intracompany transferee" status and the permanent resident category is called "Employment Based First Preference Priority Worker Status". In manner respects the categories are very similar, although it usually takes considerably longer to process the permanent residency application. We often first obtain temporary L-1 intracompany transferee status or some other nonimmigrant status for our client so that he or she can immediately start working in the United States and then apply for permanent resident status. This memo briefly explains eligibility for "Employment Based First Preference Priority Worker Status".
There are several requirements that must be met in order to qualify for the visa. First, the structure of the multinational company must fit within the statutory definitions of "affiliate", "subsidiary" or "branch office". Second, the foreign employee must qualify under the law as a "manager", or "executive". Finally, the foreign employee must be otherwise eligible for permanent resident status (e.g.: no adverse criminal or illegal immigration record, no serious medical problems, etc.).
The Immigration and Naturalization Service will only approve a petition from a qualifying American entity. The American business must be a parent, subsidiary, affiliate, or branch of the foreign company from which the employee is transferring. Each of these business relationships is defined by regulation and case law. Joint ventures and other non-traditional ownership relationships create uncertain qualification. Tasoff and Tasoff was instrumental in changing the law in regard to joint ventures qualifying to petition for an L-1 visa by participating as lead counsel in Matter of Smith Tools (Board of Immigration Appeals). The requirements regarding control and ownership that are necessary to obtain a L-1 visa are complex and we recommend consultation with an immigration attorney prior to the creation of any business entity in the United States. In addition to the qualifying relationship, the American entity must be "doing business" for at least one year.
The intended transferring employee must have worked for the qualifying company abroad for one continuous year within the preceding three years in an executive or managerial capacity. There are several factors that go into deciding whether a person meets the criteria for one of these qualifying capacities. Title alone will not make a foreign employee qualified. Qualifying employees must fit within one of the following two employment categories:
"Manager"; A "manager" must be responsible for a department, subdivision, function or component of the organization. The manager must supervise and control the work of other supervisors, professionals or managerial employees, or manage an essential function within the organization. The duties, and responsibilities of the manager as well as staffing levels and authority are all factors considered when deciding if the position qualifies or,
"Executive": An "executive" directs the management of the organization or major component or function of the organization. The executive makes policy and has discretionary decision-making authority to implement the policy.
There are special provisions in the law that allow qualified "priority workers" and their spouses and minor unmarried children to avoid long quota and processing backlogs. This factor should not be overlooked in offering the manager or executive an added incentive for moving to the United States. Since the law and regulations affecting eligibility for permanent resident status is constantly changing, we suggest that if you have any questions regarding obtaining your "green card" based on your employment as a multinational manager or executive you contact our office for further guidance.
Persons of "extraordinary ability" may become permanent residents without undergoing the time consuming labor certification process. In fact, such persons do not need an employer to file a petition to INS on their behalf since they are permitted to "self-petition". An individual of "extraordinary ability" according to INS regulations "is one who belongs to that 'small percentage' who have "risen to the very top of the field of endeavor". However, in practice, the INS has been more liberal in interpreting the law. The key is how the "field of endeavor" is defined in the petition. Obviously, it is far more difficult to be one of the best singers or artists in the world, but being one of the top Peruvian flautist or authorities on rare and antiquarian books of the Victorian period in Britain (one of our cases) is far more easy to establish. Under the regulations it is necessary to demonstrate three of the following ten criteria:
- Documentation of the alien's receipt of lesser nationally or internationally- recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
- Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
- Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- related contributions of major significance in the field;
- Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
- Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
Individuals who have a U.S. masters degree or its foreign equivalent qualify under the Employment Based 2nd Preference provided they have a job offer that normally requires such a level a academic accomplishment. Also, aliens of "exceptional ability" (presumably a lower standard than "extraordinary ability" described above) in the sciences, arts, or business may also qualify for the Employment Based 2nd Preference. In order to qualify without a formal masters degree the petition should be accompanied by at least three of the following types of documentation:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
However, the applicant may also show comparable evidence to establish eligibility.
Usually, in order for INS to approve a petition for the Employment Based 2nd Preference a labor certification requirement (see below) must first be obtained from the Department of Labor. This can be a very time consuming process. However, a limited exception exists if the entry of the foreign worker into the U.S. would be in the "national interest".
The courts have enumerated some of the following factors that the INS should consider in determining if the alien's entry to the U.S. would be in "the national interest":
- improve the U.S. economy?,
- improve the wages and working conditions of U.S. workers?,
- improve the education and training programs for U.S. children and under- qualified workers?,
- improve health care,
- provide more affordable housing for young and/or older poorer U.S. residents?,
- improve the environment and make more productive use of natural resources?, or
- Request of a U.S. Government agency
Recent administrative decisions have restricted eligibility somewhat and require that the alien's abilities be essential to furthering the "national interest" and the "national interest" be in fact a benefit to the entire country and not just a region or locality.
One of the few methods of becoming a permanent resident available for aliens who do not have close relatives living in the United States or who can qualify under one of the waivers mentioned above is through the labor certification procedure. This entails the U.S. Department of Labor (D.O.L.) certifying that there are no qualified U.S. workers available for a specific job offer and that the job does not otherwise adversely affect labor conditions in the U.S. (e.g. lower wages, or longer hours). However, the labor certification requirements can be waived for aliens with "extraordinary ability" in the sciences, arts, education, business or athletics; intra-company transferees; outstanding professors and researchers; and aliens with advanced degrees or "exceptional ability" in the sciences, arts, or business who can show that their work will be in the "national interest", licensed physical therapists and licensed registered nurses.
The most important part of the application process is the preparation of the application. We spend considerable time understanding our client's educational background and experience and the requirements of the job offer. We may spend several hours talking to our client, the employer, and researching the law and occupational standards and guidelines. Once the application is submitted it is difficult to change any information or requirements. Since the application will be reviewed by at least three different government agencies and will serve as the basis of numerous other applications which will be filed months later, it is very important that the application kit be properly drafted and any documentation, such as diplomas, academic evaluations or letters of prior experience, be reviewed in advance.
The formal application process is initiated by submitting an application package to the Employment Development Department (E.D.D.). The day it is received becomes the alien's "priority date" for quota purposes. At present, most skilled and professional workers (except those born in the Philippines) do not have to worry about quota backlogs. The only delays are those resulting from time it takes the D.O.L. and the Immigration and Naturalization Service (I.N.S.) to process the paperwork. Unfortunately, unskilled workers (those in jobs that do not require a minimum of two years of training or experience or a bachelors degree or equivalent) can expect long waits due to the small yearly quota allotment.
Based on local surveys, the D.O.L. has established a "prevailing wage" for each job and will require that the employer offer to the employee at least the "prevailing wage". On the application, the employer "guarantees that, if the labor certification is granted, the wage paid to the alien when the alien begins work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." Thus it is not necessary to pay the prevailing wage prior to that time.
After the application is submitted, a specially worded advertisement which we will prepare regarding the job offer will be placed in a newspaper designated by E.D.D. for three consecutive days in order to test the job market for qualified U.S. workers. The newspaper ad will direct prospective applicants to contact the E.D.D. in Sacramento, not the place of business. If there are applicants, the employer must determine if they are minimally qualified for the job. Any unusual requirement (foreign language ability, knowledge of specific computer programs, etc.) must be justified as a "business necessity." These minimum requirements must be stated in the application first submitted to the E.D.D., and thus it is important to work with us so we can understand the job duties and research D.O.L. publications to determine the usual minimum requirements. In the event that an American worker (someone with permanent permission to work in the U.S.) applies for the job and has the minimum experience and education for the position, the application could be denied. This is true even if the alien is better qualified. Of course, even if there is a qualified applicant, there is no obligation for the employer to actually hire him or her for the job. The purpose of the recruitment effort is to "test" the labor market and prove that there are no minimally qualified American workers for the job. For certain occupations (ex: engineers, computer programmers, systems analysts, etc.) it is possible to expedite the procedure by placing the required advertisement first and then submitting the application to E.D.D. with the results of the employer's unmonitored recruitment efforts.
The application is then sent by E.D.D. to the D.O.L. After reviewing the application and the recruitment results, the D.O.L. will then determine if the employer has properly tested the job market and proved that no minimally qualified U.S. workers are currently available. Usually, there is a considerable processing delay before the "labor certification" is issued. The certification is then submitted to the Immigration and Naturalization Service (INS) with a petition for either employment based second preference (professionals holding advanced degrees) or employment based third preference (professional and skilled workers). Documentation of the applicant's education and experience along with proof of the employer's ability to pay the offered wage must be submitted with the petition (e.g.: a copy of the most recent tax return, financial statement, etc.).
Upon approval, the alien (and his or her husband or wife and unmarried children under 21) can file for either adjustment of status at the local INS District Office or have the case processed at the appropriate American Consulate or Embassy in his or her home country. If an adjustment of status application is filed then the INS will issue a "work permit" (employment authorization document) to the applicant and his or her spouse so they can legally work in the United States while the application is pending. It is also possible to obtain "advance parole" so that the applicant and family members can travel abroad and return to the United States during this period of time. At the interview a letter reconfirming that the employer still intends to employ the alien on the terms stated in the application must be submitted. Assuming the applicant and his family members are otherwise qualified (no serious criminal or deportation record, fraud, etc.) the INS will grant the adjustment of status application or the consul will issue an immigrant visa. The alien and any accompanying family members will then be issued their "green cards". The alien should be placed on the employer's payroll and should work for the employer for a reasonable period of time thereafter.
Family unification is a major objective of U.S. immigration laws. Several carefully defined groups are eligible to immigrate to the U.S. based upon close family relationships. Immigrant visas are always immediately available in unlimited numbers for immediate relatives of U.S. citizens. An immediate relative is classified as an unmarried child under 21 years of age or spouse of a U.S. citizen, and the parents of a U.S. citizen over 21 years of age.
The Immigration and Naturalization Service must be satisfied that in an application based on a marriage the marriage is not only legal but that a bona fide husband and wife relationship exists. Severe penalties may be imposed for fraudulent applications. Additionally, if the marriage occurred less than 2 years before the case is adjudicated, then only conditional status is granted and the couple must again petition for removal of the conditional status two years later.
The Immigration Act allocates a total of 465,000 visas to other categories of relatives:
Family Based 1st Preference: Adult unmarried children of U.S. citizens qualify for the Family Based 1st preference category;
Family Based 2nd Preference: Unmarried children under 21 years of age and spouses of permanent residents qualify for the Family Based 2A category;
Unmarried adult children of permanent residents;
Family Based 3rd Preference: Married children of U.S. citizens;
Family Based 4th Preference: Brothers and sisters of U.S. citizens over 21 years of age qualify for the Family Based 4th preference category.
For some of these categories there is a shortage of visas under the annual quotas and a long waiting period may be required until permanent resident status can be granted and the person issued a "green card". In many cases a petition must first be filed with the U.S. Immigration and Naturalization Service in order to establish a priority date under the quota system.
As strange as it sounds, approximately 50,000 people every year become lawful permanent residents through the so "green card lottery", which officially goes by the name "Diversity Visa Program". Visas are apportioned among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and no visas going to countries sending more than 50,000 immigrants to the U.S. in the past five years. No one country can receive more than 7 percent of the diversity visas issued in any one year. For the DV-2001,
Natives of the following are not eligible to apply: Canada, China (Mainland And Taiwan, except Hong Kong S.A.R.), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Its Dependent Territories and Vietnam.
To enter, an applicant must be able to claim nativity in an eligible country, and must meet either the education or training requirement of the DV program. Nativity in most cases is determined by the applicant's place of birth. However, if a person was born in such person can claim the spouse's country of birth rather than his/her own. Also, if a person was born in an ineligible country, but neither of his/her parents was born there or resided there at the time of the birth, such person may be able to claim nativity in one of the parent's country of birth. Education or Training: To enter, an applicant must have EITHER a high school education or its equivalent, defined in the U.S. as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. U.S. Department of Labor definitions will apply. If a person does not meet these requirements, he/she should not submit an entry to the DV program.
Tasoff's 1st Rule of Immigration Law: Immigration Law is neither logical nor fair. It just is.
"Greencard" - A slang term referring to the alien registration card (currently form I-551) issued to lawful permanent residents of the U. S. Once upon a time (1950's) a predecessor card was sort of a green color - They are now white with red and blue highlighting, with the aliens picture, fingerprint and coded identification information .... in security embossed plastic. Nowadays some aliens refer to it as a "white card" or the "3rd card."
"Alien" - A person who is not a national or citizen of the United States.
"U.S. Citizen" - U. S. citizenship is usually acquired by birth in the territory of the U. S. under the 14th Amendment of the U.S. Constitution, or by naturalization, a procedure established under the INA by which lawful permanent residents and a special few military types can become U. S. citizens.
"Immigrant" - Usually a reference to an alien who is either a lawful permanent resident of the U. S. or someone who intends to reside permanently in the U. S.
"Nonimmigrant" - An alien who is coming to the U. S. on a temporary basis to pursue a specific activity allowed under the terms of the visa issued to him or her. Examples include tourists, business people ("business" is well defined in regulations and does not include employment in the U. S.), intra-company transferees, students, etc.
"Visa" - A stamp issued by a U. S. Consulate abroad that entitles an alien to come to the U. S. to pursue a specific purpose allowed under the law. Immigrant visas are for those coming to live permanently in the U. S., nonimmigrant visas are issued to aliens coming in one of the nonimmigrant classifications and who can show they will leave the U. S. when their authorized stay is over.
"Lawful Permanent Resident" - An alien who is allowed to remain permanently in the U.S. They are eligible to become U.S. citizens after 5 years, or only 3 years if they have been a spouse of a U. S. Citizen for 3 years. They can also be deported for any number of reasons (criminal convictions, fraud, etc. and can lose their status if they remain outside the U. S. more than 1 year continuously.
"Conditional Permanent Resident Status" - The status which is accorded the spouse and children under 8 years old at the time of the marriage, to a U. S. citizen or a permanent resident where the marriage is less than two years in duration when the immigrant visa or adjustment of status application is granted. Conditional status must be removed by either timely filing a joint petition or a waiver application.
In 1952 the basis of our current immigration law, the Immigration and Nationality Act (the "INA") (8 U. S. Code), was passed into law. Over the years it has been repeatedly amended with major revisions and interpreted by the courts with often less than logical or intuitive results. The primary announced goals of the Act were to reunite families and protect the American Labor force. Additionally, international treaties and humanitarian concerns created provisions for refugees, asylees, "amnesty" temporary residents, protected status and a whole host of other statutes which allow foreign born people to remain legally in the U. S. for various periods of time. Additionally, there are provisions for aliens to come temporarily to the U. S. for purposes ranging from tourism and business to "specialty occupation" (professional) workers, intra company transferees and students.
Despite these many methods of legally coming to the United States, most categories are for a short period of time or limited purpose, and lawful permanent resident status remains an elusive if not impossible goal for those who are not very closely related to U. S. citizens, or do not have special skills or college degrees, or are not refugees. Indeed, because of long back longs in the quota's that restrict the number of relatives and qualified workers from immigrating to the Unites States, even those who may legally qualify for benefits under the law may have to wait many years. For aliens who have always complied with the provisions of U.S. immigration law or are eligible for one of the several exceptions, it is possible to "adjust their status" in the U. S. to that of a lawful permanent resident without returning to their home country to apply for an immigrant visa. Adjustment of status applicants are also immediately eligible to obtain an employment authorization document ("E.A.D." or "work permit") upon the filing of their application with INS and under certain circumstances can obtain permission to travel abroad and return to the U. S. legally while awaiting the final processing of their application.
By 1986 there was a belief that many of the "marriage petitions" with the INS filed were based on bogus marriages entered into solely for immigration benefits. Congress passed the Marriage Fraud Act (I.M.F.A.) to create safeguards to protect the integrity of the Nation's immigration laws. The hurdles that were created by the new law were overbroad and created obstacles for even bonafide marriages that were terminated before the two-year "probation period" established by IMFA.
In 1996 the law was ag