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Bar Journal - Spring 2008

Getting from There to Here: A Business Immigration Primer

By:

Introduction


With globalization now an incontrovertible reality for every entity from large multinational corporations to locally-owned small businesses, the ability to shift human capital from one place to another has become a key component in allowing businesses to compete in the global marketplace. As the United States firmly settles into an information and service-based economy, the ability to bring foreign workers here – temporarily and permanently – has become a matter of pressing concern for many employers in many industries.

This article will provide an overview of the most common types of visas for foreign workers in the New England region, the purposes of and eligibility requirements for an employment-based visa, and some of the U.S. employers’ obligations when bringing in foreign workers.

It is the primary role of the business immigration practitioner to assist foreign and U.S. enterprises in developing strategies to allow key technical, executive, managerial, and professional personnel and their family members to enter and remain in the United States on a temporary or permanent basis. Immigration lawyers also advise business clients concerning legislative and administrative developments in and compliance with U.S. immigration laws, including the laws aimed at preventing the employment of unauthorized foreign nationals.

Employment-based visas fall into two categories: nonimmigrant visas and immigrant visas. Nonimmigrant visas permit foreign nationals to enter the U.S. temporarily. Immigrant visas allow foreign nationals to live in the U.S. indefinitely.

The vast majority of foreign nationals employed in the U.S. enter on nonimmigrant visas. A nonimmigrant visa may authorize an individual to remain in the U.S. for periods ranging from several days to many years.

Overview of the U.S. Immigration System

Immigration laws in the U.S. are administered by various federal government agencies, including U.S. Citizenship and Immigration Services (CIS),1 a branch of the U.S. Department of Homeland Security; the U.S. Department of State (DOS);2 and the U.S. Department of Labor (DOL).3 In some cases, these U.S. government agencies are also assisted by state government departments, such as state departments of labor. Depending on the type of visa sought, the foreign employee applications may need to apply to one or more of these agencies.

Visas are issued by DOS at U.S. embassies and consulates in nearly all foreign countries. Depending on the type of visa, employers may need to obtain approval from CIS, by filing a petition with an appropriate CIS Service Center in the U.S. before the prospective employee may apply for the visa at a U.S. embassy or consulate abroad.

The following is a brief description of the most common nonimmigrant and immigrant visa categories under U.S. immigration law.

A. Nonimmigrant Visas

B-1 Visa (Business Visitor). The B-1 visa is available to individuals entering the U.S. as temporary visitors for business,4 provided they continue to be employed by a non-U.S. company outside the U.S., receive no remuneration from a U.S. source (except for certain incidental expenses), and are not working in the U.S. Individuals entering the U.S. on a B-1 visa may attend business meetings and seminars, negotiate contracts, solicit orders for goods manufactured outside the U.S., consult with professional colleagues, and seek investment or employment opportunities.

Although B-1 visas may be issued for periods ranging from one month to several years, the period of initial admission to the U.S. can be granted for no more than one year. Typically, individuals entering the U.S. on B-1 visas will be admitted for no more than six months at a time. Once in the U.S., it is possible to obtain extensions of stay for additional six-month periods.

Visa Waiver Program. The Visa Waiver Program (VWP) allows individuals from certain designated countries to enter the U.S. for tourism or business for up to 90 days without having to obtain a visa.5 Currently, 27 countries participate in the VWP, although not all travelers from VWP countries are eligible to use the program. To participate in the VWP, foreign individuals must present a machine-readable passport, demonstrate intent to stay in the U.S. for 90 or fewer days, and provide evidence of sufficient funds to support themselves while in the U.S. Typically, an individual participating in the VWP must enter the U.S. with a return-trip ticket, maintain a foreign residence, not be entering the U.S. for the purpose of employment, and not receive any remuneration from a U.S. source. The U.S. does not permit VWP participants to extend their period of stay or change their status while in the U.S.

E-1/E-2 Visa (Treaty Trader and Investor). E-1 (treaty trader) and E-2 (treaty investor) visas are available to citizens of certain countries which have entered into a treaty of "Friendship, Commerce and Navigation" with the U.S.6 A citizen of one of the nearly 70 qualifying countries may be eligible for an E-1 visa if he or she will be in the U.S. solely to carry on trade of a substantial nature, which is international in scope, either on the individual’s behalf or as an employee of a foreign person or organization engaged in trade principally between the U.S. and the treaty country of which the individual is a citizen. A foreign national may be eligible for an E-2 visa if he or she seeks entry solely to develop and direct a bona fide enterprise in the U.S. in which he or she has invested, or is actively in the process of investing, a substantial amount of capital, for a purpose other than earning a living.

The U.S. issues E visas for an initial period of two years, with an unlimited number of two-year extensions, as long as the individual continues to meet the requirements for E-1 or E-2 status. E-1 and E-2 visas are available to the spouse and minor children of the principal E-1 or E-2 visa holder, which permits them to live and attend school in the U.S. and, unlike many other nonimmigrant visa categories, an E-1 or E-2 spouse may seek employment with CIS authorization.

H-1B Visa (Specialty Occupation). The H-1B visa is available to individuals coming to the U.S. to work in a "specialty occupation," which is an occupation that requires a bachelor’s degree (or its equivalent) in a body of specialized knowledge as a minimum requirement for entering the occupation in the U.S.7 An employer seeking an H-1B visa on behalf of a foreign national must establish that the job requires the services of a professional, that the foreign national qualifies as such a professional, and that it will comply with certain DOL requirements. CIS may issue no more than 65,000 H-1B visas per year.8

An employer seeking to employ a foreign national in H-1B status must attest to the DOL that: (1) the H-1B beneficiary will be paid either the greater of the prevailing wage for the position in the region where it will be performed or the actual wage paid in the workplace to similarly situated employees; (2) employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed; (3) at the time of filing, there is no strike or lockout in the beneficiary’s proposed position at the workplace; and (4) the employer has provided notice of the filing of a Labor Condition Application (LCA) to the applicable collective bargaining representative or, if there is no such representative, it has conspicuously posted the LCA in the workplace. The employer must also keep certain records and make them available for public inspection.

The U.S. issues H-1B visas for an initial period of up to three years. A foreign worker may renew an H-1B visa for up to three additional years. H-4 visas are available to the spouse and minor children of a principal H-1B visa holder, which permits them to live and attend school in the U.S., but does not permit them to work here.

H-2B Visa (Temporary or Seasonal Workers). The H-2B visa classification applies to foreign nationals who are coming to the U.S. to perform nonagricultural work of a temporary or seasonal nature. 9 The prospective employer must establish that (1): it will pay workers at least the prevailing wage for the position in the region where the work will be performed, and (2) qualified U.S. citizens capable of performing such service or labor are not available. The period of the employer’s need generally must be one year or less, although in extraordinary circumstances the temporary services or labor might last longer. The employer’s need for the services or labor must be a one-time occurrence, or a seasonal, peak-load or intermittent need. CIS may issue 66,000 initial H-2B visas per year.10

Before an employer petitions CIS for approval of an H-2B visa, it must obtain a temporary labor certification from the DOL. The employer may include more than one beneficiary on an H-2B petition if the beneficiaries will be performing the same service, for the same period of time, and in the same location. In cases where the job does not require a specific level of education or experience, employers typically seek approval for multiple unnamed individuals.

H-2B visas are available for an initial period of up to one year. An H-2B beneficiary may remain in the U.S. for up to three years, and then must spend at least six months abroad. The spouse and minor children of an H-2B visa holder may obtain H-4 visas, which permit them to live and attend school in the U.S., but not work here. H-3 Visa (Trainee). The H-3 visa allows individuals to come to the U.S. to participate in a specified training program.11 The U.S. may issue an unlimited number of H-3 visas each year. To qualify for an H-3 visa, the petitioner must demonstrate that (1) the proposed training is not available in the beneficiary’s home country; (2) the beneficiary will not be placed in a position that is in the normal operation of the business, and in which U.S. citizens are regularly employed; (3) the beneficiary will not be productively employed, except as incidental to training; and (4) the training will benefit the beneficiary in pursuing a career outside the U.S. 12

H-3 visas may be granted for up to two years. H-4 visas are available to the spouse and minor children of a principal H-3 visa holder.

L-1 Visa (Intracompany Transferee). The L-1 intracompany transferee visa is available to executives, managers and individuals with specialized knowledge who have worked for a foreign parent, subsidiary, affiliate, or branch of a U.S. company for at least one continuous year within the immediately preceding three years and are entering the U.S. to work in an executive, managerial or specialized knowledge capacity.13 The L-1 beneficiary may fill a position in an existing office or be coming to the U.S. for the purpose of opening a new office.

The U.S. may issue an unlimited number of L-1 visas each year. Companies that meet certain criteria may seek blanket L visa approval, streamlining the administrative process for obtaining future L-1 visas for its qualifying employees. L-1 visas are generally available for an initial period of up to three years, but are limited to one year in the case of a company establishing a new U.S. office. L-1 visas for executives and managers may be extended in two-year increments, up to a total of seven years. L-1 visas for individuals with specialized knowledge may be extended in two-year increments, up to a total of five years.

The spouse and minor children of a principal L-1 visa holder may obtain L-2 visas, which permit them to live and attend school in the U.S. An L-2 spouse may work in the U.S. so long as he or she obtains authorization from CIS.

O/P Visa (Person of Extraordinary Ability). O-1/P-1 visas are available to individuals who: (1) possess extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and (2) have a demonstrated record of extraordinary achievement in motion picture and/or television productions.14 In either case, the individual must be coming to the U.S. to continue work in their area of extraordinary achievement. The O-1/P-1 visa is particularly useful for artists, athletes, entertainers and business people lacking professional degrees.

A petition for an O-1/P-1 visa must be supported by a written advisory opinion or "consultation" from an appropriate labor organization with authority over employment in the field throughout the U.S., or a peer or management group comprised of practitioners of the individual’s occupation. In the case where no labor union or peer group exists, the opinion or "consultation" may be in the form of affidavits from industry experts. The U.S. does not impose a wage requirement or annual numerical limit on the number of O-1/P-1 visas that it issues.

The U.S. grants O-1 visas to individuals who come to this country to perform services in connection with a specific event or series of events, which can last for up to three years initially, and may be extended indefinitely in one-year increments thereafter. The U.S. grants P-1 visas to entertainers, artists and athletes who come to the U.S. temporarily to perform at a specific competition or event.

O-2 visas are available to individuals who accompany and assist an O-1 visa holder in a specific athletic or artistic event or in the motion picture or television industry. O-2 visas are not available, however, to those who accompany or assist O-1 visa holders in education, science or business. The spouse and minor children of a principal O-1/P-1 visa holder may obtain O-3/P-3 visas, which permit them to live and attend school in the U.S., but not to seek employment.

F-1 Optional Practical Training. The U.S. grants F-1 visas to students who are enrolled at qualifying U.S. educational institutions, such as a college or university, and participating in a full-time course of study.15 F-1 students who are in a Bachelor’s, Master’s or Doctoral degree program may obtain employment authorization for temporary employment for up to one year during vacation periods or after completion of their course of study. Known as "optional practical training," such employment must be related to the student’s major area of study and must be completed within 14 months of graduation. This means that an employer may hire a foreign student directly out of college or graduate school for a period of up to one year under the practical training component of the F-1 visa.

The spouse and minor children of a principal F-1 visa holder may obtain F-2 visas, which permit them to live and attend school in the U.S., but not to seek employment.

J-1 Visa (Cultural Exchange Visitor). The J-1 visa is available to individuals participating in an educational and cultural exchange program designated by the DOS and the Exchange Visitor Program.16 The DOS designates public and private entities to act as exchange sponsors. Designated sponsoring organizations facilitate the entry of foreign nationals into the U.S. as exchange visitors to complete the objectives of one of the following exchange visitor program categories: au pair; camp counselor; college/university student; secondary school Student; government visitor; international visitor (reserved for U.S. Department of State use); alien physician; professor; research scholar; short-term scholar; specialist; summer work/travel; teacher and trainee.

The U.S. may issue J-1 visas for periods ranging from four months to five years, depending upon the specific exchange visitor program. J-1 visa holders must either return to their home country for a period of two years upon expiration of their J-1 visa or obtain a waiver before changing to another visa status.

The spouse and minor children of a principal J-1 visa holder may obtain J-2 visas, which permit them to live and attend school in the U.S. and, like E-2 and L-2 spouses, seek employment with CIS authorization.

TN Visa (Canadian and Mexican NAFTA Professional). TN visas are available to citizens of Canada and Mexico who seek entry into the U.S. to engage in business activities or employment at a professional level in certain professional occupations designated in accordance with the North American Free Trade Agreement (NAFTA).17 Petitioners must demonstrate that the beneficiary is a NAFTA professional eligible for a TN visa by submitting proof that the beneficiary meets the minimum educational requirements or has the alternative credentials set forth in the NAFTA agreement.18 Part-time employment in the TN visa category is permitted, but self-employment is not.

The U.S. issues TN visas in one-year increments, with unlimited one-year extensions, as long as the individual continues to meet the requirements for TN status. The spouse and minor children of a TN visa holder may obtain TD visas, which permit them to live and attend school in the U.S., but not to seek employment.

B. Immigrant Visas

In 1990, Congress created a priority system for granting employment-based permanent residence to foreign nationals based on employment skills. The U.S. issues five different categories of employment-based visas – also called "green cards" –which are synonymous with permanent residence.19 The five preference categories are as follows:
• EB-1: individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics; multi-national executives and managers; and outstanding professors and researchers who are recognized internationally for their achievements.

• EB-2: individuals holding an advanced degree or who have exceptional ability in the arts, sciences, or business fields, and, as a result, will substantially benefit the national economy, cultural, or educational interests or welfare of the U.S.

• EB-3: individuals who possess a bachelor’s degree; skilled workers; and a relatively small number of "unskilled" workers.

• EB-4: "special immigrants," such as foreign national religious workers, and employees and former employees of the U.S. Government abroad.

• EB-5: individuals investing between $500,000 and $1,000,000 (depending on the employment rate in the area) in a new commercial enterprise in the U.S., which employs on a full-time basis at least ten U.S. citizens, permanent residents or individuals holding valid temporary employment visas.

Before an employer may obtain an employment-based green card for a foreign worker, the employer usually must pursue a rigorous recruitment campaign in order to demonstrate to DOL that the job is one for which there is no U.S. worker who is willing, qualified, and available at the time of application for the visa.20 The employer also must demonstrate that the employment of the foreign worker will not adversely affect the wages and/or working conditions of workers in the U.S. similarly employed.

Employment-based green card categories are subject to annual visa limits, and there are waiting lists in many categories.21 Citizens of certain countries may experience even longer delays due to the volume of applicants from those countries. Applications are prioritized by the filing date of the labor certification application with the DOL, if required, or the filing of an immigrant petition with CIS when labor certification is not necessary.

The U.S. allows the spouse and minor children of a green card holder to reside and attend school in the U.S., and to seek employment with CIS authorization.

Conclusion

visas summarized above represent a sampling of the available options for U.S. employers seeking to bring foreign workers to the United States. Any one of the visa categories profiled could spawn its own multi-volume treatise (many have), and many individual situations do not fit neatly into one of the available visa categories. In addition, while substantive immigration law may not evolve as quickly as some interested parties might like, administrative policy and visa processing is constantly changing. It is critical that any practitioner ensure that he or she is aware of the most recent changes, whether to the substance of a particular visa category, specific forms required, filing fees, place to file, etc.

The need to engage foreign workers to help propel the U.S. economy forward is not likely to abate in the foreseeable future. As a result, U.S. businesses must be conversant with current immigration law and proactive when that law does not serve their staffing needs. With proper planning and good counsel, businesses should be able to meet their staffing needs through strategic employment of foreign nationals.

Endnotes

1. See generally http://www.uscis.gov

2. See generally http://www.state.gov

3. See generally http://www.dol.gov

4. Immigration and Nationality Act ("INA") § 101(a)(15)(B)(i) (The INA is codified at 8 U.S.C. § 1101, et. seq., but references herein are to the INA.)

5. INA § 217

6. INA § 101(a)(15)(E) 7. INA § 101(a)(15)(H)(i)(b)

7. INA § 101(a)(15)(H)(i)(b)

8. In recent years, the 65,000 H-1B visa cap has proven inadequate to meet U.S. employers’ needs, though efforts to pass reform legislation have thus far not borne any fruit.

9. INA § 101(a)(15)(H)(ii)(b)

10. The CIS may issue 33,000 initial H-2B visas in each half of a fiscal year. As with H-1B visas, many seasonal employers are finding it extremely difficult to staff seasonal/temporary positions in light of the current statutory caps.

11. INA § 101(a)(15)(H)(iii)

12. Physicians are ineligible to use H-3 classification to receive any type of graduate medical education or training in the U.S.

13. INA § 101(a)(15)(L)

14. INA § 101(a)(15)(O); INA § 101(a)(15)(P)

15. INA § 101(a)(15)(F)(i)

16. INA § 101(a)(15)(J)

17. See generally, INA § 214(e)(2-5)

18. NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.

19. INA § 203(b)

20. 20 C.F.R. § 656, et seq.

21. INA § 203(b); See Visa Bulletin at http://travel.state.gov/visa

Author
Kermit J. Zerr is the Chair of the McLane Law Firm’s Immigration Law Practice Group.
Author
Ronald L. Abramson is a member of the Immigration Law Practice Group.

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