Fundamentals of Nonimmigrant Visas

Sujata AjmeraOf CounselJackson Lewis, PC(512) 362-7403Sujata.Ajmera@jacksonlewis.com

L. Ruth ClarkSenior AssociateBerry Appleman & Leiden, LLP(713) 386-6413rclark@balglobal.com

Common Visa Categories for Employees

• F-1/OPT – Students with Employment Authorization• H-1B - Specialty Occupations• L-1 - Intracompany Transferees• TN - NAFTA Professionals (Canada & Mexico)• E-3 - Specialty Occupations (Australia)• H-1B1 - Specialty Occupations (Chile & Singapore)• E-2 - Investor Visas• O-1 – Extraordinary Ability Visas• H-3 – Trainee Visas• B-1 / Visa Waiver – Business Visitor Visas

F-1 Student with Employment Authorization

• Student can engage in Optional or Curricular Practical Training (OPT or CPT)

• CPT occurs while still in school – work is authorized by the school on I-20. Ineligible for OPT if more than 12 months of CPT

• OPT occurs upon graduation – requires a USCIS-issued Employment Authorization Document

• Automatic 12 month period(maybe longer)

F-1 Student with Employment Authorization

New OPT rules:• Elimination of “cap gap”– Status and work authorization extended from expiration of OPT/EAD to October 1– Have to be selected for an H1B

• E-Verify extension for STEM degrees– 17 month extension– Employer must be signed up for E-Verify– Employee must have a STEM degree

• Job must require a Bachelors degree or equivalent and applicant must possess required Bachelors degree or equivalent

• Employer is responsible for return transportation upon early termination

• Prevailing wage required• Detailed document retention requirements• 3 years initially - 6 year maximum (soft max)• PRO: Extension past 6th year possible if green card started before

6th year starts

H-1B Specialty Occupation

• The H-1B start date is October 1 each year• We can file six months early -- April 1• OPT is valid for 12 months (except for cap gap or E-verify

extensions)• There are only 58,200 H-1B numbers each year (some set

aside for H-1B1)• There are an additional 20,000 H-1B numbers allocated for

those with a Masters or Ph.D. from a U.S. University• CON: H-1B Cap was met first week of April 2014 and 2015. • PLAN AHEAD FOR 2016!• CON: Spouses are not eligible to work immediately

H-1B Timing Issues

• December 2014 graduates - OPT valid 12/2014 to 12/2015 File H-1B in April for October 1 start date No Issues

• Summer 2015 advanced degree graduates - OPT valid 8/2015 to 8/2016 File H-1B in April for October 1 start date based on their Bachelor’s degree

OR the advanced degree if they can obtain evidence of completion by April No Issues

• BUT - if F-1 is pursuing a degree and hasn’t graduated by April, or don’t have proof of graduation when you need to file the H-1B – there could be a problem!

H-1B Timing Challenges

• Foreign national students working on OPT are exempt from social security and Medicare

• Once the H-1B visa status becomes effective (for most, on October 1), the employee becomes subject to social security and Medicare

• On the employee’s first trip outside the US after October 1, the employee MUST obtain an H-1B visa stamp at a US Embassy in order to be able to re-enter the U.S.

H-1B Issues

• If the applicant is working on an H-1B with another company, the H-1B can be transferred to you at any time. The transfer requires a filing with USCIS. This is called “H-1B portability”

• PRO: Employee can begin employment as soon as case is filed and receipted

• Not subjected to the H-1B Cap• H-1B portability is easy, BUT:

Determine who the current employer is. If s/he is from a cap exempt employer (universities) to a cap-subject employer (you), s/he IS subject to the cap and can’t start until October 1.

Determine where s/he is in the 6 years. Assess the long-term intent for the applicant.

H-1B Transfers (Portability)

• Must have 1 year in the prior 3 years as a manager, executive or specialized knowledge employee with your overseas affiliate entity

• U.S. position is a manager or executive

• NOTE: Can be a manager by virtue of managing an essential function rather than employees. Essential function not defined

• 3 years initially - 7 year maximum (two two-year extensions)• PRO: Spouses are eligible to work with an EAD• PRO: Blanket L applications directly at the US Consulate

L-1A Intracompany Managers / Executives

L-1B Intracompany Specialized Knowledge

• Must have 1 year in the prior 3 years as manager, executive or specialized knowledge employee with your overseas affiliate entity

• Must be coming to U.S. to serve in a specialized knowledge capacity

• Must possess advanced knowledge of your product, service, research, equipment, techniques or other interests

• 3 years initially - 5 year maximum (one two-year extension)• PRO: Spouses are eligible to work with an EAD• PRO: Blanket L applications directly at US Consulate

• Mexican and Canadian citizens may enter the U.S. under the North American Free Trade Agreement

• NAFTA provides a specific list of qualifying professions and education or experience requirements – usually Bachelor minimum

• Issued in 3-year increments and can be extended indefinitely so long as temporary intent

• Canadians apply for the TN at the border• Mexicans must apply for a TN visa at the US Consulate• PRO: Applying at the border or US Consulate is faster and it is not

necessary to file petition with USCIS• CON: Spouses may NOT work

TN NAFTA Professionals

• Citizens of Australia• Entering U.S. to work in

“specialty occupation” (Bachelors degree or higher – identical to H-1B rules).

• Issued in 2-year increments and can be extended indefinitely so long as temporary intent.

• 10,500 annual quota (not met)• PRO: Application made directly at the US Consulate.• PRO: Spouses are eligible to work with an EAD.

E-3 Specialty Occupation

H-1B1 – Chile (1400) and Singapore (5400) citizens receive special quota of H-1Bs

• Same qualifications as H-1B• Issued in 1-year increments and can be extended

indefinitely so long as temporary intent.• PRO: Application made directly at the US

Consulate.• PRO: Quotas have never been reached.• CON: Spouses may NOT work.

H-1B1 Specialty Occupation

• Treaty must exist and individual and/or business must possess the nationality of the treaty country

• Must show substantial trade between treaty country and U.S. OR substantial investment in a real and operating commercial enterprise

• Can be used by individual business owners or companies for employees with treaty country and company nationality

• Issued in 2-year increments and can be extended indefinitely so long as temporary intent.

• PRO: Applications are made directly at the Consulate.• PRO: Spouses are eligible to work with an EAD.

E-1/E-2 Visas

• Foreign nationals with extraordinary ability in science or business

• Demonstrated by sustained national or international acclaim

• “Those who have risen to the very top of their field”

• Application filed with CIS• Issued in 3-year increments and can be extended annually so long as temporary intent• PRO: No numerical / quota limits• CON: Very difficult to prove qualifications• CON: Spouse may NOT work

O-1 Extraordinary Ability Visa

• Training is not available in home country, and will benefit trainee in his/her career abroad.

• Has fixed schedule, clear objectives and provides means to evaluate trainee’s progress.

• Both classroom and on the job training permitted.• Trainee will not be placed in a position which is in the normal

operation of the business and no working.• Up to two years• Application and training plan filed with CIS.• CON: Spouses may NOT work.

Note: J-1 trainee with an emphasis on cultural exchange Up to 18 months Spouses are eligible to work with an EAD

H-3 Trainee Visa

• The B-1 is NOT an employment visa.

• Permissible activities include: Engage in “commercial transactions which do not involve

gainful employment”Negotiate contractsMeet with business associates or clientsAttend seminars, conferences or conventionsUndertake independent researchBoard of Directors activities / meetingsObserve business, professional or vocational activity

• Cannot receive any form of remuneration from U.S. source.

B-1 Business Visitor and Visa Waiver (ESTA)

• Dependent spouse and children may accompany nonimmigrants to the U.S. as long as they receive an appropriate dependent visa (L-2, H-4, etc.)

• Most Consulates require each individual family member to attend the visa interview.

• Family members are only permitted to stay for the duration of the principal employee’s stay.

• Generally, dependents are not work authorized; however, L-2 and E-2 dependents can apply for work authorization.

Visas for Spouse and Children of Nonimmigrant Employees

• Generally, to obtain work in the U.S. the Company must first petition (sponsor) an individual for work authorization from the USCIS.

• Petitions are filed for a specific visa category.• The visa category and backlogs will determine the time it

takes for a petition to be approved.• Once approved, the new employee will be able to apply for

a visa at the U.S. Consulate in their home country so that they are able to travel to the United States for work.

How to obtain a Work Authorized Visa?Visa Petition with USCIS (U.S. Citizenship and Immigration

Service)

Nonimmigrant Visa Process

Case filed with

USCIS

• H-1B, H-3, O-1, and non-Blanket L-1 visas - petition must be filed with USCIS• USCIS reviews the case within anywhere from 3-6 months• Premium processing - USCIS will review cases within 15 days ($1,225 additional fee)• USCIS issues I-797 "approval notice" for visa application at US Consulate

Visa Application at US

Consulate

• Blanket L-1, TNs, E-3, and H-1B1 do not require USCIS approval• Applicant can by-pass the USCIS and apply directly at the US Consulate abroad saving time and

filing fees• In-person visa interview at US Consulate required

Entry to the US to work

• After the visa has been approved the employee is able to travel to the US • Upon entry, each person receives an I-94 card - this document details the person's visa

status and how long they are authorized to stay in the US

• A visa stamp is an entry document in a passport and is permission to apply for admission into the U.S.

• Most Foreign National Employees are required to have a valid visa for all international travel.

• Visas can only be obtained from U.S. Consulates and Embassies abroad

• Often delays in getting appointments

• Often delays in getting visas due to security checks (Administrative Processing)

What is a Visa?

• Most U.S. Consulates and Embassies require that the applicant schedule an appointment in advance of the interview.

• Before any visa issuance, the Consular Officer must perform a background name-check, fingerprint check, and security clearance.

• Minor violations, similar biographic data, and previous immigration issues can cause a delay in visa issuance.

• Security Clearances cannot be waived or expedited!

Visa Applications and Renewals at the U.S. Consulate Abroad

• When entering the US, individuals will receive an I-94 date-stamp in their passport noting the entry date, visa status, and expiration date.

• Individuals will no longer receive paper I-94 cards.

• Individuals should print out their I-94 for their records and to complete Form I-9 when starting work in the United States: www.cbp.gov/i94

• The I-94 controls the status and how long an individual can remain legally in the United States – not the visa stamp.

I-94 Arrival / Departure

• After applying for the extension of status, applicants will receive a new I-797 approval notice.

• A new I-94 card will be attached to the bottom of the approval.

• The original, new approval notice will be needed for the renewal of the visa at the U.S. Consulate.

• The new visa stamp is NOT required for work, only for international travel.

Extension of Status within the U.S.

• Many visas now require the Employer to certify compliance with the “deemed export” laws governing the release of controlled technology to foreign persons in H, L and O visa categories.

• Export Controls: If an Employer will release or otherwise provide access to controlled technology to a foreign worker, the Company may be required to first obtain an export control license from the U.S. government.

• “Controlled Technology” that is controlled for release to foreign persons are identified and regulated by the Export Administration Regulation’s Commerce Control List and the International Traffic in Arms Regulations.

Export Control Attestation Requirement for Visa Applications

• Backlogs & Delays with Immigration processing.

• RFE’s (Requests For Evidence) requested by the USCIS or the US Consulates

• Large amounts of documentation required.• An individual’s immigration or criminal

history.• Administrative Processing at the US

Consulate.

Immigration Issues: What can slow down the process?

• Many cases can be filed with “Premium Processing”$1,225 government filing feeUSCIS will review the petition

within 15 days.Does not guarantee approval!

• Blanket L for company

Immigration Issues: What can speed up the process?

• Example 1: Job Location Change: H-1B: May require an H-1B amendment to be filed Green Card: May require the entire process to be re-started

• Example 2: Termination of H-1B employee: Required to withdraw the H-1B and LCA Required to offer payment for return transportation

• Example 3: Employee’s position changes: H-1B: May require an amendment to be filed Green Card: May require the entire process to be re-started

• Example 4: LPR has upcoming assignment abroad: To maintain LPR status and be able to return to the US a “Re-Entry Permit” may be

required

What about Job Changes?

Questions?