immigration101percentage of employers who report that the ability to obtain visas in a timely,...

IMMIGRATION

101 INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

3 THE CASE FOR CHANGE: WHY WE NEED TO GET IMMIGRATION RIGHT

7 CFGI’S PRINCIPLES FOR IMMIGRATION REFORM

11 MAKING SENSE OF THE SYSTEM

12 The Agencies

14 Nonimmigrant Visas

15 Immigrant Visas

19 Worksite Enforcement

21 EMPLOYMENT-BASED IMMIGRATION RESOURCES

22 Fees for Key Employment-Based Visas and Green Cards

24 A Select History of Major Employment-Based Immigration Provisions in U.S. Law

29 Glossary of Key Terms

35 ABOUT US

36 ENDNOTES

| IMMIGRATION 101 | INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

THE CASE FOR CHANGE WHY WE NEED TO GET IMMIGRATION RIGHTA

OF EMPLOYERS REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES.74%

4 COUNCIL FOR GLOBAL IMMIGRATION

GETTING IMMIGRATION RIGHT IS MORE CRITICAL THAN EVER

The world of work is rapidly evolving—and

the United States is falling further behind in

the competition. U.S. corporations, universi-

ties, research institutions, small businesses

and startups must increasingly compete with

organizations around the world to hire and retain

top talent. In developed economies, demand

for high-skilled labor is growing faster than

supply, with up to 40 million fewer workers with

advanced education than employers will need

worldwide by 2020.1

Here in the United States, more than two-thirds

of employers have recently indicated difficulty

recruiting for full-time positions, an increase

of 18 percent since 20142 (see Figure 1). These

employers report difficulty filling specific jobs

(see Figure 2), and nearly 5.5 million positions

remain open.3

Many factors influence U.S. workforce competi-

tiveness, including the skills gap and our aging

workforce. There is no single path to maximizing

workforce competitiveness in the 21st-century

economy. Competitive employers must invest

in tomorrow through workforce policies that

enhance employer-sponsored benefit pro-

grams, increase workplace flexibility, provide

fair employment practices, promote effective

labor-management relations, close the skills gap

(including programs for veterans, individuals

with disabilities and the long-term unemployed)

and allow them to access the best global talent.

FIGURE 2

MOST DIFFICULT HIGH-SKILLED POSITIONS TO FILL

High-Skilled Medical (nurses, doctors,

specialists)81%

Engineering & Architecture 72%

Scientists & Mathematicians 70%

Executives66%

IT/Computer Specialists 65%

Source: SHRM, “The New Talent Landscape: Recruiting Difficulty and Skills Shortages,” 2016

FIGURE 1

PERCENTAGE OF EMPLOYERS WHO REPORT DIFFICULTY IN FILLING JOBS

Source: SHRM, “The New Talent Landscape: Recruiting Difficulty and Skills Shortages,” 2016

68%

COUNCIL FOR GLOBAL IMMIGRATION 5

Shaping our immigration system for the 21st century must fuel growth,

protect and invest in the U.S. workforce, and allow employers to respond

to future changes that are impossible to predict.

Employers uniformly recognize that immigration is a key component of the

broader talent equation. In 2016, 74 percent of employers reported that the

ability to obtain visas in a timely, predictable and flexible manner is critical

to their business objectives (see Figure 3).

However, employers that rely on the U.S. immigration system remain

frustrated because it takes too long and does not allow organizations

to meet their business objectives within an appropriate time frame (see

Figure 4). Despite round after round of debate in Washington, D.C., the

employment-based immigration system remains misaligned with today’s

business realities, and U.S. employers and their employees cannot afford

to wait.

The U.S. employment-based immigration system has not been updated to

keep pace with the modern economy for nearly three decades. The world of

work continues to evolve, while the U.S. immigration system harms employ-

ers and employees alike. To compete in the modern workplace, the United

States must get immigration right. By realigning our system around a

framework that is flexible enough to meet the workforce needs of the future,

we can once again make our immigration system the envy of the world.

An Immigration Guide for You

The U.S. immigration system is extremely complex. The Council for Global

Immigration (CFGI) and the Society for Human Resource Management

(SHRM) have put together this Immigration 101 guide to give you straight-

forward answers to questions about the employment-based immigration

system, including how it works today and how to navigate its intricacies, and

to share with you our principles to reform the system so it can work better.

FIGURE 4

PERCENTAGE OF U.S. EMPLOYERS WHO DO NOT BELIEVE IMMIGRATION PROCESSING TIMES ARE REASONABLE

Source: CFGI, “Employer Immigration Metrics: 2016 Survey Results,” 2017

FIGURE 3

PERCENTAGE OF EMPLOYERS WHO REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES


74%

63%

CFGI’S PRINCIPLES FOR IMMIGRATION REFORM

THE U.S. MUST GET IMMIGRATION RIGHT. WE CALL ON POLICYMAKERS TO CREATE A 21st CENTURY IMMIGRATION SYSTEM THAT IS FAIR, INNOVATIVE AND COMPETITIVE.


PRINCIPLES FOR IMMIGRATION REFORM

The CFGI board of directors adopted these Principles for Immigration

Reform on November 16, 2016. We call on the President and the 115th

Congress to work together to enact bipartisan solutions that will provide

U.S. employers and employees with a 21st-century immigration system,

giving them the ability to recruit, hire, transfer and retain the talent they

need, while ensuring they have the tools to hire a legal workforce. The

Principles for Immigration Reform that follow outline these needs.

The world of work is rapidly evolving, but U.S. immigration laws have

not kept pace. Our employment-based immigration system is misaligned

with today’s business realities—harming employers and employees alike.

American employers have lost opportunities to grow, reducing opportunity

to produce new jobs for U.S. workers and increasing opportunity for global

competitors to hire U.S.-educated talent.

To compete in the modern workplace, America must get immigration right.

This is especially true for the highest skilled professionals—those most

sought after to fill skills gaps and generate the next waves of innovation.

We must take action. CFGI stands ready to provide solutions that will shape

the 21st-century immigration system—one that fuels growth, protects and

invests in the American workforce and responds to future changes that

affect the world of work.

Fair • Innovative • Competitive


FAIR To adopt policies that protect and develop the U.S. workforce, policymakers should:

• Prioritize visas for employers who are growing the U.S. workforce and

investing in the education and training of U.S. employees.

• Partner with employers to enact fair recruitment policies that are clear,

transparent and effective—providing employer safe harbors for good

actors.

• Enforce existing immigration laws against bad actors, not employers

acting in good faith.

INNOVATIVE To provide solutions that increase system effectiveness and predictability, policymakers should:

• Enact a Trusted Employer program that creates efficiencies for low-risk,

immigration-compliant employers and saves resources for top govern-

ment priorities.

• Provide a reliable, national and entirely electronic employment verification

system with state-of-the-art tools to accurately authenticate identity to

hire a legal workforce, including a safe harbor for good-faith users.

• Control fees and use them to improve immigration services and strengthen

the U.S. talent pipeline.

COMPETITIVE To create and boost U.S. economic growth and innovation, policymakers should:

• Recognize that employers are best positioned to determine their skills and

workforce needs—now and in the future.

• Provide a market-based green card cap and critical exemptions for U.S.

STEM advanced degrees and dependents, while eliminating backlogs and

per country limits.

• Provide enough visas for employers to recruit, hire, transfer and retain the

best talent.

For America’s employers and employees to compete and win in the

global economy, we call on policymakers to create an employment-based

immigration system that is:

MAKING SENSE OF THE SYSTEM

THE U.S. IMMIGRATION SYSTEM IS COMPLEX, LIKE THE TAX CODE–LEADING MOST EMPLOYERS TO HIRE OUTSIDE COUNSEL FOR ASSISTANCE WITH NONIMMIGRANT AND IMMIGRANT VISA FILINGS.


COMPONENTS OF THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

Employment-based immigration is governed by an elaborate set of laws, reg-

ulations, agency policy memoranda, court decisions and other interpretive

guidance. U.S. immigration laws are often compared to the tax code because

they are myriad and complex, and clear-cut answers are not always avail-

able, despite the fact that employers and their staffs may be subject to severe

monetary and/or criminal penalties for failing to abide by the laws. These

complexities often lead employers to use outside counsel to assist in filing

nonimmigrant and immigrant petitions and applications (see Figure 5). In this

section, we explain the complex U.S. immigration system in the simplest

terms possible—by outlining how foreign nationals may come to the United

States with legal status.

Foreign nationals coming to the United States are placed in one of two

categories:

Nonimmigrant meaning that the person intends to remain in the United

States temporarily; or

Immigrant meaning that the person intends to remain in the United States

permanently.

For the most part, U.S. law presumes that all foreign nationals coming to the

United States intend to remain permanently, unless they demonstrate intent

to remain only temporarily and to return to their home country at the end of

their stay. A few nonimmigrant categories allow for “dual intent,” meaning

the foreign national may pursue permanent residency while residing in the

United States on a temporary visa.

The Agencies

The Department of Homeland Security (DHS), the Department of State (DOS),

the Department of Labor (DOL), the Department of Justice (DOJ) and the

Department of Commerce (DOC) are cabinet-level agencies centrally

involved in employment-based immigration (see Figure 6).

FIGURE 5

PERCENTAGE OF EMPLOYER IMMIGRATION PETITIONS AND APPLICATIONS FILED BY OUTSIDE COUNSEL, BY CATEGORY

First-Time H-1Bs 78%H-1B Extensions 84%

Concurrent H-1Bs 78%Blanket L-1s 86%

First-Time L-1As (USCIS) 89%L-1A Extensions (USCIS) 91%First-Time L-1Bs (USCIS) 80%

L-1B Extensions 73%F-1 Optional Practical Training (OPT) (excluding STEM extensions) 70%

F-1 STEM OPT extensions 63%J-1 Visas 85%

Treaty-Based Visas (TN, E-3, H-1B1) 89%Labor Certification Applications (PERM) 88%

I-140 Petitions For EB-2 and EB-3 84%Adjustment of Status 90%Consular Processing 92%



FIGURE 6

EMPLOYERS FACE A MAZE OF GOVERNMENT AGENCIES

Source: CFGI, 2017

Department of Homeland

Security (DHS)

U.S. Citizenship

and Immigration

Services (USCIS)

U.S. Immigration and Customs Enforcement

(ICE)

Citizenship and

Immigration Services

(CIS) Ombudsman

U.S. Customs

and Border Protection

(CBP)

Department of Labor

(DOL)

Employment and Training

Administration Office of

Foreign Labor Certification

(OFLC)

Department of State (DOS)

Bureau of Consular

Affairs Office of Visa

Services

Overseas Embassies

and Consulates

Department of Commerce

(DOC)

Bureau of Industry and

Security (BIS)

Department of Justice

(DOJ)

Immigrant and

Employee Rights

Section (IER)

Executive Office for

Immigration Review (EOIR)

Bureau of Educational and Cultural

Affairs (ECA)


Within the DHS, U.S. Citizenship and Immigration Services (USCIS) pro-

cesses most immigration paperwork, Customs and Border Protection (CBP)

welcomes foreign nationals at our ports of entry, and Immigration and

Customs Enforcement (ICE) is responsible for enforcing immigration laws

within the interior of the country, including worksite enforcement.

The DOS issues visas abroad at U.S. consulates and embassies. The DOS’s

Bureau of Educational and Cultural Affairs (ECA) works to build friendly,

peaceful relations between the people of the United States and other coun-

tries through academic, cultural, sports and professional exchanges. The

DOL ensures that foreign workers do not adversely impact opportunities

for U.S. workers. The DOJ’s Immigrant and Employee Rights Section (IER)

enforces the anti-discrimination portion of the Immigration and Nationality

Act; the DOJ’s Executive Office for Immigration Review conducts immigra-

tion court proceedings, appellate reviews and administrative hearings; and

the DOC’s Bureau of Industry and Security issues deemed export control

licenses to certain foreign nationals working with controlled technologies

(see the Glossary of Key Terms on page 29 for more details).

Nonimmigrant Visas

Nonimmigrants can be categorized as those individuals coming to the

United States for business for pleasure or for a family or humanitarian

reason. The nonimmigrant categories in which foreign nationals can be

temporarily admitted to the United States follow. Their alphabetical labels

correspond with their place in the Immigration and Nationality Act. Visas

that are employment-based or that have specific applications for employers

are noted with an asterisk (*).

A: Diplomats and Foreign Government Employees*

B-1: Temporary Visitors for Business* (Note: Nationals of select countries can enter the United States without a visa for temporary tourist or business visits under the Visa Waiver Program)

B-2: Temporary Visitors for Pleasure

C: Transit Aliens

D: Crew Members*

E: Treaty Traders and Investors*

F: Students in Academic Programs*

G: Employees of International Organizations*

H-1A: Professional Nurses*

H-1B: Foreign Nationals in Specialty Occupations*

H-1C: Registered Nurses in Health Shortage Areas*

H-2A: Nonimmigrant Agricultural Workers*

H-2B: Nonimmigrant Workers in Temporary Positions (seasonal workers)*

H-3: Trainees*

I: Foreign Media Representatives*

J: Exchange Visitors*

K: Fiancés and Fiancées of U.S. Citizens

L-1A: Intracompany Managers and Executives*

L-1B: Intracompany Specialized Knowledge*

M: Vocational Students

N: Parents and Children of Certain Special Immigrants

O: Aliens of Extraordinary Ability*

P: Entertainers, Athletes and Artists*

Q: Participants in Certain International Cultural Exchange Programs*

R: Religious Workers*

S: Foreign Nationals Assisting Law Enforcement

T: Victims of Human Trafficking

TN: Certain Canadian and Mexican Professionals*

U: Victims of Criminal Activity

V: Spouses and Children of Legal Permanent Residents


The Requirements

Each category has unique qualifications for entry, as well as limits on

length of stay and permissible activities while within the United States. A

few categories have annual quotas, and most require foreign nationals to

demonstrate sufficient ties to their home countries as evidence that they

will stay only temporarily. Sometimes a foreign national qualifies for more

than one visa category. The choice of category can impact many aspects of

the foreign national’s life, from salary requirements to permanent residency

opportunities to whether their dependents can work.

Further information about the employment-related visas can be found in

the Glossary of Key Terms at the end of this book (see page 29).

The Process

Most of the employment-related nonimmigrant visa categories require

employer sponsorship. As a general rule, to sponsor a nonimmigrant

employee, the employer must have offices in the United States and must

petition USCIS to obtain permission for the employment by showing that

the foreign national is qualified for the position and demonstrating the

employer’s bona fides. Sometimes, DOL approval is also required to demon-

strate that the foreign national will not displace U.S. workers. Once these

approvals are received, the foreign national must obtain a nonimmigrant

visa stamp from a U.S. consulate abroad. The visa stamp permits the foreign

national to travel to a U.S. port of entry, but it does not guarantee that the

foreign national will be admitted to the United States. The CBP agents at the

port of entry have concurrent authority with the consular officers abroad to

decide whether the foreign national qualifies as a nonimmigrant intending

to stay in the United States temporarily and whether there are any reasons

he or she cannot be legally permitted to enter the United States.

Immigrant Visas

Persons seeking to immigrate to the United States and obtain legal per-

manent residence (often called LPR status or a green card) can be generally

grouped into four categories:

FAMILY-SPONSORED: Persons who are relatives of U.S. citizens and/or

permanent residents.

EMPLOYMENT-SPONSORED: Persons with offers of employment in occu-

pations in which U.S. workers are in short supply; certain highly talented

foreign nationals who may enter the country regardless of the availability of

U.S. workers and, in some instances, regardless of job offers; entrepreneurs

investing in the United States; and certain special immigrants (see below).

DIVERSITY: Persons from countries that historically have low levels of

immigration to the United States, who are allotted visas through a lottery

process.

HUMANITARIAN STATUS: Persons who qualify for asylee or refugee status.

Those receiving employment-sponsored visas are further divided into

preference categories, with a total pool of 140,000 visas per year allocated to

workers and their dependent family members.

EB-1: First Employment-Based Preference (40,000 visas/year):

EB-1A: Extraordinary AbilityEB-1B: Outstanding Professors and ResearchersEB-1C: Multinational Executives and Managers

EB-2: Second Employment-Based Preference (40,000 visas/year):

EB-2A: Advanced Degrees EB-2B: Exceptional Ability ProfessionalEB-2C: National Interest Waiver

EB-3: Third Employment-Based Preference (40,000 visas/year; including ~5,000 visas/year for EB-3Cs):

EB-3A: Skilled WorkersEB-3B: ProfessionalsEB-3C: Other Workers

EB-4: Fourth Employment-Based Preference (10,000 visas/year):

Certain Special Immigrants and Religious Workers

EB-5: Fifth Employment-Based Preference (10,000 visas/year):

Employment Creation Immigrant Investors


The Quotas

While the spouses and minor children of U.S. citizens and some

special immigrants may enter the United States without regard to any

numerical limitations, the admission of most family-sponsored or

employment-sponsored foreign nationals is restricted numerically,

both as to the maximum number of persons in each preference category

and as to the maximum number of persons permitted from each foreign

country, known as the per-country caps.

Each preference category has its own set of skill requirements, quotas

and per-country caps. Some categories allow a foreign national to obtain

permanent residence in a relatively short period of time, while others can

take decades due to processing delays, insufficient quotas in the category

or insufficient quotas for persons from particular countries.

The Process

Employers seeking to hire foreign nationals on a permanent basis are

required in most cases to obtain labor certification from the DOL showing

that there are no able, willing, qualified and available U.S. workers for the

position. The current electronic filing system for labor certification is known

as PERM. EB-1 and some EB-2 workers are exempt from this requirement.

Once the individual labor certification is obtained, or it is determined that

there is no such requirement for the foreign national, the employer files a

petition with USCIS, which determines whether the foreign national quali-

fies for classification in one of the employment-based preference categories.

An intending immigrant is then assigned a priority date based upon when

the initial paperwork was filed, either with the DOL or USCIS, to determine

the order in which his or her petition will be considered for a green card.

Since demand for green cards has consistently exceeded the annual supply,

many of the categories are severely backlogged, meaning that only those

with priority dates from many years ago are able to obtain an immigrant

visa number today. Each month the DOS publishes a Visa Bulletin with two

charts related to employment-based preference cases: 1) final action dates

and 2) dates for filing visa applications. A foreign national may follow one

of two paths for the final step in applying for permanent residence.

If the foreign national already holds valid nonimmigrant status in the

United States, this process is known as adjustment of status. Each month,

USCIS makes a determination as to whether it will honor only final action

dates or whether it will also honor dates for filing visa applications from

the Visa Bulletin for purposes of filing for adjustment of status. A foreign

national may file for adjustment of status when his or her priority date is on

or prior to the date indicated in the chart chosen by USCIS for that month.

While the foreign national becomes eligible for ancillary benefits, like work

authorization, upon application for adjustment of status, he or she will not

receive permanent residence until an immigrant visa number becomes

immediately available based upon the final action date.

If the foreign national applies abroad, it is known as consular processing. In

this case, the foreign national may file a visa application based upon the

dates for filing visa applications in the Visa Bulletin, but he or she will not

receive permanent residence until an immigrant visa number becomes

immediately available based upon the final action date.

For either path, the government will determine whether the foreign

national or any accompanying family member is subject to one of the

grounds of inadmissibility specified in the immigration law. These grounds

include a review of criminal, health, financial and other records that could

block a foreign national’s entry into the country.

Legal permanent residents (LPRs) have most of the rights and responsibili-

ties of U.S. citizenship, with one significant exception: They are not per-

mitted to vote in federal elections. In addition, if an LPR leaves the United

States for an extended period of time, he or she may have to take additional

steps to “maintain status,” or the U.S. government may presume that the

LPR has abandoned his or her status as a legal permanent resident. U.S.

permanent residents are eligible to apply for U.S. citizenship after passage

of a period of time mandated by the immigration laws, generally five years.


FIGURE 7

TYPICAL PATH FOR HIGHLY EDUCATED U.S. UNIVERSITY GRADUATE TO GREEN CARD

* To learn more about the fees listed in this figure see pages 22-23

** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced.

STEP 1 • Agencies: DOS, DHS (ICE/Student Exchange Visitor Program)

• Cost: about $445

• Time: 2-5+ years depending on degree earned

STEP 2 • Agencies: DOL, DHS (USCIS)

• Cost: Up to $11,675 per filing*

• Time: Up to 6 years in H-1B status (longer where there are waits for green card availability)

STEP 4 • Agencies: DHS (USCIS), DOS

• Cost: Up to $14,045*

• Time: Months to process petition, but green card availability can take up to 10 years. Application for green card undergoes security background check that can take months

STEP 3 • Agencies: DOL

• Cost: about $1,000–$5,000 advertising and recruiting costs + attorney fees*

• Time: At least six months (while employee is in H-1B status)

STUDENT APPLIES FOR

A VISA TO EARN A U.S. UNIVERSITY

DEGREE

1EMPLOYER HIRES U.S. UNIVERSITY GRADUATE ON

H-1B VISA WHEN NEED EXISTS **

EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS

AVAILABLE

FILE PETITION, WAIT FOR GREEN

CARD AVAILABILITY THEN APPLY FOR

GREEN CARD

• Agencies: DHS, DOL, DOS • Cost: Up to $37,395+• Time: Up to 22+ years

START

2

3 4

if approved receive

green card

FINISH


FIGURE 8

TYPICAL PATH FOR HIGHLY EDUCATED OVERSEAS GRADUATE TO GREEN CARD

* To learn more about the fees listed in this figure see pages 22-23.

** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced

STEP 2 • Agencies: DOL, DHS (USCIS)

• Cost: about $1,000–$5,000 advertising and recruiting costs + attorney fees*

• Time: At least six months (while employee is in H-1B status)

STEP 3 • Agencies: DHS (USCIS), DOS

• Cost: Up to $14,045*

• Time: Months to process a petition, but waits for green card availability can be up to 10 years, Application for green card undergoes security background check that can take months

START

EMPLOYER HIRES GRADUATE ON

H-1B VISA FROM OVERSEAS WHEN

NEED EXISTS**

1EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS

AVAILABLE

2

FILE PETITION, WAIT FOR GREEN CARD

AVAILABILITY THEN APPLY FOR GREEN CARD

3

• Agencies: DOS, DHS (USCIS)

• Cost: Up to $11,675 per filing*

• Time: Up to nine months to file and receive H-1B visa, up to 6 years in H-1B status (longer if waits for green card availability)

STEP 1

FINISH

if approved receive

green card

• Agencies: DHS, DOL, DOS • Cost: Up to $37,395+• Time: Up to 17 years


Worksite Enforcement

Prior to 1986, employers were not subject to federal civil and criminal penalties for the unauthorized

employment of foreign nationals, although such penalties existed within the laws of some states.

With the passage of the Immigration Reform and Control Act of 1986 (P.L. 99-603), employers were

prohibited from knowingly hiring or continuing to employ any individual who was unauthorized to

work in the United States, and were also required to verify the employment eligibility of all new hires,

including U.S. citizens. This verification is recorded on Form I-9. In 1996, Congress authorized the gov-

ernment to pilot three electronic employment verification systems. The only one that remains today is

known as E-Verify. E-Verify is voluntary except where it is mandated by federal, state or local law. This

is a rapidly evolving area of the law and will continue to be until Congress mandates use of one federal

employment verification system.

Generally, within three days of a new hire beginning employment, any employer in the United States

must complete a Form I-9 by examining one or more documents approved by the DHS that establish

the employee’s identity and authorization to work in the United States. After inspecting the employ-

ee’s documents and determining that they appear to be genuine, the employer and employee make

certain attestations on Form I-9. These records must be maintained for at least three years after the

date of hire, or for one year after the employment relationship is terminated—whichever is later.

If the employer is enrolled in E-Verify, the employer enters information from the completed Form I-9

into the system, which then compares that information to the government’s records in order to pro-

vide the employer with a determination of whether the employee is work-authorized. If a discrepancy

arises, the employer and employee must take certain steps to resolve the issue.

Certain employees may have only temporary authorization to work in the United States. In those

situations, the employer must reverify the employee’s eligibility status on the Form I-9 before the

date that the temporary authorization expires. If the employer discovers that an employee lacks work

authorization, or that the employee’s authorization to work has expired (and cannot immediately be

reverified), the employer must terminate the employment relationship.

The obligation to verify work authorization must be carefully balanced with the concurrent legal duty not

to discriminate against persons based upon their national origin, citizenship or immigration status—an

important part of our law enforced by the DOJ’s Immigrant and Employee Rights Section (IER). Significant

civil fines and criminal penalties can be assessed against employers that fail to properly verify work

authorization or that engage in discriminatory behavior. The greatest challenge confronting employers is

that this system can be defeated by individuals using stolen identities. Efforts to make the system more

secure have been insufficient to date.

68%

EMPLOYMENT-BASED IMMIGRATION RESOURCES

IMMIGRATION IS AN INVESTMENT IN TOMORROW’S WORKPLACE. ON AVERAGE, MORE THAN $35,395 IS SPENT ON FILING FEES ALONE OVER THE LIFETIME OF A FOREIGN NATIONAL PROFESSIONAL’S CAREER.


FEES FOR KEY EMPLOYMENT-BASED VISAS AND GREEN CARDS4

For employers, immigration is an investment in tomorrow’s workplace. In addition to salaries and

benefits for employees working in the immigration function, employers must plan for government

fees and anticipate the use of outside counsel. Some examples of the most common immigration

government fees for multinational employers follow.

VISA APPLICATION FEES ATTORNEY FEES5 OTHER FEES AND COSTS TOTAL

H-1B VISA & EXTENSION

$460 employer pays

$1,000 – $3,000 employer pays fees related to filing the labor condition application and the H-1B petition and typically pays other attorney fees

$1,500 education and training fee (for employers with over 25 employees) or $750 (for employers with 25 or fewer employees) employers pay, unless exempt6

Initial H-1B: $3,460–$11,675

Extension: $2,960–$11,675

$500 anti-fraud fee (employer pays, but not required if extension with same employer)

$1,225 (optional) premium processing (employer or employ-ee may pay, employer typically pays and employee may pay for personal travel)

$4,000 (50/50 fee) for employers with over 50% H-1B/L-1 in their U.S. workforce (employer pays)7

$190 visa application processing; $0 – $800 visa issuance/ reciprocity

L-1 VISA & EXTENSION

$460 employer pays$1,000 – $3,000 employer pays fees related to filing the L-1 petition and typically pays other attorney fees

$500 anti-fraud fee (employer pays, but not required if extension with same employer)

Initial L-1: $1,960–$10,675

Extension: $1,460–$10,675

$1,225 (optional) premium processing (employer or employ-ee may pay, employer typically pays and employee may pay for personal travel)

$4,500 (50/50 fee) for employers with over 50 employees and over 50% H-1B/L-1 in their U.S. workforce (employee pays)8

Additional fees consular-processed: $190 visa application processing; $0 – $800 visa issuance/reciprocity


VISA APPLICATION FEES ATTORNEY FEES OTHER FEES AND COSTS TOTAL

H-4 OR L-2 DEPENDENT

$370 employer often pays, but not required

$450 – $750 employer often pays, but not required

Additional fees if consular-processed: $190 visa application processing; $0 – $400 visa issuance/reciprocity

$820–$1,710

LEGAL PERMANENT RESIDENCE

(GREEN CARD)

$1,925 employment-based green card fee ($700 Form I-140; $1,140 Form I-485; $85 biometric fee)9 employer is not required to pay but the I-140 is filed by and typi-cally paid for by the employer

Additional fees if consular- processed: $430 ($345 immigrant visa application fee per person; $85 biometrics fee)–fees same for each family member

$5,000 or more (includes legal fees for labor certification work, adjustment, consular processing); $500 per family member; $500 per employment autho-rization document extension; $500 per advance parole extension (employer to pay attorney fees for green card if the same attorney represents both employer and employee)

$1,000 – $5,00010 estimated cost for advertising/recruiting will vary depending on location, dates and length of advertis-ing, including if supervised recruitment should apply (employer must pay for labor certification costs, cannot ask employee to reimburse)

$1,225 (optional) premium processing for Form I-140 (available for certain EB-1, EB-2 and EB-3 applicants)

$150-$300+ estimated cost for medical exam and any necessary vaccinations (employee may pay)

$165 covers costs of processing immigrant visa packages after visa holders receive their packages from the Department of State and are admitted into the United States.11

$8,075–$14,045

(does not include family members, legal fees for EAD or advance parole extension costs that may be due to process-ing delays)

GRAND TOTAL FOR H-1B TO GREEN CARD: $14,495 – $37,395 +

GRAND TOTAL FOR L-1 TO GREEN CARD: $11,495 – $35,395+


A SELECT HISTORY OF MAJOR EMPLOYMENT-BASED IMMIGRATION PROVISIONS IN U.S. LAW

Over the past three decades, several key immigration acts have changed

U.S. law, at times significantly reforming the employment-based immigra-

tion system and impacting the way employers manage their workforces.

The following is a detailed summary of the major laws that Congress has

enacted since 1986 that are of particular interest to U.S. employers.

The Immigration Reform Act of 1986 (IRCA) (P.L. 99-603)

• Required employers to attest to all employees’ identities and employment

eligibility verification by completing a Form I-9.

• Created tough new penalties for employers who know or have reason to

know that they are employing or recruiting unauthorized workers.

• Prohibited employers from discrimination in employment because of an

applicant’s national origin or citizenship status.

• Created the SAVE (Systematic Alien Verification for Entitlements) program

to allow the government to obtain information on immigrant status to

determine eligibility for public benefits.

• Created a pilot diversity visa program to enable persons from countries

with historically low immigration rates to apply for one of 5,000 (now

55,000) permanent resident visas.

• Created the Visa Waiver Pilot Program, which currently allows citizens

from (now 38) countries to travel to the United States for up to 90 days

without a visa.

The Immigration Act of 1990 (IMMACT90) (P.L. 101-649)

• Modified the employment-based (EB) preference

system by establishing five categories of EB

immigration.

• Placed a worldwide cap on EB immigration of

140,000 visas per year.

• Divided high-skilled temporary workers into

distinct temporary work visa categories.

• Placed a numerical cap on the H-1B program of

65,000 visas per year.

• Replaced the previous standard of distinguished

merit and ability with specialty occupation in the

H-1B visa category.

• Codified the doctrine of dual intent for H-1 and

L-1 visa applications.

• Required that prospective employers of H-1Bs

file a labor condition application with the

Department of Labor (DOL) attesting that

they pay the higher of the actual wage or the

prevailing wage.

• Limited the maximum length of stay for H-1

nonimmigrants to six years.

• Created the blanket L-1 program, permitting

qualifying employers to expedite global

transfers by filing a single petition for a group

of nonimmigrants, rather than individual

petitions.

• Raised existing fines for any use or acceptance

of fraudulent documents.

• Established the O and P visa categories for ath-

letes and entertainers, Q visas for international

cultural exchange.


• Modified criminal inadmissibility waiver

requirements and increased the number of

crime-related grounds of inadmissibility.

• Expanded the diversity visa pilot program into a

permanent visa category that allots 55,000 visas

annually to qualified applicants selected in an

annual lottery. Required individuals receiving

diversity visas to possess at least a high school

education or its equivalent, or have at least two

years of work experience.

• Expanded provisions under Immigration-related

Unfair Employment Practices to include pro-

tection against employer retaliation, requests

for unnecessary documentation and defenses

based on failure to file declarations of intending

citizenship.

• Imposed new certifications on foreign

physicians.

• Established the temporary protected status

(TPS) program, allowing the government to

designate nationals of countries experiencing

political, civil or environmental strife to remain

in the United States for up to 18 months.

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232)

• Eliminated the numerical limits on P visas.

• Clarified requirements for extraordinary ability,

international recognition and one-year affilia-

tion for O visas.

• Clarified requirements for labor condition

applications.

• Allowed certain doctors and fashion models to

qualify for H-1B visas.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (P.L. 104-208)

• Required entry and exit control systems to track

nonimmigrant visa overstays and established

a requirement for biometric machine-readable

identifiers for border crossing cards.

• Created new grounds of inadmissibility,

including three- and 10-year bars to re-entry

for persons unlawfully present in the United

States. Nonimmigrant visas are automatically

invalidated upon an overstay, and such nonim-

migrant must return to his or her home country

to obtain a new visa.

• Permanently barred those who falsely claim

to be U.S. citizens from becoming permanent

residents.

• Redefined aggravated felony to include any crime

or theft or violence for which a one-year sen-

tence may be imposed.

• Created the voluntary basic pilot program now

called E-Verify.

• Prohibited fines against employers for technical

Form I-9 paperwork errors made in good faith.

• Required proof of discriminatory intent for an

employee to prevail in an immigration-related

unfair employment practices claim.

• Made the Visa Waiver Program permanent.

• Prohibited F-1 students from attending public

schools other than secondary schools, and then

only for 12 months if they reimburse the school

for attendance costs.

• This act was originally intended to be retro-

active, but legal challenges have limited its

retroactive reach.

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (P.L. 105-277)

• Required H-1B dependent employers (em-

ployers with 15 percent or more of their U.S.

workforce on H-1Bs) to attest there have been

no layoffs of U.S. workers 90 days before or after

the filing of an H-1B petition.

• Required that H-1B dependent employers take

good faith steps to recruit U.S. workers that are

equally or better qualified for a job for which a

foreign national worker is sought.

• Increased the H-1B cap to 115,000 for FY 1999

and FY 2000.

• Imposed the initial H-1B education and training

fee of $500.

American Competitiveness in the 21st Century Act of 2000 (P.L. 106-313)

• Increased the H-1B cap to 195,000 for FY 2001-

2003, retroactively raising the cap for FY 2001,

to accommodate the existing backlog in these

years.

• Increased the H-1B fee from $500 to $1,000 and

exempted specific nonprofits, institutions of

higher education and governmental research

organizations from the H-1B education and

training fee as well as the cap.

• Required visas obtained by fraud or misrepre-

sentation to be recaptured and restored to the

H-1B cap.

• Required that H-1B employees may only be

counted against the H-1B cap for initial peti-

tions. H-1Bs employed at institutions of higher


education or related nonprofits, or nonprofit or

governmental research organizations are not

counted against the cap.

• Allowed for H-1B visa portability by permitting

employees to accept new employment upon

the filing of a non-frivolous petition by a

prospective employer.

• Allowed unused employment-based visas to

be used for employees from oversubscribed

(high-demand) countries.

• Allowed certain EB-1, EB-2 or EB-3 beneficia-

ries who are not able to obtain a visa due to

per-country limitations to obtain H-1B exten-

sions beyond six years and to change employers.

• Allowed EB-1, EB-2 or EB-3 beneficiaries whose

adjustment of status application has been

pending 180 days or more to change employers

without affecting their applications if the new

job is in the “same or similar” occupational

classification as the job for which the petition

was filed.

• Allowed B-1 business visitors to accept hono-

rarium payments and incidental expenses for

certain academic activities.

USA Patriot Act of 2001 (P.L. 107-56)

• Required the National Institute of Standards

and Technology to develop a technology

standard to verify the identity of persons

applying to enter and exit the United States.

This program is now a part of the Office of

Biometric Identity Management (formerly

US-VISIT). Ultimately, the United States aims to

create a cross-agency, cross-platform electronic

system to conduct background checks, confirm

identities, collect biometric information and

ensure that people do not receive visas under

varying names.

• Permitted the U.S. Citizenship and Immigration

Services (USCIS) and the Department of State

(DOS) to receive information from the Federal

Bureau of Investigation’s National Crime Infor-

mation Center database and allowed the DOS

to share information with foreign governments

through a visa lookout database.

• Established grounds of inadmissibility for

soliciting funds for terrorist groups or activities,

or commission of any act that one knows or

should have known affords material support

to terrorist groups or individuals.

• Required government to implement entry/exit

data system for all land, sea and airports.

• Allowed DOS to share information in the visa

lookout database with foreign governments.

Work Authorization for Spouses of Treaty Traders and Treaty Investors (P.L. 107-124)

• Permitted the spouses of E (treaty trader and

investor) visa employees the opportunity to

seek work authorization.

Work Authorization for Nonimmgrant Spouses of Intracompany Transferees (P.L. 107-125)

• Permitted the spouses of L-1 (intracompany

transferees) visa employees the opportunity

to seek work authorization and reduced the

period of time during which certain intra-

company transferees have to be continuously

employed before applying for admission to the

United States.

Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)

• Required Visa Waiver Program countries to issue

machine-readable, tamper-resistant passports

with biometric identifiers.

• Implemented a tracking system for F, M and J

visas (SEVIS) and required designated school

officials to notify the Department of Homeland

Security (DHS) of any foreign national student

who does not report to school and enroll within

30 days of the school’s registration deadline.

• Required the implementation of an inte-

grated entry and exit database containing

arrival and departure information gleaned

from machine-readable visas, passports and

other travel and entry documents. Originally

mandated by section 110 of IIRAIRA as a pilot

program, this program is now run by the Office

of Biometric Identity Management (formerly

US-VISIT).

• Required the government to make all security

databases involved in determining the admissi-

bility of foreign nationals interoperable.

• Restricted issuance of nonimmigrant visas to

nationals of countries determined to be state

sponsors of terrorism.

• Required USCIS to determine that foreign

nationals do not appear in federal lookout

databases.


Homeland Security Act of 2002 (P.L. 107-296)

• Abolished the Immigration and Naturalization

Service.

• Brought immigration within the purview of the

newly created DHS, dividing responsibility for

immigration management between Immigra-

tion and Customs Enforcement (ICE), Customs

and Border Protection (CBP) and USCIS.

• Established an Ombudsman to assist USCIS

stakeholders in resolving problems with the

agency and proposing changes to the system.

• The DHS secretary was given ultimate authority

to enforce the Immigration and Nationality Act

(INA) and issue pertinent regulations, although

this does not affect the DOS’s authority under

the INA, including the authority to deny a visa.

• Denied private rights of action regarding visa

denials or visa issuance.

L-1 Visa and H-1B Visa Reform Act of 2004 (P.L. 108-447)

• Created an H-1B cap exemption for up to

20,000 U.S. university master’s degrees and

Ph.D. graduates.

• Raised the H-1B education and training fee to

its current level of $1,500 for petitioners that

employ more than 25 employees and $750 for

petitioners that employ 25 employees or fewer.

• Improved methodology for prevailing wage

determinations.

• Expanded the Secretary of Labor’s authority

to investigate labor condition application

violations.

• Modified attestation requirements for H-1B

dependent employers.

• Established a good-faith exception for technical

failures to comply with labor condition applica-

tion rules.

• Initiated a $500 fraud prevention and detection

fee for initial H-1B and L-1 petitions.

• Required that blanket L-1s be employed abroad

by the petitioner for 12 months, up from six

months.

• Required that employees seeking to enter the

Unites States on any L-1B visa (initial petition

or extension) who will be stationed primarily

at the worksite of an employer other than the

petitioner, affiliate, subsidiary or parent, be

ineligible for L-1B status if: (1) the worker will

be controlled and supervised principally by that

employer; or (2) the placement of the worker

at the unaffiliated worksite is essentially an

arrangement to provide labor for hire for the

unaffiliated employer.

Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)

• Required most nonimmigrant visa applicants

to submit to an in-person interview before a

consular officer overseas.

• Required that nonimmigrant visa holders and

U.S. citizens enter the United States with pass-

ports or other DHS-approved documents.

The Real ID Act of 2005 (P.L. 109-13)

• Set standards for state-issued driver’s licenses

and identification documents, including proof

of lawful status.

• Recaptured employment-based visas that went

unused in previous fiscal years due to agency

processing delays (approximately 50,000 visas),

for use by nurses and physical therapists.

• Created the E-3 visa, allowing up to 10,500 visas

per year for Australian nationals to enter the

United States to perform specialty occupation

services.

The Emergency Border Security Supplemental Appropriations Act of 2010 (P.L. 111-230)

• Funded $600 million in border security efforts

from August 13, 2010, until September 30, 2014,

by imposing a new H-1B fee of $2,000 and L-1

fee of $2,250 on employers whose U.S. workforces

have 50 or more workers and more than 50 per-

cent H-1B and L-1 nonimmigrant workers.

The James Zadroga 9/11 Health and Compensation Act of 2010 (P.L. 111-347)

• Extended the H-1B and L-1 visas fees set

out in P.L. 111-230 by one year until

September 30, 2015.

Easing Service Members’ Ability to Remove Conditional Residency Act of 2011 (P.L. 112-58)

• Amended the Immigration and Nationality Act

to toll, during active-duty service abroad in the

Armed Forces, the periods of time to file a peti-

tion and appear for an interview to review the

conditional basis for permanent resident status.


E-2 Immigration Extenders Act of 2012 (P.L. 112-176)

• Permitted eligible Israeli nationals to receive

an E-2 nonimmigrant visa, if similarly situated

United States nationals are eligible for similar

nonimmigrant status in Israel.

The Immigration Extenders Act of 2012 (P.L. 112-176)

• Extended the authorization of the EB-5 Re-

gional Center program, the Special Immigrant

Non-Minister Religious Worker program, the

E-Verify program and the Conrad State 30 J-1

Visa Waiver Program until September 30, 2015.

The Consolidated Appropriations Act of 2016 (P.L. 114-113)





Visa Waiver Program until September 30, 2016.

Implemented the H-2B returning worker ex-

emption until September 30, 2016.

• Increased and extended P.L. 111-230 H-1B and

L-1 fees to $4,000 an H-1B and $4500 an L-1 on

employers whose U.S. workforces have 50 or

more workers and more than 50 percent H-1B

and L-1 nonimmigrant workers. The fees apply

to initial and change of status filings. The in-

creased fee amounts are extended for ten years

until September 30, 2025. The fees go to fund

9/11 first responders and biometric entry and

exit efforts.

• Added Visa Waiver Program (VWP) Security

Measures. Enacted the Visa Waiver Program

Improvement and Terrorist Travel Prevention

Act of 2015 (H.R. 158). Effective on enactment,

employers’ executives, contractors and other

key professionals must apply for a visa and may

not use the VWP if they are a national of Iraq or

Syria or if they have traveled to Iraq, Iran, Sudan

or Syria as of March 1, 2011. An exemption ex-

ists for VWP travelers who were present in any

of these countries to perform military service in

the armed forces of a VWP country or to carry

out official duties as a full-time employee of the

government of a VWP country. The Department

of Homeland Security may also waive the provi-

sion if it determines that such a waiver is in the

law enforcement or national security interests

of the United States.

The Continuing Appropriations Act of 2017 (P.L. 114-223)





Visa Waiver Program until December 9, 2016.

Did not extend the H-2B returning worker ex-

emption in P.L. 114-113.

The Further Continuing and Security Assistance Appropriations Act of 2017 (P.L. 114-254)





Visa Waiver Program until April 28, 2017. Did

not extend the H-2B returning worker exemp-

tion which expired on September 30, 2016.

GLOSSARY OF KEY TERMS

Departments and Agencies

CITIZENSHIP AND IMMIGRATION SERVICES (CIS) OMBUDSMAN: The CIS

Ombudsman role was created by Congress in the Homeland Security Act of

2002. The CIS Ombudsman is appointed to help employers and individuals

navigate the immigration benefits system.

DEPARTMENT OF COMMERCE (DOC), BUREAU OF INDUSTRY AND SECURITY: Within the DOC, this bureau issues export control licenses in cases where a

foreign national will work with sensitive technologies.

DEPARTMENT OF HOMELAND SECURITY (DHS): The DHS has multiple roles

in the U.S. immigration system including, but not limited to, welcoming

foreign nationals to our shores, securing our borders, conducting immigra-

tion enforcement at worksites and tracking immigration statistics.

DHS, STUDENT AND EXCHANGE VISITOR PROGRAM (SEVP) WITHIN U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: SEVP acts as a bridge for

government organizations that have an interest in information on nonim-

migrants whose primary reason for coming to the United States is to be a

student or an exchange visitor, including overseeing the rules for Optional

Practical Training (OPT).

DHS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS): USCIS oversees

lawful immigration to the United States, adjudicating most applications for

immigrant and nonimmigrant visas.

DHS, U.S. CUSTOMS AND BORDER PROTECTION (CBP): CBP is responsible

for admitting travelers through the United States’ air, land and sea ports

of entry.

DHS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE): ICE is

responsible for enforcing immigration laws at worksites.

DEPARTMENT OF JUSTICE (DOJ), EXECUTIVE OFFICE OF IMMIGRATION REVIEW (EOIR): Works to adjudicate immigration cases by fairly, expe-

ditiously and uniformly interpreting and administering the nation’s

immigration laws. Under delegated authority from the attorney general,

EOIR conducts immigration court proceedings,

appellate reviews and administrative hearings.

DOJ, IMMIGRANT AND EMPLOYEE RIGHTS SECTION (IER): Part of the Department of Justice’s Civil

Rights Division, enforces the anti-discrimination

portion of the Immigration and Nationality Act

(INA).

DEPARTMENT OF LABOR (DOL): The DOL is

responsible for protecting the rights and working

conditions of both U.S. and foreign workers. The

DOL’s Bureau of Labor Statistics analyzes, collects,

processes and disseminates labor economics

statistical data to Congress, other federal

agencies and the public.

DOL, OFFICE OF FOREIGN LABOR CERTIFICATION WITHIN THE EMPLOYMENT AND TRAINING ADMINISTRATION: One of the agencies involved in

granting permission for foreign workers to work

in the United States, and assuring that the admis-

sion of foreign workers in certain categories on a

permanent or temporary basis will not adversely

affect the job opportunities, wages and working

conditions of U.S. workers.

DEPARTMENT OF STATE (DOS), BUREAU OF CONSULAR AFFAIRS, OFFICE OF VISA SERVICES: Serves as a liaison with the Department of

Homeland Security and between the DOS and

U.S. embassies and consulates abroad on visa

matters; interprets visa laws and regulations and

acts as a point of contact for the public.

DOS, BUREAU OF CONSULAR AFFAIRS, U.S. EMBASSIES AND CONSULATES ABROAD: Issue

visas to eligible foreign nationals coming to the

United States.


DOS, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS (ECA): Works to

build friendly, peaceful relations between the people of the United States

and the people of other countries through academic, cultural, sports and

professional exchanges, as well as public-private partnerships.

Nonimmigrant VisasTemporary Employment for Professionals

DUAL INTENT: Dual intent represents the ability of a nonimmigrant visa

holder to reside temporarily in the United States with the intent to immi-

grate permanently. The ability to hold dual intent varies with each visa

category.

E-3 (SPECIALTY OCCUPATION PROFESSIONALS FROM AUSTRALIA): E-3 visas

are similar to H-1B visas but are available only to nationals of Australia

pursuant to a free trade agreement between Australia and the United States.

There are 10,500 visas available annually to those who qualify. The applica-

tion procedures differ somewhat from H-1B visas.

H-1B (FOREIGN NATIONALS IN SPECIALTY OR PROFESSIONAL OCCUPATIONS): H-1B visas are used by U.S. employers to hire foreign nationals who possess

at least a bachelor’s degree, or equivalent work experience, who will hold a

professional occupation in the United States. The employer must file a labor

condition application attesting that the working conditions will be equal to

those offered to U.S. workers. Visas may be issued for an initial period of up

to three years, which can be extended for an additional three years and, at

times, for a seventh year and beyond. Dual intent is allowed. H-4 visas are

issued to family members. There is an annual limit of 65,000 regular H-1B

visas and an additional 20,000 visas for advanced degree graduates of U.S.

universities.

H-1B1 (PROFESSIONALS FROM CHILE AND SINGAPORE): H-1B1 visas are

equivalent to H-1B visas but are available only to nationals of Chile and

Singapore pursuant to free trade agreements between those countries and

the United States. The application procedures differ somewhat from H-1B

visas. There are 6,800 H-1B visas reserved from the 65,000 H-1B cap for this

category each year.

LABOR CONDITION APPLICATION (LCA): Employers of H-1B professionals are

required to file an attestation with the Department of Labor that the foreign

national will receive the same wages, benefits

and working conditions as U.S. workers. Employ-

ers must also attest that they have provided

notice of the hiring of an H-1B worker to labor

officials and other employees.

O (FOREIGN NATIONALS OF EXTRAORDINARY ABILITY IN THE SCIENCES, THE ARTS, EDUCATION, BUSINESS OR ATHLETICS): O-1 visas are used by

U.S. employers for foreign nationals who possess

“extraordinary ability” in the sciences, the arts,

education, business or athletics. O-2 visas are

issued to accompanying support personnel and

O-3 visas to accompanying family members. Visas

may be issued for an initial period of up to three

years, which can be extended.

P-1 (OTHER ENTERTAINERS AND ATHLETES): P-1

visas are used by U.S. employers for internation-

ally recognized entertainers and athletes who do

not qualify for O visas. The visa may be used for

entertainment groups or sports teams and may

be available for essential support personnel.

P-2 (OTHER ENTERTAINERS AND ARTISTS): P-2

visas are for artists and entertainers (as well as

groups and essential support personnel) coming

to the United States through reciprocal exchange

programs.

TN (BUSINESS PERSONS FROM CANADA AND MEXICO): The North American Free Trade Agree-

ment (NAFTA) provides certain privileges to U.S.,

Canadian and Mexican business professionals

traveling between the three countries. NAFTA

enables Canadians and Mexicans to enter the

United States on B, E and L visas in an expedited

manner, and creates a special TN visa for certain


Canadian and Mexican professionals who may

work for a U.S. employer, be self-employed or

enter pursuant to a contract with a U.S. company.

Family members are issued TD visas. TN visas

may be issued for an initial period of up to three

years but can be extended almost indefinitely.

Intracompany Transfers and Investors

E-1 AND E-2 (TREATY TRADERS AND INVESTORS): E visas are available to companies and individ-

uals pursuant to treaties between the United

States and over 80 other countries.12 The E-1 visa

supports trade activities, and the E-2 visa pro-

motes investment. The United States maintains

both types of treaties for some countries and just

one type with others. Both the foreign national

and the company must be nationals of the treaty

country. Family members receive the same type

of visa as the principal beneficiary. E visas may

be issued for an initial period of up to two years

but can be extended almost indefinitely.

L-1A (INTRACOMPANY EXECUTIVES AND MANAGERS): The L-1A visa allows a U.S. organiza-

tion to transfer an executive or a manager from

a parent company, subsidiary or other affiliate

abroad to the United States. The employee must

have worked for the organization abroad for

at least one of the previous three years. Family

members receive L-2 visas. L-1A visas may be

issued for an initial period of up to three years

and can be extended for a total stay of seven

years. Dual intent is allowed.

L-1B (INTRACOMPANY SPECIALIZED KNOWLEDGE PROFESSIONAL): The L-1B visa allows a U.S.

organization to transfer workers with special

knowledge of the employer’s business, products

or services from an overseas parent company,

subsidiary or other affiliate to the United States.

The employee must have worked for the orga-

nization abroad for at least one of the previous

three years. Family members receive L-2 visas.

L-1B visas may be issued for an initial period of

up to three years and can be extended for a total

stay of five years. Dual intent is allowed.

Trainees, Interns and Students

H-3 (TRAINEE): U.S. employers can use the H-3

visa to bring foreign nationals to the United

States to participate in an established training

program. The trainee cannot engage in produc-

tive employment in the United States. Family

members are given H-4 visas. H-3 visas may be

issued for a maximum period of two years.

J (EXCHANGE VISITORS): The J category is very

broad and encompasses a variety of exchange

visitor programs and activities that are approved

by the Department of State (DOS) to promote

intercultural exchange and public diplomacy.

Unlike other visas that are administered by

United States Citizenship and Immigration

Services, J visas are issued through sponsor

organizations that have been approved by the

DOS. Exchange visitors can include the following:

students, trainees, interns, research scholars,

professors, specialists, foreign medical graduates,

summer work travel, au pairs, international and

government visitors, and camp counselors. Each

J-1 category has its own criteria for participation

and limits on length of stay and permissible

activities. Family members are given J-2 visas.

OPTIONAL PRACTICAL TRAINING (OPT) FOR F-1 STUDENTS (WORK AUTHORIZATION FOR STUDENTS): Foreign nationals engaged in

academic study at an accredited U.S. college

or university may be eligible to engage in work

related to their studies. F-1 students may

engage in up to 12 months of OPT pre- and/or

post-graduation. OPT can be extended for certain

graduates in science, technology, engineering and

mathematics fields up to 24 months (for a total

of 36 months of OPT)—subject to new obligations

for employers, including a training plan, attes-

tations and potential site visits. Some students

may also be eligible for on-campus employment

or training incidental to their course of study

known as Curricular Practical Training (CPT).

Q (INTERCULTURAL EXCHANGE VISITORS): Similar

to the J visa, the Q visa promotes intercultural

exchange through training and work opportuni-

ties. The Q-1 visa is open to all nationalities while

the Q-2 visa is specific to persons from Northern

Ireland or a county that borders Northern Ireland.

Family members receive Q-3 visas. The maximum

period of stay is 15 months.

International Business Visitors

B-1 (TEMPORARY BUSINESS VISITORS): Most

foreign nationals coming to the United States to

conduct business must obtain B-1 visas. Tourists

obtain B-2 visas. B-1 visitors cannot engage in

productive employment nor receive remunera-

tion in the United States, but they can meet with

colleagues or clients, attend conferences and

engage in similar activities. B-1s are admitted

for the period of time necessary to complete

their work, usually less than three or six months.

Persons from certain countries with which the

United States has a close relationship are exempt

from this visa requirement and can enter under

the Visa Waiver Program instead of a B visa.

VISA WAIVER PROGRAM (INTERNATIONAL BUSINESS VISITORS): Foreign nationals from a

group of 38 countries are able to enter the United

States as short-term visitors without obtaining


a B-1 or B-2 visa, known as “visa waiver.” These visitors must register with

the U.S. government through the Electronic System for Travel Authorization

(ESTA) in advance of their travel. Admission is for no more than 90 days.13

Immigrant Visas

DIVERSITY VISA LOTTERY: Each year the U.S. government provides perma-

nent residence (or green cards) to persons from around the world through

a diversity visa lottery process. The lottery is intended to provide opportu-

nities to persons from countries that historically have low levels of immi-

gration to the United States and who may not have family, employment

opportunities or other ties that would otherwise enable them to immigrate.

EB-1: The employment-based first preference category (EB-1) is reserved for

three subcategories of foreign nationals:

• Extraordinary ability in the sciences, the arts, education, business or

athletics.

• Outstanding professors and researchers.

• Multinational executives and managers.

• No labor certification is required, but the qualifying criteria are quite

demanding. There are 40,000 visas a year reserved for EB-1 workers and

their family members. Backlogs in this category have occurred.

EB-2: The employment-based second preference category (EB-2) has the

following subcategories:

• An advanced degree, or a bachelor’s degree plus five years of work

experience.

• Exceptional ability in the sciences, the arts or business.

• National Interest Waiver.

• Labor certification is generally required. There are 40,000 visas available

annually to EB-2 professionals and their family members. Significant

backlogs in this category exist for persons from China and India.

EB-3: The employment-based third preference

category (EB-3) has three subcategories:

• Skilled workers whose job requires a minimum

of two years of training or work experience.

• Professionals holding at least a bachelor’s

degree.

• Other workers.

• Labor certification is required. There are 40,000

visas available annually to EB-3 workers and

their family members. Note that significant

backlogs exist in this category for all countries,

particularly for other (unskilled) workers who

are technically limited to 5,000 of the 40,000

visas per year.

EB-4: The employment-based fourth preference

category is for certain “special immigrants”

and religious workers.

EB-5: The employment-based fifth preference

category is for employment creation immigrant

investors.

Worksite Enforcement

E-VERIFY: E-Verify is an online employment verifi-

cation program administered by the United States

Citizenship and Immigration Services (USCIS).

E-Verify confirms certain information from Form

I-9 with information maintained in the USCIS

and the Social Security Administration data-

bases. E-Verify is optional for the majority of U.S.

employers. However, a growing number of states

require employers to use E-Verify and certain

federal contractors must participate. Note that

E-Verify does not replace Form I-9 requirements

but is an additional step in the employment

verification process.


FORM I-9: All U.S. employers must complete an Employment Eligibility

Verification form (Form I-9) for all persons hired on or after November 6,

1986. The purpose of this form is to prove that the employee is authorized

to work legally in the United States. It must be completed for citizens and

noncitizens alike. The form is accompanied by lengthy instructions and

a Handbook for Employers (M-274), as well as guidance from the Depart-

ment of Justice’s Immigrant and Employee Rights Section (IER) regarding

nondiscrimination. Unwary employers can easily run afoul of the law,

from inadvertent discrimination to fines for paperwork errors to criminal

penalties for knowingly employing someone who does not have proper

work authorization.

IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES: When Congress

passed the Immigration Reform and Control Act of 1986 (P.L. 99-603), which

required employers to verify work authorization, there was concern that

employers would discriminate against legal workers who appeared foreign.

Thus, safeguards were incorporated into the law to prohibit discrimination

against legal U.S. workers. This group includes U.S. citizens, legal permanent

residents, refugees and asylees, and certain temporary workers. This law

is administered by the Immigrant and Employee Rights Section (IER) at the

Department of Justice.

Common Employment-Based Immigration FormsDepartment of State Forms

DS-160: online nonimmigrant visa application

DS-260: immigrant visa and alien registration application

DS-2019: certificate of eligibility for exchange visitors

DS-7002: training/internship placement plan

Department of Labor Forms

ETA 9035 AND 9035E: nonimmigrant worker labor condition application

ETA 9089: application for permanent employment certification

U.S. Citizenship and Immigration Services Forms

G-28: notice of entry of appearance as attorney or accredited representative

I-9: employment eligibility verification form

I-129: petition for a nonimmigrant worker

I-129S: nonimmigrant petition based on a blanket L petition

1-131: application for travel document

I-140: immigrant petition for alien worker

I-485: application to register permanent residence or adjust status

I-539: application to extend or change nonimmigrant status

I-765: application for employment authorization

I-907: request for premium processing service

U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program Forms

I-983: training plan for science, technology, engineering and mathematics optional practical training for students


ABOUT USTHE COUNCIL FOR GLOBAL IMMIGRATION

The Council for Global Immigration (CFGI), founded in 1972 as the

American Council on International Personnel, is a strategic affiliate

of SHRM. It is a nonprofit trade association comprised of leading

multinational corporations, universities and research institutions

committed to advancing the employment-based immigration of

high-skilled professionals. CFGI bridges the public and private sectors

to promote sensible, forward-thinking policies that foster innovation

and global talent mobility.

CFGI has testified before the U.S. Congress, appeared before federal

agencies and is frequently called upon to lend its expertise in inter-

national forums, including before the United Nations, the World Trade

Organization and the Global Forum on Migration and Development.

Learn more about CFGI and how to become a member at cfgi.org.

THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT

The Society for Human Resource Management (SHRM) is the world’s

largest HR professional society, representing 285,000 members in more

than 165 countries. For nearly seven decades, the Society has been the

leading provider of resources serving the needs of HR professionals

and advancing the practice of human resource management. SHRM

has more than 575 affiliated chapters within the United States and

subsidiary offices in China, India and United Arab Emirates. Visit us at

shrm.org.


ENDNOTES1 McKinsey Quarterly, “The World at Work: Jobs, Pay and Skills for 3.5

Billion People,” June 2012, http://www.mckinsey.com/global-themes/

employment-and-growth/the-world-at-work

2 Society for Human Resource Management, “The New Talent Land-

scape: Recruiting Difficulty and Skills Shortages,” 2016, https://www.

shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/

talent-landscape.aspx

3 Bureau of Labor Statistics, Job Openings and Labor Turnover, January 10,

2017, https://www.bls.gov/news.release/jolts.htm

4 The range of estimates provided in this chart are for employers utilizing

attorney services and for those nonexempt education and training fee

employers (with over 25 employees).

5 Data regarding attorney fees reflects a majority of Council for Global

Immigration member respondents surveyed in October 2016.

6 For additional information on the ACWIA fee, please see pages 19-21 of

Form I-129 at https://www.uscis.gov/sites/default/files/files/form/i-129.pdf

7 P.L. 114-113, 50/50 employer fee extended through September 30, 2025.

8 Ibid.

9 There are no additional fees for Forms I-131 (Application for Travel

Document) or I-765 (Application for Employment Authorization) when filed

concurrently with Form I-485.

10 Costs represent a majority of Council for Global Immigration member

respondents surveyed in October 2016. Costs for an employer can go much

higher when bundling multiple applications together, such as the cost of

advertising and recruiting for green cards.

11 For additional information about this fee, effective February 1, 2013, visit

https://www.uscis.gov/file-online/uscis-immigrant-fee

12 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, “Treaty

Countries,” https://travel.state.gov/content/visas/en/fees/treaty.html

13 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, “Visa

Waiver Program Overview,” http://travel.state.gov/content/visas/english/

visit/visa-waiver-program.html

immigration101percentage of employers who report that the ability to obtain visas in a timely,...

Documents