The H-1B visa category allows a U.S. company to employ a foreign worker temporarily in a “specialty occupation,” such as architecture, biotechnology, chemistry, engineering, mathematics, physical sciences, social sciences, medicine, education, law or accounting. H-1B status is available for an initial period of up to three years and can be extended for an additional three years beyond that.

The H-1B status is limited to a total of six years but under certain circumstances can be extended beyond the six-year time frame when a permanent resident petition is in process for a certain amount of time. Please consult with an attorney BEFORE the start of the fifth year of H-1B status if you wish to employ your H-1B employee on a permanent basis.

Basic Eligibility Requirements:

• The foreign national beneficiary must possess at least a four-year university degree or equivalent in education and/or experience in a specific specialty.
• The U.S. employer must agree to pay the beneficiary at or above the “prevailing wage” for the area of employment or the wage paid to other similarly qualified employees, whichever is higher.
• The job must require the specific four-year university degree or equivalent that the beneficiary possesses.

The H-1B Quota or “Cap”

The H-1B visa has an annual numerical limit, or “cap,” of 65,000 visas each fiscal year, with an additional 20,000 available to those workers who have earned a master’s level degree or higher from a U.S. institution of higher education. Employers may file an H-1B petition for a worker up to six months before the proposed employment start date. H-1B visas become available each government fiscal year (October 1 – September 30), which means the earliest possible filing date is April 1.

In the past several years, the demand for the 85,000 available visas has been at around 200,000 applicants – as a result, USCIS uses a lottery-based registration system that generally opens each year in March or April.

We recommend that cap-subject employers begin preparing for their H-1B lottery registrations in January or February and strategize with their attorney on the best plan as to any other visa options available for their employees.

Certain Employers are Cap-Exempt

Some employers qualify for cap-exempt status and may petition on behalf of their workers at any time of the year without concern for the quota. These cap-exempt employers are:

1. Institutions of higher education
2. Nonprofit entities “related to” or “affiliated with” an institution of higher education
3. Nonprofit research organizations
4. Government research organizations

*Please note that you can also work “at” a cap-exempt location to be considered cap-exempt.

FAQs

Q. Who may obtain H-1B status?

H-1B nonimmigrant status is available for individuals who are coming to the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who currently are in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.

Q. What is a specialty occupation?

A specialty occupation is defined as an occupation that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree in a field related to the position; a foreign equivalent degree; or a combination of education and/or experience that is equivalent to a U.S. bachelor’s degree. Generally, three years of progressively more responsible experience is equivalent to one year of university education.

Q. Is there a certain wage that must be paid to an H-1B employee?

Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position), or 2) the “actual wage” (the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question.”)

Q. How long may an individual remain in H-1B status?

A foreign national may hold H-1B status for up to six years, with certain key exceptions. H-1B visas are typically valid for three years but can be extended for an additional three years. In computing whether a noncitizen has held an H-1B visa for the maximum period of six years, USCIS looks at all employers of the noncitizen under which he or she held H-1B and L-1 status, not just the current employer. At the end of the six-year period, an individual must depart the United States if he or she is not far enough along in the permanent residency sponsorship process to support a post-6th year extension of H-1B status.

Q. What is the immigration status of an H-1B employee’s family in the United States?

A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. The H-4 dependent spouse and children of an H-1B nonimmigrant are entitled to H-4 nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary. Most H-4 dependents may not accept employment unless he or she is the beneficiary of an approved petition filed on his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment. However, some H-4 spouses may obtain an H-4 Employment Authorization Document (H-4 EAD) if the principal H-1B nonimmigrant is the beneficiary of an approved I-140 petition or has received a post-6th year extension of H-1B status based on the American Competitiveness in the Twenty-First Century Act.

The H-1B1 visa is an employment-based visa category that is substantively identical to the H-1B. Like the H-1B, the H-1B1 visa requires the offered position be in a specialty occupation – one requiring the theoretical and practical application of a body of specialized knowledge, i.e., it requires a bachelor’s degree or higher in a specific field for entry into the position/occupation. It also requires the foreign national possess the required post-secondary degree.

There are, however, some major distinctions between the H-1B and the H-1B1:

1. The H-1B1 visa is limited to nationals of Chile and Singapore. The H-1B1 visa classification was created as a byproduct of free trade agreements between the United States and these countries. Like the H-1B, the H-1B1 is subject to an annual numerical cap on the number of visas available – 1,400 H-1B1 visas are available for Chileans, while 5,400 H-1B1 visas are available for Singaporeans. However, traditionally, these caps are rarely reached, and therefore H-1B1 visas are routinely available to qualifying individuals from Chile and/or Singapore.
2. While the H-1B visa requires the employer to submit a Form I-129, Petition for Nonimmigrant Worker, to USCIS, this step is not required for an H-1B1 visa if the individual an employer seeks to hire on an H-1B1 visa is located outside of the United States. Instead, an individual/employee can apply for an H-1B1 visa directly at a US Consulate/Embassy abroad, by submitting a certified Labor Condition Application (LCA), a detailed support letter from the employer outlining the nature of the offered position and of the individual’s qualifications, and other relevant supporting documents demonstrating the employee’s credentials. If the individual is in the United States and is seeking a change to, or extension of, H-1B1 status, then a Form I-129 petition must be submitted to USCIS.
3. While H-1B visa status can be approved for up to three years at a time, for a maximum of six years, the H-1B1 is generally approved in one-year increments, with no six-year limit.
4. Unlike the H-1B visa, which is a “dual intent” visa, the H-1B1 is a single-intent, nonimmigrant visa.

Dependents of H-1B1 beneficiaries may be admitted to the United States in H-4 status for the duration of the principal’s period of stay but may not work in the United States.

The H-2A visa allows United States agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, he or she may bring a nonimmigrant worker into the country for a period of up to 10 months.

Requirements for an H-2A Employer

Employers are required to meet the following requirements to demonstrate eligibility for the H-2A Program:

1. The position must be “agricultural” – this means work performed on a farm.
2. The job must be for less than one year (usually no more than 10 months) and tied to a crop or commodity.
3. There must be no qualified and willing American workers available for the position.
4. Employer’s must agree to pay H-2A workers and U.S. workers in H-2A positions in accordance with the U.S. Government’s Adverse Effect Wage Rate, which varies by state.
5. Employer must provide H-2A workers and those American workers who are not reasonably able to return to their residence at the end of the day with free housing.
6. Employer must pay inbound transportation and subsistence expenses, as well as return transportation, in some cases set by the Federal Government each year.
7. Employer must guarantee its H-2A and U.S. workers in corresponding employment work for three-quarters of the contract period.
8. Employer must provide three meals per day (chargeable to workers) or provide kitchen facilities.
9. Employer must provide Workers Compensation Insurance.

Before employing H-2A workers, an agricultural employer must make an active effort to recruit U.S. workers. This means newspaper advertising in areas of the expected labor supply, which may include up to three different states as determined by the U.S. Department of Labor (DOL).

Requirements for an H-2A Employee

Almost every admissible nonimmigrant worker is eligible to become an H-2A worker if they are on the “eligible country list.” To be eligible, the potential employee must meet two requirements:

1. Possess a valid job offer from an eligible H-2A employer; and
2. Intend to return to his or her home country at the expiration of the H-2A visa.

Filing Procedure

Generally, there are three things that must be done before a nonimmigrant worker can begin his or her employment.

ETA790 Job Order with the State Workforce Agency:
The first step of the H-2A process is to file the job order (Form ETA790A – Agricultural Clearance Order) with the State Workforce Agency (SWA) in the state where employment will occur through the U.S. Department of Labor’s online FLAG system.

Labor Certification:
Once the job order (Form ETA790) is certified by the SWA, (Form ETA-9142) Application for Temporary Employment Certification is filed with the U.S. Department of Labor through the online FLAG portal. In filing this, the employer must demonstrate that qualified workers are not available in the United States and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers. The State Department of Labor will inspect worker housing. The U.S. Department of Labor will either grant or deny the labor certification.

Employer’s Visa Application:
The second step is petitioning the USCIS for the actual H-2A visa with form I-129. If your application is approved, the USCIS will notify the consulate in the alien’s home country.

Employee’s Visa Application with the U.S. Consulate:
Finally, the worker has to file their own visa application with the consulate in their home country. It is important to note that the employer’s petition approval does not guarantee the visa approval of the nonimmigrant worker.

What is H-2B?

The H-2B visa allows United States seasonal employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform non-agricultural labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, he or she may bring a nonimmigrant worker into the country for a maximum period of 10 months. During that time, the nonimmigrant worker is guaranteed certain rights.

There are 66,000 H-2B visas available per year, which is split between two seasons:

• October 1 (1st Half of FY)
• April 1 (2nd Half of FY)

Fiscal Year is designated by the calendar year in which it ends:

• 1st Half of FY = October 1 to March 31
• 2nd Half of FY = April 1 to September 30

Requirements for an H-2B Employer

Employers are required to meet the following requirements to file for an H-2B visa:

1. The job offer must be for a temporary/seasonal position (seasonal, intermittent, peak load, one-time occurrence, etc.) in which the employer anticipates a shortage of domestic workers.
2. The job must be for no more than 10 months.
3. There must be no qualified and willing American workers available for the position.
4. Employers must agree to pay H-2B workers in accordance with the government’s prevailing wage for area of employment.
5. Employers must pay inbound transportation and subsistence expenses and should reimburse workers for these expenses within the first week of work.
6. Employers must pay work return transportation of worker if the contract period is terminated early.
7. Employers must reimburse workers for visa related expenses at the U.S. Consulate in their home country, including recruiter/agent fees and consular processing visa fees. These expenses should be reimbursed within the first week of work.
8. Employer must pay all workers the required Prevailing Wage Rate plus overtime for more than 40 hours.
9. While the employer is NOT required to provide housing to H-2B workers, the employer should make arrangements for housing in advance of the workers’ arrival. The workers are responsible for all housing costs and related expenses.
10. Employers must withhold tax and pay all applicable state, federal and social security taxes for H-2B workers.
11. Before employing H-2B workers, an employer must make an active effort to recruit U.S. workers. This includes placing a job order with the State Department of Labor, among other steps.

What is a “Temporary Need”

The Department of Labor defines “temporary need” as “Services where the petitioner’s need for the duties to be performed, rather than the job itself, is temporary. It is the nature of the employer’s need, not the nature of the duties that is controlling.”

The nature of the employer’s temporary need for H-2B employment must be seasonal, peak load, intermittent or a one-time occurrence as defined in 8 CFR 214.2(h)(6)(ii).

One-Time Occurrence

The petitioner must establish that the employer:

• Has not employed workers to perform the services or labor in the past and that it will NOT need workers to perform the services or labor in the future; or
• Has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

Seasonal Need

The petitioner must establish that the services or labor is:

• Traditionally tied to a season of the year by an event or pattern; and
• Of a recurring nature.

Peak Load Need

The petitioner must establish that:

• The employer regularly employs permanent workers to perform the services or labor at the place of employment;
• The employer needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand; and
• The temporary additions to staff will not become part of the petitioner’s regular operation.

Intermittent Need

The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Requirements for an H-2B Employee

Almost every admissible foreign national is eligible to become an H-2B worker, as long as they are from a country designated by USCIS and the U.S. Department of State. To be eligible, a foreign national must meet three requirements:

1. The foreign national must be from a country designated by the U.S. government to participate in the H-2B program;
2. The foreign national must have a valid job offer from an eligible H-2B employer; and
3. The foreign national must intend to return to his or her home country at the expiration of the H-2B visa.

Filing Procedures

The H-2B application may not be filed earlier than 75 to 90 days prior to the date of need.

The steps in the H-2B filing process include:

1. Filing Prevailing Wage Determination (Form ETA 9141) with the U.S. Department of Labor through DOL’s FLAG Portal: This form details the job offer, duties, requirements and location of the position. Within 30 to 40 days, the U.S. Department of Labor will issue a formal prevailing wage determination specifying the required wage to be paid to the worker. This must be completed prior to filing the application. It is recommended the Prevailing Wage Determination be filed five months prior to need to allow for sufficient processing time.
2. Filing Form ETA9142 with U.S. Department of Labor and Placing the Job Order with the State Workforce Agency: Once the U.S. DOL issues the prevailing wage determination, the employer must concurrently file a job order with the State Workforce Agency (SWA), which it will include with the formal ETA9142 filing with the U.S. DOL through the department’s FLAG portal.
3. Notice of Acceptance and Recruitment: Within seven days of submission, DOL will issue either a Notice of Deficiency (NOD) or Notice of Acceptance (NOA). DOL will instruct the employer to conduct advertising within 14 days of receipt of the Notice of Acceptance, which will include an automatic online posting, contacting former U.S. workers in the occupation, placing a Notice of Filing at the workplace, and conducting additional recruitment directed by the Certification Officer (CO). The NOA will direct the employer to submit a recruitment report on a specified date.
4. Labor Certification: Once the recruitment report has been submitted, the CO will determine whether to certify or deny the application and issue a final determination.
5. Employer’s Visa Petition with USCIS: Once the U.S. DOL approves the labor certification application, the employer will file application paperwork with USCIS on Form I-129. The petition will specify the number of workers needed and the country in which they will apply. If your application is approved, the USCIS will notify the consulate in the foreign national’s home country. In most cases, premium processing will be required, since “normal” processing time is approximately four months. With premium processing, USCIS will adjudicate the petition within 15 days.
6. Employee’s Visa Application with the U.S. Consulate: Finally, the worker has to file their own visa application with the consulate in their country. It is important to note the employer’s petition approval does not guarantee the visa approval of the foreign national.

Harris Beach Murtha maintains one of the largest temporary and seasonal visa practices in the country and currently represents the largest commercial landscaping company in the nation. We provide guidance to agricultural employers, the landscaping industry and the thoroughbred racing industry on compliance issues.

We help seasonal businesses with H-2A, H-2B, year-round staffing through PERM Labor Certification program for unskilled workers and other immigration visas and issues. We help employers in complying with employment verification and record-keeping requirements (I-9), including self-audits and I-9 training, to avoid sanctions. If necessary, we assist seasonal and agricultural employers in defending against Department of Labor (DOL), U.S. Citizenship and Immigration Services and Immigration and U.S. Immigration and Customer Enforcement (ICE) (I-9) audits and enforcement actions.

The North American Free Trade Agreement (NAFTA) is a trilateral between the United States, Canada and Mexico. In 2018, President Donald J. Trump renegotiated key trade terms of NAFTA and the name of the agreement was changed to the United States-Mexico-Canada Agreement, or USMCA. The immigration provisions of NAFTA were not changed as a result of these negotiations. Harris Beach Murtha provides NAFTA border immigration assistance.

NAFTA/USMCA’s immigration provisions include the TN nonimmigrant classification, which is available only to citizens of Canada and Mexico. TN status/visas are some of the quickest and most straightforward forms of employment authorization available to any foreign nationals.

Canadian TNs

Canadian citizens are visa-exempt and may therefore apply for admission to the United States in TN status directly at any Class A port of entry located at the northern or southern U.S. border, or at a Preclearance Office. The TN application must be lodged in connection with an application for admission to the United States. The applicant must therefore be making a physical entry to the United States in order file the application.

While pre-approval of an I-129 petition is not required, one may be approved in advance by filing with USCIS. An advance approval helps ease the TN adjudication process at the port of entry and provide some level of assurance the application will be approved; however, even a USCIS approval notice does not provide a guarantee of admission, as all final admissions decisions are made by U.S. Customs & Border Protection (CPB) at the port of entry.

In order to qualify for TN status at the border, the applicant must prove the following:

• He or she is a Canadian citizen (Landed Immigrants of Canada do not qualify).
• Possess a job offer from a U.S. company in a NAFTA profession, as laid out in Appendix 1603.d.1 of NAFTA and 8 C.F.R. §214.6. The job offer should be documented through a TN letter from the employer that includes a description of the proposed job duties, as well as the arrangements for remuneration.
• Must meet the requirements for the profession as described in Appendix 1603.d.1 of NAFTA.
• Must obtain a credentials evaluation for a degree issued outside of North America.

There is no right to attorney representation at a port of entry. Many constitutional rights are suspended at international border crossings. However, CBP officers may decide, in their discretion and as a courtesy, to permit attorneys to accompany their clients to the border and even to be present during an inspection. Since 2017, the ports of entry along the Northern Border to the United States, have ceased allowing attorney representation to Canadian citizens seeking admission in TN status, in most cases.

If the application is approved, the applicant must pay a $56 filing fee and will be issued a multiple-entry I-94 card in their passport, which can be issued with a validity period of up to three years. Some I-94s are issued for a shorter period, such as when the TN letter provided by the employer asks for a shorter validity period. In addition, an I-94 cannot be issued for a period longer than the validity of the applicant’s passport. While most I-94s are now electronic, CBP still uses paper I-94s at all land border crossings. All I-94s can be retrieved online at www.cbp.gov/i94.

Applicants applying at a Preclearance Office in Canada must have an international flight booked for entry to the United States. The inspection process at the airport is the same as at the land border, with the exception that a delay in process could cause someone to miss a flight. Also, the filing fee at the airport is only $50 because the $6 I-94 fee is included in the price of the airline ticket.

Mexican TNs

Citizens of Mexico are not visa-exempt and must apply for TN status directly at a U.S. Consulate in Mexico. A petition is not required but may be filed on behalf of a Mexican citizen. The same regulatory provisions apply to TN status for Mexican nationals as to Canadian nationals.

The following items must be presented at a visa interview at a U.S. Consulate in Mexico:

• Passport valid for travel to the United States.
• Nonimmigrant Visa Application, Form DS-160 confirmation page.
• Application fee payment receipt.
• A letter of employment in the United States – must confirm upcoming employment in one of the professional occupations listed in Appendix 1603.d.1 of NAFTA. The letter should also include:
  • A detailed description of anticipated business activities or job duties;
  • Anticipated length of stay in the United States;
  • Educational qualifications, licensure and/or other appropriate credentials demonstrating professional status as required by NAFTA; and
  • Arrangements for remuneration.

Dependent Family Members

The spouse and children (under age 21 and unmarried) of TN applicants may be accorded TD status. Those in TD status are not authorized to work in the United States but may attend school. Canadian TD applicants may apply for entry at the border at, or any time after, the principal is admitted. Nationals of any other country seeking TD status must first obtain a visa at a U.S. Consulate outside of the United States.

Harris Beach Murtha’s immigration lawyers help navigate the TN visa process through USCIS, the U.S. Consulate in Mexico, and U.S. ports of entry (U.S. Customs and Border Protection).

This temporary nonimmigrant visa allows employers to move qualified employees to U.S. companies. The qualified employee must have worked for a foreign segment of the company continuously for at least one out of the past three years. L-1 visas are also available to nonprofits, religious or charitable organizations. The L-1 visa is different than the H-1B visa because there are no education requirements, quotas or prevailing wage issues, and it is different than most nonimmigrant visas because it is considered “dual intent,” allowing the holder to apply for a green card without risking their nonimmigrant status.

Classifications

There are two different L-1 visa classifications: L-1A and L-1B.

L-1A visas are designed for high-level managers or executives transferring from a foreign segment of the company to a U.S. segment. This visa is granted for an initial period of three years. In addition, employers can use an L-1A visa to send an executive to the United States to establish a U.S. office if it does not already have one. This is known as a “New Office L-1A.” This visa is granted for an initial period of one year. Extensions are available in two-year increments, for a total stay of up to seven years.

L-1B visas are available for professional employees with specialized knowledge of the company’s proprietary products, services, systems, methods, and processes to travel to the United States and use that knowledge for the benefit of their related U.S. employer, either in an existing U.S. office or with the intent to establish one. One example would be training U.S. employees. This visa is granted for an initial period of three years, with one two-year extension, for a total stay of up to five years.

L-1 Blanket Program

Some companies may qualify for a “Blanket L-1 petition,” which allows employees of multinational companies who are executives, managers and specialized knowledge professionals to apply for L-1 status directly at a U.S. Consulate, without having to obtain pre-approval from USCIS.

To be eligible for a blanket L, the company must meet the following criteria:

• The company must be engaged in commercial trade or services;
• The company must have an office in the U.S doing business for one year or more; and
• The company must have three or more U.S.-based and foreign branches, subsidiaries or affiliated company.

In addition, the company must meet one of the following:

• The company has obtained at least 10 L-1 visas during the previous 12 months;
• The company has U.S. annual sales of at least $25 million; or
• The company has a U.S. workforce of more than 1,000 employees.

To secure L-1 blanket status, a company must file a petition with the USCIS, requesting “blanket” approval showing the company and the specified foreign affiliates have a qualifying relationship, and meet the additional requirements for the blanket L-1. If approved, the petition will initially be valid for three years and may be extended indefinitely after those three years.

Once the blanket L-1 petition has been filed and approved with USCIS, an individual employee will be able to file evidence of the blanket petition approval with the other supporting documents of their L-1 qualifications with their local US Consulate or Embassy.

Family

Spouses and children under age 21 can accompany the visa holder of L-1 status and may apply for work authorization in the United States under L-2 status.

O-1B: Proving Extraordinary Ability in the Arts

• Arts can include any field of creative activity, such as fine arts and performing arts (dancers, musicians), among others.
• The petitioner must show that the O-1 artist or performer is recognized as being prominent in his or her field by showing either receipt of a major international award (such as Academy Award or Grammy), or at least three of the following:
  1. That he or she has performed or will perform services as a lead participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases or endorsements;
  2. Evidence of high salary;
  3. Evidence that the person of extraordinary ability has achieved national or international recognition by providing publications or other published material;
  4. Evidence of the beneficiary’s successes by providing film or television rankings or box office receipts or other indicators of rank or success; or
  5. Evidence the person achieved significant recognition in their field for their work from organizations, agencies and other experts in the field.

Application Process and Required Evidence

The petitioner (employer or agent) submits the Form I-129 with all required supporting evidence, including a “Consultation” which is a written advisory opinion from a peer group or person with expertise in the beneficiary’s field. The petitioner also must include a copy of the written employment contract, if any, and an itinerary for the event or activities in the field of extraordinary ability.

Agent Filings for Multiple Employers or Foreign Employer

An agent may file as the petitioner for several employers or on behalf of a foreign employer as long as certain pre-conditions are met, including contractual relationships between each of the employers and the agent. The following must be included with the petition:

• Supporting documentation, including a complete itinerary of the event or events which specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues or locations where the services will be performed;
• Contracts between the actual employers and the beneficiary; and

An explanation of the terms and conditions of employment with required documentation.

The E-1 nonimmigrant visa category is reserved for foreign nationals seeking to enter the United States to carry on substantial international trade, including trade in goods and/or services, chiefly between the United States and the applicant’s country of citizenship. An applicant may qualify as a trader or as an employee of a qualifying trading company only if they possess the same nationality as the company. The spouse and child(ren) of an E-1 Treaty Trader are also accorded E-1 status as dependents, regardless of their nationality. E-1 spouses may apply for unrestricted employment authorization following the initial entry into the United States as an E-1 spouse.

Basic requirements for E-1 classification:

1. Requisite treaty exists – The foreign national must be a citizen of a country that maintains a treaty of commerce and navigation with the United States.
2. Individual possesses same nationality as the company –
   1. The visa applicant’s nationality is documented through his or her passport.
   2. The nationality of the company must be traced up to its individual owners and the owners’ nationality must be documented through passports as well. Nationals of the treaty country must own at least 50 percent of the business. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the country in which the exchange is located.
3. International Trade Requirements –
   1. Trade must constitute a substantial international exchange. The trade must be documented at the time the visa application is made. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. Items which qualify as items of trade include, but are not limited to, goods, services, technology, banking, insurance, transportation, tourism, communications and some news gathering services.
   2. The trade must be substantial enough to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time, rather than a single transaction. In the case of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.
   3. Trade must be principally (50 percent or more) between the United States and the country of the visa applicant’s nationality. Domestic trade is not considered. The trade can be demonstrated through purchase orders, bills of lading, sales contracts or contracts for services, letters for credit, trade brochures, accounts receivable, and the like.

The Treaty Trader may either be an individual or a corporation. If the Trader is a corporation, it may send key foreign national employees to the United States in E-1 status. Key employees may be executives, managers, supervisors or essential skills employees.

There is no requirement that an E-1 business be incorporated in the United States. Employees of foreign companies who will engage in international trade in the United States may qualify for E-1 status.

E-Visa Validity Period

E-visas are typically issued by U.S. Consular posts abroad with a five-year validity period. However, the E-1 visa holder ordinarily is admitted to the United States and issued an I-94 entry document for a period of up to two years (but not for more than six months beyond the passport expiration date). Each time the visa holder travels abroad and reenters the US during the visa validity period, he or she usually is admitted for a fresh two-year period. There is no limit on the number of extensions or the total time USCIS may extend E status. However, the E-1 visa remains a nonimmigrant visa and requires the visa applicant to maintain the intention to depart the United States at the conclusion of his or her period of stay.

If someone with a USCIS E-1 extension travels abroad, he or she must still apply for a new E-1 visa if he or she does not have a current visa in their passport, and the U.S. Consulate abroad will re-adjudicate E-1 visa eligibility. Therefore, where there are certain situations in which it makes sense to apply for E-1 extension with USCIS due to timing issues, it is usually best to apply for a new E-1 visa abroad, rather than filing a petition with USCIS.

E-2 status is reserved for foreign nationals seeking to enter the United States to actively invest in a real and operating commercial enterprise. The visa applicant may qualify either as the principal investor and owner of the treaty enterprise or as a key employee of the treaty enterprise. Dependent spouses and children under the age of 21 are eligible for E-2 dependent status.

Basic Requirements for E-2 Classification

1. Requisite treaty exists – The foreign national must be a citizen of a country that maintains a treaty of commerce and navigation with the United States.
2. Individual possesses same nationality as the company –
   1. The visa applicant’s nationality is documented through his or her passport.
   2. The nationality of the company must be traced up to its individual owners and the owners’ nationality must be documented through passports as well. Nationals of the treaty country must own at least 50 percent of the business. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the country in which the exchange is located.
3. Investment Requirements –
   1. Principal investors/owners must have already invested in the treaty enterprise or be actively engaged in the process of investing. In order for the activity to be considered an “investment,” the applicant must be using funds he or she has legally obtained, whether through savings, as a gift, an inheritance or by winning the lottery. The source of the funds must be fully documented. In addition, the applicant must be placing those funds at risk in a commercial sense in the hope of earning a financial return. If the applicant has not already invested the funds in the enterprise, they must be irrevocably committed.
   2. Investment must be in a real and operating commercial enterprise, e.g., through a business plan, business licenses and marketing materials if it is a new enterprise or, for more established enterprises, through business transaction records, tax return, employee payroll records, invoices from suppliers, utility bills, etc.
   3. Investment must be substantial and not marginal. A substantial investment is one that ensures the enterprise is not merely speculative, or one that will merely support the investor and his/her family, but will also provide jobs for U.S. workers and services or goods that serve the community. The amount of capital needed depends on the size and type of business. The investor must document the total funds needed to start operations and must have a substantial portion of the required funds in hand for the project. The larger the cost of start-up operations, the lower the percentage of funds required at the outset.
   4. Applicant must either develop and direct the enterprise, act in an executive/supervisory position, or possess “essential skills” to the enterprise.

E-Visa Validity Period

E-visas are typically issued by U.S. Consular posts abroad with a five-year validity period. However, the E-2 visa holder ordinarily is admitted to the United States and issued an I-94 entry document for a period of up to two years (but not for more than six months beyond the passport expiration date). Each time the visa holder travels abroad and reenters the US during the visa validity period, he usually is admitted for a fresh two-year period. There is no limit on the number of extensions or the total time a nonimmigrant USCIS may extend E status. However, the E-2 visa remains a nonimmigrant visa and requires the visa applicant to maintain the intention to depart the United States at the conclusion of his or her period of stay.

If someone with a USCIS E-2 extension travels abroad, he or she must still apply for a new E-2 visa if he or she does not have a current visa in their passport, and the U.S. Consulate abroad will re-adjudicate E-2 visa eligibility. Therefore, where there are certain situations in which it makes sense to apply for E-2 extension with USCIS due to timing issues, it is usually best to apply for a new E-2 visa abroad rather than filing a petition with USCIS.

The E-3 visa classification is a treaty-based visa available only to Australian nationals. The law allows for the temporary entry of Australian professionals to perform services in a “specialty occupation” for a United States employer. The requirements for E-3 classification are very similar to those applicable to H-1B status, with notable exceptions.

Spouses and unmarried children under the age of 21 are eligible for E-3 status as dependents. E-3 spouses may obtain employment authorization by applying separately for that benefit following the initial admission to the United States in E-3 status.

Specialty Occupation

A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, in a specific specialty as a minimum for entry into the occupation in the United States.

E-3 Requirements

The following basic requirements must be met in order to qualify for E-3 status:

1. Must be an Australian national.
2. Must be sponsored by a United States employer that has obtained a certified Labor Condition Application (LCA) on behalf of the foreign worker’s proposed U.S. position.
3. Must be entering the United States to work in a specialty occupation requiring attainment of a bachelor’s degree, or its equivalent, in a specific academic field.
4. Must possess the necessary bachelor’s or higher degree, or its equivalent, in the specific specialty.

E-3 status can be obtained more quickly than most other nonimmigrant classifications because it does not require prior approval of an I-129 petition with USCIS. Applicants may apply for an E-3 visa directly at a U.S. Consular post outside of the United States by presenting the following documents at a visa interview:

1. A certified Labor Condition Application (LCA) – must be filed by the prospective U.S. employer.
2. Evidence of academic or other qualifying credentials.
3. Offer letter from the U.S. employer, outlining the nature of the job duties and demonstrating they fit within a “specialty occupation.”
4. A certified copy of any required license or other official permission to practice the occupation in the state of intended employment, if required.

While most E-3 applicants file their visa applications at the U.S. Consulates in Australia, the U.S. Consulates in other countries may accept E-3 visa applications as well, on a discretionary basis. The U.S. Consulates in Canada are particularly familiar with processing E-3 visas.

For those E-3 applicants who are already in the United States in another nonimmigrant status, or who are in E-3 status with another employer and wish to change jobs, the U.S. employer/petitioner may file an I-129 petition on his or her behalf to change his or her status to E-3 or to change E-3 employers. This option is very time-consuming, however, and therefore often is not chosen. Processing I-129 petitions takes several months under unprecedented USCIS backlogs, and “Premium Processing” service is not available on E-3s. In addition, E-3 visa holders who seek a change of employer cannot start working at the new job until the I-129 has been approved. It therefore is often quicker for the E-3 applicant to leave the country once the Labor Condition Application has been certified, apply for a visa abroad, and reenter the United States in E-3 status with the new company.

E-3 status is granted for an initial two-year period and can be extended in two-year increments with no limit on the number of extensions or new visas that can be issued. However, those in E-3 status must maintain “nonimmigrant intent,” or the intention to resume their residence abroad at the conclusion of their stay.

From world-renowned artists, actors, filmmakers and dancers, to internationally recognized horse jockeys, athletes and their essential support staff, Harris Beach Murtha is called upon to assist extraordinary individuals in obtaining the necessary visas to enter the United States.

P-1A Internationally Recognized Athlete

The P-1A classification applies to individuals coming to the United States temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

The athlete must be coming to the United States to participate in an event, competition or performance in which they are internationally recognized with a high level of achievement; evidenced by a degree of skill and recognition substantially above that ordinarily encountered, so that the achievement is renowned, leading or well-known in more than one country.

Athletic Teams Eligibility Criteria

Member of an athletic team must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which the team is participating must be distinguished and require the participation of athletic teams of international recognition.

Application Process

To come to the United States, your U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, accompanied by the appropriate fee and supporting documentation. Please note, a petitioner who will file as an agent for multiple employers must establish that it is duly authorized to act as an agent.

The U.S. employer must submit a consultation from an appropriate labor organization. The consultation must describe the work or services to be performed in the United States and the qualifications for such work. If no appropriate labor organization exists, this requirement is excused.

Evidence Required:

• A written consultation from an appropriate labor organization.
• A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport.
• An explanation of the event and itinerary.
• Documentation of at least two of the following:
  • Evidence of having participated to a significant extent in a prior season with a major United States sports league;
  • Evidence of having participated to a significant extent in international competition with a national team;
  • Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;
  • A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how the team is internationally recognized;
  • A written statement from a member of the sports media or a recognized expert in the sport which details how the team is internationally recognized;
  • Evidence that you or your team is ranked, if the sport has international rankings; or
  • Evidence that you or your team has received a significant honor or award in the sport.

P-1BA Member of an Internationally Recognized Entertainment Group

The P-1B classification applies to those coming to the United States temporarily to perform as a member of an entertainment group recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

Eligibility Criteria

At least 75 percent of the members of the group must have had a substantial and sustained relationship with the group for at least one year.

The entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.

Note: Individual entertainers not performing as part of a group are not eligible for this visa classification.

Evidence Required:

• Written consultation from an appropriate labor organization.
• Itinerary with the dates and locations of the performances.
• A copy of the contract between the petitioner and the beneficiary, or summary of terms of the oral agreement under which the beneficiary will be employed.
• Evidence the group has been established and performing regularly for at least one year.
• Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group.
• Evidence the group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of the group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:
  • The group has performed and will perform as a starring or leading entertainment group in a production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
  • The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;
  • The group has performed and will perform services as a leading or starring group for organizations and establishments with a distinguished reputation, as evidenced by articles in newspapers, trade journals, publications or testimonials;
  • The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;
  • The group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field; or
  • The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program

The P-3 classification applies to individuals coming to the United States temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

Eligibility Criteria:

For a P-3 visa, the applicant must be coming to the United States, either individually or as a group, for the purpose of developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation. In addition, the applicant must be coming to the United States to participate in a cultural event or events which will further the understanding or development of the particular art form. The program may be of a commercial or noncommercial nature.

R-1 visa classification is reserved for foreign nationals who come to the United States temporarily as “religious workers,” to be employed as a minister or in another religious vocation or occupation. It is not available, however, to secular members of a religion. To qualify, the individual must have been a member of a religious denomination having a bona fide nonprofit religious organization in the United States for at least two years immediately before the filing of the petition, and the U.S. entity filing the petition must be such a bona fide nonprofit religious organization.

For purposes of the R-1 visa, the following definitions/categories apply:

• Ministers are defined as individuals duly authorized by the religious denomination to which they belong, and fully trained according to the denomination’s standards, to conduct religious worship and other duties usually performed by the clergy. The regulations do not define a uniform type of training for religious denominations. When signing the petition, the petitioner must attest the beneficiary is qualified to perform the proposed duties of the religious occupation to be performed in the United States.
• Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of persons with a religious vocation include, but are not limited to, nuns, monks and religious brothers and sisters. Persons with religious vocations may engage in any type of activity within their religious vocations, denomination or its affiliate. For vocation-based R-1 applicants, the emphasis is therefore on what the applicant’s status is within the religious organization, rather than on what the applicant will do in the United States.
• Religious occupations are defined as occupations with duties that primarily relate to a traditional religious function; are recognized as a religious occupation within the denomination; and are primarily related to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination. Religious occupations do not include primarily administrative or support positions such as janitors, maintenance workers, clerical employees or fund-raisers, or similar positions solely involved in soliciting donations. Limited administrative duties that are only incidental to religious functions are permissible. Similarly, religious study or training for religious work alone does not constitute a religious occupation, but a religious worker may pursue study or training incidental to R-1 status.

In general, religious workers must be compensated by the petitioning organization; however, compensation may include either salaried or non-salaried compensation, for example, room and board. The primary criterion is that the religious organization show how the religious worker will be supported in the United States, such that the beneficiary will not have to resort to unauthorized employment to make a living. Self-support is only permitted for certain nonimmigrant missionaries if the missionary workers are traditionally uncompensated and if participation in such missionary work is an established element of religious development in the particular denomination.

R-1 status may be granted for an initial period of up to 30 months. This status can be extended for an additional 30-month period, for a maximum period of stay of 60 months (five years) in the United States in R-1 classification.

Spouses and unmarried children (under age 21) of R-1 religious workers are eligible for R-2 status to accompany the primary R-1 worker in the United States.

Unique to R-1 petitions is a regulatory requirement that USCIS conduct a site visit in connection with any newly-filed R-1 visa petition. A successful site visit is required before an R-1 petition may be approved. The purpose of the site visit is to detect and deter fraud in the religious worker visa program, and therefore, during such site visits, USCIS will verify that the place of worship/congregation actually exists and will ask questions of the petitioning organization related to its operations and its proposed employment of the R-1 religious worker.

A B-1 visa permits an individual to come to the United States temporarily in order to participate in business activities of a commercial or professional nature. These activities include:

• Consulting with business associates;
• Traveling for a scientific, educational, professional or business convention or conference on specific dates;
• Settling an estate;
• Negotiating a contract;
• Participating in short-term training;
• Transiting through the United States for certain persons; and
• Seeking or examining potential investment opportunities, including investments that may qualify the individual for status as an E-2 nonimmigrant investor.

Applicants should take caution when entering the United States on a B-1 visa, or when maintaining B-1 status, to remember that this visa generally does not permit gainful employment. While the limited business-related activities above may be permissible, a B-1 traveler is precluded from performing productive labor or actively participating in the management of a business in which he/she has invested.

A B-2 visa permits an individual to enter the United States temporarily for pleasure. The most often reason for entry on a B-2 visa is typically for tourism or family visits. However, a B-2 visa may also be appropriate for those who seek to enter the United States for health purposes or to receive medical treatment, or to participate in conventions, conferences or other meetings of social or service organizations.

Residence Abroad

In addition to satisfying one of the permissible purposes above, and consistent with the “nonimmigrant” nature of B-1/B-2 visa status, an applicant must also demonstrate that his or her intended stay in the United States will only be temporary and he or she plans to remain in the United States for a specific limited period of time. The individual may also be required to show that he or she will maintain a residence outside of the United States, will not abandon it and will return to it upon the conclusion of the U.S. visit. Finally, the individual may be required to demonstrate he or she has sufficient financial resources available to cover the expenses of the U.S. stay.

Period of Stay

Although B-1/B-2 visas issued in applicants’ passports are often valid for a period of 10 years, individuals may be admitted to the United States for only up to a maximum of six months at a time on a B-1/B-2 visa. In certain circumstances, it may be possible to extend one’s B-1/B-2 status for an additional six months, for a total of one year, if the need arises to remain in the United States longer than the initial period granted. In some cases, those who enter the United States as a visitor may have a change in plans and decide to change status to an employment-authorized status. It is generally advisable to depart the United States following approval of an employment-based petition to undergo the consular process for the employment-based visa rather than applying for a change of status within the United States, as those changes are often regarded by consular officers as an attempt to evade consular review.

Visa Waiver Program

As an alternative to obtaining a B-1 or B-2 visitor visa, citizens/nationals of many countries can travel to the United States for tourism or business, for stays of 90 days or less, without obtaining a visa, under what is known as the Visa Waiver Program. The same restrictions above regarding permissible activities apply to Visa Waiver entries. Travel to the United States on the Visa Waiver Program requires that travelers obtain approval through the Electronic System for Travel Authorization (ESTA) prior to travel. The Visa Waiver Program is limited to citizens/nationals of certain countries and therefore may not be available to all travelers.

Many citizens of the United States qualify for dual citizenship in Italy based on their Italian heritage. Since 1992, Italy has allowed dual citizenship with the United States, and applicants do not have to renounce their U.S. citizenship. Italian citizenship is based upon the principle of “jure sanguinis,” which is Latin for “blood right.” To qualify, an applicant must prove Italian ancestry with a demonstrable unbroken line of citizenship.

Harris Beach Murtha provides comprehensive legal services to U.S. residents living in New York, New Jersey, Connecticut and Massachusetts who want to apply for dual Italian citizenship. We have deep experience with this process and have helped many:

• Obtain birth, death, marriage, divorce and other genealogical records;
• Amend or correct vital documents;
• Request declaratory judgments on missing birth, marriage or divorce certificates;
• Request one and the same declaration;
• File petitions to reclaim the family’s original name;
• File applications to obtain U.S. naturalization documents or letters stipulating no records exist; and
• File citizenship applications, including to the town of residence in Italy.

Harris Beach Murtha’s Italian citizenship lawyers are well-schooled in the requirements for Italian citizenship. They help you determine if you qualify for Italian citizenship and what documents you need to apply. They also help if you have missing records necessary for Italian dual citizenship.

The F-1 student visa is just what it sounds like – it is for individuals who wish to come to the United States to pursue full-time studies.

Criteria:

To qualify, a student must:

• Be enrolled in an “academic” educational program, a language-training program or a vocational program;
• Be enrolled full-time;
• Be proficient in English or be enrolled in courses leading to English proficiency;
• Have sufficient funds available;
• Maintain a residence abroad which the individual has no intention of giving up;
• Be enrolled in a school approved by the Student and Exchange Visitors Program (SEVIS).

Employment as a Student

There are different types of work available to an F-1 student, both during the program of study and after graduation. During the first year of full-time studies, the student may not work off-campus but may accept on-campus employment subject to certain conditions. After the first full year of study, the student can apply for three types of off-campus employment:

1. Curricular Practical Training (CPT)– Permits employment that is pre-authorized by the school and academic program as being integral to the student’s course of study and must be completed during the academic period prior to graduation.
2. Optional Practical Training (OPT)– Provides one year of work authorization for students working in a job related to their field of study. The student (with the school’s assistance) may apply directly to USCIS for an Employment Authorization Document (EAD).
3. STEM Optional Practical Training Extension (OPT) – Provides a two-year extension of the OPT period to those students who graduated from a STEM (Science, Technology, Engineering or Math) program and are working in that field. Must be employed with a U.S. employer that is enrolled in E-Verify.

The Exchange Visitor nonimmigrant visa category is reserved for individuals approved to participate in work and study-based exchange visitor programs. There are many different categories of J-1 participants under the exchange visitor program. The State Department designates more than 1,500 for-profit, nonprofit or federal, state and local government entities to conduct such programs.

J-1 Program Categories

1. Professors/Research Scholars – promote the exchange of ideas, research and linkages between research and academic institutions in the United States and other countries.
2. Short-term Scholars – professors, scholars and other accomplished individuals travel on a short-term visit to lecture, observe, consult and train at U.S. research and academic institutions, museums and libraries.
3. Trainees – professionals with a degree, professional certificate or relevant work experience gain exposure to U.S. culture and receive training in U.S. business practices through a structured and guided work-based program.
4. Interns – students or recent graduates gain exposure to U.S. business practices in their chosen occupational field.
5. Students – for study at a U.S. degree-granting, post-secondary accredited academic institution.
6. Teachers – educators teach full time at a U.S. accredited primary or secondary school.
7. Specialists – experts in a field of specialized knowledge observe U.S. institutions and share knowledge with colleagues.
8. Alien Physicians – foreign medical graduates pursue graduate medical education or training at a U.S. accredited school of medicine or scientific institution.
9. Camp Counselors – post-secondary students, youth workers or teachers interact with American youth at U.S. camps.
10. Au Pairs – live with host family for 12 months.
11. Summer Work Travel program – college students work in seasonal or temporary jobs during the summer months.
12. Government Visitors – distinguished international visitors and their U.S. counterparts in federal, state or local government agencies.
13. International Visitors – Reserved for State Department-sponsored and funded exchange participants.

Harris Beach Murtha represents large hospital systems, university-affiliated hospitals and medical practices throughout the Northeast. We also prepare and manage more than 1,000 immigration cases each year for large hospital systems and universities across the country. Our attorneys have deep experience with health care-related immigration matters.

We regularly represent institutions of higher education in securing, maintaining and managing visa status and employment authorization for employees, including faculty and professional staff, as well as medical professionals (hospitalists, fellow, and residents) at university health centers and affiliated facilities.

Harris Beach Murtha is immigration counsel to the largest system of public universities in the nation. We process a high-volume of “Special Handling” cases for PERM labor certification.

The immigration consequences of corporate mergers, acquisitions and reorganizations are often overlooked until after the transaction has been completed. Late stage or inadequate planning for this crucial business function can result in the needless assumption of liability, loss of key personnel, and even the unwitting commission of corporate immigration violations.

Harris Beach Murtha’s involvement in these processes helps avoid potential pitfalls. We are regularly retained to provide advice and counsel to companies, investors and even law firms involved in M&A transactions and reorganizations of corporate structure. As an important part of the corporate legal team, we work with clients to address issues such as:

• Immigration due diligence to assist clients in making purchase or merger decisions.
• Development of specific language to be included in sale, merger or acquisition documents to ensure immigration issues are addressed.
• Assessment of potential immigration liabilities and development of strategies to lessen their impact.
• Review of I-9 forms and compliance programs.
• Strategic merits of adopting existing I-9 forms versus completion of new I-9s for employees.
• H-1B Labor Condition Application and Public Access File compliance when there is a change in corporate structure or ownership.
• H-2B and H-2A compliance history.
• “Successor in Interest” analysis for approved and pending immigration petitions.
• Effect of reductions in force on individual employees in the immigration process.
• Impact of corporate mergers, reorganizations and acquisitions on individual employees in the immigration process.

Harris Beach Murtha is available for consultation on all immigration-related due diligence matters. Our process includes a comprehensive audit of relevant documents, a review of corporate policies, assessment of possible liabilities and recommendations for ongoing best practices. This approach is tailored to root out potential problems, identify solutions and implement ongoing business processes to keep your deal moving forward.

Managing a multi-national workforce requires careful management – from the initial hiring/screening process through relocation. We work with international Human Resource managers to transfer and hire foreign employees, and we assist in the creation of global mobility and talent acquisition programs to ensure compliance with United States Citizenship and Immigration Service (USCIS) and Department of Labor requirements.

We advise employers on legal hiring practices to avoid discrimination; analyze job descriptions and foreign national candidates’ backgrounds to determine best visa strategy; screen foreign national applicants to determine immigration needs; work with foreign national applicants on visa application processing at U.S. Consulates abroad; and counsel employers on document and file retention requirements.

Our immigration attorneys have in-depth experience obtaining immigrant visas (“green cards”) on behalf of clients seeking permanent U.S. resident status. We routinely process applications for permanent resident status in accordance with established guidelines and policies for employment-based visas, family-based visas and annual diversity visa lotteries. We provide counsel on all facets of the employment-based permanent residence visa process, including PERM-based Labor Certification applications, National Interest Waivers (NIW), EB-1 Multinational Executives and Managers, EB-1 Outstanding Researcher and Professors and EB-1 Extraordinary Ability foreign nationals, EB-3 Skilled Professional and Other Workers, EB-3 Schedule A for Registered Nurses, EB-2 Schedule A for Physical Therapists and EB-2 Advanced Degree Holders and those with Exceptional Ability.

EB-3 Immigrant Visa

The EB-3 immigrant visa is a green card process that allows U.S. employers to hire immigrants with special skills and experience for permanent employment opportunities. Only about 40,000 EB-3 visas are issued nationwide every year. Education, specialized skills and experience are evaluated to determine eligibility for an EB-3 visa. Depending on the applicant’s country of birth, there will likely be a waiting period to complete the process due to increased demands for green cards in this category. The EB-3 category covers any position.

Categories

Currently, three sub-categories of EB-3 visas exist:

Skilled workers
Skilled workers are applicants capable of performing skilled labor that requires at least two years of training or experience. The jobs they perform must not be temporary or seasonal, and there must be a shortage of qualified U.S. workers. Employers may sponsor foreign national candidates for full-time employment by filing a PERM Labor Certification Application with the U.S. Department of Labor, followed by a petition with USCIS.

Professionals
Professionals are described as immigrants who hold a bachelor’s or equivalent degree, which is generally considered a requirement for employment in the targeted field. Education and experience may not be substituted. Qualified applicants must be performing work for which there are not enough qualified U.S. workers. Employers may sponsor foreign national candidates for full-time employment by filing a PERM Labor Certification Application with the U.S. Department of Labor, followed by a petition with USCIS.

Other workers
Other workers are those qualified to perform unskilled labor that requires less than two years of training or experience and is not temporary or seasonal. There must be a shortage of qualified U.S. workers for the jobs. Employers may sponsor foreign national candidates for full-time employment by filing a PERM Labor Certification Application with the U.S. Department of Labor, followed by a petition with USCIS.

EB-3 Schedule A Green Card for Registered Nurses

Certain occupations do not require employers to participate in the prolonged Labor Certification process because the federal government has determined there are not enough U.S. workers to meet demand. One of those is nursing, which is a chronic shortage area for healthcare organizations across the country.

Known as “Schedule A” designations, these paths to green cards require employers to first file for a Prevailing Wage Determination with the Department of Labor, identifying the average wage for the position in their geographical area. They then provide notice of the position opening for 10 days to current employees through a physical posting of the position at the location of employment. If the position is unionized, notice is alternatively provided to the bargaining representative. Following that, the employer will file the Form I-140 (Petition for Alien Worker).

Upon approval of the I-140 Petition, the prospective employee then seeks the immigrant visa at a U.S. Embassy or Consulate if outside the United States, or can complete the process through Adjustment of Status (Form I-485) if already in the United States in a valid nonimmigrant status.

To qualify, a nurse must obtain a nursing license in the state of employment and National Council Licensure Examination Certification or a Commission on Graduates of Foreign Nursing Schools Certificate.

Our immigration attorneys represent health systems and providers across the United States and have the experience needed to help navigate through the complex maze of government regulation surrounding the Schedule A Green Card process for Registered Nurses.

EB-2 Green Cards for Advanced Degree Holders

Prospective employees can qualify for green cards if they hold an advanced degree or its foreign equivalent, or have exceptional ability. An advanced degree is any degree higher than a bachelor’s degree, or a bachelor’s degree or the equivalent plus five years of working experience. This must be well documented.

To qualify under the exceptional ability standard, the applicant must meet three of the following criteria:

• A degree, diploma, certificate or similar award relating to your area of exceptional ability.
• Letters from employers documenting at least 10 years of full-time experience in your occupation.
• A license or certificate to practice your profession or occupation.
• Evidence you command a salary or other remuneration demonstrating your exceptional ability.
• Membership in a professional association.
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.
• Other comparable evidence of eligibility is also acceptable.

The prospective employee must also have a job offer in the United States or qualify for a “national interest waiver” to be a self-sponsor.

Employers seeking to hire under this visa must file an Application for Permanent Employment Certification (Form 9089) from the Department of Labor confirming they conducted an employment search and there are not enough workers in the United States to meet the demand, and that the prospective employee is qualified for the job.

Once approved, the employer can then file the I-140 petition with USCIS. Upon approval of the I-140 Petition, the prospective employee then seeks the immigrant visa at a U.S. Embassy or Consulate if outside the United States, or can complete the process through Adjustment of Status (Form I-485) if already in the United States in a valid nonimmigrant status.

EB-2 Schedule A Green Card for Physical Therapists

Physical Therapists are another Schedule A green card category where employers can bypass the lengthy Labor Certification process because the federal government has determined there are insufficient U.S. workers to meet demand.

The physical therapist must have a license to practice in the state of intended employment or the employer may submit a document signed by the state’s physical therapy licensing board indicating that the prospective employee qualifies to take the written licensing examination for physical therapists.

The process is similar to nurses, requiring employers to first file for a Prevailing Wage Determination with the Department of Labor, identifying the average wage for the position in their geographical area. They then provide notice to current employees of the open position(s) through a 10-day physical posting requirement. Following that, the employer will file Form I-140 (Petition for Alien Worker). Upon approval of the I-140 Petition, the prospective employee then seeks the immigrant visa at a U.S. Embassy or Consulate if outside the United States, or can complete the process through Adjustment of Status (Form I-485) if already in the United States in a valid nonimmigrant status.

EB-2 Visa National Interest Waiver

The National Interest Waiver (NIW) allows a foreign national to either qualify through employer-sponsorship, or through a self-petition, avoiding the lengthy PERM labor certification process. Essentially, a foreign national filing for a NIW is requesting that the labor certification be waived in the interest of the United States.

In order to qualify for EB-2 NIW, a foreign national must demonstrate that he or she has exceptional ability and his or her employment in the United States will greatly benefit the nation. Qualification for the NIW requires the foreign national demonstrates by preponderance of the evidence that:

1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification.

The process requires the employer or foreign national applicant to file an I-140 Immigrant Visa Petition with USCIS. Upon approval of the I-140 petition, the prospective employee then seeks the immigrant visa at a U.S. Embassy or Consulate outside the United States, or through an Adjustment of Status application (Form I-485) if currently in the United States in a valid nonimmigrant status.

Obtaining a National Waiver of Interest is a complex process with a high evidentiary standard. Harris Beach Murtha’s lawyers help you navigate the complex NIW process.

EB-1B Outstanding Researcher Immigrant Visa

EB-1B is the employment-based first preference classification for outstanding professors or researchers. It is tailored particularly for university professors or researchers. Because it is a first preference immigrant petition, there is usually no visa backlog for nationals of most countries, except for India and China. Although a labor certification is not required for the EB-1B petition, a job offer for a tenured position or permanent research position is mandatory for the petition. Thus, self-petitions are not allowed. The beneficiary must demonstrate international recognition and that they are at the top of their field of endeavor.

Employer Sponsorship and Job Offer of Permanent Position Required

The faculty position offered to the foreign national must be a tenured or tenure-track position in the academic field at a university or institute of higher education. Any “research” position must be a comparable permanent research position in the academic field from a university or institute of higher education. A research position from a private employer may be qualified if such private employer has three persons full-time in research positions and has achieved documented accomplishment in the academic field.

What is International Recognition?

The standard for the EB-1B petition is for the foreign national to prove that he or she is internationally recognized as outstanding in the academic field.

According to the regulations, the foreign national must meet two out of six evidentiary criteria to establish his or her international recognition as an outstanding professor or researcher. The six criteria are:

• Documentation of the foreign national’s receipt of major prizes or awards for outstanding achievement in the academic field;
• Documentation of the foreign national’s membership in associations in the academic field which require outstanding achievements of their members;
• Published material in professional publications written by others about the foreign national’s work in the academic field. Such material shall include the title, date and author of the material, and any necessary translation;
• Evidence of the foreign national’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
• Evidence of the foreign national’s original scientific or scholarly research contributions to the academic field; or
• Evidence of the foreign national’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

Kazarian and two-step approach – “The Final Merits Analysis”

Since August 2010, USCIS has implemented a policy requiring a two-step analysis approach to adjudicate each EB-1B petition pursuant to Kazarian v. USCIS 596 F.3d 1115, (9^th Cir. 2010). According to the USCIS memo, the immigration officer adjudicating the EB-1B petition will first “evaluate the evidence on an individual basis to determine if it meets criteria, and then must consider all the evidence in totality in making the final merits determination.”

In the first step, the adjudicator will evaluate the evidence to determine how many evidentiary prongs the petition has satisfied. If the petition has met at least two of six evidentiary prongs, then the adjudicator must proceed with the second step approach of “final merits analysis” by reviewing the evidence, accumulatively, to decide if the foreign national has proven that he or she is an outstanding professor or researcher with international recognition in the academic field.

EB-1A Alien of Extraordinary Ability

EB-1A is also an employment-based first preference classification that may be filed as a self-petition, or through employer sponsorship. An EB-1A visa is designed for foreign national applicants with extraordinary ability in their field of endeavor. To qualify for an EB-1A, the applicant must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics. This is proven in a variety of ways, but each needs to be through a sustained national or international acclaim. The applicant must meet three of 10 criteria stated below, or they need to present a one-time achievement. EB-1A extraordinary ability examples for a one-time achievement include receiving an Oscar, a Nobel Prize, an Olympic medal or an award of equivalent nature.

Criteria for Eligibility
To demonstrate eligibility as an Alien of Extraordinary Ability, the applicant must provide evidence for three of the 10 following qualifications unless they are able to show an internationally recognized award or achievement. These criteria should show a sustained national or international recognition:

1. Lesser recognized award for excellence;
2. Proof of your original scientific, scholarly, artistic, athletic, or business-related contributions in your field of expertise;
3. Published material about your excellence in either professional or trade publication or other major media
4. Authorship in scholarly, professional or trade media;
5. Commercial success in the performing arts;
6. Being asked to judge others individually or on a panel for their work;
7. Have had work displayed at artistic exhibitions and/or showcases;
8. Membership in a distinguished association or organization whose membership relies on having an extraordinary ability;
9. Performing a leading role in a distinguished organization; or
10. Proof you command a high salary or significant payment in relation to others in your field.

Although, an employment offer is not required for the EB-1A green card, the applicant must demonstrate he or she will be working in their field of expertise in the United States. If an applicant does not possess the specific evidentiary requirements listed above, but otherwise has equivalent “comparable” evidence, this could also qualify.

EB-5 Visa Foreign Investors

Under the EB-5 program, investors (and their spouses and unmarried children under 21) are eligible to apply for lawful permanent residence (become a green card holder) if they:

• Make the necessary investment in a commercial enterprise in the United States; and
• Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

Harris Beach Murtha’s attorneys help file the I-526 petition with USCIS to provide proof of the investment and the DS-260 with the U.S. Department of State to obtain an EB-5 visa abroad. If an immigrant visa is not immediately available, Form I-485 can be filed with USCIS to adjust status to a conditional permanent resident within the United States.

Permanent Labor Certification (PERM) allows employers to hire foreign employees to work permanently in the United States. PERM Labor Certification is also the most used employment-based opportunity for obtaining a green card.

Certain qualifications must be met: the job opening must be full-time and available to U.S. workers, and it must pay prevailing wage for the area of employment. Also, the job requirements must adhere to what is customarily required for the occupation in the United States and may not be tailored to the worker’s qualifications.

The employer must first work with the Department of Labor to certify that there is a shortage of U.S. workers qualified and willing to perform the job and the foreign national hire will not adversely affect the wages of similarly employed U.S. workers.

U.S. employers must show good-faith efforts to hire U.S. workers with the required skills through a test of the labor market. This includes a combination of newspaper advertising, online ad, job bank and posting on the employer’s website. If they are unable to find qualified U.S. workers, the employer may submit the PERM application (Form ETA 9089) to the Department of Labor through the U.S. Department of Labor’s online FLAG portal. The labor department will verify the qualifications of the worker.

After approval from the U.S. Department of Labor, the employer files an I-140 Immigrant Visa Petition with USCIS.

Our lawyers guide employers through the U.S. Department of Labor PERM process and USCIS petition process.

The immigration process can be a complex maze of ever-changing regulations, policies and forms. Our immigration team has developed a unique depth of experience and understanding of specialized areas of family-based, humanitarian and individual immigration options needed to develop and implement creative strategies to meet our clients’ immigration goals. We are proud to support individuals and families in securing the “American Dream.”

Our work includes handling a variety of cases to assist immigrants and refugees with humanitarian legal needs, including representing immigrants during bans; in Immigration and Customs Enforcement (ICE) proceedings; when applying for Humanitarian Parole; in applications for asylum based on political, religious and ethnic persecution; and matching refugees with local sponsors.

U.S. Immigration Options for Romanian Citizens and Businesses

A Harris Beach Murtha attorney, Dana Bucin, is the honorary consul of Romania to Connecticut. The Romanian government appointed Dana and the U.S. Department of State confirmed the appointment.

In this role, she runs diplomatic programs to reunify families separated at the border (Roma populations), coordinates assistance for vulnerable Romanian citizens in Connecticut and assists in the transfer of Ukrainian refugees from Romania to Connecticut.

She also develops cross-border business exchanges with Romania and enhances the economic, educational and cultural visibility of Romanians in Connecticut.

Military Immigration: Discretionary Options for Military Members, Enlistees and Their Families

The U.S. government recognizes the important sacrifices made by U.S. service members, veterans, enlistees and their families. To support these individuals, we assist in applying for discretionary options such as parole or deferred action.

• Immigrant Military Members and Veterans Initiative (IMMVI): The U.S. Department of Homeland Security will accept and consider, on a case-by-case basis, parole requests under section 212(d)(5) of the Immigration and Nationality Act (INA) from certain noncitizen current and former military service members, and qualifying family members of current and former military service members, who are outside the United States and wish to enter the United States to benefit from U.S. legal counsel and systems and access certain veterans’ benefits. IMMVI-based parole requests for current and former service members are: (1) adjudicated by immigration officers who have received specialized training developed in coordination with the Department of Veterans Affairs; and (2) automatically processed with expedited handling

• Military Parole in Place: Under section 212(d)(5)(A) of the INA, USCIS has discretion to grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit. You may be eligible for parole in place in 1-year increments if you are one of the following, or are the spouse, widow(er), parent, son or daughter of one of the following: (1) active-duty member of the U.S. armed forces; (2) individual in the Selected Reserve of the Ready Reserve; or (3) individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

Parole in place may be granted only to individuals who are present without admission and are applicants for admission. If you were admitted to the United States lawfully but are present in the United States beyond the period of stay authorized, you are not eligible for parole in place because you are not an applicant for admission. However, you may qualify for deferred action.

Harris Beach Murtha can assist qualifying military members in requesting parole in place through USCIS. Military families on assignment in an area different from their permanent place of residence may submit their request to the office with jurisdiction over either location.

• Military Deferred Action: Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against an individual for a certain period of time. If granted, the Department of Homeland Security (DHS) considers you to be lawfully present in the United States for the period deferred action is in effect. Deferred action does not convey lawful status, nor does it excuse any past or future periods of unlawful presence. Under existing regulations, if you are granted deferred action, you are eligible to apply for employment authorization for the period of deferred action if you can demonstrate “an economic necessity for employment.” DHS can terminate deferred action at any time, at its discretion.

Applicants are eligible for deferred action for up to two years if they are the spouse, widow(er), parent, son or daughter of an: (1) active-duty member of the U.S. armed forces; (2) individual in the Selected Reserve of the Ready Reserve; or (3) individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

In addition, Military Accessions Vital to the National Interest (MAVNI) program enlistees in the Department of Defense Delayed Entry Program (DEP) may be eligible for deferred action. Spouses, parents, sons and daughters of enlistees in the DEP may also be eligible for deferred action.

Removal/Deportation Defense

Harris Beach Murtha protects the rights of foreign nationals in removal. We assist and advocate for individual foreign national clients in navigating through complex removal proceedings, including orders of supervision, and representation through immigration court proceedings.

Affirmative Asylum

Harris Beach Murtha protects foreign nationals facing persecution in their home country. Our attorneys assist clients around the country in the preparation of asylum applications and the critical step of preparing for their affirmative asylum interview. Our interview preparation involves extensive mock interviews, country condition research, assistance in evidence development and ultimately attending the interview. Our practice has recently expanded to include asylum defense before immigration court (Executive Office of Immigration Review).

Harris Beach Murtha provides defense at the front lines of immigration enforcement. Our attorneys are committed to protecting the rights of foreign nationals facing removal from the United States. Our primary goal is to prevent deportation and identify legal pathways for our clients to remain in the United States. We assist and advocate for individuals at every stage of the removal process, guiding clients through complex proceedings that may include orders of supervision and full representation before the Immigration Courts.

We provide comprehensive, strategic defense for individuals confronting deportation — whether they are detained by ICE or defending their case while living and working in the community. Our immigration attorneys bring deep courtroom experience and a sense of urgency to every matter, delivering hands-on, responsive advocacy when liberty, family unity and future opportunity are at stake.