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temporary visa topics

Page Contents:

Following are nonimmigrant visa topics covered in our Guide to U.S. Immigration Rules.

Visa Waiver Program (VWP)

Intracompany Transferees (L Visas)

Temporary Workers in Specialty Occupation (H Visas)

Treaty Traders and Treaty Investors (E Visas)

Professional Australian Workers (E-3 Visas)

Temporary Visitors (B Visas)

Students (F Visas)

Exchange Visitors (J-1 Visas)

Aliens with Extraordinary Ability (O Visas)

VISA WAIVER PROGRAM (VWP)

The Visa Waiver Program (VWP) enables citizens of certain countries to travel to the United States for tourism or business for 90 days or less without obtaining a visa.

Citizens of the following countries must carry a machine readable passport or a biometric passport to participate in the Visa Waiver Program:

Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom.

The requirements to travel under the VWP are that the individual must be:

• a citizen of a Visa Waiver Program country;
• Have a valid passport issued by the participating country that is valid for six months beyond your intended visit (with exceptions);
• traveling for business, pleasure or transit only.
• staying in the US for 90 days or less.

Plus, if entering the US by air or sea:

• holding a return or onward ticket: travelers with onward tickets terminating in Mexico, Canada, Bermuda or the Caribbean Islands must be legal permanent residents of these areas;
• entering the US aboard an air or sea carrier that has agreed to participate in the program; and in possession of a completed form I-94W, obtainable from airline and shipping companies;

OR, if entering the US by land from Canada or Mexico

• In possession of a completed form I-94W, issued by the immigration authorities at the port of entry, and a USD$6.00 fee, payable only in US dollars.

By law, some travelers are not eligible to enter the US. These include people with criminal records, certain serious communicable illnesses, previous deportations from the US, previous overstays on the visa waiver program and certain other problems. Such travelers may not travel under the VWP and must apply for special restricted visas. If they attempt to travel without a visa, they will be refused entry into the US.

Travelers who plan to study, work or remain more than 90 days cannot travel under the VWP and must apply for a visa. If a US immigration officer believes that a traveler without visa is going to study, work or stay more than 90 days, the officer will refuse to admit the traveler.

International travelers who are seeking to travel to the United States under the Visa Waiver Program (VWP) are now subject to enhanced security requirements and will be required to pay an administrative fee. All eligible travelers who wish to travel to the U.S. under the Visa Waiver Program must apply for authorization and then pay the fee using the Electronic System for Travel Authorization (ESTA). ESTA is an automated system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program. The ESTA application collects the same information collected on Form I-94W. ESTA applications may be submitted at any time prior to travel, though it is recommended travelers apply when they begin preparing travel plans. International visitors to the U.S. from Visa Waiver Program countries are now required to apply for travel authorization online.

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INTRACOMPANY TRANSFEREES (L VISAS)

Introduction

4.1  The L Visa facilitates the temporary transfer of key employees of multinational companies to the U.S.  Individuals, previously employed for a continuous period of one year within the preceding three years outside the U.S. as executives, managers, or in positions requiring specialized knowledge and who will continue to work in the U.S. in those capacities for the same employer or a qualifying U.S. subsidiary, branch, parent, affiliate or joint venture are eligible for L-1 nonimmigrant visa status.
 

4.2  While L visas are very flexible, there are a number of specific criteria that may not be avoided, as follows:

• L-1 visas are employer-specific – one may not change employers or begin working for a different company until a change in employment is approved;
• changes in job location, duties and wages are sensitive – some may require a new petition;
• change in company status or reorganization, such as an acquisition by another company, for example, may affect the status of the visa holder.

4.3  The maximum period of stay for L-1 visa holders may not exceed seven years for executives and managers and five years for individuals with specialized knowledge.  There are separate rules for specialized knowledge workers who have been promoted to a managerial/executive position after arriving in the U.S. and for individuals who have held H-1B status for periods contiguous with the L-1 stay.  These rules, however do not serve to extend the employee’s stay beyond the appropriate 5, 6, or 7 year limit but, rather, provide guidance as to which limit applies.

Executive Capacity

 4.4  Executive capacity requires proof that the alien primarily:

• directs the management, a major component or major function of the organization;
• establishes goals or policies of the organization / component / function;
• exercises wide latitude in discretionary decision making; and
• operates only under general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Note:

a) Those who provide the goods and/or services of the organization are generally excluded notwithstanding the fact that they may also additionally perform managerial or executive tasks.

b) The U.S. Citizenship and Immigration Services (USCIS: formerly known as “INS,” the Immigration and Naturalization Service) has repeatedly maintained that, for a managerial or executive capacity petition to be approved, the requirements must be read in conjunction not disjunction (that is all four factors must be present and proved, not a lesser combination of them.)

Managerial Capacity

 4.5  Managerial capacity requires proof that the alien primarily:

• manages the organization, a department, a subdivision, a function or a component of the organization;
• supervises and controls supervisors managerial employees, or professionals, or manages an essential function within the organization;
• exercises meaningful personnel action authority over those supervised, and if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
• has discretionary authority over day-to-day operations of the activity or function. First-level supervisors are considered managers only if they primarily supervise professional employees, those who hold a university degree in a specific field and are performing at the level of a degree holder in that field.

Specialized Knowledge Capacity

4.6  Specialized Knowledge capacity requires that the alien possess:

• knowledge of the organization's products or services or research, equipment, techniques, management or other interests, and their application in the international market, and/or
• possess an "advanced level of knowledge or expertise" of processes and procedures of the organization.
• If pursuing a specialized knowledge L-1B position through a Blanket L approval, the alien must be a professional, which requires a minimum of a Bachelor’s degree.

Application Process

4.7  The petitioner begins the L-1 process by filing Forms I-129 and I-129L, along with appropriate fees and documents proving the necessary petition elements we have described, with the Director of the USCIS Regional Service Center having jurisdiction over the area of intended employment.  Even in emergencies, the Regional Center, not the local USCIS District Office, has exclusive jurisdiction over the petition.

4.8  The petition, to be approved, must simultaneously establish the petitioner as a qualifying organization and that the particular alien named in the petition should be qualified as an Intracompany Transferee.  With the approval notice described below, the named alien may apply for a visa and for entry into the U.S.  If the worker is already in the U.S., the USCIS will change the worker's status in accord with the petition.

4.9  A Notice of Action/Approval (Form I-797) is sent to the employer once the petition (and change of status, if appropriate) is approved.

Note: Amended petitions "shall" be filed with the USCIS office having jurisdiction over the job location to reflect changes in approved relationships, and/or any other fact that affects the alien's L-1 eligibility or employment. This includes job changes such as where the alien is promoted from a specialized knowledge position to a managerial position.

Initial Admission to the U.S. and Extensions of Stay

4.10  L-1 status for executives and managers is limited to a maximum period of not more than seven years.  L-1 status based on specialized knowledge is limited to five years.

4.11  Initial approval of an individual petition may be granted for a period not to exceed three (3) years.  The actual duration is determined by the length of time requested by the employer in its petition.  Visa validity and subsequent admissions of the alien are each limited to the period of validity of the petition.

4.12  We have observed that it is not uncommon for a USCIS Inspector at the port of entry to admit an L-1 applicant for less than the full period of the approved petition.  This may result when a passport will expire sooner than six months after the petition's remaining duration.  Reciprocal agreements regarding passport validity, between the U.S. and the alien's country of citizenship, can govern that decision.

4.13  If through clear, convincing proof in the form of arrival and departure records, tax records and employment records, an L-1 beneficiary can establish that s/he does not reside continuously in the U.S., and that his/her employment in the U.S. is seasonal, intermittent, or an aggregate of six months or less per year, or that the alien resides abroad and regularly commutes to the U.S. to engage in only part-time employment, the five year or seven year limitation on continuous L-1 status does not apply.

4.14  Extension of an individual petition may be granted in increments not to exceed two years, and need not be accompanied by supporting documents unless either expressly requested by the USCIS or when needed to document a change in the worker's employment situation. Petition extension may only be sought if:

• the validity of the original petition has not yet expired;
• the petitioner is simultaneously requesting an extension of the alien beneficiary's stay on the same form (although the two determinations, one on the petition and the other on the extension of the alien's stay, are, at least technically, adjudicated separately); and
• the alien beneficiary is physically present in the US.

4.15  If the alien, during the pendency of his extension request, must leave the U.S. for business or personal reasons, traveling abroad will no longer affect the processing of his extension as long as the extension request was properly and timely filed before the worker's stay expired.  Despite an intervening international travel while the extension petition is pending, U.S. Immigration will adjudicate the petition and provide an extension on the I-94 card. 

By contrast, in the event the alien has filed a petition to change his nonimmigrant visa status (from one nonimmigrant visa category to another nonimmigrant visa category), traveling abroad will affect the processing of the petition to change his nonimmigrant status.  By leaving the U.S., the alien beneficiary is held to have abandoned his request for change of status, and such request for change of status will automatically be denied.  This means that the alien beneficiary will not be given a new I-94 card granting him/her the new non immigrant visa category.  Please note that traveling abroad and the subsequent denial of the change of status petition for certain visa categories (H, L, O, P, Q) will not affect the processing of the underlying petition for a particular nonimmigrant visa category.  This means that U.S. Immigration will not issue a new I-94 card.  As a result, the alien beneficiary will be required to travel to a U.S. Embassy or Consulate abroad to avail himself of the new nonimmigrant visa prior to the expiration of the prior nonimmigrant status in order to remain in valid visa status and reenter the U.S. in valid status.

Readmission as an L-1 Transferee after reaching maximum stay

4.16  Before an alien who has been in the U.S. as an L-1 for a period of five (or seven) continuous years, may be eligible for re-admission to the U.S. again in L-1 status (thus restarting the entire period of eligibility), the alien must have been physically out of the U.S. for at least one full year.  Temporary visits to the U.S. extend this requirement.  So, one who is abroad for eleven months, and who enters as a visitor for a month, must still remain abroad for an additional month.  The law does not otherwise specify the country or location where the year may be spent.

Opening a New Office

4.17  A "New Office" is an organization doing business in the U.S. through a parent, branch, subsidiary, or affiliate for less than one year.

4.18  When a "manager" or an "executive" employee comes to open or to be employed in a new office, the petitioner must submit evidence that:

• it has secured sufficient physical premises to house the new office;
• the beneficiary was employed abroad for one out of the three years immediately preceding his application for admission in a managerial or executive capacity position;
• the proposed employment involves managerial or executive authority over the new operation; and
• the intended U.S. operation will support, within 1 year of the petition's approval, an executive or managerial position.

4.19  A "specialized knowledge" employee may also come to open or to be employed in a new office. Then, the petitioner must submit evidence that:

• sufficient physical premises to house the new office have been secured;
• the beneficiary was employed abroad for one out of the three years immediately preceding his application for admission, in a managerial or executive capacity position, or one that involved specialized knowledge;
• the business entity in the U.S. is a "qualifying organization"; and
• the foreign entity has the financial ability to pay the beneficiary and commence doing business in the U.S.

4.20  Initial approval of a petition for a "New Office" may be granted for a period not to exceed one year.

4.21  Extension of a new office's petition may be granted in increments not to exceed two years.  The extension petition must be accompanied by evidence that the organizations in the U.S. and abroad still qualify to petition on the basis of their relationship to one another and that the U.S. entity has been "doing business," i.e., providing its goods and services in the U.S. The petition for extension must be accompanied by evidence describing the duties performed by the alien during the previous year, as well as those he/she will perform during the requested period of extension; and evidence of the U.S. organization's staffing and past payroll (especially when the alien will be employed in a managerial or executive capacity).  Finally, the extension petition must include evidence of the financial status of the U.S. operation, to assure that the enterprise is, indeed, viable.

Employment Abroad

4.22  The requirement that the worker be employed ... abroad... continuously for one year ... within the immediately preceding three years, as elements of threshold L-1 eligibility, occasionally raises difficulties: 

• "employment" for example, seems to preclude the independent contractor who does consulting (for a fee rather than a salary) for the qualifying organization abroad, and may be held to exclude an employee whose work was on less than a "full time" basis.  The key issue is the degree of management, supervision and control over the worker's activities that existed under the employer/employee relationship;
• "abroad" means, literally, that the L-1 alien has been physically employed outside of the U.S. during the requisite one continuous year, and brief periods of intervening lawful presence in the U.S. for business on behalf of the qualifying organization (e.g. B-1 entries) or visits for pleasure (e.g. B-2 entries), while not interruptive of the one year continuous employment abroad, are counted against fulfilling that requirement.  The alien must remain abroad long enough to accumulate an aggregate total of one year physical presence abroad while employed;
• "continuous" employment abroad suggests that any interruption of employment which breaks the employer/employee relationship would restart the qualifying period from the date when the employment began anew, rather than when it originally began. In other words, an alien cannot "link" separate periods of employment of less than a year even if together they would equal or exceed a year of employment.  Occasional vacations leave time, or outside training, would likely not toll the qualifying period; and

• "within the immediately preceding three years" essentially means that the requisite one year of pre-eligibility employment must have occurred within a thirty-six month period measured backward from the time the intending L-1 alien makes "application for admission into the U.S.," not from when the L-1 petition is received by USCIS for adjudication or when the alien applies for the L-1 visa at the U.S. consulate.

Note: Interesting fact patterns with differing results have arisen when the alien’s employment abroad was succeeded by an intervening lengthy period of lawful or even unlawful presence in the U.S. Space does not permit an exhaustive treatment of the many possible situations, and where a question arises, careful analysis should take place. All eligibility prerequisites should be met before the petitioner files the visa petition. While USCIS will accept an early filing, seeking adjudication of a petition to begin up to 6 months in the future, as a practical matter, the one-year-employment-within-the -preceding-three-year should be conservatively measured from the date of filing rather than intended entry (admission) to the U.S. That will serve to materially simplify the adjudication process.

Blanket L Petitions

4.23  A "Blanket L Petition" is used to establish a petitioner as a qualifying organization in advance of sending any particular alien to a post in the United States.  It permits, at some unspecified time in the future, the assignment of a qualified worker to a post in the U.S. using the pre-approved Blanket Petition as a basis upon which to apply directly for a visa and/or entry into the U.S.  The worker must be coming to be employed at one or more of the Company's entities named in the approved Blanket Petition as a manager, executive or specialized knowledge professional.  A Blanket petition is adjudicated by the Regional Service Center having jurisdiction over the locality where the petitioner is located.

4.24  Requirements for a Blanket L petition are:

• petitioner and included qualifying organizations are engaged in commercial trade or services;
• petitioner has been doing business in the U.S. for more than one year, through a U.S. branch, subsidiary or affiliate; and
• petitioner and included qualifying organizations have had at least ten L petitions approved for managers, executives or specialized knowledge professional during the previous 12 months; or
• petitioner, U.S. affiliates or subsidiaries have combined annual sales of at least $25 million; or
• petitioner's U.S. workforce numbers at least 1,000 employees.

4.25  Initial approval of a Blanket L Petition may be granted for a period of three years.

4.26  The initial admission of an alien under a "new" Blanket L Visa Petition may be permitted for a period up to, but not more than, three years, even though the initial approval of the Blanket L Visa Petition is less than three years.

• Note: Once a Blanket L Visa Petition is approved, the L-1 visa issuance process commences when the petitioner provides to the prospective L-1 alien two copies (keeping a third copy for itself) of Form 1-129S, Certificate of Eligibility for Intracompany Transferee under a Blanket Petition, together with two copies of Form 1-797 Notice of Approval of the original Blanket Petition.  The alien then presents these to the U.S. consul abroad who has the authority to determine (as USCIS does in individual petition cases) whether the alien is, in fact, eligible to be classified as an Intracompany Transferee (e.g., is a manager, executive, or one who possesses specialized knowledge, namely a professional position requiring a minimum of a Bachelor’s degree.)  If the visa is issued, the alien proceeds to the U.S. and enters in the normal manner.  Often the evidentiary document that will have the most significance, one that accompanied the Blanket L-1 Petition, is an organizational chart that contains a clearly defined line delineating the managerial and/or executive positions in the organization.  Those below the line require individual petitions; those above the line are usually deemed to be qualified under the Blanket L Petition rules. L-1 aliens admitted under a Blanket L Petition may work at any entity within the qualifying organization provided the entity was listed on the approved Blanket L Petition, and the “alien will be performing virtually the same job duties.”

• NOTE: All new Blanket L Visa Petitions under the Blanket L Visa Petition program filed on or after June 6, 2005 require the applicants to have worked for a period of no less than one year outside the U.S. for an employer with a qualifying relationship to the petitioning employer. Previously, applicants in the “Blanket L-1 Visa” program could participate after as little as 6 months of qualifying employment.

4.27  Extension of a Blanket L Petition to the petitioning employer may be granted INDEFINITELY.

Note: Failure to make a timely request for an indefinite extension will require that a new 3-year approval again be obtained before an indefinite blanket L-1 approval can be sought.  Please note that this does not mean that employees will be granted indefinite lengths of stay under the L visa.  The L visas for employees will still be limited to five or seven years.

Please note that a new version of Form I-129S came out on 11/23/2010.

Nonimmigrant Intent

4.28  Nonimmigrant intent is no longer a major factor in a consular decision to issue an L-1 visa, or in a USCIS decision to grant either admission or extension of stay.  The presumption of immigrant intent, that otherwise applies to all nonimmigrant applicants for admission, does not apply to the L-1 alien. The immigration laws state:

"The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an L petition, a request to extend an L petition, the alien's application for admission, change of status, extension of stay.  The alien may legitimately come to the U.S. as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and at the same time, lawfully seek to become a permanent resident of the U.S."

Automatic Revocation of Blanket Petition

4.29  If a petitioner withdraws a Blanket L petition or if the petitioner fails to extend a Blanket L Petition, it is revoked automatically.  Automatic revocation may not be appealed.

Notice of Revocation

4.30  This may occur if the Director finds that:

• one or more entities named in the petition are no longer qualifying organizations;
• an alien admitted under the petition is no longer eligible under immigration law;
• the qualifying organization violated requirements of the relevant statute or regulations;
• the statement of facts in the petition was not true or correct;
• approval of the petition involved gross error; or
• no qualifying organization has used the Blanket L Petition for three years.

L-2 Spouses / Minor, Unmarried Children

4.31  In general, holders of L-2 Visas do not receive automatic employment authorization and derive their status solely from the principal L-1 worker.  However, recent changes in USCIS regulations now allow spouses of L-1 workers who hold L-2 status to obtain employment authorization for up to two years (renewable if maintaining valid status) by applying to the appropriate regional service center on Form I-765.  This change went into effect in January of 2002.  More recent rules issued by the Social Security Administration now allow spouses of L-1 workers to apply for a social security number prior to obtaining work authorization.

4.32  L-2 children lose their status at age 21, or upon marriage if prior to age 21.  While authorized to study, L-2 dependent children must convert their status to that of an F-1 student if the individual wishes to participate in Practical Training or any other proper student employment.

Definitions

4.33  The following definitions and further explanatory notes may also be helpful:

• "Petitioner" is the entity within an organization that seeks to employ the alien in the United States.
• "Beneficiary" is the alien to be employed.

Note: As suggested earlier, employment is difficult to define. It does not refer solely to the source of one‘s paycheck. Rather, for immigration purposes, an employer is the entity that directs and controls the employee’s activities and how his/her tasks are to be performed. Payroll considerations may or may not evidence that control.

The sending employer (abroad) and the receiving employer (the petitioner in the U.S.) must be related in one of several specific ways: they must be the same employer (viz. a branch office) or one must be the other's "Parent," "affiliate," or "subsidiary".

Note: For one of these relationships to exist, the element of "control" (usually through majority ownership, but alternatively through veto power) must be present in the links of the chain which connects the two entities. 

• "parent" means a firm, corporation or other legal entity which has subsidiaries;
• "branch" means an operating division or office of the same organization housed in a different location;
• "subsidiary" means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, at least 50% of the entity and positively or negatively controls the entity, or owns 50% of a 50-50 joint venture, holding equal control and veto power over the entity; or owns less than half of the entity but in fact controls the entity.

Note: in most cases a franchise agreement, a management contract, or licensing provisions do not establish the necessary relationship because the requisite ownership is absent.

• "affiliate" means one of two subsidiaries both of which are owned and controlled by the same parent or individual, or that are owned and controlled by the same group of individuals, each individual owning and controlling approximately (usually interpreted as "exactly") the same share or proportion of each entity. Affiliate also includes: certain international accounting firms, organized as partnerships in the U.S. to provide accounting (along with managerial and/or consulting) services.

Note: It must be shown, however, that such firms market their accounting services under the same internationally recognized names pursuant to an agreement with a world-wide coordinating organization owned and controlled by the member accounting firms and that the sending employer (abroad) and receiving employer (in the U.S.) are both members of the world-wide organization.

A "Qualifying Organization," in addition to being a U.S. or foreign firm, corporation or other legal entity which meets exactly one of the qualifying relationships (e.g. partner, branch, subsidiary, or affiliate), must continue to be "doing business as an employer in the U.S. and in at least one other country" during an Intracompany Transferee's stay in the U.S.

• "Doing Business" means "the regular, systematic, and continuous provision of goods and/or services by a qualifying organization which has employees."  It does not include the mere presence of an agent or office of the qualifying organization in the U.S. or abroad.

L-1 VISA REFORM ACT OF 2004 – Aspects of the New Law Changes for the Temporary Work Program

On December 8, 2004, USCIS announced that President Bush has signed the Omnibus Appropriations Act for FY 2005, which contains the L-1 Visa Reform Act of 2004. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

The L-1 Reform Act amends previous legislation by addressing the issue of “outsourcing.” L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer. This limitation will apply to all L-1B petitions filed with USCIS on or after June 6, 2005. This includes extensions and amendments involving individuals currently in L-1 status.

The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year within the last 3 years outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005. As mentioned in previous chapters, the Act also creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitions seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. Once again, the new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.

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TEMPORARY WORKERS IN SPECIALTY OCCUPATION (H VISAS)

Introduction

3.1 The visa category known as the H-1B Specialty Occupation Visa, applies to a foreign national who has been offered a temporary professional position in the United States that requires a bachelor’s or higher degree or a foreign equivalent related to the specific occupation.  The worker’s degree may be comprised of a combination of education and experience, if that combination is deemed to equate to a U.S. degree by a qualified Educational Credentials Evaluator.

3.2 The U.S. Congress, in 2000, passed legislation which made important changes to many long-standing immigration laws.  A considerable number of the changes substantially impacted employers of Temporary Professional Workers (H-1B) in the U.S.  The American Competitiveness in the Twenty-first Century Act increased the annual H-1B numerical visa quota from 65,000 per year to 195,000 for 2001, 2002 and 2003.  The annual ceiling on H-1B petition approvals under the Immigration and Nationality Act (“INA”) Section 214(g) reverted from 195,000 to 65,000 beginning in fiscal year 2004. 

H-1B Nonimmigrant Visa

3.3 There are many regulatory requirements for the H-1B.  It is granted in three-year increments or less, with a maximum of six years.  However, there is an exception to this six-year cap that we will discuss below.  Also, a new six-year period may begin after the alien worker has resided outside of the United States for a year (365 days) or more and a new petition is approved for that worker.  Even if the alien has been outside of the U.S. for more than one year, he can recoup time on his previously issued H-1B visa if he did not use the full six years allotted to him under his previously issued H-1B visa.

3.4 Under a new law, nonimmigrants who hold or have held H-1B status may change jobs upon the filing of an H-1B petition by the new employer if the individual is in the U.S. at the time of filing and has not engaged in unauthorized employment.  Before this law went into effect, H-1B workers had to wait until the petition was approved before changing jobs.

3.5 H-1B nonimmigrant visa status requires:

• That the foreign worker be coming to work in a specialty occupation.  This is defined as requiring:
• The application of a body of highly specialized theoretical and practical knowledge normally gained through attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent);
• Approval of a Labor Condition Application (LCA)/Form ETA 9035E by the U.S.  Department of Labor; and
• Submission to and approval of a petition (Form I-129 and I-129H, with supporting documentation) by the U.S. Citizenship and Immigration Services (USCIS: formerly known as “INS,” the Immigration and Naturalization Service) at the appropriate Regional Service Center.  The approved LCA and the applicant’s educational credentials must be attached.  If, in the State of intended employment, or nationally, a license is required to perform the duties of the job, a copy of that license must also be submitted.  (Hence, if no license is required, but where there may be some question as to the particular job’s need for a license, it is wise to secure and submit evidence, such as a copy of the State’s regulations to avoid delay.)

3.6 NOTE: The employer must offer and must now pay 100% of the “prevailing wage” (instead of 95% previously) in the work place or in the vicinity of the work place.  That wage is determined either through the use of a standardized database (OES/SOC) published on the internet by the U.S. Department of Labor, or by purchasing consultative opinions based upon survey studies recently published, or by conducting one’s own wage survey, which must meet rigorous statistical standards.

Labor Condition Application

3.7 All employers must register their intent to employ an H-1B worker with the U.S. Department of Labor.  The Labor Condition Application (LCA)/Form ETA 9035E, which accomplishes this requirement, does contain several attestations by the employer, among which are that the worker will not be employed on terms less favorable than those offered to other alien workers in similar jobs; that there is no strike or lockout; and that the employer has notified its employees by a job posting or through collective bargaining.  The alien must be paid the wage beginning 30 days or less after the alien enters the U.S.  If an H-1B employee is in a nonproductive status due to a “decision by the employer,” which includes lack of work assignments and lack of a permit or license, the employee must nevertheless be paid the full pro-rata amount due.  But, if the employee makes a voluntary request for a leave of absence which is outside the scope of normal employment (such as caring for a sick relative or touring the U.S. and not a maternity leave or vacation), the employer is not obligated to pay the employee.

3.8 The employer must provide information on the LCA application form about the number of foreign workers sought, the job location, the occupational classification code, job title, wage rate and source of the prevailing or actual wage determination, whether the job is full or part time, the number of hours that the alien will be expected to work in a week, the date the worker is needed, and the period of employment (up to three years).

H-1B Dependency and Willful Violators

3.9 The American Competitiveness and Workforce Improvement Act and the Department of Labor’s new H-1B Regulations divide H-1B employers into two groups. H-1B dependent or Willful Violators, and then all others. An employer is “H-1B dependent” if it has 8 or more H-1B workers out of 1 to 25 full-time employees, if it has 13 or more out of 26 to 50 full-time employees, or if the H-1B workers constitute 15% or more of 51 or more full-time employees. An employer is a “willful violator” if it has willfully failed to meet a condition of the Labor Condition Application (“LCA”) or has made a misrepresentation of a material fact on it (the LCA is an application, filed with the Labor Department before the H-1B petition, that sets forth several facts and conditions of employment). These employers must comply with two additional requirements, recruitment and non-displacement. They must make good faith efforts to recruit U.S. workers before hiring H-1B workers, using industry standard recruitment methods. They must not hire H-1B nonimmigrants if doing so will displace similarly employed U.S. workers. Likewise, they may not place their H-1B employees at another’s worksite, if that would cause a displacement of a U.S. worker within the period from 90 days before to 90 days after placing the worker.

3.10 Exception. H-1B dependent employers and willful violators are relieved of these additional requirements with regard to “exempt H-1B nonimmigrants”. Exempt H-1B nonimmigrants hold either a master’s or higher degree, or its foreign equivalent, in a specialty related to the job, or earn annual wages of at least $60,000 (U.S. dollars). The wage cannot be prorated for part-time workers, and the master’s degree in the U.S. must be entirely academic-based. An H-1B nonimmigrant, who is in a nonproductive status due to an employer’s decision, must be, nevertheless, paid the full pro-rata amount due. H-1B dependent employers and willful violators must retain records regarding consideration of applications of U.S. workers; details of the recruiting methods; and of each former worker in the same locality and same occupation who left his/her employment within the period from 90 days before to 90 days after an employer’s petition for an H-1B worker.

3.11 In a further effort to correct a long-standing visa problem, H-1B employees, for whom employment-based immigrant visa petitions (i.e. “green card” petitions or Labor Certification application) have been filed at least one year (365 days) prior to the final expiration of their H visas (i.e. the 6th year) may obtain extensions of their H-1B status in one year increments until a final adjudication has been made as to their green card case.

Aliens whose employment-based immigrant visa applications (also known as adjustment of status applications) have been pending for 180 days or more and where the underlying I-140 petition has been approved, may change employers within their job field without invalidating their underlying I-140 petitions or labor certifications as long as the new job is similar to the sponsored position.

Structural change in the H-1B sponsoring employer

3.12 An amended H-1B visa petition is no longer required “where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”

3.13 A new LCA Form ETA 9035E is also not required if “a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liability, and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage systems and EIN of the new employing entity” is placed in the public access folder before the H-1B workers are transferred to the new employer.

Nonimmigrant Intent

3.14 NOTE: Nonimmigrant intent is no longer a major factor in a consular decision to issue either an H-1B or an L-1 visa (see L Visa Section above), or in a USCIS decision to grant either an admission or extension of stay. The presumption of immigrant intent, that otherwise applies to nonimmigrant applicants for admission, does not apply to the H-1B or L-1 alien. The immigration laws state:

“The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an L petition, a request to extend an L petition, the alien’s application for admission, change of status, extension of stay. The alien may legitimately come to the U.S. as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and at the same time, lawfully seek to become a permanent resident of the U.S.”

Validity Periods of H and L Visas

3.15 Any time spent in H or L status has to be subtracted from the total allowable visa validity period to the H or L visa.

Recapture of H-1B or L Time

3.16 Pursuant to 8 C.F.R. §214.2(h)(13)(iii)(A):“An H-1B alien in a specialty occupation… who has spent six years in the United States under 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.”

Additionally, section 214(g)(4) of the Act states, “In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years.”

The plain language of the statute and the regulation indicates that the six-year period accrues after admission into the United States. This premise is further supported by a federal district court in Nair v. Coultice, 162 F. Supp.2d 1209 (S.D. Cal. 2001).

Thus, the time a beneficiary spends in the United States is dependent on the period(s) of lawful admission. When an individual is outside the United States, no time is accrued for the purpose of calculating visa status time for U.S. immigration purposes. By virtue of departing from the United States, an individual stops the period that he/she is in H-1B or L visa status, and renews that status with each readmission to the United States. Therefore, an individual is allowed to extend their H-1B status past the typical six-year time-limit by the total number of days which proves that the individual was out of the United States. The burden of proof in attempting to recapture H-1B or L time rests solely with the individual beneficiary or petitioner.

IMPORTANT: H-1B CAP MET ON NOVEMBER 22, 2011 FOR FISCAL YEAR 2012

On November 22, 2011, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2012. USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that are received after November 22, 2011.
USCIS continues to accept cap-exempt petitions, DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2012.

H-1B CAP

Congress has established an annual H-1B cap of 65,000. Of that number 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The law provides that any of the unused Chile/Singapore numbers be reallocated back to the following Fiscal Year’s  H-1B cap. The law authorizes USCIS to make such unused numbers available within the first 45 days of the following Fiscal Year to aliens who had applied for such visas during the current Fiscal Year. USCIS will announce how many Chile/Singapore numbers went unused and can be reallocated.

Cap Procedures. USCIS has implemented the following process for FY 2012 H-1B filings in accordance with the procedures announced on the USCIS website.

Petitioners may submit their petitions when H-1B visas become available for FY 2012. The earliest date for which a petitioner may file a petition requesting FY 2012 H-1B employment with an employment start date of October 1, 2012, is April 1, 2012.

Current H-1B Workers. Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B works may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

Cap Exempt Petitions. As directed by the H-1B Visa Reform Act of 2004, USCIS treats as exempt from the cap for any fiscal year the first 20,000 H-1B petitions reflecting an alien beneficiary with a U.S.-earned master’s or higher degree. For FY 2011 USCIS received the full allotment of 20,000 such petitions. USCIS also notes that petitions for new H-1B employment are not subject to the annual cap at all if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. Thus, petitions for these exempt H-1B categories may still be filed for work start dates in FY 2012.

FEES

Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S. citizens, lawful permanent residents and other U.S. workers to attend job training and to receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fees apply to any non-exempt petitions filed with USCIS after December 8, 2004.

In addition, the Act created a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee.

The $500 Fraud Prevention and Detection Fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Each of the above fees is in addition to the base processing fee of $325 to file a Petition for Nonimmigrant Worker (Form I-129) and any Premium Processing fees, if applicable.

H-1B Cap

This Act, and Public Law 108-441 (December 3, 2004), provides new exemptions from the congressionally mandated annual H-1B cap.

• Public Law 108-441 extended the “Conrad 30” J-1 program covering certain medical graduates. Nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions. Petitions must separately evaluate whether an H-1B petitioner is exempt from certain fees and whether the petition is exempt from the H-1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H-1B stay of a beneficiary for the first time would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.

FREE TRADE AGREEMENT WITH CHILE AND SINGAPORE

On September 3, 2003, President Bush signed into law the United States-Chile Free-Trade Agreement Implementation Act (Pub.L. No. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub.L. No. 108-78). Under the immigration provision of the Acts, a new H-1B1 nonimmigrant category was created that provides 1,400 visas annually for Chileans and 5,400 annually or Singaporeans. The annual 6,800 H-1B1 numerical cap will be counted against the H-1B numerical cap. These provisions became effective on January 1, 2004.

As in the North American Free-Trade Agreement (NAFTA), the new trade agreements contain commitments regarding the B, E, and L nonimmigrant categories. However, the commitments do not imply any special treatment or requirements for national of Chile or Singapore seeking B, E, or L status. There are no changes from the current B and L nonimmigrant eligibility requirements for Chilean or Singaporean nationals seeking admission in those nonimmigrant classifications. The E nonimmigrant classification is available for the first time to nationals from the two countries.

Differences between the H-1B Nonimmigrant Specialty Occupation Worker Category and the new H-1B1 Category for Professionals

The new H-1B1 category is available to “professionals” from Chile and Singapore. For purposes of the two trade agreements, a “professional” is defined as: “a national of (Chile or Singapore) who is engaged in a specialty occupation requiring (a) theoretical and practical application of a body of specialized knowledge; and (b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.”

In addition, the H-1B1 nonimmigrant classification is available to certain otherwise admissible business persons who do not possess a baccalaureate degree or its equivalent, but who will engage in the professions of (1) for Chileans only, Agricultural Managers, and Physical Therapists, and (2) for both Chileans and Singaporeans, Disaster Relief Claims Adjusters. Further, for nationals of both countries, certain Management Consultants who hold a baccalaureate degree in other than their specialty area will be able to seek admission in H-1B1 classification by presenting alternative documentation reflecting experience in the specialty area.

Three important differences between the Chile and Singapore Free Trade Agreements and the existing H-1B nonimmigrant specialty occupation worker category are:

1. There are no petition requirements on behalf of Chilean or Singaporeans desiring H-1B status. Individuals not in the United States must apply to the Department of State for nonimmigrant visas. The Nebraska Service Center will adjudicate requests for change or extension of H-1B1 status.
2. The H-1B1 category does not require possession of a relevant professional license as a condition to admission. H-1B1 professionals will be expected to comply with all applicable state and federal licensure requirements for engage in their professions following their admission.
3. Chilean and Singaporean H-1B1 professionals may be admitted initially for a maximum of one year, and may extend stay in one-year increments indefinitely, as long as they continue to demonstrate that they do not intent to remain permanently. There is no “dual intent” provision.

At admission, Forms I-94 will be endorsed with the admission code “H-1B1”. The admission code for spouses and dependent children will be “H-4”. The principal’s occupation and employer must be written on the reverse of Form I-94, as with other H nonimmigrants. The Nonimmigrant Information System contractor will key in H-1B1 admissions using the “S3” code.

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TREATY TRADERS AND INVESTORS (E VISAS)

Introduction

2.1  The E-1 visa is for managing or developing substantial trade between the U.S. and the treaty country.  The E-2 visa category allows for the development and direction of a substantial investment in the U.S.

2.2  Treaty Trader and Treaty Investor visas are very important nonimmigrant visa classifications which must be considered along with the other business visas when a company is seeking to transfer staff to the United States or to hire staff in the U.S.  The E-visa classification has two procedural advantages over the H or L visa classifications.  First, unlike the H and L visa classifications, E Visas do not require the filing and approval of a petition with the U.S. Citizenship and Immigration Services (USCIS - formerly known as “INS,” the Immigration and Naturalization Service) before a visa can be issued.  The second advantage is that unlike H and L visas there is not a mandatory durational limit.

2.3  Although a mystique has arisen about the E-visa classification it should be remembered that it is not a magic potion visa that cures all ills.  It is not a totally unrestricted provision based merely on trade and investment.  Each classification requires the meeting of distinct business tests, some of which are rather restrictive.

E Visa Criteria

2.4  The following criteria must be demonstrated to establish eligibility as an E visa applicant:

• the company seeking to employ the applicant must have the nationality of a country that has a treaty with the United States, generally measured by the nationality of the majority of its shareholders, determined in a reasonable manner; and
• the individual seeking E classification as an employee or investor must be a national of the same treaty company.

2.5  Individuals seeking E-1 Treaty Trader classification may be approved if they will be performing executive or managerial/supervisory duties, or if they are an employee whose services are clearly essential to the U.S. entity’s operation.  Before an E-1 visa is issued, the company must establish that it is engaged in continuous trade of a substantial nature between the U.S. and the Treaty country.  A pattern of shipments in the reasonably recent past, or firm contracts for shipments in the near future provide good evidence.  Since there is no fixed quantity or amount that defines “substantial,” consular officers will look both at the number of shipments and their relative value in determining whether the trade qualifies for visa issuance.

2.6  Individuals seeking E-2 Treaty Investor classification may be approved if the following criteria are met:

• the applicant has invested substantial funds or is actively in the process of investing and the funds are deemed to be “at risk”;

Note: A loan to a business, secured by a promissory note is not an investment, nor is a loan to the investor from a financial institution if that loan is secured by a mortgage on the business in which the funds will be invested.  A loan secured by the investor’s signature or other of his property does, however, qualify as investment funds.

• the enterprise is a real and operating commercial enterprise;
• the investment is more than a marginal one existing solely to provide a living for the visa holder and his immediate family; and
• the applicant is in a position to develop and direct the enterprise.  (Note: If the applicant is an employee of a treaty investor, he must be a manager or highly trained and specially qualified essential employee).

2.7  The E visa applicant must state unconditionally that he/she will leave the U.S. when he/she ceases to qualify for that status, such as when the investment is terminated.

Note: Such a statement will normally suffice to satisfy a consular officer that the applicant does not intend to remain permanently in the U.S.  However, the officer is within his rights to ask for more details or more evidence of nonimmigrant intent.  E visas are generally issued for up to five years.  The E visa holder will only be admitted by the USCIS to the U.S. in two-year intervals, but there is no limit to the number of extensions while the holder remains eligible.

Acquisition of E Visas

2.8  E Visa applications are processed either at a Consular Post abroad or within the United States pursuant to a change of status petition.  It is often recommended that companies pursue their applications at Consular Posts rather than apply for change of status with the USCIS.  One reason for this is that the Consular Posts have more experience adjudicating treaty trader and investor cases.

2.9  Consular processing requires completion of the non-immigrant visa application, DS-160 (please see note below) and DS-156E forms to elicit the specific information necessary to adjudicate the E Visa application.  It is always wise to secure such supplemental forms early in the visa preparation process.  Processing time varies from post to post and often from case to case.  Ideally, the processing time should be less than that required for adjudication of an H or L petition by the USCIS.

2.10  The procedural disadvantages of the E Visa classification are linked to the ever decreasing resources at American consular posts abroad.  Sometimes consular processing may take longer than an expedited H or L petition.  If the Consul questions the applicants’ entitlement to the visa classification there is no formal appeals process.  When appropriate, it is recommended that the applicant press his case through the various administrative levels.  The highest level being the Advisory Opinions Division of the Visa Office, U.S. Department of State, Washington, DC.

Evaluating E-1 Visas

2.11  Trade for E-1 Visa purposes must involve the international exchange for qualifying goods or services.  The exchange requires the transfer of a good or service from one treaty party to the other, while money, goods or services moves from the receiving party to the sending party.  In brief, there must be two-way flow between the two treaty countries.  Often this can present complicated issues when title to the goods shifts among the various entities but the goods do not physically enter one or both countries.  It is important that a careful analysis be made of the immigration implications in such instance.

2.12  It is also critical that the trade is international rather than domestic in scope.  The entire focus of the E-1 is on the exchange of trade items between the U.S. and the treaty trader country. Although domestic trade is the natural consequence of such international trade, the existence of only domestic trade is insufficient to qualify for E-1 visa status.

2.13  The traditional roots of the E-1 Visa are perhaps most obvious when identifying trade activities which qualify for such visa classification.  “Trade” includes the term “services” which itself has not been further defined.  The USCIS listed traditional service activities in the regulations in lieu of a classic definition.  The burden is on the applicant to establish that the activity in question is indeed a service which is traded in the international market place.  The burden of satisfying the Consular Officer that the traditional services qualify should be relatively easy when compared to convincing the same person that a developing service concept actually constitutes a trade item in the international market.

2.14  When considering an E-1 Visa, two other trade related requirements must be met.  First, the trade must be substantial.  The trade must already be in existence, already established and it must be continuous and ongoing, although firm contracts for the shipment of goods, to be performed in the near future, are also acceptable to constitute trade.  The focus is on the volume of trade rather than the value of the item traded.  Secondly, the trade must be engaged “principally” between the U.S. and the treaty country.  This means that at least 50% of the international trade of the entity in question must be between the U.S. and the treaty country in either direction.

2.15  Keeping these elements in mind, one must also remember the international aspect of the trade concept.  This necessitates the establishment of the trade flow between the two countries, eliminating many purely domestic trade opportunities in the U.S.

2.16  It is possible for a foreign based entity to contract to perform services in the U.S. whereby the service provider comes to the U.S. to engage in the requisite business activity, and remuneration or consideration flows back to the treaty country.  In order to qualify for an E-1 visa, of course, all other E-1 criteria must be met.  It is clear that to benefit from trade-in services, one has to structure the business as one did with trade-in goods to meet all the criteria.  As services are by nature more tailored to domestic activity, it is usually best to consider an E-2 Visa rather than an E-1 Visa when basing the visa application on a service oriented business.

Evaluating E-2 Visas

2.17  In evaluating E-2 applications Consular Officers must be satisfied that:

• the requisite treaty exists;
• the individual and business possess the nationality of the treaty country;
• the applicant has invested or is actively in the process of investing funds within his or her dominion and control;
• the enterprise is a real and operating commercial enterprise, not a passive placing of funds in an inactive vehicle such as undeveloped land or a bank account;
• the applicant’s investment is substantial; this is a complex concept that equates the size of the investment to that which bears a reasonable relationship to the percentage of an existing business obtained with the money, or to that which would be invested in a similar business by a U.S. investor;
• the investment is more than a marginal one, solely for earning a living for the alien and/or his family (making size of the business relevant to success);
• the applicant is in a position to “develop and direct” the enterprise;
• the applicant, if an employee, will serve in an executive/supervisory position or possesses skills essential to the firm’s operations in the United States;
• the funds stem from lawful sources; and
• the applicant intends to depart the United States when the E-2 status terminates.

2.18  The statute states that an E Visa can be issued only pursuant to the provisions of a treaty of Friendship, Commerce and Navigation (FCN) or a Bilateral Investment Treaty (BIT) between the U.S. and the country of which the applicant is a national. There are about forty countries with which the U.S. has executed treaties.  Not all provide for both treaty trader and investor status.  Some treaties provide for only E-1 or only E-2 status.

2.19  Both the business and the individual visa applicant must possess the nationality of the treaty country.  Nationality is determined by the citizenship laws of that particular country.  The E Visa regulations require that at least 50% of the business seeking E Visa status must be owned by the nationals of the treaty country.  The Department of State’s regulations were changed a few years ago from “more than 50%” to “at least 50%” ownership to permit more modern business structures, such as a joint venture, to qualify.

2.20  To determine the nationality of a corporation, where it is impractical to validate the nationality of each shareholder, a rule of common sense applies.  If the shares of the corporation are traded exclusively on the exchange of one country, or if major shareholders can be identified as national of the treaty country, and other similar rational tests, most consular officers will accept the proof of nationality.

2.21  Joint ventures may not only be made up of a foreign owned business and a U.S. owned business (e.g. British and U.S.), but also of two business entities of different nationalities (e.g.  British and Japanese).  In the latter case the entity is considered to possess both British and Japanese nationalities.  Two-party partnerships can also benefit from this rule.  Although the rule constitutes a slight liberalization, it still does not adequately address the issue of multinational businesses or organizations.

2.22 The E-2 Visa is issued upon an investment in the U.S.  The only restriction on E-2 U.S.  business activity is that it constitutes a lawful commercial activity.  As most E-2 business activities are domestic, with no requirement of international flow of business, it is the favorable classification for a service business.  Although the investment is indeed subject to review at re-application, the E-2 is a much more stable classification as compared to the E-1.  It is not subject to the fluctuation of trade in meeting the “substantiality” and “principally” trade tests as the E-1 is.  The investment must also be substantial which is determined by a highly judgmental test, the "proportionality" test.  This test constitutes a percentage based on the comparison of the amount of qualifying investment funds with the cost of an established business or the cost of creating a new enterprise.  One way in which the test is applied is to look at the relative value of the portion of the existing business purchased by the investor versus the amount of money the investor has placed at risk.

2.23  The amount needed to develop a new business is dependent on the nature of the business.  For example, the cost of developing a consulting business is relatively small as compared to establishing a manufacturing enterprise.

2.24  In applying the proportionality test some officers follow a precept that the smaller the cost of the business is, the higher the percentage the qualifying investment must be.  This concept has never been codified into a rule, but it does provide some guidance on the thinking that may go into evaluating a treaty investor application.  On the other hand, the larger the cost of the enterprise, the lower the percentage can be.  For example:

• a newly created business, a consulting firm, might only need a $150,000 investment to set up and become fully operational.  As this cost is relatively low, a higher percentage of investment is anticipated.  An investment approaching 90-100% would easily meet the test.
• a small business costing $500,000 would demand generally at least 50% investment, $300,000-$350,000 investment clearly meeting the test.
• in the case of a million-dollar business, a lesser percentage might be needed but a 50-60% investment would qualify.
• a business requiring $10 million to purchase or establish would require a much lower percentage.  A $2-3 million investment might suffice in view of the sheer magnitude of the dollar amount invested.

2.25  The State Department regulations do not permit investments involving a "relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living." This regulation appears to exclude the small but high risk ventures of persons whose sole sources of income is the proposed E-2 investment.  This is never a factor in major enterprises.

2.26  More importantly, the investor must be in a position to develop and direct the enterprise or be in a position to control the business.  As the element of control has been generally viewed in terms of ownership, ownership of more than 50% of the business should satisfy this requirement.  In today's world of creative business structures and devices, a person can be placed in a ownership of the business and position of management responsibility such as absolute management responsibility with less than 50% ownership, control of stock by proxy and so forth.  This test can be met as long as the investor can be identified as the individual who can and does control the operation of the enterprise.

Employee Status

2.27  Regardless of whether the employer qualifies as an E-1 or an E-2, the regulations provide for the same E Visa standards for the employee who "is or will be engaged in duties of an executive or supervisory character, or if employed in a minor capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise."

2.28  When comparing the E-Visa employee with classifications such as H or L, the first thing to remember is that the employee must possess the same nationality as the treaty trader/investor employer.  In a multinational business this can serve as a great impediment to E visa status, yet it is consistent with the underlying theme of bilateralism of this classification.  The H or L visa is not so restricted.

2.29  The thrust of the State Department regulations is to identify an executive as an individual who possesses the authority and responsibility to make decisions which will set the direction of the enterprise.  Thus, this person formulates policy and has the responsibility of implementing it.

2.30  The current regulations provide no clear definition for "supervisor."  The consular officer is concerned whether the supervisor is a skilled person whose position is clearly supervisory in that he/she possesses clearly defined supervisory responsibilities over his/her subordinates.  The supervisor should preferably possess some authority to formulate policy and should only incidentally engage in the same activities as his subordinates.  Whereas the L regulations prohibit first-line supervisors (unless they supervise professionals) from qualifying under that classification, the E visa guidelines are not as restrictive.  A first line supervisor of a small business or a business with a few employees might qualify, if the position requires a high level of skill, the position is purely supervisory, and especially, if the supervisor also possesses some policy responsibilities.  On the other hand, a minor level supervisor would not generally qualify.  For example, a head teller in a bank or the foreman on the floor of an automobile factory would not usually qualify.

2.31  The most controversial and often most difficult topic in adjudicating employee E Visa cases lies in determining who is an "essential" employee.  Again, the basic concepts are similar to the L specialized knowledge employee.  Once again, however, the State Department provides no detailed definition.  Whereas USCIS appears to want to set forth the specialized knowledge employee minimum standards as proprietary knowledge and minimum educational requirements similar to the H-1 Visa, the State Department rules provide essential employee guidelines which require the exercise of a great amount of judgment and common sense.

2.32  A good example of this involves accountants.  An accountant who is trained to engage in accounting practices commonly found in the United States would not be considered essential unless there are other unique qualifications as well.  Yet, an accountant for an enterprise which uses a totally different accounting system, such as those used in England and Wales, might be seen to possess the necessary unique aspects likely to be characterized as essential. 

2.33  Another example involves a craftsperson who, like his countrymen of the same vocation, spends an entire lifetime creating woodworking unique to his culture.  Such items are imported and sold in the U.S.  As many of these delicate pieces become damaged en route, it is important to have them repaired by skilled craftsmen.  The native craftsman can prove that he is essential in that he possesses unique skills to repair time damaged pieces and to restore them to their original condition.  These examples demonstrate the flexibility found in the E-Visa guidelines.

2.34  In ascertaining characteristics of "uniqueness" for essential employees, it is important to be able to distinguish between the unavailability of workers in the U.S. and the shortage of workers in the U.S.  In this context, unavailability of workers means that U.S. workers have not been trained in the skills required by the E-Visa business.  A "shortage" of workers means that although workers with desired skills are present in the U.S. labor market, there are not enough of them.

2.35  The requirement of training U.S. workers is always an issue raised in the essential skills area.  Although training is not an explicit requirement, it is implicit certainly in start-up enterprises.  Occasionally, lower skilled employees may qualify for start-up purposes for a business which requires employees with skills which appear to be unavailable, and who need such to get the business started.  These persons will be admitted for a limited time only, as these skills are seen as readily transferable to the local labor market.  The time period necessary for their presence is a decision left to the consular officer based on the particular circumstances at the visa issuance.  It is clear that as the underlying circumstances change, so, might the determination regarding essential skills.  At some point in the future, it is possible that skills which are currently deemed to be unique and essential will not be unique, but instead readily available in the labor market.  In the absence of any unique features in individual cases, it is likely that employees initially deemed essential would not qualify as such at a later date.

E-1 and E-2 Spouses / Minor, Unmarried Children

2.36  Under INA 214(e)(6), spouses of the principal E-1 or E-2 nonimmigrant are permitted to engage in employment in the United States.  The spouse of a qualified E-1 or E-2 nonimmigrant may, upon admission to the United States, apply for an employment authorization document by applying to the appropriate regional service center on Form I-765.  The employer could use the employment authorization document to verify the spouse’s employment eligibility.  More recent rules issued by the Social Security Administration now allow spouses of E-1 and E-2 workers to apply for a social security number prior to obtaining work authorization.

2.37  E-1 or E-2 children lose their status at age 21, or upon marriage if prior to age 21.  While authorized to study, E-1 or E-2 dependent children must convert their status to that of an F-1 student if the individual wishes to participate in Practical Training or any other proper student employment.

Conclusion

2.38 As has been demonstrated, the adjudication of E-1 and E-2 visas is often complicated.  The necessary documentation will be thoroughly reviewed by the U.S. Consular staff and it is important that all the information requested should be provided.  Companies should also respond quickly and helpfully to requests for further documentation.

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PROFESSIONAL AUSTRALIAN WORKERS (E-3 VISAS)

On May 11, 2005, President Bush signed The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13. This Act established a new nonimmigrant visa category specifically for Australian professionals seeking to work in the United States. The Act provides 10,500 new visas per fiscal year for Australian nationals seeking temporary work in “specialty occupations,” as defined under the H-1B provisions of the Immigration and Nationality Act. (“INA”)

The new E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation. Spouses and children do not count against the numerical limitation nor are they required to possess the nationality of the principal.

E-3 nonimmigrant status is initially granted for a period of no more than two years. Extensions of stay may be granted indefinitely in increments not to exceed two years.

The statute requires that sponsoring employers file a Labor Condition Application with the Department of Labor. To certify a position for E-3 status, the Department must find – and certify to the Departments of Homeland Security and State – that the employer’s attestations meet the requirements of INA §212(t)(1), the section governing labor certifications for the H-1B1 program.

A Labor Condition Application (“LCA”), containing attestations by the sponsoring employer related to wages and working conditions, must be filed with and approved by the Department of Labor. At the time of the visa application, the visa applicant must present the consular officer with the original or copy of the approved LCA. However, if the applicant cannot provide the original, the consular officer, at his/her discretion, may accept a certified copy of the approval. The approved LCA represents DOL’s certification that the employer has met the attestation requirement of the E-3 statute.

In general, a specialty occupation is one that requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States. The Department’s regulations governing E-3 visas incorporate the definitions contained in section 214(i)(1) of the Immigration and Nationality Act (INA). In order to determine what constitutes a “specialty occupation,” consular officers abroad will be guided by, and will apply, regularly criteria already developed by the Department of Homeland Security for the H-1B classification.

No petition needs to be filed with the Department of Homeland Security as a prerequisite of visa issuance. Instead, in the case of an employee seeking a visa, the employee will present the necessary evidence for classification directly to the consular officer at the time of the visa application. Such evidence will include the original or copy of the Labor Condition Application signed by the prospective employer and approved by the Department of Labor. Procedures for the E-3 visa are similar to those established for obtaining H-1B1 classification under the U.S. Chile and U.S. Singapore Free Trade Agreements.

Spouses of E-3 visa holders

Under INA 214(e)(6), spouses of the principal E nonimmigrant are permitted to engage in employment in the United States. As in the case for the spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse’s employment eligibility. Such spousal employment may be in a position other than a specialty occupation.

In order to establish eligibility for E-3 visa issuance, the following documentation must usually be provided:

1) An original or photocopy of a certified ETA-9035 Labor Condition Application form bearing a Department of Labor certification date later than September 2, 2005; (Applicants must use the mail-in ETA 9035);
2) Evidence of academic or other qualifying credentials to establish the applicant’s eligibility for E-3 visa issuance, such as a certified copy of a U.S. baccalaureate or higher degree, a certified copy of a foreign equivalent degree, with any necessary translation and evidence of equivalency; or evidence that the applicant possesses education and experience that is equivalent to a U.S. degree;
3) A letter from the employer or other documentation establishing that the applicant will be engaged in qualifying work in a specialty occupation and that the application will be paid the actual or prevailing wage required by INA Section 212(t)(1);
4) Evidence establishing that the applicant’s stay in the U.S. will be temporary (9 FAM 41.51 N16.6)
5) A certified copy of any required license or other official permission to practice the occupation in the state of intended employment, if necessary, or if permitted evidence that the applicant will be obtaining the required license or permission within a reasonable time after admission;
6) Evidence of payment of the Machine Readable Visa fee; and
7) The appropriate DS Form(s).

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TEMPORARY VISITORS (B VISAS)

"An alien (other than one coming for the purpose of study or performing skilled or unskilled labor or as a representative of foreign press, radio, film or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure ..." [Immigration and Nationality Act, 101(a)(15)(B)(1–2)]

Introduction

1.1 A visa issued by the U.S. Department of State at a U.S. Consulate only allows an alien to apply for admission to the U.S. Citizenship and Immigration Services (USCIS: formerly known as “INS,” the Immigration and Naturalization Service) during its period of validity. It is the USCIS that decides who is admitted. The visa must be valid at the time the application for admission to the U.S. is made, but need not remain unexpired during the alien's entire stay in the United States. Rather, the alien’s arrival/departure card (also known as the I-94 card) must remain valid during the alien’s stay in the U.S. The visitor's visa must not be used to facilitate in-and-out travel for an alien who is in fact living in the U.S. and using brief trips abroad merely to obtain extensions of admission.

1.2 Aliens seeking entry are increasingly being subjected to challenge because they are unable to prove temporary intent (to enter the U.S. for the brief period and for the particular purpose(s) permitted by law). Hence, earlier uneventful entries are not a reliable basis to presume future entries will be problem free. Because of enhanced computer and database integration, USCIS computer screens can now readily call forth the details of individuals convicted of criminal offences committed many years ago.

1.3 New regulations provide that from April 1, 1997, the USCIS may elect to deny entry to newly arrived alien applicants who have not clearly demonstrated that they are admissible. There is no appeal against such denial.

Prospective Students Who Enter the U.S. on B-1 or B-2 Visas

1.4 Prospective students entering the U.S. on B-1 or B-2 visas are required to notify the officer of the USCIS at the port of entry on arrival in the United States of their intent to begin a course of study once a school has been selected. B-1 and B-2 visa holders who fail to notify the immigration inspector of their intent will not be able to start school until their status has been changed to student status by Immigration.

Note: Students who intend to study in the United States must obtain the appropriate F or M visa before leaving their home country. A B-2 prospective student visa is issued only in cases where the student has not yet selected a school or is required to attend an interview before being admitted and is able to furnish creditable evidence of his or her intention to study. Therefore, prospective students entering the U.S. can apply for a B Prospective Student Visa. The Embassy can actually annotate the visa as such and this facilitates entry to the U.S. for the applicant.

B-1 TEMPORARY VISITORS FOR BUSINESS

1.5 Applicants must:

• demonstrate permanent (unabandoned) residence abroad;
• be coming temporarily to the U.S. (usually for a visit of less than 6 months);
• not engage in local "employment" or full time, matriculated study; and
• obtain a visa directly from a U.S. Embassy or Consulate; no petition required. Length of visa validity period varies, depending upon reciprocity agreements between the U.S. and one’s particular country of nationality. During the validity period there is no limit on the justifiable number of applications for admission to the U.S.

1.6 Applicants may receive reasonable per diem expenses (this may be augmented by expenses picked up directly by the company (e.g. hotels, travel and meals).

1.7 B-1 visas are appropriate for:

• business visits to the U.S. which involve commercial transactions (e.g. take orders, negotiate contracts, service equipment manufactured abroad, attend meetings, conferences or participate in professional, scientific or business events etc.) which do not constitute gainful employment in the U.S. (i.e. where remuneration accrues/is paid abroad);

Note: While still permitted, there is ambiguity about the appropriateness of a B-1 visa to facilitate visits to the U.S. to work with foreign-made machinery. B-1 visas for installation, warranty service or repairs will not be approved if they can be tied to a “building or construction” project.

• someone who might otherwise travel to the U.S. with an H-1B visa but who will receive no salary or other remuneration from a U.S. source except reimbursement for incidental expenses;
• personal and domestic servants accompanying certain returning U.S. citizens and non-immigrant foreign nationals. (But, many restrictions apply); and
• aliens employed abroad coming to engage in similar training to H-3 category training (involving little or no productive employment) where the alien will continue on the foreign employer's payroll and will receive U.S. sourced income only for incidental expenses.

1.8 Consultants seeking entry as Business Visitors are now more frequently challenged and denied entry at the border because USCIS regards their so-called consultancy activity as "local employment" as distinguished from "doing business."

1.9 B-1 visas are not appropriate for:

• people traveling to the U.S. to supervise daily activities of a business or those who are, in fact, working in the U.S. but whose wages are billed through a foreign employer for accounting purposes. (An employer is usually deemed to be the entity that controls the workers assignments and performance and not necessarily the entity that draws the worker's paycheck, if the two are, in fact, different); and
• a spouse, if accompanying the principal B-1 visa holder, usually enters as a B-2 (Tourist).

1.10 Extensions of B-1 visas vary, usually in not more than 6 month increments, and these increments are at the discretion of consular officials.

B-2 TEMPORARY VISITORS FOR PLEASURE (or "Tourist")

1.11 Basically similar to the B-1 but even more limited insofar as the authorized purpose is tourism, recreation, visiting friends or family, etc.

1.12 A B-2 visa may be appropriate for:

• medical treatment, if properly documented; and
• incidental participation in a “short course of study”, if such is specifically noted on the alien’s passport by the U.S. Consul.

1.13 Initial entry may be granted for a period of 6 months to 1 year.

1.14 Extensions are limited –not more than six months –and tightly controlled.

1.15 It is important to understand that B-2 Tourist status was not intended to be used as a catch-all category and absolutely no work is permitted.

Note: For those coming from countries with high rates of visa or entry violations, we recommend even more careful and complete documentation than might otherwise be indicated. Letters of invitation, extensive financial documentation, firm plans, confirmed (prepaid) transportation and lodging reservations, event admission tickets or registration confirmation, a good work record coupled with written evidence that a vacation has been approved before and for the period of the visit, will all help toward the granting of visitor status.

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VISA WAIVER PROGRAM (VWP)

1.16 The Visa Waiver Program (VWP) is a program authorized by the Immigration Reform and Control Act of 1996 (and subsequently extended). It provides that: "visitors from designated countries (may voluntarily elect) to apply for admission to the U.S. without first obtaining non-immigrant visitor (B-1 or B-2) visas at U.S. consulates."

1.17 The primary goal of the VWP is to promote international travel and tourism. The Program allows the U.S. immigration authorities to:

• designate any qualifying (i.e. "low fraud") country; and
• refrain from designating, or rescind any designation of, a country, for any reason, at any time.

1.18 Individuals must meet the following eligibility criteria:

• be a national of, and present a passport from, a participating country;
• be seeking entry to the U.S. as a nonimmigrant visitor (for business or pleasure) for ninety days or less;

Note: For the purposes of the VWP, the same admission criteria apply as would pertain to someone seeking a B-1 and/or B-2 visa from the U.S. Consulate.

• be in possession of a round trip ticket that will take the visitor out of the U.S. to any other port or place, as long as the trip does not terminate in a contiguous U.S. territory or adjacent island unless the traveler is a resident of the country of destination;

Note: return trip tickets might include: round trip, non-transferable ticket issued by a participating signatory carrier, valid for a period of not less than one year; an airline employee pass indicating return passage; an individual voucher; a group voucher for charter flights only; or a military travel order which includes military dependants for return to duty stations outside the U.S. on military flights.

• must not have violated conditions of previous U.S. admission under the VWP;
• must not be inadmissible from the U.S. on such grounds as being afflicted with a contagious disease or mental illness; a narcotics addict or trafficker convicted of crimes; previously removed from the U.S.; or a member of a communist organization;

Note: Someone who is otherwise inadmissible for certain of these (Section 212(a)) grounds may still be eligible to apply for a B-1 or B-2 visa if there is a basis for a waiver of inadmissibility.

• must not be a threat to the welfare, health, safety and security of the U.S.; or
• must agree to waive all rights of review or appeal of admissibility determinations made by the Immigration Officer and all rights to contest action in deportation, except for political asylum.

Note: Since the VWP is a voluntary program which involves a waiver of appeal rights, U.S. Consuls may encourage but not insist that travelers use the program.

1.19 Conditions for admission to the U.S. under the Visa Waiver Program include:

• the entrant must meet all the previously mentioned eligibility requirements;
• the entrant's authorized stay is limited to a period of ninety days or less;
• the entrant may not: seek to extend his/her stay, seek to change his/her status to another nonimmigrant status, or seek to adjust his/her status to that of permanent resident (unless eligibility for permanent residence is as the spouse, parent or minor child of a U.S. citizen);
• the entrant must maintain status and depart the U.S. within the period of authorized stay;

Note: Failure to comply with this requirement will subject the individual to deportation and render him/her ineligible for future VWP admission to the U.S. If a proper B-1 purpose (such as permissible training which might last more than 90 days) or an esoteric use of B-1 status (such as H-1 type activity for someone salaried abroad) is contemplated, then entering upon a B-1 visa rather than VWP entry, though possibly more time consuming, is more predictable.

• the entrant must be admissible to the U.S., that is, not be ineligible to enter the U.S. for reasons of any of the inadmissible grounds reasons set forth in section 212(a);
• the entrant must complete and sign form I-94W, Nonimmigrant Visa Waiver Arrival/Departure form (which sets out eligibility and conditions of admission to the U.S. under the program) prior to inspection at port of entry; and
• the entrant must surrender Form I-94W to the international carrier upon leaving the U.S.

1.20 A VWP entrant may travel by air or sea to the U.S. from a country other than one of the designated participating countries but all entry criteria still must be met.

1.21 A VWP entrant may initially enter the U.S. across land borders from Canada or Mexico, and does not need to present a round trip transportation ticket (as other VWP entrants must do) but other eligibility criteria (e.g. financial solvency and unabandoned residence abroad) must be met.

1.22 A VWP entrant may subsequently travel to a contiguous country or (most) adjacent islands and be readmitted to the U.S. on his/her originally issued form I-94W during the 90-day period.

1.23 An alien in transit (normally someone who would require a C-1 visa) may enter the U.S. under the VWP - provided he or she meets the VWP eligibility criteria.

1.24 VWP entrants may also travel to Mexico or Canada and there apply to the U.S. Consul for a visa. This is not recommended for all visa applicants.

1.25 Designated Visa Waiver Program countries:

Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom* must present a machine readable passport.

*Available only to UK nationals having “right to permanent abode” in the UK (England, Scotland, Wales, Northern Ireland, Channel Islands and the Isle of Man). It does not include British overseas, Commonwealth citizens, or citizens of its dependent territories.

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STUDENTS (F VISAS)

Introduction:

Foreign nationals may enter the U.S. as nonimmigrants in F-1 visa status in order to engage in academic studies in this country subject to certain restrictions. These students range from elementary school students to doctoral candidates and persons engaged in postdoctoral studies.

Students in vocational or nonacademic programs since 1982 are admitted only in the M visa category.

As long as F-1 students are bona fide nonimmigrants, they can pursue their academic goals in the U.S. without regard to the availability of similar training in their own country, and can remain here for many years in order to complete a full academic program. They may even engage in a specific period of practical training after completion of their studies as long as the training would not be available in their own country.

Duration of Stay:

Foreign students are permitted to remain in the U.S. for the “duration of status”. Duration of status means that a student remains in valid status during enrollment in any number of academic programs (e.g. high school followed by college followed by master’s degree), plus any periods of authorized practical training, and a 60 day grace period to depart the U.S. The 60 day grace period to depart the U.S. only applies when the student has completed his or her course of study or after completion of authorized practical training following the completion of studies. A F-1 student authorized by the school to withdraw from classes will be allowed a 15 day period for departure. On the other hand, a student who fails to maintain a full course of study or who has fallen out of status for any other reason is not eligible for an additional period of departure.

The student remains in valid status as long as he or she has not exceeded the estimated program completion date inserted by the designated school official on the student’s Form I-20. That date, in turn, can be an estimate based on the time an average foreign student would need to complete a similar program in the same discipline, and can include a grace period of up to one year. If a student completes the program by the estimated completion date, he or she can advance to the next academic level without requesting an extension from the USCIS, and remain in valid status. If a student fails to complete the program by the estimated completion date, the designated official can “extend” the anticipation program completion date upon application by the student. If the designated school official will not “extend” the anticipated completion date, the student is out of status, and can only continue his or her academic program by applying to the USCIS for reinstatement of student status. Reinstatement requires that the student show that the violation of status was due to circumstances beyond the student’s control or that the student would suffer “extreme hardship” if he or she is not reinstated. In addition, an F-1 student admitted to attend a public high school is restricted to an aggregate of 12 months of study at any public high school.

An F-1 student may now be issued an F-1 visa for a period of up to 120 days (compared to 90 days before) and be allowed entry to the U.S. for a period up to 45 days (compared to 30 days before) in advance of studies.

Application Process:

The student does not need advance permission from US Immigration. The student must obtain a certificate of eligibility (Form I-20) from the academic institution at which he or she will enroll, and submit this certificate, together with a nonimmigrant visa application and supporting documentation, to a US consulate in the alien’s home country. Once the visa is issued, the student can apply at the border for admission to the U.S. the same as any nonimmigrant. A prospective student already in the U.S. in a different nonimmigrant status may apply to the USCIS to change the student status to undertake studies here.

On August 1, 2003, the use of the SEVIS-generated Form I-20 became mandatory for all students seeking F-1 student visas. SEVIS (Student and Exchange Visitor Information System) is the electronic reporting system covering students and exchange visitors that was mandated by IIRIRA, by which educational institutions and exchange program sponsors collect and report to the Department of Homeland Security information on the foreign student. The SEVIS system generates the I-20 Form that must be given to the student to take to the US consulate abroad as evidence of eligibility to apply for an F-1 visa. The designated school official must access the system and enter information in order to create the Form I-20.

Also a separate SEVIS fee must be paid by the applicant prior to their visa interview.  The current SEVIS fee is $200 for F-1 visa applicants.

Special Conditions:

Foreign students must be enrolled in a full course of study, not part-time studies (limited exception applies to certain border commuter students). They must also demonstrate prior to the granting of the visa that they have sufficient means of support to cover them through their full academic program. Authorization to work because of financial need is granted to students in only the most limited circumstances. A student cannot be granted F-1 status in order to pursue a course of study at a public elementary school or in a publicly funded adult education program. An alien cannot be granted F-1 status to attend a public secondary school unless the alien reimburses the school for the full, unsubsidized per capita cost of his or her education, and the alien intends to remain at the school in such status for no more than a year. A student who obtained F-1 status to attend a private school and transfers into a public school or a publicly funded adult education program as prohibited by the new law is considered to be in violation of status and is therefore subject to removal. In addition, such alien is inadmissible to the US until he or she has remained outside of the US for a continuous period of five years.

The foreign national must be enrolled in a school approved for the attendance of foreign students. The alien must be proficient in English or be enrolled in English language courses leading to proficiency. The alien must have sufficient funds available to him or her to support him or herself completely during the entire proposed course of study, currently at his or her disposal for the coming academic year. The alien must maintain a residence abroad and must intend to depart the US upon completion of his or her studies. Upon initial admission, the alien must intend to attend the school specified on the F-1 visa.

Family Members of the F-1 Student:

Spouses and family members of students may enter the U.S. with the principal student in the F-2 visa category, but under no circumstances may they be granted authorization to work. Eligible family members include the spouse and minor children of the F-1 student. A minor is a person under 21 years of age. Each family member must present a Certificate of Eligibility issued in his or her own name. The F-2 spouse may not engage in full time study, and the F-2 child may only engage in full time study if the student is in an elementary or secondary school. The spouse may engage in study that is vocational or recreational in nature.

Optional Practical Training (OPT):

Foreign students who enter the U.S. as bona fide students qualified to pursue a full course of study may undertake practical training. A period of practical training must relate to the student’s course of study.

There are two types of permissible practical training directly related to the student’s major area of study:

Prior to completion of studies practical training:

• During the student’s annual vacation and at other times when school is not in session, if the student is attending a college, university, seminary or conservatory and is eligible to register for the next term or semester and intends to do so OR
• During the school year, provided that employment does not exceed 20 hours per week while school is in session.

Post completion of studies practical training is permissible:

• When the student is in a bachelor’s, master’s or doctoral program and has completed all course requirements for the degree (excluding a thesis or its equivalent) OR
• When the student has completed his or her course of study.

These forms of study collectively are referred to as “optional” practical training (OPT). All optional practical training must be completed within a 14-month period following the completion of study. OPT is additional to curricular practical training available to foreign students attending schools offering such curricular programs.

A student is eligible for optional practical training for a total period of 12 months per educational level. Time spent in prior to completion of studies practical training is subtracted from the overall 12-month ceiling on all optional practical training.

A student becomes eligible for another 12 months of practical training when he or she changes to a higher educational level. For example, a student may request 12 months of practical training after completion of a bachelor’s degree and another 12 months after a Ph.D degree.

To obtain OPT, the DSO must return to the student the I-20 ID and return to the USCIS the Form I-538 stating that the proposed employment is directly related to the student’s major area of study and commensurate with the student’s educational level.

The student cannot get employment authorization without filing an I-765 with USCIS, which according to the instructions on the form should be filed up to 120 days before employment or within 60 days after completion of studies.

Unused portions of practical training cannot be used at a later time.

Termination of practical training is automatic when student transfers to another school.

If the student is employed without authorization, or not pursuing a full course of study, or transfers schools without permission or fails to complete a full course of study in time and is ineligible for a program extension, s/he is out of status and subject to deportation.

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EXCHANGE VISITOR (J-1 VISAS)

OVERVIEW

The Exchange Visitor Program is carried out under the provisions of the Mutual Educational and Cultural Exchange Act of 1961, as amended. The purpose of the Act is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. International educational and cultural exchanges are one of the most effective means of developing lasting and meaningful relationships. They provide an extremely valuable opportunity to experience the United States and the American way of life. Foreign nationals come to the United States to participate in a wide variety of educational and cultural exchange programs.

The Exchange Visitor Program is administered by the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs. The internet website for information on the Exchange Visitor Program is http://exchanges.state.gov/education/jexchanges. At the conclusion of the program, Exchange Visitor participants are expected to return to their home country to utilize and apply the experience and skills they have acquired while in the United States in their home country.

In carrying out the responsibilities of the Exchange Visitor Program, the Department designates public and private entities to act as exchange sponsors. Designated sponsoring organizations facilitate the entry of foreign nationals into the United States as exchange visitors to complete the objectives of one of the exchange visitor program categories which are:

• Au pair
• Camp Counselor
• Student (College/University)
• Student (Secondary)
• Government Visitor
• International Visitor (reserved for U.S. Department of State use)
• Alien Physician
• Professor
• Research Scholar
• Short-term Scholar
• Specialist
• Summer Work/Travel
• Teacher
• Trainee

The permissible period of stay for exchange visitors varies depending on the exchange visitor category in which the visitor is admitted.

An exchange visitor may be admitted for up to 30 days before the report date or start date of the approved program listed on his or her Certificate of Eligibility. In addition, there is a 30 day grace period beyond the end date of the program specified on the Certificate of Eligibility for purposes of travel.

BASIC REQUIREMENTS FOR OBTAINING A J-1 STATUS

• To enter the U.S., the alien must have plans to participate in a designated Exchange-Visitor Program
• Certain categories of exchange visitors must spend an aggregate of two years following completion of their U.S. training program in the country of their nationality or last legal residence
• The alien must maintain a foreign residence which he or she has no intention of abandoning

NEW DEVELOPMENTS

In July 2007, the U.S. Department of State published regulations establishing a new J-1 Intern category and revising significantly the regulations governing the J-1 Trainee program.

The two categories of J-1 visa are now known as J-1 Intern and J-1 Trainee.

J-1 Interns must be postsecondary students currently studying outside of the U.S. or university graduates who have been out of school for no more than 12 months. This intern program can be repeated as long as the applicant maintains student status or begins the internship within 12 months of graduation. Internships must be related to the participant’s field of study. The maximum duration of an internship program in any field is twelve months.

On the other hand, J-1 Trainees must be foreign nationals who have a university degree or professional certificate from a foreign institution and at least one year of additional related experience outside of the U.S. after graduation OR five years of related experience outside of the U.S. in the field of training. The maximum duration remains at eighteen months except in certain fields such as the agriculture and hospitality sectors. The training program is repeatable, but the exchange visitor must be absent from the U.S. for at least two years before applying for another J-1 Trainee visa.

Training and Internship programs must be full-time and the candidate will be tested for English proficiency.

APPLICATION PROCESS

The U.S. sponsor must proceed through an Exchange Visitor Program designated by the Department of State. The sponsor of an Exchange-Visitor Program is empowered by the Department of State to issue a Certificate of Eligibility (Form DS-2019) for each exchange visitor. Once the Certificate of Eligibility is issued, the Exchange alien must take the Certificate to a U.S. Consular Post abroad to apply for issuance of a J-1 visa stamp in their passport. The U.S. Consular Post will use an electronic system (SEVIS) to verify the data on the Certificate of Eligibility and to inform the Department of State that the J-1 visa was issued.

As with F-1 visa applicants, J-1 applicants are required to pay a SEVIS fee – currently $180.

SPECIAL LIMITATIONS

Two-year foreign residence requirement.

All foreign nationals can apply for J-1 visas. However, certain nationals training in certain fields are subject to a two-year foreign residency requirement on the conclusion of the period of training in the U.S. depending on whether their field of training and country of citizenship is listed on the Skills List.

A two-year foreign residence requirement is imposed on some categories of exchange aliens once their U.S. stay is completed. Any J-1 Exchange Visitor subject to the foreign residence is ineligible for permanent residence or nonimmigrant visas in the H or L category until he or she spends two years – after completion of stay – in his or her home country or country of last residence unless a waiver has been obtained for this requirement.

Business or industrial relations trainees are most often subject to the foreign residence requirement because their field of training and expertise appears on the Skills List maintained by the Department of State. This list is a record of those skills in each country deemed to be in short supply. The rationale for imposing the foreign residence requirement in cases in which the field of training appears on the skills list for the alien’s home country is that the alien should use his or her training in his or her country before being permitted to bring those skills into use in the U.S. or elsewhere. Whether a country appears on the skills list depends on whether that country responded to a State Department survey to determine skills in short supply in each country. In general, industrialized countries such as those in Western Europe, and Japan, do not appear on the skills list.

Aliens may be subject to the two-year foreign residency requirement if they received U.S. or home government funding for their participation in an Exchange-Visitor Program.

There is a waiver of the two year foreign residence requirement obtainable under the following five conditions:

1. A waiver may be sought by an interested U.S. government agency on behalf of the exchange alien;
2. A waiver may be sought by a state health department on behalf of a J-1 physician;
3. A waiver may be obtained when the exchange visitor’s compliance with the foreign residence requirement would result in exceptional hardship to his or her U.S. citizen or permanent resident spouse or child;
4. A waiver of the two year foreign residence requirement may be granted where the alien can demonstrate that he or she will be subject to persecution upon returning home;
5. The final ground for waiving the two year foreign residence requirement is on the basis of a “no-objection” letter issued by the alien’s government to the Department of State, stating that the foreign government has no objection to the alien remaining in the U.S.

FAMILY MEMBERS OF THE J-1 EXCHANGE VISITOR

Family members of the exchange alien enter the U.S. in J-2 visa status. Eligible family members include the spouse and minor children of the J-1 Exchange Visitor. A minor is a person under 21 years of age. Each family must present a Certificate of Eligibility (DS-2019) issued in his or her name.

The spouse and children can accept employment with USCIS authorization, but only if their compensation will be used for their own support – not to support the principal.

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ALIENS WITH EXTRAORDINARY ABILITY (O VISAS)

Introduction:

The O-1 visa is a nonimmigrant temporary work visa available to foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics” which “have been demonstrated by sustained national or international acclaim.” It is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” The foreign national entering the US must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability.

Extraordinary Ability in Science, Education, Business or Athletics:

To obtain an O-1 visa to work in the sciences, education, business or athletics, applicants must demonstrate that they possess “a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor.” There are two ways to demonstrating this expertise. One method is through receiving a major internationally recognized award such as a Nobel Prize. The more common way is by providing documentation in three (3) of the following eight (8) categories:

1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
2. Membership in associations in the field which require outstanding achievements of their members.
3. Published material about the alien.
4. Participation as a judge of the work of others in the same or allied fields.
5. Evidence of original contributions of significance in the field.
6. Authorship of scholarly articles.
7. Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation.
8. Evidence that the alien has or will command a high salary

Comparable evidence that does not fit within these categories may also be submitted.

Extraordinary Ability in the Field of Art:

Extraordinary ability in the arts means that the applicant has attained “distinction.” Distinction is defined as “a high level of achievement in the field of arts evidence by a degree of skill and recognition substantially above that ordinarily encountered.” Distinction has also been defined as prominence in the field of endeavor. The applicant can demonstrate distinction by being the nominee or recipient of an important national or international prize such as an Academy Award, Emmy, or Grammy, or by submitting documentation in at least three (3) of the following eight (8) categories:

1. Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts, or endorsements;Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications.
2. Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.
3. Evidence that the alien has a record or major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.
4. Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements.
5. Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.

Comparable evidence may also be submitted.

Extraordinary Achievement in Television or Motion Pictures:

The same criteria are used to determine extraordinary achievement as are used in determining distinction in the arts above. However, the evidence is weighed differently and the applicant does not have to meet as high a standard.

O-2 Visas for Support Personnel:

An O-2 visa can be obtained for those accompanying the O-1 visa holder who will assist the O-1 alien in their performance. To qualify for an O-2 visa, the applicant must meet the following requirements:

1. Be an integral part of the actual performance.
2. Have critical skills and experience that cannot be performed by others.
3. In television and motion pictures, have a long-standing working relationship with the O-1 alien.
   

Evidence must be submitted to establish the applicant’s essential role, and that they have skills and experience not possessed by an immediately available US worker.

Consultation Requirement:

Before a person will be granted either an O-1 or O-2 visa, US Immigration requires a consultation with a US-based organization.

For applicants in the television and motion picture industries, there must be a consultation with both the appropriate labor union and management organization. This opinion must state the applicant’s achievements in the field, and must state whether the position offered requires a person of extraordinary achievement.

For all other O-1 and O-2 applicants, the petition must include an advisory opinion from a peer group, labor union, or person with expertise in the applicant’s field. This opinion can either state simply that the group has no objection to issuing the visa, or can detail the applicant’s achievements. If the achievements are detailed, the letter should also address the applicant’s ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.

Advisory opinions for O-2 applicants should outline the essential role to be played by the support personnel, as well as their relationship to the O-1 visa holder. It should also state whether there are available US workers.

If the consultation is with an organization other than a labor union, US Immigration will forward the application to the union it deems appropriate within five days of receiving the petition. The union must issue an opinion on the petition within 15 days, and then US Immigration has two weeks to rule on the application.

If an O-1 applicant in the extraordinary ability in the arts category has obtained a consultation within the past two years, they need not obtain a new one. Nor is a new consultation required when seeking an extension of any O visa.

Applying for an O-1 Visa:

An alien cannot apply for an O visa in his or her own name. They can, however, file through a US agent. This is often done when the alien beneficiary will be working for multiple employers (for example, they are performing in a concert tour). In this case, contracts from each employer must be submitted, as well as an itinerary. The petition should be filed at the US Immigration regional service center with jurisdiction over the US agent. If the petitioner is a foreign employer, the application should be filed at the US Immigration regional service center with jurisdiction over the location of the first place the beneficiary will work.

The principal condition regarding O status that must be remembered by employers is that obtaining O status for an alien requires three steps: (1) obtaining advisory opinion from peer group, labor organization, or management organization; (2) approval by US Immigration of an O petition supported by the advisory opinion; and (3) issuance by a US Consulate abroad of an O visa based on the approved petition.

The form for petitioning to US Immigration for an O visa is the I-129 Form. This must be submitted along with the consultation opinion, evidence documenting the alien’s extraordinary ability, and details of the proposed work in the US. The petition is to be approved for the duration of the event in which the alien will participate, for a period of three years.

An O visa may be extended in one-year increments for an indefinite period of time.

Finally, O visas are what are known as “dual intent visas”, meaning that even though the applicant has filed a labor certification or petition for classification as a preference worker leading to permanent residence, the O visa cannot be denied.

O-3 Visas for Dependents:

The spouse or unmarried children under the age of twenty one may apply for O-3 visa status in order to accompany the O-1 visa holder.

O-3 visa status does not authorize employment in the U.S.

O-3 children lose their O-3 visa status upon reaching the age of twenty one or upon marrying prior to reaching twenty one years of age.

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