THE US IMMIGRATION LAW                Sadanand Naik                Bangalore
GOVERNING LAW   Immigration and Nationality Act (8 U.S.C.)Regulations 8 CFR - USCIS 20 CFR - Department of Labor 22 CF...
SOURCES OF LAWa) Immigration and Nationality Act of 1952b) Immigration Reform and Control Act of 1986c) Immigration Act of...
AGENCIES INVOLVEDa) Department of Homeland Security (DHS)  1. Immigration Customs Enforcement (ICE)  2. U.S. Citizenship a...
TYPES OF PETITIONS FILED BEFORE USCIS:   I-129 Petition for a Nonimmigrant Worker   I-129CW Petition for a CNMI-Only Non...
USCIS PETITION/APPLICATION PROCESS   Step 1: Acceptance: Initial review (signed by the    applicant, appropriate fees, et...
TYPES OF IMMIGRATION VISAS Non-immigrant Visa Immigrant Visa                             THE US IMMIGRATION
NON-IMMIGRANT VISA                     THE US IMMIGRATION
NONIMMIGRANTS Short term intent to stay in U.S Residence abroad/foreign citizen. Dual intent – E, H, K, L & V Alphabet...
NON IMMIGRANT VISAS ALPHABET SOUP- A-V   A-1. Ambassadors, public ministers,   A-2. other accredited officials or employ...
NIV’S- CONTD   F-1 : Academic students   F-2 : Spouses and children of academic students   F-3 :Canadian or Mexican nat...
NIV’S CONTD   K-1: Fiances(ees) of U.S. citizens   K-2: Children of Fiances(ees) of U.S. citizens   K-3: Spouses U.S. c...
NIV’S CONTD   P-1 :Internationally recognized athletes or entertainers   P-2: Artists or entertainers in reciprocal exch...
NIV’S COND   S visa [two types: S-5/ S-6]Aliens Assisting Law Enforcement Special Immigrant Juvenile Status (SIJS)   T-1...
NONIMMIGRANT VISAS - CONCEPTS• Prevailing wage request to National Prevailing Wage   Center (NPWC) , or online Wage Librar...
REQUIRED CHECKLISTS: Checklist for preparing Non immigrant petition(I-  129) (Required for H-1B, H-1C, H-2A, H-2B, H-3, L...
NONIMMIGRANT VISAS (NIV):CLASSIFICATIONa) Temporary Visitors (B-1/B-2)b) Students and Trainees (F,M,J)c) Employment-based ...
TEMPORARY VISITORS (B-1/B-2)                        THE US IMMIGRATION
B-1 BUSINESS VISA -ELIGIBILITY The purpose of trip is to enter the United States for  business of a legitimate nature Pl...
B-2 VISA -ELIGIBILITY The purpose of trip is to enter the United States for  pleasure or medical treatment Plan to remai...
VISA PROCESS   Prepare an application   Filing it before US consulate office with required    documentsChecklist:DS 156:...
STUDENTS AND TRAINEES (F,M,J)                        THE US IMMIGRATION
STUDENTS AND TRAINEES (F,M,J) F-1 Academic students F-2 Spouses and children of F-1 F-3 Canadian or Mexican national ac...
F1, M1 AND J1VISA PROCESS: Acceptance of admission to SEVP certified school Receipt of Certificate of Eligibility I -20 ...
ELIGIBILITY: F-1 AND M-1 Must be enrolled in an "academic" educational  program, a language-training program, or a  vocat...
EXCHANGE VISITORS J-1 For those who intend to participate in an approved  program for the purpose of teaching, instructin...
EMPLOYMENT BASED NIV’S                         THE US IMMIGRATION
EMPLOYMENT BASED   E-1 Treaty Trader   E-2 Treaty Investor   E-3 Treaty Trader (Free Trade Professionals from    Austra...
EMPLOYMENT BASED CONTD   I Representative of Foreign Information Media   L-1A Intracompany Manager or Executive   L-1B ...
TREATY TRADERS - E-1ELIGIBILITYTreaty Trader: Be a national of a country with which the United States  maintains a treaty...
E-2 TREATY INVESTORSGENERAL QUALIFICATIONS   Be a national of a country with which the United States maintains a treaty  ...
E-2 TREATY INVESTORSGENERAL QUALIFICATIONS CONTD..Employee of a Treaty Investor Be the same nationality of the principal ...
E-3 VISA FOR AUSTRALIAN NATIONALS   Visa category for citizens of Australia to take up professional    positions in the U...
H-1B WORK VISA   Temporary workers engaged in a specialty    occupation   specialty occupation that requires      (1) t...
H-1B WORK VISA CONTD..   H-1B visas are valid for 3 years and can be extended for    an additional 3 year period for a to...
ELIGIBILITY Bachelor’s or higher degree or its equivalent is  normally the minimum entry requirement for the  position T...
DOCUMENT CHECKLISTS Checklist for preparing LCA Checklist for preparing H-1B Petition Checklist for filing H-1B petitio...
H1B PROCESS Step 1: Employer apply for and receive DOL  certification of an LCA. Step 2: Employer Submits Completed Form...
WAGE REQUIREMENTS     Actual Wage       paid by the employer to US workers       in the same position       at the sam...
I REPRESENTATIVES OF FOREIGN MEDIA :ELIGIBILITY Represent a foreign information media outlet  (press, radio, film, or oth...
L-1A INTRACOMPANY TRANSFEREE EXECUTIVE ORMANAGER  enables a U.S. employer to transfer an executive  or manager from one o...
ELIGIBILITYEmployer and Employee Have a qualifying relationship with a foreign company (parent  company, branch, subsidia...
BLANKET PETITIONS   The employer and each of the qualifying organizations    must be engaged in commercial trade or servi...
L-1B INTRACOMPANY TRANSFEREESPECIALIZED KNOWLEDGE: ELIGIBILITYEmployer and Employee Have a qualifying relationship with a...
O-1A INDIVIDUALS WITH EXTRAORDINARY ABILITY    OR ACHIEVEMENT   The O-1 nonimmigrant visa is for the individual who    po...
EVIDENTIARY CRITERIA FOR O-1A    Evidence that the beneficiary has received a major, internationally-     recognized awar...
EVIDENTIARY CRITERIA FOR O-1B   Performed and will perform services as a lead or starring participant in productions    o...
P-1A INTERNATIONALLY RECOGNIZED ATHLETE:SUPPORTING DOCUMENTS   A written consultation from an appropriate labor organizat...
P-1B A MEMBER OF AN INTERNATIONALLYRECOGNIZED ENTERTAINMENT GROUP:ELIGIBILITY At least 75 percent of the members of your ...
SUPPORTING DOCUMENTS   Written consultation from an appropriate labor organization   Itinerary with the dates and locati...
P-2 INDIVIDUAL PERFORMER OR PART OF AGROUP ENTERING TO PERFORM UNDER ARECIPROCAL EXCHANGE PROGRAMEligibility Criteria You...
SUPPORTING DOCUMENTS   Written consultation by an appropriate labor organization   Copy of the formal reciprocal exchang...
R-1 TEMPORARY NONIMMIGRANT RELIGIOUSWORKERS: ELIGIBILITY   The foreign national must have been a member of a religious   ...
SUPPORTING DOCUMENTS REQUIRED FORTHE RELIGIOUS ORGANIZATION   Proof of tax-exempt status   If the religious organization...
SUPPORTING DOCUMENTS REQUIRED FOR THERELIGIOUS ORGANIZATION CONTD..   Documents that establish the religious worker will ...
SUPPORTING DOCUMENTS REQUIRED FOR THERELIGIOUS WORKER   Proof of membership   Evidence that the religious worker is a me...
TN CATEGORY FOR CANADIAN AND MEXICANPROFESSIONALS   Must be nationals of either Canada or Mexico   Coming to U.S. to wor...
IMMIGRANT   VISA                   THE US IMMIGRATION
IMMIGRANTS Green card holders(I-551/alien registration receipt  card) -permanent residents Numerically limited       Vi...
IMMIGRANT     VISAS - CONCEPTSImmigrant Visa Process: Immigrant Petition (Form I-130, Petition for Alien  Relative, Form ...
IMMIGRANT VISA AVAILABILITY Immigrant visas available to “immediate  relatives(parents of a U.S. citizen, spouses of a  U...
PRIORITY DATE Priority date is a United States immigration concept Priority date can be found on Form I-797, Notice of  ...
TYPES IMMIGRANT VISAS Family Based: Immediate Relatives (Unlimited) Family Based: Other Relatives/Family Preference  Imm...
IMMEDIATE RELATIVES (UNLIMITED) IR-1: Spouses of u.s. citizens, including recent  widows and widowers IR-2: Unmarried Ch...
FAMILY BASED PREFERENCE IMMIGRANTVISAS (LIMITED)    First Preference (F1): Unmarried sons and daughters of    U.S. citize...
EMPLOYMENT BASED: GREEN CARDPREFERENCE CATEGORIESa) First preference (E1) : (Form I-140) (1) Persons with extraordinary ab...
EMPLOYMENT BASED: GREEN CARDPREFERENCE CATEGORIES CONTD..c) Third preference (E3): (Form I-140)(1) Skilled workers are per...
ONLINE RESOURCES   U.S. Department of State Visa Services   U.S. Citizenship and Immigration Services: USCIS   Immigrat...
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The US Immigration Law

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The US Immigration Law

  1. 1. THE US IMMIGRATION LAW Sadanand Naik Bangalore
  2. 2. GOVERNING LAW Immigration and Nationality Act (8 U.S.C.)Regulations 8 CFR - USCIS 20 CFR - Department of Labor 22 CFR - Department of State 28 CFR - EOIR 42 CFR - Public HealthGovernment Manuals• Adjudicators Field Manual (USCIS)• Foreign Affairs Manual (DOS)• Inspector’s Field Manual (CPB/Legacy INS) THE US IMMIGRATION
  3. 3. SOURCES OF LAWa) Immigration and Nationality Act of 1952b) Immigration Reform and Control Act of 1986c) Immigration Act of 1990 - IMMACT 90d) Illegal Immigration Reform and Immigrant Responsibility Act of 1996 - IIRIRAe) American Competitiveness in the 21st Century Actf) Child Status Protection Actg) Changes in Immigration post 9/11 1) USA Patriot Act (Oct 26, 2001) 2) Homeland Security Act (Nov 25, 2002) 3) Real ID Act (May 2005) THE US IMMIGRATION
  4. 4. AGENCIES INVOLVEDa) Department of Homeland Security (DHS) 1. Immigration Customs Enforcement (ICE) 2. U.S. Citizenship and Immigration Services (USCIS) 3. Customs and Border patrol (CBP)b) Department of Justicec) Executive Office of Immigration Review (EOIR)d) Board of Immigration Appeals (BIA)e) Office of Immigration Litigation (OIL)f) Federal Courtsg) Department of Stateh) Department of Labor THE US IMMIGRATION
  5. 5. TYPES OF PETITIONS FILED BEFORE USCIS: I-129 Petition for a Nonimmigrant Worker I-129CW Petition for a CNMI-Only Nonimmigrant Transitional Worker I-129F Petition for Alien Fiancé(e) I-129S Nonimmigrant Petition Based on Blanket L Petition I-130 Petition for Alien Relative I-140 Immigrant Petition for Alien Worker I-360 Petition for Amerasian, Widow(er), or Special Immigrant I-526 Immigrant Petition by Alien Entrepreneur I-600 Petition to Classify Orphan as an Immediate Relative I-730 Refugee/Asylee Relative Petition I-800 Petition to Classify Convention Adoptee as an Immediate Relative THE US IMMIGRATION
  6. 6. USCIS PETITION/APPLICATION PROCESS Step 1: Acceptance: Initial review (signed by the applicant, appropriate fees, etc.)- Issuance of receipt no. Step 2: Initial Review: background checks of the applicant/petitioner, Step 3: Request for Evidence: request for evidence at any stage of review- Step 4: Request for Evidence Response Review. Step 5: Testing and Interview Step 6: Decision-(approval/denial) Step 7: Post Decision Activity: For approved applications/petitions- USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. Step 8: Oath Ceremony: for naturalization Step 9: Card/ Document Production: (such as a "green card") or other document (such as a naturalization certificate, employment authorization document, travel document, or advance parole). THE US IMMIGRATION
  7. 7. TYPES OF IMMIGRATION VISAS Non-immigrant Visa Immigrant Visa THE US IMMIGRATION
  8. 8. NON-IMMIGRANT VISA THE US IMMIGRATION
  9. 9. NONIMMIGRANTS Short term intent to stay in U.S Residence abroad/foreign citizen. Dual intent – E, H, K, L & V Alphabet Soup- A-V(I.N.A § 101(a)(15), 8 u.s.C. § 1101(a)(15); 8 C.F.R. § 214.) Important Visas: H-1B, L-1, E-3, F-1, J-1, O-1 9 THE US IMMIGRATION
  10. 10. NON IMMIGRANT VISAS ALPHABET SOUP- A-V A-1. Ambassadors, public ministers, A-2. other accredited officials or employees of foreign governments, A-3. Personal attendants, servants, or employees, and the immediate family members of A-1 and A-2 visa holders B-1 for business B-2Tourist visitors.-for pleasure C-1 aliens in transit C-2 aliens in transit to the United Nations C-3 foreign government officials and families in transit E-1 treaty traders E-2 treaty investors E-3 Australian Free Trade Agreement THE US IMMIGRATION
  11. 11. NIV’S- CONTD F-1 : Academic students F-2 : Spouses and children of academic students F-3 :Canadian or Mexican national academic commuter students G-1 to G5 Designated principal resident representatives of foreign governments coming to the u.s. to work for an international organization and families etc H-1B :Specialty Occupation- Temporary worker H-2A:: Seasonal agricultural workers H-2B: seasonal nonagricultural workers H-3:industrial trainees H-4: spouses and children of H-1, H-2, and H-3 workers I. bona fide representatives of the foreign press coming to the u.s. J-1NonimmigrantStudents and exchange visitors: exchange visitors J-2NonimmigrantStudents and exchange visitors: spouses and children of exchange visitors THE US IMMIGRATION
  12. 12. NIV’S CONTD K-1: Fiances(ees) of U.S. citizens K-2: Children of Fiances(ees) of U.S. citizens K-3: Spouses U.S. citizens, K-4: Children of U.S. citizen L-1: Intracompany transferees: principals L-2 :Intracompany transferees: spouses and children of intracompany transferees M-1: Vocational students M-2: Spouses and children of vocational students M-3: Canadian or Mexican national vocational commuter students N-1 to N-6: NATO officials and families N-8 and N-9: Immediate relatives of certain SK-3 special immigrants O-1: Temporary workers and trainees: extraordinary ability or achievement O-2: Temporary workers and trainees: accompanying and assisting in performance of O-1 workers O-3Temporary workers and trainees: spouses and children of O-1 and O- 2 workers THE US IMMIGRATION
  13. 13. NIV’S CONTD P-1 :Internationally recognized athletes or entertainers P-2: Artists or entertainers in reciprocal exchange programs P-3: Artists or entertainers in culturally unique programs P-4 : Spouses and children of P-1, P-2, and P-3 workers Q-1 Workers in international cultural exchange programs Q-2. Immediate family members of Q-1 visa holders R-1: Workers in religious occupations R-2: Spouses and children of R-1 workers THE US IMMIGRATION
  14. 14. NIV’S COND S visa [two types: S-5/ S-6]Aliens Assisting Law Enforcement Special Immigrant Juvenile Status (SIJS) T-1 :Victims of human trafficking T-2: Victims of human trafficking: spouse of victim T-3: Victims of human trafficking: children of victim T-4:Victims of human trafficking: parents of victim who are children TD : Spouses and children of NAFTA workers TN: Temporary workers and trainees: NAFTA professional workers U-1: Victims of qualifying criminal activity, such as rape, murder, manslaughter, child abuse, domestic violence, sexual assault, and/or human trafficking U-2: Victims of qualifying criminal activity: spouse of victim U-3: Victims of qualifying criminal activity: children of victim U-4: Victims of qualifying criminal activity: parents of victim who are children U-5: Victims of qualifying criminal activity: siblings (of minor age) of victim who are children V-1: LIFE Act: spouses of permanent residents, visa pending V-2: LIFE Act: children of permanent residents, visa pending V-3: LIFE Act: dependents of V-1 and V-2, visa pending WB: Temporary visitors: visa waiver, business WT: Temporary visitors: visa waiver, pleasure THE US IMMIGRATION
  15. 15. NONIMMIGRANT VISAS - CONCEPTS• Prevailing wage request to National Prevailing Wage Center (NPWC) , or online Wage Library (FLC Data Center)(only for H-2B, H-1B, H-1B1 and E-3)• Labor Condition Applications (LCAs) (H-1B / H-1B1 / E-3- form ETA-9035) (H-2A / H-2B - ETA 9142) (/Application for Alien Employment Certification (form ETA- 750A/Form ETA-750B)/Application for Alien Employment Certification for Agricultural services (form ETA-790) • Nonimmigrant Petition (Form- I-129) • Visa application • Application for admission at Port-of-Entry-I-94 card. THE US IMMIGRATION
  16. 16. REQUIRED CHECKLISTS: Checklist for preparing Non immigrant petition(I- 129) (Required for H-1B, H-1C, H-2A, H-2B, H-3, L- 1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1). Checklist for filing petitions. (For other Non immigrant categories except above- does not require filing and approval of petition to the USCIS) Checklist for applying visa. THE US IMMIGRATION
  17. 17. NONIMMIGRANT VISAS (NIV):CLASSIFICATIONa) Temporary Visitors (B-1/B-2)b) Students and Trainees (F,M,J)c) Employment-based (H-1B, TN, E-3, L-1, E-1/E-2, O and P, H-2A, H-2B, R ,Q and I)d) Family-based ( K-1/K-2, K-3/K-4, V-1/V-2)e) Humanitarian-based (S, T & U) THE US IMMIGRATION
  18. 18. TEMPORARY VISITORS (B-1/B-2) THE US IMMIGRATION
  19. 19. B-1 BUSINESS VISA -ELIGIBILITY The purpose of trip is to enter the United States for business of a legitimate nature Plan to remain for a specific limited period of time Funds to cover the expenses of the trip and stay in the United States Residence outside the United States in with no intention of abandoning, as well as other binding ties which will ensure person return abroad at the end of the visit Person otherwise admissible to the United States THE US IMMIGRATION
  20. 20. B-2 VISA -ELIGIBILITY The purpose of trip is to enter the United States for pleasure or medical treatment Plan to remain for a specific limited period of time Funds to cover the expenses of the trip and stay in the United States Residence outside the United States in with no intention of abandoning, as well as other binding ties which will ensure person return abroad at the end of the visit Person otherwise admissible to the United States THE US IMMIGRATION
  21. 21. VISA PROCESS Prepare an application Filing it before US consulate office with required documentsChecklist:DS 156: Nonimmigrant Visa ApplicationVisa application feeVisa issuance feeDS-157: Supplemental Nonimmigrant Visa Application if requiredForm I-134, Affidavit of Support from a U.S. friend or relativePasssport and other supporting documents THE US IMMIGRATION
  22. 22. STUDENTS AND TRAINEES (F,M,J) THE US IMMIGRATION
  23. 23. STUDENTS AND TRAINEES (F,M,J) F-1 Academic students F-2 Spouses and children of F-1 F-3 Canadian or Mexican national academic commuter students M-1 Vocational students M-2 Spouses and children of M1 M-3 Canadian or Mexican national vocational commuter students J-1 Exchange visitors J-2 Spouses and children of J-1 THE US IMMIGRATION
  24. 24. F1, M1 AND J1VISA PROCESS: Acceptance of admission to SEVP certified school Receipt of Certificate of Eligibility I -20 (DS-2019 in case of J1) Application to US consulate office – visa stamping Port of entry- I-94 THE US IMMIGRATION
  25. 25. ELIGIBILITY: F-1 AND M-1 Must be enrolled in an "academic" educational program, a language-training program, or a vocational program School must be approved by USCIS Must be enrolled as a full-time student at the institution Must be proficient in English or be enrolled in courses leading to English proficiency Must have sufficient funds available for self-support during the entire proposed course of study Must maintain a residence abroad which he/she has no intention of giving up THE US IMMIGRATION
  26. 26. EXCHANGE VISITORS J-1 For those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. E.g: Professors or scholars, research assistants, students, trainees, teachers, specialists, nannies/Au pairs, camp counselors etc. THE US IMMIGRATION
  27. 27. EMPLOYMENT BASED NIV’S THE US IMMIGRATION
  28. 28. EMPLOYMENT BASED E-1 Treaty Trader E-2 Treaty Investor E-3 Treaty Trader (Free Trade Professionals from Australia) H-1B Nonimmigrant in a Specialty Occupation H-1B1 Singapore and Chile Nationals in a Specialty Occupation H-1B2 Department of Defense Worker H-1B3 Fashion Model H-1C Registered Nurses H-2A Seasonal Agricultural Worker H-2B Seasonal Non-Agricultural Worker H-3 Nonimmigrant Trainee THE US IMMIGRATION
  29. 29. EMPLOYMENT BASED CONTD I Representative of Foreign Information Media L-1A Intracompany Manager or Executive L-1B Intracompany Transferee (with unique or specialized knowledge) O-1 Nonimmigrant of Extraordinary Ability O-2 Support Personnel of an O-1 P-1A Internationally recognized athlete P-1B Internationally recognized athlete P-2 Reciprocal Exchange Visitor P-3 Artist of Entertainer in a Culturally Unique Performance R-1 Religious Worker TN North America Free Trade Agreement (NAFTA) Professionals THE US IMMIGRATION
  30. 30. TREATY TRADERS - E-1ELIGIBILITYTreaty Trader: Be a national of a country with which the United States maintains a treaty of commerce and navigation Carry on substantial trade Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.Employee of a Treaty Trader Be the same nationality of the principal alien employer (who must have the nationality of the treaty country) Meet the definition of “employee” under the relevant law Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. THE US IMMIGRATION
  31. 31. E-2 TREATY INVESTORSGENERAL QUALIFICATIONS Be a national of a country with which the United States maintains a treaty of commerce and navigation Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.A substantial amount of capital is: Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial. THE US IMMIGRATION
  32. 32. E-2 TREATY INVESTORSGENERAL QUALIFICATIONS CONTD..Employee of a Treaty Investor Be the same nationality of the principal alien employer (who must have the nationality of the treaty country) Meet the definition of “employee” under relevant law Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. THE US IMMIGRATION
  33. 33. E-3 VISA FOR AUSTRALIAN NATIONALS Visa category for citizens of Australia to take up professional positions in the U.S. – 10,500 per year available Job offered must be for a “specialty occupation” as defined for H-1B visa category Requires certified LCA Visas can be applied for at consulates without prior USCIS approval Filings can be submitted to USCIS, but premium processing is not available 2-year validity; renewable indefinitely Dependent spouses may apply for employment authorization 33 THE US IMMIGRATION
  34. 34. H-1B WORK VISA Temporary workers engaged in a specialty occupation specialty occupation that requires  (1) theoretical and practical application of highly specialized knowledge and  (2) attainment of a bachelors or higher degree, or equivalent experience, in the specific specialty for entry into the occupation. Period of Stay up to three years. H-1B Cap:65,000 visas each fiscal year Cap: 65,000 + 20,000 additional visas allocated to holders of advanced degrees from U.S. universities  All Universities are cap exempt THE US IMMIGRATION
  35. 35. H-1B WORK VISA CONTD.. H-1B visas are valid for 3 years and can be extended for an additional 3 year period for a total of 6 years in H-1 status  Previous stays in L-1 or H-1 status (but not L-2 or H-4 dependent status) count towards maximum period of stay  Time spent outside of the US does not count towards 6 year limit H-1B visas can be extended past the 6-year maximum in certain situations:  1 year Extension: If PERM has been filed at least 365 days prior to the date the H‐1B expires  3 year Extension: If an I‐140 has been approved, and the individual cannot adjust status because priority date is not current (usually someone from China or India) THE US IMMIGRATION
  36. 36. ELIGIBILITY Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree The employer normally requires a degree or its equivalent for the position The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.* THE US IMMIGRATION
  37. 37. DOCUMENT CHECKLISTS Checklist for preparing LCA Checklist for preparing H-1B Petition Checklist for filing H-1B petition Checklist for applying H-1B Visa THE US IMMIGRATION
  38. 38. H1B PROCESS Step 1: Employer apply for and receive DOL certification of an LCA. Step 2: Employer Submits Completed Form I-129 to USCIS. Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. THE US IMMIGRATION
  39. 39. WAGE REQUIREMENTS Actual Wage  paid by the employer to US workers  in the same position  at the same work site  with similar experience and qualifications Prevailing Wage  Average salary paid to all similarly situated employees (i.e. similar job duties, experience, education, etc.) in each geographic region Required Wage – higher of the actual or prevailing 39 THE US IMMIGRATION
  40. 40. I REPRESENTATIVES OF FOREIGN MEDIA :ELIGIBILITY Represent a foreign information media outlet (press, radio, film, or other foreign information media) Are coming to the United States to engage solely in this profession; and Have a home office in a foreign country demonstrate that Non immigrant is a bona fide representative of foreign media whose activities are essential to the functions of his organization THE US IMMIGRATION
  41. 41. L-1A INTRACOMPANY TRANSFEREE EXECUTIVE ORMANAGER enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one THE US IMMIGRATION
  42. 42. ELIGIBILITYEmployer and Employee Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate); and Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.Employee must Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.New Offices (8 CFR 214.2(l)(3)(v) ) Sufficient physical premises to house the new office have been secured The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and The intended U.S. office will support an executive or managerial position within one year of the approval of the petition. THE US IMMIGRATION
  43. 43. BLANKET PETITIONS The employer and each of the qualifying organizations must be engaged in commercial trade or services Must have an office in the United States which has been doing business for one year or more Must have three or more domestic and foreign branches, subsidiaries, and affiliates Must meet one of the following criteria  Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or  Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or  Have a U.S. work force of at least 1,000 employees. THE US IMMIGRATION
  44. 44. L-1B INTRACOMPANY TRANSFEREESPECIALIZED KNOWLEDGE: ELIGIBILITYEmployer and Employee Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate); and Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.Also to qualify, the named employee must Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and Be seeking to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.New Offices Sufficient physical premises to house the new office have been secured; and The employer has the financial ability to remunerate the employee and begin doing business in the United States. THE US IMMIGRATION
  45. 45. O-1A INDIVIDUALS WITH EXTRAORDINARY ABILITY OR ACHIEVEMENT The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Employer specific; but can hold dual O-1s Anyone still subject to INA 212e (J-1 2 year home residence requirement) can obtain an O-1 visa 3 years at a time, renewable indefinitely 45 THE US IMMIGRATION
  46. 46. EVIDENTIARY CRITERIA FOR O-1A Evidence that the beneficiary has received a major, internationally- recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:  Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor  Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field  Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought  Original scientific, scholarly, or business-related contributions of major significance in the field  Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought  A high salary or other remuneration for services as evidenced by contracts or other reliable evidence  Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought  Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation 46 THE US IMMIGRATION
  47. 47. EVIDENTIARY CRITERIA FOR O-1B 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 releases, publications, contracts or endorsements Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the authors authority, expertise and knowledge of the beneficiarys achievements A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence THE US IMMIGRATION
  48. 48. P-1A INTERNATIONALLY RECOGNIZED ATHLETE:SUPPORTING DOCUMENTS A written consultation from an appropriate labor organization A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport An explanation of the event and itinerary Documentation of at least two of the following:  Evidence of having participated to a significant extent in a prior season with a major United States sports league  Evidence of having participated to a significant extent in international competition with a national team  Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition  A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized  A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized  Evidence that you or your team is ranked, if the sport has international rankings  Evidence that you or your team has received a significant honor or award in the sport THE US IMMIGRATION
  49. 49. P-1B A MEMBER OF AN INTERNATIONALLYRECOGNIZED ENTERTAINMENT GROUP:ELIGIBILITY At least 75 percent of the members of your group must have had a substantial and sustained relationship with the group for at least one year. Your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential. THE US IMMIGRATION
  50. 50. SUPPORTING DOCUMENTS Written consultation from an appropriate labor organization Itinerary with the dates and locations of the performances A copy of the contract between the petitioner and the beneficiary or summary of terms of the oral agreement under which the beneficiary will be employed Evidence that your group has been established and performing regularly for at least one year Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group Evidence that your group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of your groups receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:  Your group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements  Your group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material  Your group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials  Your group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications  Your group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field  Your group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence THE US IMMIGRATION
  51. 51. P-2 INDIVIDUAL PERFORMER OR PART OF AGROUP ENTERING TO PERFORM UNDER ARECIPROCAL EXCHANGE PROGRAMEligibility Criteria You must be an artist entering the United States through a government recognized reciprocal exchange program. In addition, you must possess skills comparable to those of the United States artists and entertainers taking part in the program outside the United States. THE US IMMIGRATION
  52. 52. SUPPORTING DOCUMENTS Written consultation by an appropriate labor organization Copy of the formal reciprocal exchange agreement between the sponsoring U.S. organization(s) and the organization(s) in a foreign country which will receive the United States artist or entertainer Statement from the sponsoring organization describing the reciprocal exchange of United States artists or entertainers as it relates to the specific petition for which classification is sought Evidence that you and the U.S. artist or entertainer subject to the reciprocal exchange agreement are artists with comparable skills and that the terms and conditions of employment are similar Evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers. THE US IMMIGRATION
  53. 53. R-1 TEMPORARY NONIMMIGRANT RELIGIOUSWORKERS: ELIGIBILITY The foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of the petition. Every petition for an R-1 worker must be filed by a prospective or existing U.S. employer through the filing of a Form I- 129, Petition for Nonimmigrant Worker. An R-1 visa cannot be issued at a U.S. Embassy or Consulate abroad without prior approval of Form I-129 by U.S. Citizenship and Immigration Services (USCIS). If the foreign national is visa-exempt (e.g. Canadian), he or she must present the original Form I-797, Notice of Action, reflecting an approval of a valid I-129 R petition at a port of entry. THE US IMMIGRATION
  54. 54. SUPPORTING DOCUMENTS REQUIRED FORTHE RELIGIOUS ORGANIZATION Proof of tax-exempt status If the religious organization has its own individual IRS 501(c)(3) letter, provide a currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization If the organization is recognized as tax-exempt under a group tax-exemption, provide a group ruling If the organization is affiliated with the religious denomination, provide:  A currently valid determination letter from the IRS;  Documentation that establishes the religious nature and purpose of the organization;  Organizational literature; and  A religious denomination certification, which is part of the R-1 Classification Supplement to Form I-129 (see the links to the right). Proof of salaried or non-salaried compensation Verifiable evidence of how the organization intends to compensate the religious worker, including specific monetary or in-kind compensation. Evidence of compensation may include:  Past evidence of compensation for similar positions  Budgets showing monies set aside for salaries, leases, etc.  Evidence that room and board will be provided to the religious worker  If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided  If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation If the religious worker will be self-supporting THE US IMMIGRATION
  55. 55. SUPPORTING DOCUMENTS REQUIRED FOR THERELIGIOUS ORGANIZATION CONTD.. Documents that establish the religious worker will hold a position that is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination Evidence that establishes that the organization has an established program for temporary, uncompensated missionary work in which:  Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;  Missionary workers are traditionally uncompensated;  The organization provides formal training for missionaries; and  Participation in such missionary work is an established element of religious development in that denomination. Evidence that establishes that the organization’s religious denomination maintains missionary programs both in the United States and abroad Evidence of the religious worker’s acceptance into the missionary program Evidence of the duties and responsibilities associated with this traditionally uncompensated missionary work Copies of the religious worker’s bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination’s churches), or other verifiable evidence acceptable to USCIS THE US IMMIGRATION
  56. 56. SUPPORTING DOCUMENTS REQUIRED FOR THERELIGIOUS WORKER Proof of membership Evidence that the religious worker is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of Form I-129 If the religious worker will be working as a minister, provide: A copy of the religious worker’s certificate of ordination or similar documents Documents reflecting acceptance of the religious worker’s qualification as a minister in the religious denomination, as well as evidence that the religious worker has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination. Include transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination If the denominations do not require a prescribed theological education, provide:  The religious denomination’s requirements for ordination to minister  A list of duties performed by virtue of ordination  The denomination’s levels of ordination, if any, and  Evidence of the religious worker’s completion of the denomination’s requirements for ordination Proof of previous R-1 employment (for extension of stay as an R-1) If you received salaried compensation, provide IRS documentation that you received a salary, such as an IRS Form W-2 or certified copies of filed income tax returns reflecting such work and compensation for the previous R-1 employment If you received non-salaried compensation:  If IRS documentation is available, provide IRS documentation of the non-salaried compensation  If IRS documentation is not available, provide an explanation for the absence of IRS documentation and verifiable evidence of all financial support, including stipends, room and board, or other support for you with a description of the location where you lived, a lease to establish where you lived, or other evidence acceptable to USCIS If you received no salary but provided for your own support and that of any dependents, provide verifiable documents to show how support was maintained, such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other evidence acceptable to USCIS THE US IMMIGRATION
  57. 57. TN CATEGORY FOR CANADIAN AND MEXICANPROFESSIONALS Must be nationals of either Canada or Mexico Coming to U.S. to work in profession listed on NAFTA schedule Generally require a Bachelors degree in field Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate) Mexicans apply at Consulate Three year stay, renewable indefinitely Extensions and changes of status may be filed at USCIS Service Center Employer Specific; can hold dual TN’s57 THE US IMMIGRATION
  58. 58. IMMIGRANT VISA THE US IMMIGRATION
  59. 59. IMMIGRANTS Green card holders(I-551/alien registration receipt card) -permanent residents Numerically limited  Visa bulletin  Priority date Can become U.S. citizens after 3 - 5 years 59 THE US IMMIGRATION
  60. 60. IMMIGRANT VISAS - CONCEPTSImmigrant Visa Process: Immigrant Petition (Form I-130, Petition for Alien Relative, Form I-140, Petition for Alien Worker,) Immigrant Visa Availability Immigrant Visa Adjudication- AOS or consulate office-I-551 stamping on passport Receipt of Permanent Resident card NB:With effective August 15, 2011, petitioners residing outside the United States will be required to file their Forms I-130 by mail with the USCIS Chicago Lockbox. THE US IMMIGRATION
  61. 61. IMMIGRANT VISA AVAILABILITY Immigrant visas available to “immediate relatives(parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen)” of U.S. citizens are unlimited. Immigrant visa numbers for individuals in a “preference category” are limited Family sponsored preference categories are limited to 226,000 per year Employment based preference visa are limited to 140,000 per year. In addition, there are limits to the percentage of visas that can be allotted to each country. THE US IMMIGRATION
  62. 62. PRIORITY DATE Priority date is a United States immigration concept Priority date can be found on Form I-797, Notice of Action, for the petition filed .Priority Dates for Family Sponsored Preference Cases The date that the petition is properly filed with U.S. Citizenship and Immigration Services (USCIS).Priority Dates for Employment Based Preference Cases The date the petition was properly filed with USCIS, or The date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required)U.S. Department of State Visa Bulletin THE US IMMIGRATION
  63. 63. TYPES IMMIGRANT VISAS Family Based: Immediate Relatives (Unlimited) Family Based: Other Relatives/Family Preference Immigrant Visas (Limited) Employment Based Green Cards Diversity Visa Program: Green Card Lottery Refugees and Political Asylees Temporary Protected Status (TPS) THE US IMMIGRATION
  64. 64. IMMEDIATE RELATIVES (UNLIMITED) IR-1: Spouses of u.s. citizens, including recent widows and widowers IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen IR-3: Orphan adopted abroad by a U.S. Citizen IR-4: Orphan to be adopted in the U.S. by a U.S. citizen IR-5: Parent of a U.S. Citizen who is at least 21 years old THE US IMMIGRATION
  65. 65. FAMILY BASED PREFERENCE IMMIGRANTVISAS (LIMITED) First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (23,400) Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs (114,200) Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (23,400) Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000)Note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration. THE US IMMIGRATION
  66. 66. EMPLOYMENT BASED: GREEN CARDPREFERENCE CATEGORIESa) First preference (E1) : (Form I-140) (1) Persons with extraordinary ability in the sciences, arts, education, business, or athletics.(2) Outstanding professors and researchers with at least three years experience in teaching or research(3) Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer.b) Second preference(E2):(Form I-140)(1) Professionals holding an advanced degree.(2) Persons with exceptional ability in the sciences, arts, or business. THE US IMMIGRATION
  67. 67. EMPLOYMENT BASED: GREEN CARDPREFERENCE CATEGORIES CONTD..c) Third preference (E3): (Form I-140)(1) Skilled workers are persons whose jobs require a minimum of 2 years training or work experience(2) Professionals are members of the professions whose jobs require at least a baccalaureate degree(3) Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience.d) Fourth preference(EB-4) - Special Immigrants (VAWA, Religious workers) (Form I-360) e) Fifth preference (EB -5)- employment-based immigrants (entrepreneurs) (Form I-526) THE US IMMIGRATION
  68. 68. ONLINE RESOURCES U.S. Department of State Visa Services U.S. Citizenship and Immigration Services: USCIS Immigration Law: An Overview: Law Cornel Admission Into the U.S. : U.S. Customs and Border Patrol (CBP) U.S. Citizenship and Immigration Forms and Fees U.S. Customs and Border Protection U.S. Legislative Information on the Web U.S. Government Printing Office Bureau of Immigration and Customs Enforcement U.S. Department of Labor Online Wage Library Bureau of Labor Statistics Occupational Employment Statistics Occupational Outlook Handbook USCIS Processing Time USCIS Case Status Icert Case Status Visa Bulletin THE US IMMIGRATION
  69. 69. Thank You

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