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NONIMMIGRANT VISAS AND TEMPORARY STAYS:

Aliens seeking to enter the United States for a temporary period of time are classified as nonimmigrants. Because there is generally no limit as to the number of nonimmigrants who may enter the United States during any year, it is usually much easier and quicker to obtain a nonimmigrant visa than an immigrant or permanent resident visa. While there are literally dozens of nonimmigrant visa categories, many of these are very specific and not widely used, or can be obtained without much difficulty directly from a US consulate abroad. In many instances, some of these visas can later be converted to permanent residence status.

THE B-1 VISITOR FOR BUSINESS AND THE B-2 VISITOR FOR PLEASURE:

The most common and widely used of the non-immigrant visas is the B visa. There are two types of B visas: the B-1 (business visitor) and the B-2 (visitor for pleasure). Most businesspersons entering the United States enter with B-1 visas. The visa itself, which is issued by a US consul abroad, may be issued for varying periods of time, and may be issued for single or multiple entries. This must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. Usually, the immigration service will grant the B-1 applicant the period of time that is necessary for him or her to accomplish the purpose of the visit, usually from a few weeks up to six months.

B-1 visas are usually issued to aliens who are coming to the United States to enter into or negotiate contracts, purchase goods for shipment abroad, obtain orders for products manufactured abroad, attend business conventions, consult with business organizations, or to investigate business opportunities in the United States. They may also be used to check on business investments that the alien has previously made in the United States, and to permit the alien to open and establish a new US business, although, it must be pointed out that, the alien cannot actively participate in the management of said business.

In order to obtain a B-1 visa, the alien must establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. The alien must also establish an intent to depart from the United States at the expiration of the temporary stay and that he or she has adequate funds to cover the expenses of the expected stay in the United States. In this regard, the consular or immigration official will look to the alien's ties with the foreign country to determine whether there are sufficient contacts to indicate the likelihood of the alien's returning to the foreign domicile. These ties would include such things as employment abroad, family, property, or other business or social connections with the foreign country.

Accompanying family members of B-1s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

A B-2 visitor for pleasure is defined as an alien who has a residence in a foreign country, which he or she has no intention of abandoning, and who is coming to the United States temporarily for pleasure. The statute also states that the alien cannot be coming to the United States primarily for the purpose of studying. This does not, however, prohibit the alien from engaging in brief or incidental study. The State Department defines pleasure as any legitimate activity of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature. However, any type of employment whatsoever is precluded by the B-2 visa, even if the alien receives no remuneration, benefit, or gain for the service rendered.

Since the alien's stay in the United States must be temporary, there must be a clear intention to depart prior to the end of the authorized period of stay. In addition, the B-2 alien must show that he or she has sufficient funds to accomplish the purposes of the stay in the United States.

The B-2 visa, which is issued by a US consul abroad, like the B-1 visa, may be issued for varying periods of time, and may be issued for single or multiple entries. Again, this must be distinguished from the period of time that is granted by the immigration service once the alien makes application for entry at a US border point. In most instances, an applicant entering as a B-2 will be admitted for a period of six months.

Accompanying family members of B-2s, who are defined as the spouse and minor unmarried children, are usually given the same period of time as the principal alien. If, after entry to the United States, the alien discovers that he or she needs additional time in order to accomplish the purpose of the trip, an extension of time may be requested from the immigration service, on immigration form I-539, which applications are usually granted.

In many instances, the US consul will issue a joint B-1/B-2 visa. In these cases, the alien may seek to enter the United States, in either nonimmigrant category. At the time of entry, the alien will advise the immigration officer at the port of entry of the primary purpose of the trip. If the primary purpose is for business, the alien will be admitted as a B-1, business visitor. Otherwise, the alien will be admitted as a B-2, visitor for pleasure.

F-1 STUDENT VISAS:

The definition of a student is one who has a residence in a foreign country which he or she has no intention of abandoning, and who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, which program must have been approved by the immigration service.

In order to be admitted to a school as an F-1 student, the alien must first obtain from the school's foreign student advisor an immigration form known as an I-20. In addition to meeting the academic qualifications, the prospective student must also submit evidence of sufficient financial support for the period of the academic program. When the school issues this form to the student, it is an indication that the student has met the necessary qualifications for admission to the school. However, the student must then apply for an F-1 visa at a US consul if they are outside of the United States, or they can apply for change of status with the immigration service if they are in lawful immigration status in the United States. This application is made on immigration form I- 539. It must be accompanied by the approved I-20 form, as well as evidence that the prospective student has sufficient funds to support himself or herself in the United States for the duration of studies. In other words, the immigration service wants to be sure that the student will not have to resort to unauthorized employment in order to pay for their schooling or living expenses while attending school.

When the application for change of status is approved by the immigration service, or when the student enters the United States with an F-1 visa, the student is admitted for the duration of their status as a student, which is noted as "D/S" on their entry document.

In order to maintain student status, the student must attend school on a full-time basis, which generally means 12 academic credit hours per semester. There may be exceptions, such as when a student is ill and unable to attend on a full-time basis, when a graduate student is working on a thesis, or during the school's annual vacation.

As a general rule, a student is not permitted to be employed while studying in the United States. However, there are some exceptions. The first is on-campus employment. If a student is otherwise maintaining status, he or she may work on the school's premises up to 20 hours per week while school is in session, and full-time during breaks and the student's annual vacation.

The second type of employment for an F-1 student is known as the pilot off-campus employment program. In this program, the foreign student advisor may authorize off-campus employment with a qualifying employer for any F-1 student who has been in F-1 status for one full academic year and is maintaining both valid F-1 status and good academic standing. The student is allowed to work up to 20 hours per week during school sessions and full-time during holidays, breaks, and the student's annual vacation. The prospective employer must meet several requirements in order for it to be included in the program, including evidence that it has recruited unsuccessfully for the position which the F-1 student will occupy for at least 60 days, and that the F-1 student will be offered wages and working conditions which are similar to others currently working in similar positions.

The third type of employment is employment based on severe economic hardship. This is provided for students who must work due to unforeseen economic hardship. Students may apply for this form of work permission if they have been attending school for one full academic year; are in good academic standing and are carrying a full course of study; can show unforeseen severe economic hardship; and the acceptance of employment will not interfere with the student's continuing in a full course of study. The foreign student advisor must certify on immigration form I-538 that he or she concurs in the student's need for employment. The application is filed with the local immigration office, together with immigration form I-765 (Application for Employment Authorization.) The student may begin employment upon approval of the employment authorization request, which is usually issued for a period of one year.

The fourth type of student employment is known as curricular practical training. This is defined as employment that is an integral or important part of the F-1 student's curriculum, and includes such employment as work/study programs, internships, and cooperative education programs. This usually includes employment that is required to complete any degree requirements. The foreign student advisor may designate the program as either full time or part time.

The fifth type of employment authorization is known as optional practical training. Optional practical training must be related to the student's major area of study and is limited to a period of 12 months. However, it is not necessary that the student have a pre-existing offer of employment. While optional practical training is usually issued after the student has completed his or her course of study, it may be granted while school is in session, during the student's annual vacation, or during the time that the student is in the process of completing his or her thesis. The foreign student advisor must sign immigration form I-538, and the application is filed with the immigration service center having jurisdiction over the student's place of residence.

The Immigration Act of 1996 made significant changes to the F-1 student program. A new provision added to the Act states that an alien may not be accorded status as a nonimmigrant student to pursue a course of study at a public elementary school, or in a publicly funded adult education program, or at a public secondary school, unless the total period of such status at such a school does not exceed 12 months, and the alien demonstrates that he or she has reimbursed the school for the full cost of providing education at such school for the period of the alien's attendance. In addition, an alien student who transfers from a private elementary or secondary school or from a language training program that is not publicly funded, to a public school, shall be considered to have violated their status, and the alien's F-1 visa shall be void, unless they pay the full cost of the public education program which they will be receiving. Another provision of the act states that an alien who obtains the status of a nonimmigrant student and then violates a term or condition of said status may not be readmitted to the United States for a period of five (5) years following the date of the violation.

The dependent spouse and unmarried children of F-1 students will be granted F-2 status. An F-2 may remain in the United States for the duration of the F-1's valid status and may engage in any lawful activity, including the right to study. However, F-2 aliens are not permitted to be employed in the United States.

E-1 TREATY TRADER AND E-2 TREATY INVESTOR VISAS E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are excellent for those businessmen who wish to enter into long term business ventures in the United States.

These visas are available, however, only to those aliens who are citizens or nationals of treaty countries, to wit, those countries that have entered into treaties of commerce and navigation with the United States. (A complete list of treaty countries is available on our web site).

E-1 and E-2 visas are defined by the Immigration and Nationality Act respectively, as visas to an alien who is "entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he or she is a national and, (1) solely to carry on substantial trade, principally between the United States and the foreign state of which he or she is a national, or (2) solely to develop and direct the operation of an enterprise in which he or she has invested or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital."

An E-1 or E-2 visa can be either for the principal applicant, or for a managerial employee of the E-1 or E-2 company. In both cases the employer must have the nationality of the treaty country or, if an organization, it must be principally owned by personnel from the treaty country. For E-1 purposes, the trade must be of a substantial nature that is international in scope, and must be principally between the United States and the foreign state of which the applicant is a national. If the applicant is an employee, he or she must be engaged in duties of a supervisory or executive character or must have some specific qualifications that would make his or her services essential to the efficient operation of the employer's enterprise.

For an E-2 visa, the applicant must have invested or must be investing in a bona fide enterprise and not be coming to the United States solely in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living, or if the applicant is an employee, he or she must be employed in a responsible capacity by an individual or company that has made a substantial investment in a business enterprise in the United States.

Unlike other types of non-immigrant visas, the E visas do not require the alien to establish that he or she is proceeding to the United States for a specific temporary period of time. The regulations merely require that the alien demonstrate intent to depart upon termination of his or her status. Also, the E visa applicant need not demonstrate that he or she has a residence in a foreign country which he or she has no intention of abandoning. There should be some indication however, that the alien will eventually return to his or her country upon the termination of their stay in the United States.

To qualify for an E-1 visa, the applicant must be coming to the United States to "carry on substantial trade, principally between the United States and the foreign state of which he or she is a national." While the amount of trade is obviously important, the State Department is more concerned with the volume of trade rather than the monetary amount. Therefore, many transactions of relatively small volume could establish the necessary course of trade as outlined in the statute. Furthermore, the trade must be principally between the United States and the country of the alien's nationality. This requires that at least fifty-one (51%) percent of the total amount of trade be between the United States and the country of which the alien is a national.

The E-2, Treaty Investor Visa, requires that the applicant be coming to the United States to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing, a substantial amount of capital. As previously noted, the investment must be substantial and not just a small amount of capital invested in a marginal enterprise for the purpose of earning a living. There has been no specific guideline on the minimum amount of investment, although the Regional Commissioner for the Southern Region of INS has stated that an investment of more than seventy-five thousand ($75,000) dollars could qualify. (However, a significantly larger investment is generally recommended.) Also, an "investment" means the placing of funds or other capital assets "at risk" in the hope of generating a return on the funds. Therefore, uncommitted funds in an idle bank account do not constitute an investment. Furthermore, an idle, passive, speculative investment merely held for potential appreciation in value such as land or stocks does not qualify under the statute.

In addition to the substantial investment in a business enterprise, the investor must be coming to the United States to develop and direct the operations of the enterprise in which he or she has made the investment. This means that the principal treaty investor must have at least fifty-one (51%) percent ownership of the investment, unless he or she is coming as an employee of the enterprise.

Generally, an E visa will be issued for a period of five (5) years. The spouse and children of the principal applicant will also receive E visas for the same period of time. When they enter the United States, they will be given a period of stay of one (1) year. If the alien desires an extension, he or she would file a request for an extension with the Immigration and Naturalization Service on immigration form I-129, together with the E supplement, and an extension will be granted in increments of two (2) years. The State Department in Washington, DC, can also reissue an E visa without the need of the alien leaving the United States in order to have the visa placed in his or her passport. The dependents of "E" aliens will generally not be permitted to work. However, should they work without authorization, their status will not be terminated, but they may be precluded from later changing their status because of the unauthorized employment.

H-1B VISAS:

An H-1B visa may be issued to an alien who is coming temporarily to the United States to perform services in a specialty occupation as defined in the Immigration and Nationality Act. The applicant for an H-1B visa must first receive an offer of employment from a US company, which company must file a visa petition on his or her behalf.

The number of H-1B visas, or change of status, that can be approved each year is limited to 195,000. However, since some H-1B professions are not counted toward the cap, the actual number issued each year may be significantly higher.

The petition is filed with the Immigration and Naturalization Service Center having jurisdiction over the place where the alien will be employed, on immigration form I-129, together with the H supplement, and immigration form I- 129W. When the petition is approved, it is forwarded to an American consulate abroad, where the alien will apply for his or her H-1B visa. If the alien is in lawful status in the United States, a change of status can be granted without the need to travel outside of the country to obtain the visa. An alien with an H-1B visa or status may be recognized as having a dual intent. This means that the alien may qualify for an H-1B visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa.

As stated above, an H-1B visa can be issued only to aliens in a specialty occupation. It has been determined by the immigration service that members of the professions, whose job duties require a professional person, qualify as aliens in a specialty occupation, such as architects, engineers, lawyers, doctors, and teachers. There are many other occupations that can qualify for professional status. These generally require at least a minimum education, equivalent to a BA or BS degree from a university in the United States. (A list of occupations, which the immigration service has determined to be professional, is included on our web site.)

The professional qualifications of an alien are generally established by showing that he or she has at least a BA or BS degree from an American university in the field in which he or she will be employed.

If the alien has a degree from a foreign university, it will be necessary to have that degree evaluated by a professional evaluating service, to determine whether it is equivalent to at least a BA or BS degree from a university in this country. If an alien is coming to the United States to engage in a profession which requires licensing, he or she must meet all the necessary licensing requirements in order to be eligible for an H-1B visa, since the alien must be immediately available to engage in the employment outlined in the petition.

Prior to filing an H-1B petition, the employer must file with the US Department of Labor a Labor Condition Application (known as an LCA). The employer must attest in the LCA that it is offering to the H-1B employee the higher of either: (a) the actual wage the employer pays to other individuals similarly employed with similar experience and qualifications, or (b) the prevailing wage for that position in the geographical area of employment based on the best information available. The employer must also affirm that the working conditions for the H-1B worker will not adversely affect the working conditions of other workers similarly employed; that there is no strike, lockout, or work stoppage in the course of a labor dispute; that the employer has given its employees notice of the filing of the LCA through posting or notice to a bargaining representative, if applicable; that the employer did not displace and will not displace a US worker employed by the employer within the period beginning 90 days before and ending 90 after the filing of the H-1B petition; that the employer has taken good faith steps to recruit for the position in the United States using industry-wide standard practices; has offered the job to any US worker who applies and is equally or better qualified than the H-1B worker; and that the employer has provided, or will provide, a copy of the LCA to the H-1B worker. Furthermore, the employer must affirm that if the H-1B alien is dismissed before the end of the period of authorized stay, the employer will be liable for the reasonable costs of return transportation of the alien abroad to his or her last place of foreign residence. Any type of dismissal is covered, including one for cause. The only exception is where the alien voluntarily terminates employment.

In addition, the US employer must pay a $1000.00 fee that will be used to fund training programs to help eliminate US employers' reliance on foreign workers. This fee, and form I-129W, must accompany all petitions for new employment, and for the first extension petition filed by an employer for a particular H-1B employee. Under the statute, the employer must pay this fee. The employer cannot require or accept reimbursement for the fee from the employee, or risk a fine of $1000.00. Institutions of higher education and their related or affiliated non-profit entities, other nonprofit research institutions and government research institutions are not required to pay the fee.

Also not required to pay the fee are primary and secondary schools, as well as non-profit organizations engaged in curriculum-related clinical training of students registered at an institution of higher education.

When the alien is admitted to the United States in H-1B status, or upon a change of status within the United States, the alien may begin employment with the petitioning company in the job specified on the petition. The alien may not change employers, nor significantly change his or her job duties within the company, without first filing a new petition. He/she does not have to wait for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a non-immigrant admitted to the US (no particular non-immigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

Upon obtaining an H-1B visa, the spouse and children of the principal alien are entitled to H-4 status. At the present time, the H-1B and H-4 visas are issued for an initial period of three (3) years, and an extension of three (3) years may be granted by the Immigration Service.

A new provision added October 17, 2000 allows a further extension in two circumstances: a) a beneficiary of an employment-based first, second, or third preference petition who is eligible for permanent residence, but for the application of the per-country limits, may obtain extension of the H-1B status until the adjustment of status is decided; and b) an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

Also, the State Department in Washington, DC, may reissue an H-1B visa without the need of the alien to travel outside of the United States in order to have the visa placed in his or her passport. H-4 aliens may not be employed in the United States, and their status is valid only as long as the principal alien is validly in status. If an H-1B petition is denied, the prospective employer may appeal the decision to the Administrative Appeals Office. However, the denial of an extension of stay is not appealable and may only be contested by an appropriately filed motion to reopen or reconsider.

President Clinton Signs New H-1B Law, October 17, 2000: S.2045, the "American Competitiveness in the Twenty-First Century Act of 2000" increases the existing visa quotas as follows: FY 2000 -increase from 115,000 to 195,000 FY 2001-increase from 107,500 to 195,000 FY 2002 -increase from 65,000 to 195,000. All H-1B petitions received by INS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

INCREASED PORTABILITY OF H-1B STATUS. Persons previously issued a visa or otherwise provided H-1B status can accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible for this provision, the individual must have been lawfully admitted to the United States, the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General and the individual must not have been employed without authorization in the United States before the filing of such petition. Employees who now hold H-1B status but want to change companies, and their future petitioning employers, are the primary beneficiaries of this expanded portability.

For text of H-1B Bill click here: S.2045 (.pdf file)

For Senate Report of H-1B Bill click here: S.2045 Report (.pdf file)

H-1B Regulations: Final Rule, 12-20-00, 20 CFR Parts 655 and 656/Temporary Employment in the United States of Nonimmigrants under H-1B Visas (693 KB .pdf file, be patient on download)

Sponsor: Sen Hatch, Orrin G. (introduced 2/9/2000) Latest Major Action: 10/17/2000 Became Public Law No: 106-313. Title: A bill to amend the Immigration and Nationality Act with respect to H-1B nonimmigrant aliens. SUMMARY AS OF: 4/11/2000--

Increases available nonimmigrant H-1B specialty occupation visas for FY 2000 through 2002.

(Sec. 3) Amends the Immigration and Nationality Act to exempt from H-1B numerical limits an alien: (1) who is employed at an institution of higher education or related nonprofit entity, nonprofit research or governmental research entity; or (2) for whom a petition has been filed within a specified time before or after attainment of a master's or higher degree from a U.S. institution of higher education.

(Sec. 4) Makes employment-based immigrant visas available on a quarterly basis without regard to per-country limitations if unused visas are available. Authorizes a U.S.- residency extension for a nonimmigrant alien for whom an employment-based immigrant petition has been filed but who is subject to the per-country limit until resolution of such alien's application for status adjustment.

(Sec. 5) Authorizes a qualifying H-1B alien to accept new employment upon a prospective employer's filing of a new petition, which shall last until such petition's adjudication. To be eligible for this benefit, Section 105 requires that the H-1B holder was lawfully admitted; that the petitioning company filed a non-frivolous petition prior to the status expiration; and that the H-1B alien was not unlawfully employed after admission into the U.S.

(Sec. 6) Provides for one-year extensions of authorized H-1B stay in cases of permanent residence adjudications lasting 365 days or longer.

(Sec. 7) Extends: (1) attestation and fee requirements under such Act through October 1, 2002; and (2) investigative authorities under the American Competitiveness and Workforce Improvement Act of 1998 through September 30, 2002.

(Sec. 8) Provides, with respect to nonimmigrant visa petitions subject to numerical limits, for the numerical restoration of such visas fraudulently obtained, effective for the fiscal year of petition revocation.

(Sec. 9) Directs the National Science Foundation to conduct a study of the divergence to high technology access (digital divide).

(Sec. 10) Amends the Immigration and Nationality Act with respect to the allocation of H-1B visa fees from the Treasury H-1B Nonimmigrant Petitioner Account to: (1) reduce amounts for job training, and mathematics, engineering , or science enrichment courses; and (2) increase amounts for low- income scholarships for mathematics, engineering, or computer studies. Amends the American Competitiveness and Workforce Improvement Act of 1998 with respect to such low-income National Science Foundation scholarships to: (1) increase maximum amounts; and (2) authorize four-year extensions. Amends the Immigration and Nationality Act to obligate Account amounts to the Foundation in support of private-public education partnerships in K-12 math, science, and technology. Amends the American Competitiveness and Workforce Improvement Act of 1998 to direct the Foundation and the Department of Labor to monitor H-1B grant programs.

(Sec. 11) Kids 2000 Act - Directs the Attorney General to make grants to the Boys and Girls Clubs of America for after-school technology programs, such as PowerUp. Authorizes FY 2001 through 2006 appropriations. Authorizes the Violent Crime Resolution Trust Fund as a fund source.

H1 Work prior to Approval: Anyone awaiting approval of an H-1B transfer may legally begin to work for their new employer. An H-1B visa holder may begin to work for a new employer when a non-frivolous, legally viable H-1B petition is submitted, and no longer must wait for approval before doing so. Prior law required that a worker wait until the petition was approved before changing employers. If denied, the authorization will be terminated. Under the law prior to October 17, 2000 a person on an H-1B with one specific employer was not allowed to work for another employer, unless and until the person obtained a second H-1B approval for the other employer. INS had consistently maintained the position that one can only start work on an H1 status after obtaining the approval, but S.2045 makes this unncessary.

For H-1B visa holders with a pending employment-based green card, and who filed a labor certification or I-140 at least one year prior, the six year time limit is waived, with extensions granted in one year increments until the green card petition is either approved or denied. Section 104(c) allows ANY alien (1) who is the beneficiary of a FILED EB-1, EB-2 or EB-3 visa petition; and (2) would be eligible to apply for permanent residence except for the application of per-country limitations (e.g. born in India or mainland China) to apply to the INS for extensions of nonimmigrant status until his or her adjustment of status application has been adjudicated. The law states that the application "may" be approved.

After an application for adjustment of status for a person sponsored under an EB category remains unadjudicated for over 180 days, the individual is free to change jobs as long as the new job "is in the same or a similar occupational classification as the job for which the petition is filed".

The H-1B cap will no longer impact any foreigner who is employed--or has a written offer of employment--by a university, college or related nonprofit organization. Neither will nonprofit or government research organizations be subject to the quota. Once a person under these categories leaves the related position, however, they do become subject to the H-1B cap once again, unless the subsequent employer is likewise exempt. Secondly, for those with a petition filed no more than 90 days prior and no more than 180 days following the completion of a graduate degree, the cap will not be applicable.

There is a new Fee for H-1B petitions: All H-1B petitions received by INS on or after December 18, 2000, and before October 1, 2003, must be accompanied by a $1,000 fee in addition to the $110 filing fee.

The fee will be collected for the following three types of cases:

(1)- an initial grant of H-1B status; ( Instructions for Form I-129)

(2)- an extension of stay for individuals currently in H-1B status (only for the first extension request by an employer)

(3)- authorization for a change in employment for individuals currently in H-1B status. The INS notes that the limit to charging the fee for the first extension request is specific to the employer. So, for example, Employer A files for an extension and pays the fee, the employee switches to Employer B who pays the fee at the time of the filing of the change of status application and then Employer B would again have to pay the fee if it applies for an extension.

The $1000 fee is employer dependent. Thus, if the alien worked for Company A, which paid the $1000 fee, and then wanted to switch employers, in all situations Company B would also have to pay the $1000 fee.

The INS will accept two checks, one for $110 (the base filing fee) and one for $1000. The Service must receive both of these checks at the same time. The check for $1000 must come either from the employer or its representative of record.

Certain employers are exempt from paying the $1,000 fee, including any employer that is: A primary or secondary education institution, An institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a), A nonprofit entity related to or affiliated with any such institution, A nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, or A nonprofit research organization.

The research organization does not have to be affiliated with an institution of higher learning. The INS uses the same definition of "institution of higher education" included in Section 101(a) of the Higher Education Act of 1965. Nonprofit affiliates will include hospitals and medical or research institutions connected or associated with universities through shared ownership, control by the same board or federation operated by a university, or attached to a university as a member, branch, cooperative, or subsidiary. A "nonprofit or governmental research organization" includes entities primarily engaged in basic research and/or applied research or a US government entity whose primary mission is the performance or promotion of basic research and/or applied research. Employers exempt from the $1000 fee must submit the new Form I-129W with their applications for H-1B workers.

All H-1B petitions filed on or after March 30, 2000 must be accompanied by Form I-129W: This new form requires the petitioners to supply information on the H-1B position, the industry of the petitioning employer and the named H-1B worker's highest level of education, compensation, and country of origin. This information will be entered into CLAIMS3 and will be used to meet the reporting requirements specified in ACWIA for Fiscal Year 2000.

Situations in which the $1000 fee is not required. These are:

-An amended petition that does not request an extension;

-A petition filed solely to correct an INS error;

-A second or subsequent petition, regardless of whether the fee was required in previous filings.

Along with the I-129W, the employer must submit proof that it is exempt based on the requirements noted above. If the employer claims to be exempt from the fee, it must submit evidence to that effect, and must also provide a statement detailing why the fee is not required.

L-1 VISAS FOR EXECUTIVES, MANAGERS AND THOSE WITH SPECIALIZED KNOWLEDGE:

An L-1 visa may be issued to an alien who, within three (3) years preceding the time of his or her application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying or following to join the principal alien.

In order to qualify for the L-1 visa the alien must have been employed abroad for one (1) year, out of the last three (3) years, by the company that is petitioning for his or her services, or by a subsidiary or affiliate thereof. This does not mean that the alien must have been abroad continuously during this time, but only that he or she had been employed by that foreign company on a continuing basis for at least one of the preceding three (3) years.

Furthermore, the alien's employment abroad, together with his or her intended employment in the United States, must be in a capacity that is executive, managerial, or involves specialized knowledge. There is no requirement that the position abroad and the position in the United States be identical.

To qualify as a manager the alien must: (a) manage the organization, or a department, subdivision, function, or component of the organization; (b) supervise and control the work of other supervisory, professional or managerial employees, or manage an "essential function" within the organization; (c) have the authority to hire and fire or, if there are no subordinates, function at a senior level within the organization; and (d) exercise discretion over the day- to-day operations of his or her function. First line supervisors cannot qualify for L-1 classification, unless they supervise other professionals.

To qualify as an executive, the alien must: (a) direct the management of the organization or a major component or function of it; (b) establish the goals and policies of the organization, component, or function; (c) exercise wide latitude in discretionary decision-making; and (d) receive only general supervision or direction from higher level executives or bodies.

To be classified as a specialized knowledge professional, the alien must (a) be a member of the professions and (b) have special knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.

Another requirement of the L-1 visa is that there must be a subsidiary or affiliate relationship between the foreign and the US companies, or they must be the same company. Generally, common stock ownership and a substantial degree of managerial control establish this relationship by the two companies. There is no requirement that the US Company already be in operation. However, the US Company must at least have physical premises from which to operate, and generally an occupational license or some other form of permission to engage in employment in the United States, from the local governmental authorities, is required.

An alien entering the United States on an L-1 visa must establish that he or she will be coming for a temporary period of time. Unlike the B, the L-1 visa applicant does not have to establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. In addition, like the H-1B visa, an alien with an L-1 visa or status may be recognized as having a dual intent. This means that the alien may qualify for an L-1 visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa. Evidence should still be presented, however, to show that the alien's services will only be required for a temporary period, and that the alien will be transferred to an assignment outside of the United States upon completion of those temporary services in the United States.

The L-1 visa is generally issued for a period of three (3) years, and may be extended in increments of two (2) years up to a total of seven (7) years. (There is a maximum stay of five (5) years for L-1s with specialized knowledge). Those transferees that are sent to the United States to open a new office will only receive a petition approval for one (1) year. At the end of the one year, the Immigration Service will look to see if there has been an increase in the number of employees, significant growth in cash flow, presence of significant customers and clientele, or similar elements in order to determine the need for a managerial or executive employee. The spouse and children of the principal alien will receive L-2 visas. They are not permitted to work with L-2 visas, and such unauthorized employment will violate their status in the United States. As with the H-1B and E visas, the L visa may be reissued by the visa office in Washington, DC without the need of the alien leaving the United States in order to have the visa placed in the passport.

OTHER NONIMMIGRANT VISAS: THE O & P VISAS AND THE VISA WAIVER PROGRAM

Besides the B, E, F, H, and L visas described in the previous sections, there are many more nonimmigrant visas available to those persons who wish to enter the United States on a temporary basis. Each of these visas is designated by using a letter of the alphabet, and run from the A visa all the way through the S visa. Since most of these visas are used sparingly, we will not discuss each and every type of nonimmigrant visa. We have described the most frequently used above, and at this point we will discuss the O & P visas which are used quite often, as well as discussing the most frequently used method of entering the United States as a nonimmigrant, which is under the visa waiver program. (Please note that a listing of nonimmigrant visas, together with an description of each, is on our web site).

The nonimmigrant O visa has three (3) distinct categories. The O-1 category is for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. The O-2 category is for certain aliens accompanying O-1 aliens in the arts or athletics. The O-3 category is for dependents of aliens in the foregoing categories.

To qualify for an O-1 visa in the sciences, arts, education, or athletics, the alien must have extraordinary ability demonstrated by sustained national or international acclaim. To document the extraordinary ability, the alien must present substantial evidence from a list of criteria mentioned in the immigration regulations.

In addition to establishing the alien's qualifications, the petitioner (the one asking for the alien's services), must also establish that the position requires the services of an alien of extraordinary ability or achievement, whichever is applicable, and must submit evidence that the alien is coming to the United States to continue work in the area of extraordinary ability or achievement.

The type of evidence needed, as well as the definition of extraordinary ability, differs depending upon the occupation of the beneficiary. For instance, scientists, educators, business people and athletes must demonstrate "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor." On the other hand, those seeking to enter as artists and entertainers (except for those affiliated with motion pictures or television production), must establish "distinction," which is defined as "a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." The term arts is defined as including "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts."

Those artists and entertainers, as well as directors and other essential technical and creative personnel, who seek entry in conjunction with motion picture or television productions, must meet a different standard. This standard of extraordinary achievement is defined as "a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well- known in the motion picture or television field."

An O petition may be filed by the O alien's prospective US employer, foreign employer, or by an established US agent. It is filed on immigration form I-129, together with the O supplement, and must be mailed to the INS service center that has jurisdiction over the alien's place of intended employment in the US. The artist or entertainer may add additional performances or engagements during the period of a valid O-1 petition without filing an amended petition. However, if the beneficiary changes employers, the new employer or agent must file a new petition.

Before an O petition can be approved, a mandatory consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the alien's qualifications is required. While the consultation is not binding on the immigration service, it will be given considerable weight. It should be forwarded together with the I-129 petition. If it does not accompany the petition, the immigration service will forward a copy of the petition and supporting documentation to an appropriate organization for their advisory opinion.

O-1 and O-2 aliens may be admitted for a period of up to three (3) years, and extensions in one year increments may be obtained. For aliens entering the US in O status, whose employment terminates for reasons other than voluntary resignation, the employer of the O alien, as well as the petitioner, are responsible for return transportation abroad.

There are four classifications of P visas: A P-1 visa is for internationally known athletes, individually or as part of a group or team, and entertainment groups, but not individual entertainers. P-2 aliens are performing artists under the auspices of a reciprocal exchange program. P-3 aliens are culturally unique entertainers. All three classifications include accompanying personnel. The P-4 category is for dependents of aliens in the preceding classifications.

To qualify as a P-1 nonimmigrant, individual athletes, athletic teams and entertainment groups must meet the basic standard of international recognition. Therefore, they must establish that they have a "high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country."

Athletes who perform at an internationally recognized level may be admitted in P-1 status. This classification may be granted to internationally recognized athletes based on their own reputation and achievements as individuals. In addition, the proposed services must require an internationally recognized athlete. Athletic teams must be recognized internationally as outstanding in the discipline and must be coming to perform services that require such recognition. Team members also receive P-1 visas, but only to perform with the team. When filing P-1 petitions, the petition must be accompanied by a contract between the athlete or team and a major US sports league or with the individual sports organization. There are several other criteria that must accompany the petition to establish the qualifications of the athlete or team, which are outlined in the regulations.

P-1 visas may also be issued to members of entertainment groups provided the entertainment group has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each member must have been with the group for at least one year and be entering the US solely to perform with the group. In addition, the proposed services must require an internationally recognized entertainment group, and the status is granted on the basis of the group's reputation, not on the basis of individual achievement.

P-2 visas are issued to artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more US organizations and one or more such organizations in other countries that provides for the temporary exchange of artists and entertainers.

P-3 visas are available to artists and entertainers individually or as a group who are recognized by various organizations and/or experts as being culturally unique. Culturally unique is defined as a style of artistic expression, methodology, or medium which is unique to a particular nation, society, class, ethnicity, religion, tribe, or other group of persons."

Each of the P categories permits entry to "essential support personnel." An essential support alien is defined as a "highly skilled, essential person" who is an integral part of the performance of the P alien because the alien performs support services which cannot readily be performed by a US worker and which are essential to the success of the performance.

A "P" petition is filed on immigration form I-129, together with the P supplement, and is mailed to the immigration service center office that has jurisdiction over the place of the alien's intended employment in the United States. As with an O visa, consultation with an appropriate labor organization regarding the nature of the work to be done and the alien's qualifications is mandatory before any P petition can be approved except if the petitioner demonstrates that no appropriate labor organization exists. Like the O petition, the consultation is not binding on INS, but will be given considerable weight.

P-1 petitions for individual athletes may be valid for up to five (5) years. P-1 petitions for athletic teams or entertainment groups may be valid for the time needed to complete the competition, event or performance, not to exceed one year. The same applies to P-2 and P-3 petitions. A P-1 athlete may obtain an extension for up to five (5) additional years. Other P aliens may apply for extensions up to one (1) year at a time in order to continue or complete the activity for which they were admitted. Again, as with the O visa, aliens entering the US in P status, whose employment terminates for reasons other than voluntary resignation, must be provided the reasonable cost of return transportation abroad by the employer and/or petitioner.

Visa Waiver Program: Generally, any foreign national seeking to enter the United States must be in possession of a valid visa, with a few limited exceptions. The most common exception is for those entering under the Visa Waiver Pilot Program. This program was designed to allow nationals from certain countries to enter as visitors, for a limited period of time, without the need of a visa. Only those countries that meet certain criteria, most notably a past history of low refusal rates for visas, qualify under the program. The VWPP, begun in 1988, permitted nationals from designated countries, who are not prohibited by U.S. law from entering the United States, to visit the United States for business or pleasure for up to 90 days without obtaining a nonimmigrant visitor visa

The 29 VWPP designated countries were: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland, and United Kingdom, Portugal, Singapore, Uruguay.

H.R. 3767, the Visa Waiver Permanent Program (Public Law No.106-396) was signed on 10/30/00. This law makes the Visa Waiver Pilot Program permanent.

Under the program, a nonimmigrant visitor may enter the United States, from a visa waiver country, for a period of 90 days or less. The alien must be carrying a valid passport from one of the treaty countries. In addition, the alien must waive any right to administrative and judicial review or appeal of an immigration officer's determination as to his or her admissibility other than on the basis of an application for asylum, and must waive any right to contest any action for deportation, other than on the basis of an asylum application. Furthermore, the alien must possess a return trip ticket which will transport the alien out of the United States to any other foreign port or place as long as the trip does not terminate in contiguous territory or an adjacent island (unless the alien is a resident of the contiguous territory or adjacent island). Finally, the alien must arrive to the US on a carrier that has entered into an agreement accepting certain duties and obligations contained in the law.

There are several disadvantages to an alien entering under the visa waiver program. The alien may not apply for an extension of stay beyond the 90-day period, nor may the alien change his or her status in the United States. Also, as mentioned above, the alien can be refused admission, and summarily excluded from the United States, without the right to a removal hearing. Again, the only exception is for one who requests asylum in the United States. Likewise, an alien who entered on a visa waiver, and is later determined to be deportable by an immigration officer, shall be expelled from the United States without the right to a hearing before an immigration judge. As above, the only exception is for an alien filing for asylum. Because of these disadvantages, it is usually better to enter the United States with a visa if that option is available.

TN Status: Certain professionals may work in the U.S. in "TN" status even though they have been employed as H-1B's for six years. Under section 214(e)(2), INA, only persons who are citizens of Canada or Mexico may seek to qualify to enter the U.S. in Trade NAFTA ("TN") professional status. Who qualifies for a "TN" visa? The category "Professionals Under the North American Free Trade Agreement" is available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work in a professional occupation in another NAFTA country provided that 1) the profession is on the NAFTA list, 2) the alien possesses the specific criteria for that profession, 3) the prospective position requires someone in that professional capacity and 4) the alien is going to work for a U.S. employer. The spouse and unmarried, minor children of the principal alien are entitled to the derivative status, but they are unable to accept employment in the United States. Aliens entering under this classification are considered non-immigrants

The requirements for Canadians and Mexicans wishing to enter under this classification are not the same.

Citizens of Canada must provide the following at the port of entry:

1. A request for "TN" status;

2. A copy of the applicant's college degree and employment records which establish qualification for the prospective job;

3. A letter from the alien's prospective U.S.-based employer offering him or her a job in the United States, which is included on the professional job series (NAFTA list); and

4. A fee of U.S. $50.00. Canadian citizens are not required to obtain a visa, but instead receive "TN" status with the Immigration and Naturalization Service (INS) at the port of entry. The "TN" status will only be granted if the period of stay is temporary.

The requirements for Mexican citizens are as follows:

1. First, the prospective employer must file a labor condition application;

2. Then, the applicant's prospective employer must file an I-129 "Petition For Non-Immigrant Workers" with the Immigration and Naturalization Service (INS); and

3. After the petition has been approved, the alien must apply for a non-immigrant visa at a U.S. Embassy or Consulate in Mexico.

How can an application for extension of temporary stay be made?

Applications for extension of stay are processed by the Immigration and Naturalization Service (INS). Canadian citizens have two options. First , they may have their employer file an I-129 form at the closest regional INS office. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Mexican citizens must have their employers renew their labor certification and file another I-129 with their regional INS office in order to extend their stay. The "TN" occupations may be obtained by sending a request to Perry & Baker.

How strict are the qualifications for computer science degrees for a TN visa?

Under the NAFTA agreement, Computer Systems Analysts are permitted to enter the United States in Trade NAFTA (TN) status as long as they have a Bachelor's degree in computer science or a related subject, or a post secondary diploma or post secondary certificate and three years of computer experience on a professional level.

Health care professionals from Canada or Mexico can enter the U.S. in "TN" or "Trade NAFTA" status: dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching and research only), physical therapists, psychologists, recreational therapists and (perhaps most importantly) registered nurses. TN status is comparatively easy to obtain and can be renewed indefinitely, which makes Canadian nurses, who ordinarily speak English as their first language, a particularly good option.

 

 

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