Issuu on Google+

THE LITTLER NATIONAL EMPLOYER LIBRARY

LITTLER ON

I-9 COMPLIANCE & WORK AUTHORIZATION VISAS

AUTHORS: Jorge R. Lopez Hector R. Galeano


ABOUT THE AUTHORS Jorge R. Lopez is a shareholder in the Miami office of Littler Mendelson, P.C., the largest U.S.-based law firm exclusively devoted to representing management in labor and employment law., and chair of the firm’s Global Mobility & Immigration Practice Group. He has practiced immigration law for more than 28 years and focuses on corporate immigration, processing temporary and permanent corporate visa petitions, and all aspects of the Immigration and Nationality Act regarding visa benefits and federal I-9 immigration compliance. Jorge often appears before the Department of Homeland Security on immigration benefits and compliance matters, as well as before the Department of State and other state entities regulating immigration compliance. He also represents clients in international forums on global migration issues. Board-certified in immigration and nationality law by the Florida Bar, Jorge has advised multinational companies on how to meet their global workforce needs and on the management of I-9 audits and federal investigations. He also has actively managed the worldwide transfer of staff for a number of multinational companies. Additionally, Jorge provides advice on immigration-related employment discrimination, as regulated by the Office of the Special Counsel for Immigration Related Employment Discrimination. He has developed training programs for in-house legal teams and managers at client sites related to immigration compliance modules involving I-9 and visa issues. Hector R. Galeano, an associate in Littler’s Miami office, focuses his legal career on global mobility and immigration. He handles all aspects of business visas and complex removal proceedings. He has prepared non-immigrant and immigrant visa filings with the Department of Homeland Security and the Department of State and drafted labor certifications for submission with the Department of Labor. Prior to joining Littler, Hector appeared before the immigration court handling complex removal proceedings, asylum cases, and family based immigration matters. He has also worked with local counsel to prepare employment visas for other countries such as Brazil, the U.K., Canada and India.

Š 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

2


COVERAGE Scope of Discussion. This publication provides an overview of compliance with Form I-9 and penalties. This is especially relevant for employers given the Department of Homeland Security’s continued enforcement efforts focused on employers suspected of hiring illegal immigrants. The discussion below also addresses nonimmigrant visa categories and provides an overview of their relationship to work authorization and employment in the United States. The visa and work authorization categories are subject to procedures that are not intuitive and often lack standardization within agencies and from agency to agency, and the material below helps employers to understand the complexity of employing foreign national workers in the United States. Disclaimer. This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers may find the information useful in understanding the issues raised and their legal context. This publication is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although the major recent developments in federal employment and labor law are generally covered, this publication is not all-inclusive and the current status of any decision or principle of law should be verified by counsel. The focus of this publication is federal law. Although some state law distinctions may be included, the coverage is not comprehensive. To adhere to publication deadlines, developments and decisions subsequent to March 1, 2016 are generally not covered.

©2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of Littler Mendelson.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

3


TABLE OF CONTENTS § 1 OVERVIEW OF I-9 REQUIREMENTS § 1.1 INTRODUCTION § 1.2 FORM I-9 COMPLIANCE § 1.2(a) Sections of Form I-9 § 1.2(a)(i) Section 1: Employee Section § 1.2(a)(ii) Section 2: Employer Section § 1.2(a)(iii) Section 3: Reverification Section § 1.2(b) Who Must Complete Form I-9? § 1.2(c) Who Is Not Required to Complete Form I-9? § 1.2(d) Form I-9 Retention Requirements § 1.2(e) Electronic Signatures & Storage of Form I-9 § 1.2(f) Inspection of I-9 Records § 1.3 E-VERIFY § 1.4 IMMIGRATION REFORM AND CONTROL ACT: ANTIDISCRIMINATION RULES § 1.5 IMMIGRATION REFORM AND CONTROL ACT: ENFORCEMENT § 1.5(a) Civil & Criminal Penalties Under IRCA § 1.5(b) Document Fraud Provisions § 1.6. RELATED CRIMINAL PENALTIES § 1.6(a) Document Fraud § 1.6(b) Harboring Illegal Aliens § 1.6(c) Perjury § 1.6(d) Obstruction of Justice § 1.7 SOCIAL SECURITY NUMBERS & TAX LAWS § 2 OVERVIEW OF WORK AUTHORIZATION VISA CATEGORIES § 2.1 INTRODUCTION § 2.2 NONIMMIGRANT & IMMIGRANT VISA STATUS § 2.3 VISITOR VISAS (B-1 & B-2) § 2.3(a) B-1 Business Visit Visa § 2.3(a)(i) B-1 Visa: Overview § 2.3(a)(ii) B-1 Visa: Permissible Business Activities § 2.3(a)(iii) B-1 Visa in Lieu of H-1 or H-3 (Trainee) Visas § 2.3(b) Visa Waiver Program § 2.3(c) Business Visitors Under NAFTA § 2.4 STUDENT & TRAINING VISAS (F-1 & J-1) § 2.4(a) F-1 & M-1 Visas: Academic Student/Vocational Student § 2.4(a)(i) F-1 Visa: Curricular Practical Training (CPT) § 2.4(a)(ii) F-1 Visa: Optional Practical Training § 2.4(a)(iii) M-1 Visa: Practical Training § 2.4(a)(iv) F-1 Visa: Off-Campus Employment & Economic Necessity § 2.4(b) J-1 Visa: Exchange Visitors § 2.4(b)(i) J-1 Visa: Program Categories § 2.4(b)(ii) J-1 Visa: Process § 2.5 WORK-AUTHORIZED VISAS (E-1 & E-2, H, L, O) § 2.5(a) E-1 & E-2 Visas: Treaty Trader/Treaty Investor § 2.5(a)(i) E-1 &E-2 Visas: Process § 2.5(b) H-1B Visa: “Specialty Occupation” § 2.5(b)(i) H-1B Visa: Process § 2.5(b)(ii) H-1B Visa: Determining the Employer-Employee Relationship § 2.5(b)(iii) H-1B Dependent Employers § 2.5(c) H-2B Visa: Temporary Positions in Shortage Occupations § 2.5(c)(i) H-2B Visa: Process § 2.5(d) H-3 Visa : Trainee § 2.5(d)(i) H-3 Visa: Process § 2.5(e) L-1 & L-2 Visas

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

4


§ 2.5(e)(i) L-1 & L-2 Visas: Process § 2.5(f) Blanket L Visa § 2.5(f)(i) Blanket L Visa: Process § 2.5(g) O-1 Visa: “Extraordinary Ability” § 2.5(g)(i) O-1 Visa: Process § 2.5(g)(ii) O-1 Visa: Peer Consultation Requirement § 2.6 COUNTRY-SPECIFIC WORK VISAS (TN & E-3) § 2.6(a) TN Visa: “Trade NAFTA” § 2.6(a)(i) TN Visa: Process § 2.6(b) E-3 Visa: Specialty Occupation Worker (Australians) § 2.6(b)(i) E-3: Process § 3 PRACTICAL GUIDELINES FOR EMPLOYERS § 3.1 COMMON MISTAKES EMPLOYERS MAKE IN I-9 PREPARATION § 3.2 INTERNAL FORM I-9 AUDIT & CORRECTION INSTRUCTIONS § 3.3 REQUESTING & HANDLING SOCIAL SECURITY NUMBERS § 3.4 SAMPLE SOCIAL SECURITY NUMBER STATEMENT § 3.5 PROCEDURES FOR OBTAINING SOCIAL SECURITY NUMBER § 3.6 NONIMMIGRANT (TEMPORARY) CLASSIFICATIONS § 3.7 E-1 TREATY TRADER & E-2 TREATY INVESTOR VISAS § 3.8 SCHEDULED PROFESSIONS ELIGIBLE FOR TN STATUS § 3.9 SAMPLE DOCUMENTATION IN SUPPORT OF O-1 VISA

§ 1 OVERVIEW OF I-9 REQUIREMENTS § 1.1 INTRODUCTION In 2013, U.S. Immigration and Customs Enforcement (ICE), the principal investigative arm of the Department of Homeland Security (DHS), launched a new enforcement effort focused on employers suspected of hiring illegal immigrants. In the largest targeted effort since 2009, ICE conducted a so-called “silent raid” by notifying approximately 1,000 businesses that they must submit documents for audits. The audits affected restaurants, food processing plants, high-tech manufacturing, agriculture and other industries that, in the aggregate, employ tens of thousands of employees. 1 The audit process also appears to have become more demanding, with the government looking for more than I-9 employee eligibility forms, worker rosters and payroll sheets. An audit may also consist of requests for, among other things, a company’s articles of incorporation, lists of temporary staffing agencies used and names of managers. 2 I-9 audits by the DHS have led to significant administrative and criminal fines as well as several noteworthy criminal arrests and prosecutions of high-level company executives for hiring practices that violated immigration laws and regulations. To combat this continued enforcement-oriented climate, employers are urged to take stock of applicable I-9 and immigration laws in both the federal and state contexts and continue to be vigilant in their application.

§ 1.2 FORM I-9 COMPLIANCE

The U.S. Citizenship and Immigration Services (USCIS) revised Form I-9 in 2013. 3 The 2013 version of the form is two pages, with a revision date of “03/08/13” in the lower left corner, and contains detailed 1

Miriam Jordan & Julie Jargon, U.S. Starts New Push to Find Illegal Workers, WALL ST. J., Sept. 12, 2013, available at http://online.wsj.com/news/articles/SB10001424127887324755104579071331936331534. 2 Miriam Jordan & Julie Jargon, U.S. Starts New Push to Find Illegal Workers, WALL ST. J., Sept. 12, 2013. 3 For a copy of the most current I-9 Form, see https://www.uscis.gov/i-9-central. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

5


instructions. 4 Until the USCIS indicates otherwise, employers must use this form for all new hires and for reverification or rehires. Use of an incorrect version of the Form I-9 may result in fines. The Handbook for Employers, Guidance for Completing Form I-9 includes the form and instructions for use.5 This guide is also available in Spanish. 6 Employers must complete a Form I-9 for all newly hired employees to verify identity and authorization to work in the United States. The employee completes Section 1 of the Form I-9 and the employer representative completes Section 2. Section 3 is utilized in the event reverification of work-authorized status is required. Important note to readers: In November 2015, the USCIS proposed a new Form I-9 to replace the 2013 version. 7 The period for public comment on the proposed new form was to end in January 2016, 8 but was extended until April 27, 2016.9 As of July 1, 2016, the 2013 version was still in effect but employers should remain vigilant regarding whether a new/revised Form I-9 is required. The information below is based on the 2013 version of the Form I-9.

§ 1.2(a) Sections of Form I-9 § 1.2(a)(i) Section 1: Employee Section Section 1 is to be completed by the employee on or before the “first day of hire” (but after the hire decision has been made). The first day of hire is defined as “the actual commencement of employment for wages or other remuneration.” 10 The employee must attest on the Form I-9, under penalty of perjury, that he or she is authorized to accept employment by checking one of four status boxes, indicating that he or she is “a citizen of the United States,” “a noncitizen national of the United States,” “a lawful permanent resident” or “an alien authorized to work until ____________.” The Form I-9 contain fields for e-mail addresses, phone numbers and foreign passports in Section 1. The worker then signs and dates Section 1. If the worker cannot complete Section 1, a preparer or translator may assist and then complete the “Preparer/Translator Certification” block. In reviewing the list of the four immigration status choices, a noncitizen national includes someone born in American Samoa, certain citizens of the Trust Territories of the Pacific Islands and some children of noncitizen nationals born outside the United States. Employer representatives should remain cognizant of the definition of noncitizen national when reviewing the information provided by the employee in Section 1 in the context of documents presented for Section 2 purposes.

4

Once the 2013 version was implemented, the USCIS no longer accepted two previously valid Forms I-9 with revision dates of “08/07/09” and “02/02/09.” 5 The Handbook for Employers can be found at http://www.uscis.gov/files/form/m-274.pdf. 6 Although the USCIS added a Spanish-language I-9 section to its website, the Spanish forms are valid for use only in Puerto Rico. See https://www.uscis.gov/i-9-central. 7 80 Fed. Reg. 73,200 (Nov. 25, 2015). For a copy of the proposed changes, see https://www.regulations.gov/#!documentDetail;D=USCIS-2006-0068-0382. 8 See https://www.uscis.gov/news/uscis-seeks-comments-proposed-changes-form-i-9. 9 81 Fed. Reg. 17,195 (Mar. 28, 2016); see also https://www.regulations.gov/#!documentDetail;D=USCIS-20060068-0379. 10 8 C.F.R. § 274.1(c). © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

6


§ 1.2(a)(ii) Section 2: Employer Section Within three business days of the first day of work, the employer’s representative must complete Section 2 of Form I-9. As part of this process, employees must present certain documents to the employer to verify their identity and employment authorization. The “List of Acceptable Documents” from which employees can choose include: • List A documents verify identity and employment authorization; • List B documents verify identity only; and • List C documents verify employment authorization only. To complete the I-9 process, the employee must present and the employer must review the employee’s choice of either one List A document or a combination of one List B and one List C document. The employer cannot request that the employee present a specific document or combination of documents, nor may it request more or different documents than are required, unless the documents presented do not appear to be genuine or related to the individual presenting them. Employers must treat all workers in the same manner when completing Form I-9. There cannot be different employment eligibility verification standards for different groups of workers. In addition, the employer must review the worker’s original verification documents. Photocopies or faxed copies are not acceptable substitutes. The employer’s representative must then attest, under penalty of perjury, that: 1. he or she has examined the original documentation presented by the employee; 2. that such documentation “appears on its face to be genuine” and relates to the named individual; and 3. to the best of his or her knowledge, the employee is authorized to work in the United States. Employers are not expected to be experts in detecting fraudulent documents. Whether a document appears to be genuine incorporates a standard of reasonableness. This standard provides a good faith defense even if documents turn out to be fraudulent. Ultimately, if a document does not reasonably appear on its face to be genuine or to relate to the person presenting it, the employer must not accept it. Note that a receipt may not be used as evidence of work authorization unless it is for replacement of a lost or destroyed document. If an employee is unable to present the required documents within three business days of the date of hire, he or she cannot continue in employment. Section 2 prohibits an employer from accepting expired documents. (Previously, a U.S. Passport and all List B documents were acceptable even if expired, however, it was changed to reduce the incidence of fraud and document tampering.) A document containing no expiration date, such as a Social Security card, is considered “unexpired” and is therefore acceptable for I-9 purposes. In 2009, the DHS changed the List of Acceptable Documents attached to the Form I-9. Three documents were added to List A to verify both identity and work authorization: 1. U.S. Passport Card;

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

7


2. a foreign passport notation on a machine-readable immigrant visa that is preprinted with a temporary I-551 notation (confirmation of legal permanent residence status); and 3. a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 demonstrating valid status pursuant to the Compact of Free Association with the United States. A number of documents were removed from List A because the DHS no longer issues them and such documents previously issued have now expired: 1. Form I-688, Temporary Resident Card; 2. Form I-688A, Employment Authorization Card; and 3. Form I-688B, Employment Authorization Card. The DHS now issues Forms I-766 to those who formerly received Forms I-688, I-688A or I688B. Form I-766 remains a valid “List A” document.

§ 1.2(a)(iii) Section 3: Reverification Section Where an employee is a foreign national whose visa status (allowing employment incident to the visa), employment authorization, or employment authorization documentation expires, the employer must reverify the employee’s continued employment authorization by the expiration date by reviewing any acceptable List A or C document. Section 3 of the Form I-9 is provided for reverification purposes; however, if an employee who previously verified using an expired version of the I-9 must be reverified, then the employer should use the current Form I-9 version and retain the two forms together for the duration of the I-9 retention period. Similarly, if Section 3 was previously completed and reverification is again necessary, employers must use another Form I-9, placing the worker’s name in Section 1 and completing Section 3. The employer should then keep the new form with the original. It is suggested that employers remind the worker 120 days before the work authorization will expire so that he or she will have sufficient time to obtain a new work/employment authorization document.

§ 1.2(b) Who Must Complete Form I-9? All new hires must undergo work authorization verification. This includes all U.S. citizens or foreign nationals, as well as persons hired as “contractors” or “day workers” but who are paid by the employer and who work under the employer’s direct supervision (see discussion at § 1.2(c) just below). Workers referred by labor unions or recruiters must undergo Form I-9 verification, as unions and some recruiters are not required to conduct the verification themselves.

§ 1.2(c) Who Is Not Required to Complete Form I-9? New hires do not include: employees returning from a paid or unpaid leave of absence, a temporary layoff due to lack of work or absence due to a strike or other labor disputes; individuals reinstated after a wrongful discharge; or workers returning to seasonal employment. Employees hired before November 6, 1986 are considered “grandfathered” and, therefore, exempt from completing Form I-9. Employees transferred internally within an organization (i.e., transferred to a different subsidiary, affiliate or division) do not need to reverify if their initial Form I-9 is transferred to the new location or kept in a central location for company I-9s.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

8


I-9 verification of current employees need only occur once, unless: 1. The employer has failed completely to comply with requirements under the Immigration Reform and Control Act of 1986 (IRCA) and I-9s are now being completed late. 2. An audit of the employer’s records uncovers serious omissions or other deficiencies and corrections or replacements are necessary. 3. The employer has been involved in a merger, acquisition or reorganization and the resulting new employer wishes to complete new I-9s rather than use those of the predecessor employer. 4. The employee’s employment authorization is time-limited (e.g., L-1 or H-1B nonimmigrants, F-1 students with practical training approved or persons with Employment Authorization Documents); reverification is required upon the expiration of the time-limited authorization. Casual hires—individuals who provide domestic services of a sporadic, irregular or incidental nature in a private home—are another group excluded under the IRCA employer sanctions provision. Unfortunately, this exclusion is so narrow that it applies in very few situations (e.g., babysitters or individuals that only occasionally perform duties principally inside a private home). Technically, the IRCA requires individual homeowners to verify the work eligibility of the neighborhood kid who mows the lawn weekly. However, to date, this has not been a targeted enforcement area. Independent contractors—which include “individuals or entities who carry on independent business— contract to do a piece of work according to their own means and methods, and are subject to control only as to results,” are also excluded from the work authorization requirement.11 Determining whether an individual is an independent contractor is a fact-specific inquiry that is determined on a case-by-case basis. 12 Therefore, for I-9 purposes, differentiating between an independent contractor and an employee is crucial. It is imperative the employer keep its employees and the independent contractor’s employees separate in every way, especially for I-9 verification procedures. Basically, if an individual receives no direct payment or supervision from the employer, the employer may not need to complete the I-9 verification procedures. To reduce the risk of liability, an employer should also: • have written contracts with subcontractors; • ensure the contracts have language that clearly places IRCA compliance obligations on the subcontractor and its employees; • indemnify itself from any liability or financial obligations arising from the subcontractor’s violations of immigration-related laws; • not commingle employees; and 11

8 C.F.R. § 274a.1(j). 8 C.F.R. § 274a.1(j) (“Factors to be considered in the determination include, but are not limited to, whether the individual or entity: supplies the tools or materials; makes services available to the general public; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done.”). 12

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

9


• consider independent verification from third party, clearly confirming subcontractor IRCA compliance. 13

The Internal Revenue Service’s (IRS) 20-factor test is a good guide for determining whether an individual is an independent contractor or an employee for some employment purposes. If an employer has obtained an IRS ruling on this issue or an opinion from its accountants that certain workers must be considered employees for tax purposes, that ruling or opinion should also be applied to IRCA coverage and those workers should undergo I-9 verification. Even if a worker qualifies as an independent contractor, an employer can be subject to penalties if it has knowledge that the individual is not authorized to work in the United States. Although employers are barred by the IRCA from seeking indemnity bonds from individual employees, the IRCA does not bar indemnity clauses between business entities. Companies should consider incorporating into their contractual agreements with independent contractors and service suppliers provisions that call for indemnification of the employer if fined for IRCA violations relating to workers supplied under the contracts.

§ 1.2(d) Form I-9 Retention Requirements Federal law allows, but does not require, employers to make copies of the employee’s verification documents to attach to Form I-9. The employer must make copies of documents either for all employees or for none. Once an employer establishes its policy, it should be carried out in a consistent manner for all employees. Those documents and the Form I-9 must be maintained for three years from the date of hire or one year after termination, whichever is later. 14

§ 1.2(e) Electronic Signatures & Storage of Form I-9 The Code of Federal Regulations authorizes the use of electronic Form I-9s, including electronic signatures. Legacy paper I-9 records may be maintained alongside the electronic system. 15 An employer is also allowed to convert existing Form I-9s in paper form to an electronic storage format. Generally, employers that use electronic storage are required to: 1. maintain reasonable controls for accuracy and reliability; 2.

maintain reasonable controls to prevent unauthorized or accidental modification to documents;

3. provide for regular inspection for quality assurance purposes; 4. develop a retrieval system with index; and

13

Rev. Rul. 87-41, 1987-1 C.B. 296; see also IRS, Independent Contractor or Employee, Pub. No. 1779 (Rev. Aug. 2012), available at http://www.irs.gov/pub/irs-pdf/p1779.pdf. For a more in-depth discussion about independent contractors, see LITTLER ON CLASSIFYING WORKERS. 14 See USCIS, Retaining Form I-9, available at https://www.uscis.gov/i-9-central/retain-store-form-i-9/retainingform-i-9. 15 8 C.F.R. § 274a.2(e)-(i). For DHS guidance for Homeland Security Investigations special agents who conduct I-9 audits on the proper audit trails, see DHS, Memorandum re Guidance on the Collection and Audit Trail Requirements for Electronically Generated Forms I-9 (Aug. 22, 2012), available at http://www.ice.gov/doclib/foia/dro_policy_memos/collect-audit-forms-i9.pdf. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

10


5.

include the ability to produce legible copies.16

Most means for electronic e-signatures used in commerce, including easy mouse-click acceptance, are acceptable for I-9 verification. There are both advantages and risks in moving to electronic storage: doing so will create a readily accessible database and relieve employers from the burden and cost of paper storage. It will also facilitate internal audits of the documents. On the other hand, electronic storage will make it much easier for the DHS or the DOL to audit Form I-9s. Employers moving old Form I-9 records to electronic storage may consider conducting an internal audit of Form I-9s as the first step in this process to make sure the retained electronic documents are in order.

§ 1.2(f) Inspection of I-9 Records Employers must make their I-9 records available for inspection upon request and presentation of credentials by officers of either the DHS or the DOL upon at least three days’ advance notice.17 No subpoena or warrant is required. A subpoena or warrant is normally issued to request non-I-9 documents, such as payroll records. If an employer has several offices and maintains I-9s only at one central location, the DHS must go to that location—the employer need not move I-9s around the country. The employer also has the option of taking the requested records to the DHS office. The government may use the Form I-9 solely for purposes of enforcing the employer sanctions provision of the IRCA and other related provisions of federal law pertaining to such things as false statements, perjury and document fraud. Thus, for example, a company’s I-9s cannot be used by the IRS for tax compliance or even by the DHS to locate and deport illegal aliens. However, the DHS may formally notify employers of individuals who are unauthorized to work, thereby triggering the employer’s requirement to terminate employment. The DHS can select employers for I-9 inspection on its own initiative, at random or based on “targeted industries” with a higher than normal “profile” for employing unauthorized aliens. In practice, employers are targeted principally based on the national security profile of the company’s industry or on complaints the DHS receives from private individuals or other sources. The DHS is not required to establish probable or reasonable cause to conduct an inspection of verification documents. Although the DHS typically contacts employers through formal written notice, this is not always the case, and DHS inspectors sometimes simply appear unannounced at a place of business. While the DHS must inform the employer of its right to three-day advance notice, the agents may also attempt to convince the employer to consent to an immediate review of I-9 records. In this situation, the employer is advised not to consent and to contact legal counsel immediately. The attorney then can speak directly with DHS officials to arrange the DHS inspection and can counsel the employer about how best to handle the inspection, including conducting an internal audit of its I-9 records to address recordkeeping deficiencies before the I-9s are given to the government. The DHS can, of course, obtain a subpoena from a federal magistrate if it has probable cause to suspect a violation. In this instance, DHS agents may require immediate production of I-9s and other employment records, and the employer must produce, immediately, the I-9s and other documents listed in the 16

8 C.F.R. § 274a.2(e). See USCIS, Inspections, available at https://www.uscis.gov/i-9-central/retain-store-form-i9/inspection/inspections. 17

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

11


subpoena. The employer should immediately contact its attorney, but cannot impede DHS agents’ access to the listed documents. Warrants may also be issued to allow the DHS access to an employer’s premises to arrest unauthorized workers.

§ 1.3 E-VERIFY E-Verify allows employers to electronically verify newly hired employees’ work authorization documents. Initially created by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), E-Verify began as a pilot program and was expanded to all 50 states in 2004. Participation is free. Employers that chose to participate are required to enter into a memorandum of understanding (MOU) with the DHS. Among the requirements under the MOU, employers must: • post DHS-prescribed notices in a prominent place that is clearly visible to prospective applicants and all employees that are to be verified through the system; • give the Social Security Administration (SSA) and the DHS the names, titles, addresses and telephone numbers of its E-Verify representatives; • require that representatives using the program complete a tutorial before initiating any queries, and take refresher tutorials; • require that when an employee presents a “List B” document for I-9 identification purposes, the document includes a photograph; • submit a verification request for each employee hired within three business days of hiring; • record the case verification number provided by the DHS on the employee’s Form I-9; and • allow periodic visits by the DHS for reviewing and inspecting E-Verify-related records. The employer must, as usual, retain the Form I-9s for inspection, as would any employer not participating in E-Verify. If there is a tentative nonconfirmation of the Social Security number (SSN) information from E-Verify, the burden shifts to the employee, who must decide whether to contest the tentative nonconfirmation. A nonconfirmation cannot be used to terminate an employee until it becomes final. If the nonconfirmation becomes final and the employee is not terminated, there is a rebuttable presumption that the employer has “knowingly employed” an unauthorized alien, which can result in penalties being imposed. 18 Note that 19 the MOU specifically prohibits employers from using E-Verify as a screening device. Previously, participation in E-Verify was completely voluntary. However, in the last few years many states began making E-Verify mandatory for their public contractors or for employers doing business in their states. The federal government also enacted its own amendment to the Federal Acquisition Regulation mandating E-Verify use for many of its contractors and some of their subcontractors. For a 18

U.S. Citizenship and Immigration Services, The E-Verify Memorandum of Understanding for Employers, at 1-5 (June 2013), available at http://www.dhs.gov/e-verify (under the “Publications” menu); see also USCIS, E-Verify User Manual, at 8 (Mar. 2015). 19 USCIS, The E-Verify Memorandum of Understanding for Employers, at 3 (June 2013), available at http://www.dhs.gov/e-verify. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

12


discussion of E-Verify requirements for federal contractors, see LITTLER ON GOVERNMENT CONTRACTORS & EEO OBLIGATIONS. Private employers and federal contractors alike should note that the use of E-Verify does not relieve employers from the requirement that they complete I-9 Forms properly. In addition, once enrolled in EVerify, an employer must report to the DHS if it continues to employ an individual after receipt of a final nonconfirmation notice stating that the individual is not employment authorized. Continuing to employ such a person exposes the employer to a fine ranging from $500 to $1,000. This fine is in addition to civil monetary or criminal sanctions that can be levied against an employer for knowingly employing an illegal alien. Enrollment in E-Verify will not exempt employers from DHS worksite enforcement actions. To the contrary, it may invite heightened scrutiny with governmental agency sharing of information. Many states have moved forward with their own immigration initiatives. An increasing number of states have immigration-related laws on their books, many of which mandate E-Verify usage.

§ 1.4 IMMIGRATION REFORM AND CONTROL ACT: ANTIDISCRIMINATION RULES Out of concern that the IRCA’s employer sanctions could have unintended, adverse consequences for U.S. workers who look or sound “foreign,” Congress included a provision prohibiting employers from discriminating on the basis of national origin or citizenship status in the hiring, recruiting or discharge of individuals. This provision does not apply, however, where the employment decision is covered by Title VII of the 1964 Civil Rights Act. The IRCA therefore prohibits national origin discrimination by employers having four to 14 workers, and citizenship status discrimination by all employers. In addition, the Immigration and Nationality Act (INA) protects authorized workers from employment discrimination in hiring, firing, recruitment or referral, based on their actual or perceived citizenship status or their national origin. The IRCA also prohibits all employers from asking employees to produce more or different documents than required for I-9 verification, although the employer is not liable unless it intended to discriminate when requesting more or different documents during the I-9 verification procedure. The IRCA provides that it is not an unfair immigration-related employment practice for an employer to choose an equally or better qualified U.S. citizen over a foreign national or the otherwise lawful use of a language requirement when it is a bona fide occupational qualification. In addition, employment decisions that may have an adverse impact on foreign national workers, but which are not intentionally discriminatory, are outside the scope of the IRCA. Employers may refuse to hire authorized aliens where the job requires a security clearance available only to citizens, as is often required for work on defense contracts. However, this exception to the antidiscrimination provisions does not create a blanket exemption for all positions. In each case, the DHS may examine the situation to ensure that the particular position is legitimately required by law to be filled by a U.S. citizen. The IRCA established an Office of Special Counsel (OSC) within the DHS to investigate and prosecute charges by individuals alleging an unfair immigration-related employment practice under section 274B of the INA. In determining whether an employer is covered by the IRCA, the OSC counts all part-time and full-time employees working for the employer on the date that the alleged discrimination occurred. The DHS may subpoena documents and witnesses as part of an investigation prior to issuance of a complaint, as well as inspect the employer’s I-9s. The OSC may investigate a charge and determine whether there is reasonable cause to issue a complaint. During the investigatory process, the OSC is statutorily empowered © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

13


to examine the employer’s I-9s. If the OSC decides to file a charge, it will serve a notice of the charge on the employer. A complaint must be filed within 180 days of the date the alleged unfair immigrationrelated employment practice occurred. Complaints are heard before an Administrative Law Judge (ALJ). If, after hearing the evidence, the ALJ determines that an employer has engaged in an unfair immigrationrelated employment practice, the judge may issue a cease-and-desist order requiring the employer to pay a civil penalty and/or to rehire the individual who was the victim of discrimination, with or without back pay. (See § 1.5(a) “Civil & Criminal Penalties Under IRCA” below.) The ALJ can order violators to: 1. post notices to employees about their rights under INA section 274B; 2. educate personnel involved in hiring about the IRCA’s antidiscrimination and employer sanctions provisions; 3. remove a false personnel review or warning from an employee’s personnel file; and 4. lift any restrictions on an employee’s assignments or work shifts. Congress has strengthened the IRCA’s prohibition against retaliatory discharge of employees who file charges of discrimination. In addition, while the IRCA may penalize employers for hiring unauthorized aliens, employers may also be held liable for retaliatory discharge of such workers under the National Labor Relations Act, for minimum wage violations under the Fair Labor Standards Act and for discrimination under Title VII of the Civil Rights Act. Employers also may be required to provide benefits to unauthorized workers under state workers’ compensation laws.

§ 1.5 IMMIGRATION REFORM AND CONTROL ACT: ENFORCEMENT The IRCA’s employer sanctions provisions impose civil and criminal penalties on employers that knowingly hire, recruit or refer (for a fee) aliens who are not authorized to work and who fail to make and keep certain records verifying an individual’s eligibility to work. The DHS and DOL are the assigned enforcement entities under the IRCA. The DHS has the primary enforcement role and is the only entity that can levy fines. However, various DOL agencies may also request employers’ I-9 records as part of their audits (such as the Equal Employment Opportunity Commission, Office of Federal Contract Compliance Programs, the Occupational Safety and Health Administration, the Wage & Hour Division, etc.), and can report any apparent I-9 compliance deficiencies to the DHS for further action, although such action is rare.

§ 1.5(a) Civil & Criminal Penalties Under IRCA Employers and individuals may be subject to a variety of penalties depending upon the type of violation: Knowingly hiring or continuing to employ unauthorized aliens: If the DHS determines that a company has violated IRCA requirements by knowingly hiring or continuing to employ aliens not authorized to work in the United States, the following penalties apply: • First offenses include civil fines of $375 to $3,200 for each unauthorized worker. • Second offenses include fines of $3,200 to $6,500 for each unauthorized worker. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

14


• Every offense after the second offense includes civil fines of $4,300 to $16,000 for each unauthorized worker. 20 Employers charged with knowingly hiring an unauthorized alien may be able to establish a defense if they can show that they, in good faith, complied with I-9 requirements and the government cannot show they had actual knowledge of the employee’s unauthorized status. Pattern or practice of knowingly hiring or continuing to employ unauthorized workers: If an employer has engaged in such a “pattern or practice” of knowingly hiring or continuing to employ unauthorized workers, a criminal penalty is provided of up to a $3,000 fine for each unauthorized worker, plus up to six months’ imprisonment for the individuals who engaged in the pattern or practice violation. If the DHS has reasonable cause to believe that an employer is engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers, a civil action may be brought against the employer requesting relief, including a permanent or temporary injunction, restraining order or other order against the employer. For example, a pattern or practice charge is always possible where the DHS has advised an employer of multiple violations of “knowingly hiring or continuing to employ” unauthorized workers and the employer takes no action and simply continues business as usual. Failing to comply with I-9 Requirements/Poor Recordkeeping: Failure to “properly complete, retain, and/or make available for inspection Forms I-9 as required by law” subjects an employer to civil fines of $110 to $1,100 for each violation. The IRCA imposes civil fines for poor recordkeeping. Since 1996, when Congress passed section 411 of the IIRIRA, a “good faith compliance” defense divided paperwork violations into “technical or procedural failures” and “failures that are not technical or procedural.” Technical or “paperwork” violations involve I-9 records that have not been maintained for some or all employees, or where mistakes or omissions appear in the I-9. There are no fines for technical or procedural failures if the employer takes corrective action within ten days of DHS notification. The good-faith exemption also does not protect employers that engage in “pattern or practice” violations. If the employer fails to correct, potential civil penalties for each technical or paperwork violation range from $110 to $1,100. According to current DHS guidelines, in determining fine amounts when an employer fails to verify employee identity and work authorization, the following five factors should be considered: 1. the size of the employer’s business; 2. the employer’s good faith, if any; 3. the seriousness of the violation; 4. whether the employee(s) was an “unauthorized alien;” and 5. whether the employer has a history of previous violations. 21

20

See USCIS, Penalties, available at http://www.uscis.gov/i-9-central/penalties.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

15


Civil document fraud: Violation of the civil document fraud provisions can result in fines of $375 to $3,200 for a first offense and $3,200 to $6,500 for subsequent offenses for each document falsely made or knowingly received. Violating antidiscrimination provisions: For violation of the IRCA’s antidiscrimination provisions, employers can be fined up to $1,100 for each affected individual, and can be ordered to hire, with or without back pay, individuals injured by the discrimination. Employers also can be subjected to a “cease and desist” order to prohibit future discriminatory practices.

§ 1.5(b) Document Fraud Provisions ICE maintains that document fraud complicates the ability to determine whether an employer has knowingly hired an undocumented worker. The E-Verify program, discussed at § 1.3 above, is intended to diminish enforcement by allowing employers to check new hires’ Social Security numbers against DHS and Social Security Administration databases. However, online verification cannot detect identity theft (e.g., when an unauthorized worker presents an employer with valid documents belonging to someone else). The Immigration Act of 1990, as amended (“1990 Act”) 22 imposes civil penalties on employees and employers for document fraud. As originally enacted, this provision made it unlawful for anyone: •

to knowingly forge, counterfeit, alter or falsely make any document for the purpose of satisfying a requirement of the INA;

to use or attempt to use, possess, obtain, accept or receive any forged, counterfeit, altered or falsely made document to satisfy any requirement of the INA;

to use or attempt to use any document lawfully issued to someone else for the purpose of satisfying an INA requirement; or

to accept or receive a lawful document issued to someone other than the person possessing it for the purpose of complying with the employer sanctions provisions.

I-9 enforcement activity in this area generally demonstrates that document fraud is closely tied to problems of identity theft, and such fraud significantly interferes with an employer’s ability to verify work eligibility. The 1990 Act is aimed at sellers or foreign national users of fraudulent documents. Administrative case law and DHS regulations have defined knowing to include “reckless” conduct and “constructive” knowledge—knowledge that may be inferred through notice of certain facts and circumstances. The IIRIRA made it unlawful to prepare a DHS petition or other document containing statements or material misrepresentations known to be false, including the Form I-9. The IIRIRA’s definition of falsely made includes preparing or providing an application or document with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a material fact. Under this definition, an employer that knowingly accepts a forged document may be fined both for accepting the document and for fraudulently creating a Form I-9. 21 22

USCIS, Handbook for Employers, Guidance for Completing Form I-9, 33-34 (Apr. 30, 2013). Pub. L. No. 101-649, 101st Cong. (Nov. 29, 1990).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

16


Due to the increase in document fraud and its impact on border security, terrorism, privacy and technology, federal agencies recognize that identity theft, document fraud and the work-eligibility verification process are interdependent.

§ 1.6 RELATED CRIMINAL PENALTIES Apart from the civil and criminal penalties that can be imposed on employers under the IRCA, criminal penalties under other federal laws are available for violations of the INA. These penalties illustrate the serious consequences of mishandling or ignoring I-9 verification obligations or improperly responding to a DHS investigation.

§ 1.6(a) Document Fraud Parallel to the civil document fraud penalty in the IRCA, there are criminal penalties for document fraud under U.S. Code title 18, section 1546. Fraud and misuse of visas, permits and other documents can result in up to ten years’ imprisonment, with fines against individuals and employers according to federal sentencing guidelines.

§ 1.6(b) Harboring Illegal Aliens Another serious violation is the criminal charge of “harboring” illegal aliens. Under section 274 of the INA, it is a violation for any person knowingly, or in reckless disregard of the fact that a foreign national is in the United States in violation of law, to conceal, harbor or shield the person from detection in any place, including any building or any means of transportation. Thus, “harboring” encompasses conduct that facilitates a person remaining in the United States illegally. While, ordinarily, the employment of an unauthorized person does not by itself constitute harboring, employers have been charged with violation of the harboring statute due to: • continuing employment of person known to be unauthorized; • failure to complete I-9 Forms for those workers; and • refusing admittance to DHS officials without a warrant and aiding aliens to leave the workplace without detection by DHS officials. Violation of this provision can result in fines against the employer and/or individuals according to federal sentencing guidelines, and individual imprisonment ranging from five to ten years.

§ 1.6(c) Perjury

Perjury is another related criminal charge. 23 Section 2 of Form I-9 requires an employer to certify, under penalty of perjury, that it examined the documents presented by the employee, and that the documents appeared genuine and related to the employee. If, however, the documents used by the employee were previously identified as fraudulent by the DHS, and the employer was aware of the same, by attesting to the documents genuineness and relatedness, the employer perjures itself.

§ 1.6(d) Obstruction of Justice

Obstruction of justice is a criminal offense that can be charged under certain circumstances. 24 For 23 24

18 U.S.C. § 1622. 18 U.S.C. § 1501.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

17


example, an employer subject to a DHS investigation can face obstruction of justice charges if it seeks to thwart the investigation by terminating suspect employees prior to removal by DHS, destroys evidence or takes other action calculated to undermine a DHS investigation.

§ 1.7 SOCIAL SECURITY NUMBERS & TAX LAWS Although a Social Security number (SSN) is optional for I-9 purposes, federal tax laws require employers to obtain a valid SSN from each employee. An employee’s SSN must be used on tax reports filed with the IRS by the employer (e.g., W-2 forms) and be included on each Employee’s Withholding Allowance Certificate (IRS Form W-4) provided by the employee to the employer. The IRS may impose penalties on an employer that does not include the correct SSNs in its reports. For social security and income tax crediting purposes, incorrect or missing SSNs interfere with the crediting of payroll taxes withheld from employees and paid by the employer. Additionally, SSNs are widely used for state and local tax reports. Federal tax law does not require that an employee have a SSN on the employee’s first day of work, but, if the employee has a SSN, the employee generally must provide it to the employer on that date. If the employee does not have a SSN on the first day of work, the employee must apply for a SSN within seven days or by his or her termination date, whichever is sooner.25 Under IRS regulations the following process is established for getting a SSN from the employee: 1. If the employee has the card available, the employee shall show it to the employer. 2. If the employee has a SSN but the card is not available, the employee shall provide the number and the exact name as it appears on the card. 3. If the employee has applied for but not received the card and has received a receipt for his SSN application, the employee shall show said receipt. If the employee cannot meet the requirements of (1)–(3) (above), the employee must furnish a written statement to the employer with the following information: • employee’s full name, present address, date and place of birth; • father’s full name; • mother’s full maiden name; • employee’s gender; • a statement as to whether the employee has filed Form SS-5 (Social Security application) and, if so, the date and place of filing and a copy, if available, of the application (the statement must be dated and signed by the employee); and • if a number is issued after employment starts, the employee is to provide that number as soon as it is received, even if received after the employment is terminated. (For a sample “Social Security Statement” see § 3.4 below.) 25

Treas. Reg. § 31.6011(b)-2(a)(2).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

18


If by the time W-2 returns are to be filed (usually by January 31 of the year following the year hired), the employer has never received a SSN, SSA receipt or an employee statement, then the employer is required to attach to the employee’s Form W-2, a completed Form SS-5 signed by the employer. Effectively, under this step the employer is applying for a SSN for the employee. If the employer has the receipt, copy of the Form SS-5, or the Statement, then it should be sent with the Form W-2. Personal income tax withholding is owed on all “wages” paid to an employee. 26 The amount of taxes withheld is based on exemptions claimed by an employee on IRS Form W-4. Only an employee who in the previous tax year was refunded all federal income taxes withheld because the employee had no federal tax liability and who expects a refund of all current year federal income taxes is exempt from withholding for the current year, and then only if such employee properly completes and duly executes an IRS Form W-4. The Internal Revenue Code expressly provides that “on or before the date of commencement of employment with an employer, the employee shall furnish the employer with a signed withholding exemption certificate relating to the number of withholding exemptions which he claims, which shall in no event exceed the number to which he is entitled.”27 A completed Form W-4 must include the employee’s SSN. Treasury Regulations provide that every individual to whom an account number (i.e., Social Security account number) has been assigned “shall include such number on any withholding exemption certificate filed with an employer.” 28 Treasury Regulations also provide that if an employer receives an invalid withholding exemption certificate, “he shall consider it a nullity for the purposes of computing withholding; he shall inform the employee who has submitted the certificate that it is invalid and shall request another exemption certificate from the employee. If the employee who submitted the invalid certificate fails to comply with the employer’s request, the employer shall withhold from the employee as from a single person claiming no exemptions …” 29 Basically, until such time as an employee provides a properly completed W-4, all wages will be subject to the maximum income tax withholding rate.

§ 2 OVERVIEW OF WORK AUTHORIZATION VISA CATEGORIES § 2.1 INTRODUCTION In an era of expanding global commerce and the resulting rise of an international workforce, shortages in the United States of certain highly skilled high-tech workers results in many employers having to deal with hiring and managing a foreign national workforce. The statutes and regulations governing work authorization and obtaining U.S. permanent residence (the “green card”) are complex, confusing and in no way user-friendly. The situation is exacerbated by long delays and limited availability of critical work visas such as the H-1B and green card categories for highly skilled workers. The sections below address nonimmigrant visa categories and provides an relationship to work authorization and employment in the United States. The agencies involved in this disparate group of visa and work authorization categories are the United States Citizenship and Immigration Services (USCIS) 26 27 28 29

INTERNAL REVENUE CODE § 3402. INTERNAL REVENUE CODE § 3402(f)(2)(a). Treas. Reg. § 31.3402(f)(2)-1(d). Treas. Reg. § 31.3402(f)(2)-1(e).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

19


within the Department of Homeland Security (DHS), the Department of State (DOS) and the U.S. Department of Labor (DOL). The primary statute is the Immigration and Nationality Act (INA) and the regulations of the aforementioned agencies, found in titles 8, 20 and 22 of the Code of Federal Regulations. The visa and work authorization categories are also subject to procedures that are not intuitive and often lack standardization within agencies and from agency to agency, having over time informally accreted around numerous internal policies and unwritten rules interpreting the INA and regulations. Nonetheless, the high rewards from a sophisticated and vibrant workforce lead the business community on to master the complexity of employing foreign national workers and the mysteries of U.S. work authorization.

§ 2.2 NONIMMIGRANT & IMMIGRANT VISA STATUS The U.S. immigration system is divided into two categories, dependent upon whether an individual intends to remain in the United States on either a temporary or permanent basis: 1. Nonimmigrant visa (NIV) status: these temporary visa categories are short-term, timelimited and designed for specific purposes, such as work authorization or study. 2. Immigrant visa (IV) status (also called “lawful permanent residence” or the “green card”): allows the holder to live and work in the United States permanently and is not restricted to location, purpose or time. Permanent residents can abandon their immigrant status by establishing their primary place of abode outside the United States, and they can be removed from the United States for a number of reasons, generally involving criminal convictions or activities the United States deems to be harmful to its citizens. Because the green card process is lengthy and difficult, the nonimmigrant visa categories are essential for temporary work authorization and short visits to the United States for business or pleasure. This section describes the nonimmigrant visa categories most commonly seen by U.S. employers. The work authorization categories are especially important to U.S. employers that wish to make use of foreign national workers with skills and training not available in the U.S. workforce or that need to transfer international employees to U.S. worksites. Several concepts are important to the discussion of NIV status: • Passport: The passport is an internationally recognized document that attests to the identity and nationality of the bearer. To enter the United States, a foreign national must present a passport valid for at least six months beyond the intended date of entry. Although Canadian citizens were previously exempt from this passport requirement, in 2009, the U.S. government implemented the full requirements of the land and sea phase of the Western Hemisphere Travel Initiative (WHTI). 302 The rules require most Canadian citizens entering the United States at sea or land ports of entry to have a passport, passport card or WHTI-compliant document, such as a Trusted Traveler Card (NEXUS, SENTRI or FAST) or enhanced driver’s license/identification card. • Visa: The visa is an entry document whose sole function is to enable a foreign national to apply for admission into the United States in a particular NIV category at a U.S. Port of Entry. The Customs and Border Protection (CBP) officer at the U.S. Port of Entry has the sole authority to determine whether the foreign national should in fact be admitted to the United States for a 30

73 Fed. Reg. 18,383 (Apr. 3, 2008).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

20


specific purpose. The visa, therefore, is not an admission document. The visa must be placed into a foreign national’s passport by the Department of State (DOS). Only the DOS can issue visas, primarily at U.S. Consulates abroad. A visa applicant at a U.S. Consulate may encounter significant delays in visa issuance due to additional security or administrative procedures, and unfortunately these delays are becoming more common. The visa applicant typically cannot return to the United States until the U.S. Consulate issues the visa. The risk of delay is increased if the applicant has ever been arrested. Additionally, if the applicant’s education or job duties involve high level technology of a sensitive nature, the applicant may be subject to additional security clearances under the Technology Alert List (TAL). Finally, all consular posts must electronically verify that the underlying nonimmigrant petition information exists in the Consolidated Consular Database (CCD) before issuing a visa. If the petition information does not exist in the CCD, the U.S. Consulate must work with the USCIS to input the requisite data into the CCD. This confirmation process is beyond the control of the Consulate and cannot be waived. • Entry: Foreign nationals apply for admission to the United States at designated Ports of Entry, which may be at land borders, domestic airports or at foreign airports with U.S. Customs and Border Protection (CBP) pre-flight inspection stations. An applicant for entry must have a visa or be eligible for a waiver of the visa requirement and must not be inadmissible to the United States. (There are multiple grounds of inadmissibility ranging from criminal convictions to the possibility of drug smuggling or terrorist activities). • I-94: The I-94 is an admission document given to the foreign national at inspection and entry into the United States. It indicates the visa status given to the foreign national (such as B-1, H-1B or L-1A, for example) and his or her approved length of stay in the United States. The I-94 document, not the visa, controls how long a foreign national may lawfully remain in the United States. In May 2013, CBP eliminated the paper I-94 card and began issuing an admission stamp in the passports of non-immigrants. Non-immigrants are also provided with a flyer explaining how to obtain a copy of the electronic I-94 card. The automated I-94 card can be retrieved electronically on the CBP website at http://www.cbp.gov/travel/international-visitors/i-94instructions. Non-immigrants should check and print their I-94 card at the CBP website upon entering the United States to ensure the information on the I-94 card is correct. 31 • Status: The visa status indicated on the I-94 governs the permitted range of activities and/or employment that the foreign national may engage in while in the United States. • Change of status/extension of status: In some circumstances, an individual’s status may be changed to another status or extended subsequent to entry. Both applications must be filed in the United States and approved by the USCIS. • Dual intent: By definition, nonimmigrant visas are issued for temporary visits or temporary employment in the United States. Because of the temporary nature of the nonimmigrant visas, most classifications prohibit a foreign national from seeking permanent residence in the United States. However, some nonimmigrant classifications waive that restriction. These classifications are said to have “dual intent.” With dual intent classification, the foreign national can have the intent to remain both temporarily and permanently in the United States without jeopardizing his or her nonimmigrant visa status. 31

See Customs and Border Patrol website, http://www.cbp.gov/travel/international-visitors/i-94-instructions.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

21


The nonimmigrant visa categories are designated by letters of the alphabet (see § 3.6 for a complete list) and the work authorization related categories are discussed below.

§ 2.3 VISITOR VISAS (B-1 & B-2) § 2.3(a) B-1 Business Visit Visa The B-1 visa enables foreign nationals to make brief visits to the United States for business activities, while B-2 status is for tourist visits. B-2 status is clear and uncomplicated; it is for tourist activities. On the other hand, the B-1 visa for business visits requires a careful understanding of its limitations and restrictions.

§ 2.3(a)(i) B-1 Visa: Overview Under the B-1 visa, applicants must provide documentation evidencing qualified business activities and personal eligibility. All B visitors must have foreign residences they do not intend to abandon and their visit to the United States must be of a length that indicates that the visit is temporary. 32 As a general matter, a B-1 entrant may be admitted for the term of the activity up to one year. 33 An extension can be sought, except under the Visa Waiver Program (see below). Initial admissions in B-2 status can be for up to one year, though are typically for 180 days, and extensions can be sought.34 The business visitor’s purpose must be for a “business” activity; B-1 status does not permit “employment” in the United States. 35 It is thus critical to understand the distinction between “business visit” activities and “employment.”

§ 2.3(a)(ii) B-1 Visa: Permissible Business Activities Business visitors may engage in a wide range of activities traditionally considered to constitute “business,” but B-1 status may not be used to obtain and engage in gainful employment while in the United States. 36 Any services for which salary or remuneration from a U.S. source are provided constitute employment in the United States, and thus are prohibited. A B-1 visa holder who engages in unauthorized employment in the United States violates the terms of admission (with the exception of some limited consulting activities) and is subject to removal. 37 Unfortunately, neither the USCIS nor the DOS has defined what constitutes a permissible business activity; instead, the DOS provides broad guidelines and policy statements, including a few examples of activities that it considers permissible for business visitors.38 The following rules are always applicable: 1. the principal place of business of the visitor’s employer and place of accrual of benefits from the visit is in a foreign country; 32

8 U.S.C. § 1101(a)(15)(B). 8 C.F.R. § 214.2(b)(1). 34 8 C.F.R. § 214.2(b)(2). 35 U.S. DEPT. OF STATE, 9 FOREIGN AFFAIRS MANUAL (hereinafter “FAM”) § 402.2-5, available at https://fam.state.gov/. 36 9 FAM § 402.2-5(A). 37 8 U.S.C. § 1227(a)(1)(C)(I). 38 9 FAM §§ 402.2-5, 402.2-5(E)(1). Note, however, that construction workers seeking admission to the United States to perform building or construction work, whether on-site or in-plant, are not eligible for B-1 status. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b)(3); 22 C.F.R. § 41.31(b)(1). 33

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

22


2. the visitor’s salary is paid abroad; and 3. the visitor maintains a residence abroad to which he or she will return. 39 Foreign business visitors may, however, have their travel expenses paid by a U.S. source. Business activities can include: • attending conventions, conferences or seminars; • engaging in consultations with colleagues or associates; • attending meetings of boards of directors; and/or • facilitation of international commerce.40 Commercial activities are allowed. Foreign nationals may be admitted to the United States in B-1 status to engage in commercial transactions that do not involve gainful employment in the United States, such as: • Negotiating contracts, soliciting sales and taking orders, provided the actual services provided, work performed or products sold are located outside the United States. • Engaging in litigation. • Undertaking independent research. • Installing, servicing or repairing commercial or industrial equipment or machinery purchased from a non-U.S. company, or training U.S. workers to perform such services. The contract of sale must specifically require the seller to provide such services or training, and the business visitor must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training. • Establishing business ventures by leasing office space, consulting with professionals and advisors and recruiting staff, provided that upon the start of actual business activities the foreign investors or entrepreneurs obtain an appropriate nonimmigrant visa status. 41 Additionally, certain individuals may enter the United States to engage in employment, provided: (1) any salary or other remuneration received from U.S. sources is incidental or prize money; or (2) the salary or remuneration is received from foreign sources. These individuals include: • certain professional athletes; 42 • certain members of religious and charitable organizations and participants in voluntary service projects; 43 39

Matter of GP, 4 I. & N. Dec. 217 (1950); Matter of G, 6 I. & N. Dec. 255 (1954); Matter of M, 6 I. & N. Dec. 533 (1955). 40 9 FAM §§ 402.2-5(B), 402.2-5(C)(3). 41 9 FAM §§ 402.2-5(B), 402.2-5(C)(7), 402.2-5(E)(1). 42 9 FAM §402.2-5(C)(4). © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

23


• entertainers (in limited circumstances); 44 • personal or domestic servants of U.S. citizens residing abroad who are temporarily assigned to the United States; and 45 • personal or domestic services of certain foreign nationals residing in the United States in nonimmigrant visa status. 46

§ 2.3(a)(iii) B-1 Visa in Lieu of H-1 or H-3 (Trainee) Visas B-1 status may be appropriate in lieu of the H-1 temporary worker category where the foreign national: (1) would otherwise qualify for an H-1 visa; (2) is usually employed abroad; and (3) will receive compensation from abroad. 47 B-1 status may be appropriate in lieu of the H-3 trainee category where the training is for a very brief duration and the nature of the training would otherwise fall within the H-3 regulations. Under this policy, a foreign national may seek admission in B-1 status to engage in a training program or activities deemed to constitute employment at a U.S. site under circumstances such that the foreign national would clearly qualify for H-1 or H-3 status and will receive no salary or other remuneration from a U.S. source other than an expense allowance or reimbursement for expenses incidental to his or her temporary stay. 48

§ 2.3(b) Visa Waiver Program The Visa Waiver Program began in 1988 and waives the usual requirement of a B visa for business and tourist visits to the United States, but only for citizens of a designated group of countries. The U.S. Attorney General, in consultation with the DOS, designates the countries whose citizens may participate in the program. To qualify, U.S. government statistics must show that during the prior two fiscal years less than 2% of the nationals from the country were refused NIV admission; 49 8 making the Visa Waiver Program open only to those countries whose nationals have a high rate of visa application approval and appropriate use of visas to the United States. As of March 1, 2016, the Visa Waiver Program designated countries include: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan and the United Kingdom (limited to British citizens with an unrestricted right of permanent abode in the United Kingdom—England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).50

43

9 FAM §402.2-5(C)(2). 9 FAM §402.2-5(F)(3). 45 9 FAM §402.2-5(D)(2). 46 9 FAM §402.2-5(D)(3). 47 9 FAM §402.2-5(F). 48 9 FAM §402.2-5(F)(9). 49 8 U.S.C. § 1187(c)(2)(A)(i). 50 8 C.F.R. § 217.2(a); 79 Fed. Reg. 17,852-54 (Mar. 31, 2014) (adding Chile). For the most current information, U.S. Department of State website at http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html. 44

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

24


Effective December 18, 2015, under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, participation in the Visa Waiver Program is restricted for noncitizens who are also nationals of Iran, Iraq, Sudan or Syria, or who have been in one of those countries since March 1, 2011. 51 Nationals of Visa Waiver participating countries who have travelled to Iran, Iraq, Sudan or Syria on or after March 1, 2011 must apply for a regular visa at an embassy or consulate. In addition, nationals of Visa Waiver participating countries who are also nationals of Iran, Iraq, Sudan or Syria must seek a regular visa at an embassy or consulate. In February 2016, the DHS announced it was adding Libya, Somalia and Yemen as counties of concern.52 However, the Visa Waiver Program restriction does not apply to dual national of those three countries To enter the United States without a visa, the individual must demonstrate nationality in a Visa Waiver Program country. Birth in the country in question is not sufficient; he or she must have a passport from that country. 53 Electronic System for Travel Authorization (ESTA) is an automated electronic system that allows prescreening of passenger’s biographical data and responses to questions regarding eligibility for waiver status before travel begins to the United States under the Visa Waiver Program. ESTA prescreening is required for all Visa Waiver Program travelers prior to boarding a carrier to travel by air or sea to the United States. ESTA applications may be submitted at any time prior to travel to the United States. However, DHS recommends that applications be submitted no less than 72 hours prior to travel. Unless revoked, the authorization is valid for stays of 90 days or less. Visa Waiver Program applicants must present evidence of general eligibility for B-1 status by showing that they: • have a foreign residence that they do not intend to abandon; • have the financial means to support themselves during their stay in the United States (for example, showing sufficient cash or travelers’ checks to support themselves for the duration of the stay; that they will be provided a salary while in the United States from a foreign source; or that their housing, food and transportation are to be provided by a host or U.S. entity); and • will engage only in permissible business activities while in the United States. The foreign national must also have a round trip transportation ticket, if arriving by air or sea.54 Upon arrival in the United States, visa waiver individuals complete the Form I-94W Arrival/Departure card (which is green to distinguish it from the white I-94 cards issued to entrants using visas). U.S. Customs and Border Protection (CBP) officers at the port of entry determine whether the foreign national qualifies to enter in B status. Because this determination is made for the first time at the port of entry, individuals traveling under the Visa Waiver Program should be sure they do, in fact, qualify for B status. 55

51

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113 (Dec. 18, 2015). Dep’t of Homeland Security, Press Release, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016). 53 8 U.S.C. § 1187(a)(3); see also U.S. Dep’t of State, Bureau of Consular Affairs, Visa Waiver Program, available at http://travel.state.gov/content/visas/en/visit/visa-waiver-program.html#reference. 54 8 U.S.C. § 1187(a)(8). 55 8 C.F.R. § 217.2(b)(1). 52

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

25


Visa waiver visitors are admitted for no more than 90 days. 56 Extension of stay is not permitted, except in medical emergencies, and then only for 30 days.

§ 2.3(c) Business Visitors Under NAFTA The North American Free Trade Agreement (NAFTA) permits citizens of Mexico and Canada entry into the United States without first obtaining a B-1 visa. Canadian and Mexican citizens must present passports as proof of citizenship, a description of the reason for entry and evidence that they are seeking to enter the United States for a business purpose. 57 Mexican citizens must also present a “laser visa,” the replacement for the old Mexican Border Crossing Cards. Canadian and Mexican business visitors may engage in more kinds of business activities than other foreign nationals. The following is a sample of categories for which NAFTA allows admission: research and design; marketing; growth; manufacture and production; sales; distribution; after-sales services; and general services. 58 The regulations provide details on specific professions within these categories and on the presentation of supporting documentation.

§ 2.4 STUDENT & TRAINING VISAS (F-1 & J-1) § 2.4(a) F-1 &M-1 Visas: Academic Student/Vocational Student F-1 and M-1 student visas are not “work authorization” visas. Rather, academic (F-1) and vocational (M-1) visas allow foreign students to enter the United States solely to pursue a course of study at a specified institution. Neither F-1 visas nor M-1 visas allow dual intent. Unlike most nonimmigrant visa classifications, the admission period is not date-certain. Foreign students entering the United States in F-1 and M-1 status are admitted for duration of status (“D/S”); that is, the duration necessary for completion of the academic program and any authorized practical training following the completion of academic studies, as discussed below. 59 Additionally, the foreign student is allowed 60 days beyond completion of an academic program and any authorized practical training to depart the United States. 60 Foreign students may rely on the 60-day window to achieve several purposes, including preparation for departure from the United States, enrollment in a subsequent academic program or change of status to a new nonimmigrant classification. Foreign nationals in F-1 or M-1 status are not required to extend their status so long as the student is maintaining status and making normal progress toward completion of the intended course of study. 61 Although the F-1 and M-1 visas do not expressly authorize employment in the United States, F-1 foreign students may accept up to 20 hours of on-campus employment per week immediately upon admission to the United States in F-1 status. 62 Additionally, foreign students may, at certain points during their F-1 and M-1 periods of authorized stay, receive permission to accept off-campus employment.

§ 2.4(a)(i) F-1 Visa: Curricular Practical Training (CPT) F-1 foreign students enrolled in full-time degree programs may be authorized for Curricular Practical 56 57 58 59 60 61 62

8 U.S.C. § 1187(a)(1). 8 C.F.R. § 214.2(b)(4). 8 C.F.R. § 214.2(b)(4)(i). 8 C.F.R. § 214.2(f)(5)(i). 8 C.F.R. § 214.2(f)(5)(iv). 8 C.F.R. § 214.2(f)(7)(i). 8 C.F.R. § 214.2(f)(9)(i).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

26


Training (CPT) if the employment will be an integral part of an established curriculum, that is, alternate work-study, internship, cooperative education or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.63 An offer of employment is required. To accept CPT, the F-1 foreign student must have been enrolled in an academic program for at least one academic year or, in the alternative, enrolled in a language program prior to completion of studies. The F-1 foreign student must obtain written permission from his or her foreign student advisor to accept CPT, which is typically reflected on the student’s I-20 form. Students are not limited in the duration of CPT they may perform, but students who use more than 12 months of full-time CPT are not eligible for Optional Practical Training. 64 An Employment Authorization Document (EAD) is not required for CPT. 65

§ 2.4(a)(ii) F-1 Visa: Optional Practical Training An F-1 foreign student may utilize Optional Practical Training (OPT) after completing a course of study or all course requirements for an academic program, between one academic program and another (for example, between a Master’s and a Ph.D. program) or during the annual vacation periods or other period when school is not in session. 66 A foreign student may also utilize OPT while pursuing a course of study 67 and school is in session, so long as the OPT does not exceed 20 hours per week. A foreign student may obtain OPT authorization for a maximum initial period of up to 12 months if the training is directly related to the student’s academic studies and the appropriate paperwork is completed. An offer of employment is not required. The student must obtain a recommendation for OPT from the foreign student advisor and must apply for an EAD with a USCIS Service Center.68 Students in science, technology, engineering and math (STEM) fields are allowed a one-time opportunity to extend their OPT for an additional 17 months. 69 The foreign student advisor certifies that the student’s 70 degree is a STEM Designated Degree pursuant to the DHS’s list of STEM programs. The student’s employer must be registered and in good standing with the USCIS E-Verify program at the site where the student will be employed. 71 The E-Verify program allows employers to use an automated system to verify name, date of birth and Social Security number, along with immigration information for noncitizens, against federal databases to confirm the employment eligibility of both citizen and noncitizen new hires. Finally, the student and employer must agree to additional reporting requirements to the school regarding employment status, change in address or legal name, etc. 72 In addition, when an H-1B change of status petition is filed for an F-1 student, there is an automatic OPT extension. 73 The H-1B is the most common temporary work visa and is discussed below. Based on this automatic OPT extension, the student’s status and employment authorization are automatically extended until October 1, typically the first day workers can begin employment under their H-1B status. This automatic extension is a tremendous benefit to individuals who otherwise would have had a “gap” in 63

8 C.F.R. § 214.2(f)(10)(i). 8 C.F.R. § 214.2(f)(10)(i). 65 8 C.F.R. § 214.2(f)(10)(i). 66 8 C.F.R. § 214.2(f)(10)(ii)(A). 67 8 C.F.R. § 214.2(f)(10)(ii)(A). 68 8 C.F.R. § 214.2(f)(10)(ii), (11). 69 73 Fed. Reg. 18,944 (Apr. 8, 2008). 70 8 C.F.R. § 214.2(f)(11)(ii)(A). A list of STEM Designated Degree Programs is available at http://www.ice.gov/sevis/stemlist.htm. 71 73 Fed. Reg. 18,944, 18,955 (Apr. 8, 2008). 72 8 C.F.R. § 214.2(f)(12)(ii). 73 73 Fed. Reg. 18,944, 18,954 (Apr. 8, 2008). 64

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

27


employment authorization and/or status between the end of their OPT and the October 1 start date of the H-1B approval. This extension is not dependent on the student’s area of study.

§ 2.4(a)(iii) M-1 Visa: Practical Training

M-1 students may also obtain practical training at the completion of their studies. 74 The training must be in the field of study and can only be given for a maximum of six months. 75 M-1 students must apply for an EAD with a USCIS Service Center. 76

§ 2.4(a)(iv) F-1 Visa: Off-Campus Employment & Economic Necessity An F-1 foreign student may qualify for off-campus employment during a program of study if the foreign student can demonstrate an unforeseen change in financial circumstances beyond the student’s control causing the student severe economic hardship, which arose after admission to the United States, and thus rendering it necessary for the student to work for essential financial support. 77 To qualify for off-campus employment authorization based upon severe economic hardship, the foreign student must have been in full-time F-1 student status for at least one academic year, presently carry a full academic course load and demonstrate good academic standing. 78 The student must apply to the USCIS Service Center with assistance from their foreign student advisor and must satisfy the economic necessity requirements through supporting documentation.79 If the application is successful, the USCIS will issue an EAD to the student. Students who are granted work authorization based on economic necessity are eligible to work up to 20 hours per week while school is in session and full time during school holidays or vacations.80

§ 2.4(b) J-1 Visa: Exchange Visitors The J-1 Exchange Visitor program is expansive. Managed by the DOS, its primary purpose is to enable foreign nationals to enter the United States for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training or to enter graduate medical training. 81 J status is divided into 11 subcategories, each of which is referred to as a “program.” 82 Each program has slightly different objectives and, consequently, different eligibility criteria. Individuals approved by the J sponsor apply for visas at U.S. Consulates in their home countries. They must intend to return home after their stay in the United States as there is no dual intent under this classification. Accompanying family members in J-2 status may obtain work authorization in the United States by filing directly with the USCIS Service Center. Designated J-1 program sponsors, through use of the Student and Exchange Visitor Information System (SEVIS), are able to issue the form required by the Department of State to apply for the J-1 visa at a U.S. Consulate. Designated program sponsors are corporations, government agencies, nonprofit organizations or educational institutions that have applied to the DOS for this status. 74 75 76 77 78 79 80 81 82

8 C.F.R. § 214.2(m)(14)(i). 8 C.F.R. § 214.2(m)(14)(iii). 8 C.F.R. § 214.2(m)(14)(ii). 8 C.F.R. § 214.2(f)(9)(ii)(C). 8 C.F.R. § 214.2(f)(9)(ii)(D). 8 C.F.R. § 214.2(f)(9)(ii)(D)–(F). 8 C.F.R. § 214.2(f)(9)(ii)(D)–(F). INA § 101(a)(15)(J), 8 U.S.C. § 1101(a)(15)(J). 22 C.F.R. 64.2.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

28


Certain J-1 exchange visitors will be required to return to their home country for a period of two years before returning to the United States in any other immigrant or specified nonimmigrant status. J-1 exchange visitors subject to the return requirement include individuals: • whose participation in the program are funded in whole or part by an agency of the United States or the home country government; • who at the time of admission to the J-1 program are residents or nationals of a country determined to be clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the J-1 visitor is engaged; or • who came to the United States to receive graduate medical training. 83 Limited waivers are available for this requirement and are considered on a case-by-case basis.

§ 2.4(b)(i) J-1 Visa: Program Categories • Professors and research scholars: Professors and researchers may enter in J status in the United States for up to five years, typically to work in institutions of higher learning or government research entities, but also to work in private research facilities, libraries and museums. 84 The purpose of this particular program is to foster the exchange of ideas between Americans and foreign nationals and to stimulate international collaborative teaching and research efforts. 85 • Short-term scholars: Distinguished lecturers, teachers, professors or other persons with similar education or experience may enter the United States in J status for up to six months86 to study, conduct conferences, workshops or symposia, to conduct tours, attend professional meetings or participate in other, similar professional or educational activities.87 • Trainees: Qualified foreign nationals may enter the United States for up to 18 months 8867 to receive training. 89 The U.S. company sponsoring the foreign national must provide a structured training program and provide a specific statement of objectives for the training, including a description of how the trainee will be supervised and evaluated, a list of skills to be imparted to the trainee and a justification for the use of any on-the-job training to achieve the stated course competencies. 90 Training intended solely to provide on-the-job experience to a foreign national is not sufficient. A foreign national who enters as a trainee must have either a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in his or her occupational field acquired outside the United States or five years of work experience outside the United States in his or her occupational field. 91

83 84 85 86 87 88 89 90 91

INA § 212(e), 8 U.S.C. § 1182(e). 22 C.F.R. § 62.20(i)(1). 22 C.F.R. § 62.20(b). 22 C.F.R. § 62.21(g). 22 C.F.R. § 62.21(b). 22 C.F.R. § 62.22(k). 22 C.F.R. § 62.22(b). 22 C.F.R. § 62.22(f). 22 C.F.R. § 62.22(d)(2).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

29


• Interns: An intern eligible for this program is a foreign national who is currently enrolled in and pursuing studies at a foreign post-secondary academic institution or has graduated from such an institution within the 12 months preceding the application date.92 Foreign nationals may enter the United States for internship work for up to 12 months. 93 • College and university students: Students may enter the United States in J status to participate in certain programs at designated post-secondary accredited educational institutions. 94 The schools select the participants for each program. J-1 status, rather than the more typical F-1 student status, may be used when:    

there is a direct or indirect government funding by the United States or foreign government, or by an international organization of which the United States is a member; the program is carried out pursuant to an agreement between the U.S. government and a foreign government; the program is carried out pursuant to a written agreement between American and foreign educational institutions, an American institution and a foreign government, or a state or local government and a foreign government; or the foreign national is supported from any source other than personal or family funds. 95

• Teachers: Foreign teachers may enter the United States in J status to teach full time for up to three years 96 at accredited primary and secondary educational institutions.97 In addition to certain basic criteria the foreign national teacher must meet, 98 the terms of the teaching position must be consistent with any collective bargaining agreement that governs the position. 99 Even if the position assigned to the J teacher is a permanent position, a J visa holder can fill it only temporarily. • Secondary school students: Certain foreign nationals may attend up to one year of study in a secondary school in the United States under an authorized J-1 visa program, if the student lives with an American host family or resides at an accredited U.S. boarding school. 100 J-1 secondary students are subject to various limitations on enrollment in schools and must satisfy certain age and maturity requirements. 101 • Specialists: Foreign nationals with specialized knowledge or skills may enter the United States for one year 102 to observe, consult or demonstrate those special skills.103 While a U.S. employer

92

22 C.F.R. § 62.22(d)(3). 22 C.F.R. § 62.22(k). 94 22 C.F.R. § 62.23(a). 95 22 C.F.R. § 62.23(c)(1)–(4). 96 22 C.F.R. § 62.24(h). 97 22 C.F.R. § 62.24(a). 98 22 C.F.R. § 62.24(c). 99 22 C.F.R. § 62.24(e). 100 22 C.F.R. § 62.25(a). 101 22 C.F.R. § 62.25(e). 102 22 C.F.R. § 62.26(i). 103 22 C.F.R. § 62.26(1). This regulation specifically excludes research scholars and professors, short-term scholars and alien physicians, each governed under separate programs. 93

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

30


may not use this category to fill a permanent or long-term position of employment in the United States, 104 there is no prohibition against using J-1 status to fill short-term needs. • Physicians: Foreign medical graduates may use the J-1 visa to enter the United States only to pursue graduate medical education or training at accredited schools of medicine or scientific institutions 105 or to engage in observation, consultation, teaching or research activities. 106 Virtually all program sponsors in this category are public or private medical schools or their connected research institutions. This particular category of J status carries within it a substantial restriction: the foreign national must return home 30 days after graduation for a period of no less than two years before being eligible to acquire another nonimmigrant or immigrant status in the United States. 107 In certain cases, however, waivers of the return residence requirements may be obtained. 108 • International visitors: Foreign nationals who are recognized leaders of foreign countries may enter the United States in J status to participate in activities such as consultations, professional meetings, workshops and travel 109 for one year. 110 • Government visitors: Federal, state or local government agencies may bring influential or distinguished persons to the United States to participate in tours, discussions, professional meetings and workshops. 111 The foreign national’s stay in this program may not exceed 18 months. 112 • Camp counselors: Foreign nationals may enter the United States in J status for four months to serve as counselors in U.S. summer camps. 113 • Au pairs: Foreign nationals may enter the United States for one year to live with a U.S. host family and provide limited child care services while attending a U.S. post-secondary educational institution. 114 All au pair placement programs are closely monitored; the families with which au pairs are placed are thoroughly screened and must attend an orientation. No more than 22,720 au pairs may enter the United States each fiscal year.115

§ 2.4(b)(ii) J-1 Visa: Process The review and approval of applications for J status is not administered by the USCIS. Instead, certified J sponsors (a group that includes government agencies, corporations, associations, colleges, universities and other entities) apply for certification as sponsor of individual J programs with the DOS; 116 each 117 Once an entity is sponsor then administers its J program, subject to governmental supervision. 104 105 106 107 108 109 110 111 112 113 114 115 116 117

22 C.F.R. § 62.26(d)(3). 22 C.F.R. § 62.27(a). 22 C.F.R. § 62.27(b). INA § 212(e), 8 U.S.C. § 1182(e); 22 C.F.R. § 62.27(g). See generally 8 C.F.R § 212.7(c). 22 C.F.R. § 62.28(a). 22 C.F.R. § 62.28(g). 22 C.F.R. § 62.29(a). 22 C.F.R. § 62.29(h). 22 C.F.R. § 62.30(a). 22 C.F.R. § 62.31(a). Statement of Policy and Notice to Sponsors, 61 Fed. Reg. 8215 (Mar. 4, 1996). 22 C.F.R. § 62.3(a). See 22 U.S.C. §§ 6531-33.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

31


designated as a J sponsor, it must comply with the numerous ongoing documentary and reporting obligations to the DOS. 118 Many multinational corporations operate their own J programs, but it is also possible to take advantage of nonprofit organizations operating “general use” J programs. The U.S. employer arranges with the J sponsor for the placement of a foreign national in the United States to engage in activities that are arranged by the U.S. entity but which fall within the gambit of the J program operated by the J sponsor. The J sponsor then supervises the U.S. entity to ensure that the foreign national engages in appropriate J activities throughout his or her stay in the United States.

§ 2.5 WORK-AUTHORIZED VISAS (E-1 & E-2, H, L, O) § 2.5(a) E-1 & E-2 Visas: Treaty Trader/Treaty Investor E visas are available only to nationals of countries with a Treaty of Friendship, Commerce, and Navigation or a Bilateral Investment Treaty with the United States.119 (For a list of the E-1 and E-2 treaty countries, see § 3.7 below). The E-1 is reserved for employees of qualifying enterprises carrying on substantial trade between the United States and the foreign treaty country, whereas the E-2 is reserved for employees of qualifying enterprises in which foreign treaty nationals have made a substantial investment. 120 The term substantial investment is not defined by statute in terms of a definitive amount but in terms of the activity. An E-1 treaty trader applicant must be coming solely to carry on “substantial trade” principally between the United States and his or her home country, while an E-2 treaty investor must be coming solely to develop and direct the operations of an enterprise in which he or she (or his or her employer) has made, or is in the process of making, a “substantial investment.” 121 In both instances, the U.S. employer must be owned or controlled by nationals of the treaty country, although 50-50 joint ventures (or even minority ownership in some situations) may be sufficient to establish control. The E visa category is also available to individuals of the same nationality to work in managerial or other key (“essential skills”) positions for the U.S. company. 122

§ 2.5(a)(i) E-1 & E-2 Visas: Process The U.S. company must be a “qualifying enterprise.” A qualifying enterprise for E visa purposes is one in which at least 50% ownership of the business is held by individuals or corporations having the nationality of the foreign country that has the treaty with the United States.123 For individual owners, nationality is determined by their country of citizenship. (Permanent residents of the United States do not qualify as foreign nationals for purposes of determining nationality of the business). 124 Where the enterprise has one or more corporate owners, the nationality of the corporate owner is the nationality of those persons who own at least 50% of the stock of the corporation. For a publicly held company, the nationality of at least 50% of the stockholders must be proven by corporate stock records or other evidence unless the corporation’s stock is sold exclusively on the stock exchange in the country of incorporation, in which case the nationality is presumed to be the same as the country of incorporation.125 Otherwise, the country 118 119 120 121 122 123 124 125

22 C.F.R. § 62.9. 8 U.S.C. § 1101(a)(15)(E). 8 C.F.R. § 214.2(e)(1)–(2). 8 C.F.R. § 214.2(e)(1)–(2). 8 C.F.R. § 214.2(e)(3). 9 FAM § 402.9-4(B). 9 FAM § 402.9-7(A). 9 FAM § 402.9-4(B).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

32


of incorporation is not determinative. E-1 and E-2 nonimmigrants must file all required paperwork for qualification of the business and obtain their visas from a U.S. Consulate abroad. The requirement to obtain an E visa prior to entry also applies to Canadian nationals who otherwise are exempt from visa requirements. The applicant must submit the DOS forms, DS-156 and DS-157, the E Supplement form, supporting documentation evidencing eligibility for the particular visa type, and present a passport and passport-sized photograph. The spouse and minor dependent children of the principal E-1 or E-2 alien also may qualify for the same visa category (that is, unlike most other visa types, there is no separate E category for dependents). Spouses may also apply for an EAD when in the United States. 126 E nonimmigrants will be issued an E visa valid for one to five years (depending on treaty reciprocity), and may be admitted to the United States for periods of up to two years at a time. 127 They can apply to the USCIS Service Center for extensions of authorized stay in increments of up to two years or may travel abroad and return to the United States on their E visas and be admitted for a new two-year period of stay. 128 E nonimmigrants have a unique situation, in that while they do not explicitly have dual intent, they need not maintain a foreign residence during their stay in the United States. Furthermore, the filing of a permanent residence application may not be the sole basis for denial of E status. 129 Finally, there is no absolute limit to the length of time treaty nationals may continue to renew their E visa status, although essential skills personnel in start-up operations cannot extend, absent special circumstances. Finally, there is no absolute limit to the length of time treaty nationals may continue to renew their E visa status, although essential skills personnel in start-up operations cannot extend, absent special circumstances.

§ 2.5(b) H-1B Visa: “Specialty Occupation” The H-1B category is the most general and widely used of the current work authorization categories. It allows qualified foreign workers to engage in temporary employment to perform services in a “specialty occupation.” 130 The H-1B can be obtained for an initial period of up to three years and can be extended 131 for an additional three years. H-1B status is available if: 1. the occupation requires a four-year university degree or its equivalent in education or experience; and 2. the foreign national has the degree or its equivalent.132 The spouse and minor children of H-1B workers may accompany them in H-4 (dependent) status. Effective May 26, 2015, the DHS amended the regulations to allow H-4 dependent spouses of H-1B

126

8 U.S.C. § 1184(e)(6). 8 C.F.R. § 214.2(e)(19). 128 8 C.F.R. § 214.2(e)(20). 129 8 C.F.R. § 214.2(e)(20). 130 8 U.S.C. § 1101(a)(15)(H)(i)(b). 131 8 C.F.R. § 214.2(h)(13)(iii). Under certain conditions, the H-1B can be extended even beyond the sixth year of stay as further detailed below. 132 8 C.F.R. § 214.2(h). 127

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

33


nonimmigrants to accept employment in the United States, under certain circumstances. 133 The H-1B visa has dual intent, which permits the pursuit of permanent residence in the United States without jeopardizing the underlying nonimmigrant status. The congressionally mandated annual cap on the number of initial H-1B petitions that can be filed has limited the use of this nonimmigrant category. In 2004, the general annual cap was reduced from 195,000 to 65,000 and has remained at that lower level since. 134 Up to 20,000 petitions filed on behalf of nonimmigrant aliens who have earned a master’s degree or higher from a U.S. institution of higher education are exempt from the general cap. 135 Once the 20,000 limit is met, they can apply under the general cap. For the past few years, the USCIS has received more than the cap amount within the first week of the filing period. 136 Despite repeated evidence that the number of available H-1B visas does not meet the demand, Congress has not increased the 65,000 annual quota. Certain employers are exempted from this congressionally mandated annual cap in H-1B visas. For example, institutions of higher education and certain nonprofit research organizations may petition for and have approved H-1B visas without regard to the annual cap. 137 In particular, hospitals affiliated with institutions of higher education have come to rely on their cap-exempt status to obtain H-1B visas for resident physicians engaging in training at those hospitals. To ensure a fair and orderly distribution of available H-1B visas, the USCIS denies or revokes multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. 138 If the USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, the USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, the USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.139

§ 2.5(b)(i) H-1B Visa: Process A U.S. employer must first submit a Labor Condition Application (LCA) to the DOL attesting to the governing wages and working conditions. The LCA must meet a determined prevailing wage for the geographic location of the job and two copies of the LCA need to be posted at the worksite for ten consecutive business days. 140 The LCA process has been moved under the umbrella of the DOL’s 133 20 Fed. Reg. 10,283 (Feb. 25, 2015) (revising 8 C.F.R. §§ 214.2(h)(9)(iv) to extend eligibility for employment authorization to H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident states (i.e., H-1B nonimmigrants must be the principal beneficiaries of approved Immigrant Petition for Alien Worker (Form I-140), or have been granted H-1B status in the U.S. under the American Competitiveness in the 21st Century Act of 2000, as amended)). See https://www. federalregister.gov/articles/2015/02/25/201504042/employment-authorization-for-certain-h-4-dependent-spouses. 134 8 U.S.C. § 1184(g)(1)(A); 20 C.F.R. § 655.700(a); see also https://www.uscis.gov/working-unitedstates/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2017-capseason#count. 135 8 U.S.C. § 1184(g)(5)(C). 136 For the most recent mandated cap, visit the USCIS website at https://www.uscis.gov-. 137 8 U.S.C. § 1184(g)(5)(A)&(B). 138 73 Fed. Reg. at 15,392. 139 73 Fed. Reg. at 15,392. 140 20 C.F.R. § 655.731.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

34


“iCERT” visa portal, which also houses the DOL’s permanent foreign labor certification system. 141 After obtaining DOL certification of the LCA, the employer may file the Petition for Nonimmigrant Worker to the DHS/USCIS, accompanied by the LCA. 142 The following fees apply for H-1B visas: •

Base fee: $325.

Supplemental fee: $1,500 for petitioners with 26 or more full-time employees ($750 for employers with 25 or fewer full-time employees).143

144 Fraud Prevention and Detection fee: $500. Created by the H-1B Visa Reform Act of 2004, the fee must be paid by petitioners seeking an initial grant of an H-1B or a change in H-1B employer. There are no exemptions to the fraud fee. Further, a petitioner/employer who is required to submit the $500 fraud prevention fee is required to pay an additional $4,000 fee if: (1) it has 50 or more employees in which more than 50% of the workforce hold an H-1B visa, and (2) the petition is filed on or after December 18, 2015. 145 (For petitions filed before October 1, 2015, the additional fee was $2,000.) 146

The fees for an H-1B visa do not apply to certain nonprofit research organizations and institutions of higher education. 147 The processing times for H-1Bs vary according to the Service Center adjudicating the case. These times range from several weeks to six months or longer. Under the USCIS’s Premium Processing program, if the petitioning employer pays an additional $1,225 filing fee, the USCIS guarantees to process the case within 15 calendar days from the date of receipt.148 If the case is not processed during that time, the $1,225 is refunded. The USCIS has the right to suspend the program (and did so for certain visas for several months in 2015). H-1B petitions are specific to the employer, the employee, the job and the location. If there are any changes in job location or nature of the employment, the employer must either amend or file a new petition. H-1B nonimmigrants may change jobs upon the filing of a petition by a new employer, as long as the individual has not engaged in any unauthorized employment since his or her last lawful admission. 149 141

https://icert.doleta.gov. 8 C.F.R. § 214.2(h)(4)(i). 143 8 U.S.C. § 1184(c)(9)(B). As part of the H-1B Visa Reform Act of 2004, Congress reinstated and raised the training fees previously instituted under the American Competitiveness and Workforce Improvement Act (ACWIA). 144 8 U.S.C. § 1184(c)(12). 145 Consolidated Appropriations Act 2016, Pub. L. No. 114-113 (Dec. 18, 2015); see also USCIS, New Law Increases H-1B and L-1 Petition Fees, available at https://www.uscis.gov/news/alerts/new-law-increases-h-1b-andl-1-petition-fees. An additional $4,500 fee applies to covered businesses regarding L-1 visas (i.e., those with 50 or more employees in which more than 50% of the workforce holds an L-1 visa, and the petition is filed on or after December 18, 2015). 146 See Pub. L. No. 111-347 (Jan. 2, 2011) (amending Pub. L. No. 111-230, § 402 (Aug. 13, 2010) and extending the original fees through September 30, 2015)). 147 8 U.S.C. § 1184(c)(9)(A). 148 8 C.F.R. § 103.7(b)(1)(i)(RR), (e). Note, the premium processing service does not commence until the USCIS has first conducted the lottery. 149 8 U.S.C. § 1184(n). 142

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

35


If an H-1B worker is terminated or resigns prior to the expiration of the approved H-1B period, the petitioning employer must notify the USCIS and withdraw the H-1B petition. Failure to withdraw the petition upon termination of employment exposes the employer to the DOL administrative charges for back pay. When terminating an employee prior to the end of his or her approved H-1B status, the employer must also offer the H-1B worker the reasonable cost of return transportation to the worker’s home country. 150 Although there is a six-year limit on H-1B status, 151 Congress has created exceptions to relieve the beneficiaries of long-delayed applications for permanent residence. The standard permanent residence or “green card’ application is a three-stage process, which generally begins with the filing of an application for labor certification with the DOL. Individuals for whom an immigrant visa (green card) petition or a labor certification has been filed at least 365 days prior to reaching their sixth year of stay may obtain extensions of H-1B status beyond the six-year maximum, in one-year increments, until their application for permanent residence has been decided. 152 Additionally, three-year extensions beyond the sixth year are available to individuals who are significantly delayed in the green card process due to immigrant visa unavailability or “visa retrogression.” 153

§ 2.5(b)(ii) H-1B Visa: Determining Employer-Employee Relationship A 2010 Guidance Memorandum issued by the USCIS, complicated the process of obtaining an H-1B visa. 154 The Memorandum addresses the requirements for establishing the employer-employee relationship between the petitioning employer and the foreign national employee to be working pursuant to the H-1B visa. Its restrictive interpretations of what constitutes an employer-employee relationship have caused employers a great degree of trouble regarding H-1B employees, especially in those situations involving off-site or third-party placements of the H-1B employee. Citing the H-1B regulations, the Memorandum explains that a U.S. employer that files an H-1B petition must have “an employeremployee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.” 155 Accordingly, consulting companies and staffing agencies should consider expressly stating in their employment agreements that they retain the exclusive right to control the H-1B employee’s work, rather than the third-party client company. Consequently, as recipients of the H-1B worker’s services, these client companies are also affected, and must be sure that their actions do not create an “employer150

8 C.F.R. § 214.2(h)(4)(iii)(E). 8 U.S.C. 1184(g)(4). 152 8 U.S.C. 1184, notes (under “Special provisions in cases of lengthy adjudications”) (citing American Competitiveness in the 21st Century Act of 2000 (AC21), Pub. L. No. 106-313, § 106, 114 Stat. 1251 (2000)). 153 Individuals who have obtained approval of their I-140 Immigrant Visa Petition and who are subject to visa retrogression (i.e., no green card number is available due to the per-country limits of numbers available per fiscal year) are eligible for three-year extensions beyond the sixth year. See 8 U.S.C. 1184, notes (under “One-time protection under per country ceiling”) (citing American Competitiveness in the Twenty-First Century Act (AC21), Pub. L. No. 106-313, § 104(c), 114 Stat. 1251 (2000)). 154 USCIS, Memorandum to Service Center Directors, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements; Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10–24), HQ 70/6.2.8 (Donald Neufeld, Associate Director, Service Center Operations Jan. 8, 2010). 155 USCIS, Memorandum to Service Center Directors, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements; Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15) (AFM Update AD 10–24), HQ 70/6.2.8 (Donald Neufeld, Associate Director, Service Center Operations Jan. 8, 2010). 151

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

36


employee” relationship with the H-1B worker, as defined by the Guidance Memorandum.

§ 2.5(b)(iii) “H-1B Dependent” Employers

There are special restrictions for “H-1B dependent” employers. 156 An employer is H-1B dependent if it employs at least 51 full-time employees, of whom at least 15% are H-1B visa holders. To accommodate small companies, employers with 25 or fewer full-time employees are not considered H-1B dependent unless at least 8 of their employees are H-1B visa holders. Similarly, employers with 26 to 50 full-time employees are not H-1B dependent, unless they employ at least 13 H-1B visa holders. H-1B dependent employers must, among other things, attest that no displacement of a U.S. worker employed by them has occurred within the preceding 90 days and that no such displacement will occur within 90 days following the filing of an H-1B petition. In addition, they cannot place the H-1B employee with another employer unless they also attest that they have inquired and have no knowledge that this third party has displaced or will displace a U.S. worker within 90 days of filing the H-1B petition. H-1B dependent employers must also attest that they have taken good-faith steps to recruit for the position in the United States using industry-wide standard practices and have offered the job to all U.S. applicants who are equally or better qualified than the H-1B worker. The H-1B dependent attestation provisions are governed by more than 150 pages of complex, sometimes completely contradictory, regulations from the DOL. However, the new attestations are not required if the employer is petitioning for an H-1B nonimmigrant who holds a Master’s degree (or its equivalent) or higher in a field related to the intended employment or who is paid at least $60,000 per year (including cash bonuses or other similar compensation).

§ 2.5(c) H-2B Visa: Temporary Positions in Shortage Occupations The H-2B work authorization category allows employers to hire foreign workers to come to the United States to perform temporary nonagricultural services or labor for a one-time occurrence or on a seasonal, peakload or intermittent basis if unemployed person capable of performing such work cannot be found in the United States.157 To evidence a one-time occurrence, the employer must establish that: (1) it has not had employees perform the services or labor in the past and that it will not need employees to perform the services or labor in the future; or (2) it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary employee. 158 Seasonal needs are those in which the services or labor required are traditionally tied to a recurring event or pattern or to a season of the year.159 The employment is not seasonal, however, if the period during which the services or labor are needed is unpredictable or subject to change, or is a vacation period for the petitioner’s permanent employees.160 Peakload needs occur when the employer needs to supplement permanent staff on a temporary basis due to a short-term demand, and the temporary additions to staff will not become a part of its regular operations. 161 156 157 158 159 160 161

8 U.S.C. § 1182(n)(1)–(3); 20 C.F.R. §§ 655.700–.736. 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (2008); 22 C.F.R. § 41.12. 8 C.F.R. § 214.2(h)(6)(ii)(B)(1). 8 C.F.R. § 214.2(h)(6)(ii)(B)(2). 8 C.F.R. § 214.2(h)(6)(ii)(B)(2). 8 C.F.R. § 214.2(h)(6)(ii)(B)(3).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

37


Intermittent needs arise where the employer has not employed permanent or full-time employees to perform the services or labor in the past, but nonetheless occasionally or intermittently needs temporary employees to perform services or labor for short periods in the future.162 To demonstrate the shortage of available, qualified workers, the employer must complete a “temporary” labor certification process with the DOL before filing the H-2B petition with the USCIS. 163 H-2B status is not appropriate for regular or permanent positions with U.S. employers; the need for the position must itself be temporary. It is the nature of the employer’s need for the employee—not the nature of the duties to be performed—that is critical.164 An annual cap is placed on the number of H-2B visas. The total number of H-2B visas during any U.S. fiscal year may not exceed 66,000. 165 This limitation applies only to the foreign nationals entering to occupy the positions, and not to their spouses or dependent children.166 Effective December 18, 2015, “returning workers” are exempt from the fiscal year 2016 annual cap of 66,000. A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap during 2013, 2014 or 2015. 167 The provisions only apply to those positions pending or approved on or after December 18, 2015. The petitioner/business is subject to additional filing requirements as discussed below. H-2B status holders are not permitted “dual intent.” Thus, evidence of intentions to reside permanently in the United States—such as the filing by the employer of a labor certification application or an immigrant petition for the foreign national—may result in the denial of the employer’s H-2B petition, or the visa application or request for admission by the foreign national. 168 Spouses and dependent children are granted H-4 (dependent) status for the same period of time as the H-2B status holder, but may not have work authorization.

§ 2.5(c)(i) H-2B Visa: Process In May of 2015, DOL and DHS issued new rules for the H-2B program. The rule comes in response to a federal court decision that held the DOL lacked authority to implement the 2008 regulations previously used to certify H-2B temporary labor certifications. The new rule tracks the 2012 final rule, which was never implemented. Key components on the new rule includes: introduction of electronic job registry, longer recruitment periods for U.S. workers, and a longer registration period of three years intended to shorten the employer certification process for future years. The procedure for obtaining H-2B status consists of three stages: 162

8 C.F.R. § 214.2(h)(6)(ii)(B)(4). 8 C.F.R. § 214.2(h)(6)(iii)(A),(C). 164 8 C.F.R. § 214.2(h)(6)(ii)(A) (codifying In re Artee Corp., 18 I. & N. Dec. 366 (1982)). 165 8 U.S.C. § 1184(g)(1)(B). 166 8 U.S.C. § 1184(g)(2). 167 The Consolidated Appropriations Act, 2016, Pub. L. No. 114-113 (Dec. 18, 2015) (revising 8 U.S.C. 1184(g)(9)); see also USCIS, H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016, available at https://www.uscis.gov/news/alerts/h-2b-returning-workers-exempted-h-2b-cap-fiscal-year-2016. 168 8 C.F.R. § 214.2(h)(16)(ii). 163

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

38


1. submission of a temporary Labor Certification Application to the DOL by the petitioner/employer; 2. submission of a petition requesting H-2B status (Form 1-129) to the USCIS by the petitioner/employer (after receipt of Temporary Labor Certification); and 3. submission of an application for H-2B visa to a U.S. Consulate by the foreign national (after the USCIS has approved the Form I-129).

Stage 1: Labor Certification Application Employers must demonstrate that qualified U.S. workers are unavailable to fill the position for which there is a temporary need for additional employees.169 This is accomplished through submission of a Labor Certification Application to the DOL National Processing Center. 170 The employer must list specific information regarding the business, the nature and duties of the position, and the requirements of the position. No information is required about the foreign national at this point. Thus, the employer can, in fact, submit Labor Certification Applications for positions as soon as it has identified that a temporary need will arise, but before it has decided who will fill those additional positions. A statement from the employer explaining the business, the nature of the temporary need and the employer’s attempts to locate qualified U.S. workers should accompany the application. The DOL makes a final determination as to whether qualified U.S. workers are available.171 If the DOL agrees that no qualified U.S. workers are available, it will certify the application. Denial by the DOL does not necessarily terminate all hopes of obtaining an H-2B worker. The DOL decision is advisory only; the USCIS will determine whether an actual shortage of qualified U.S. workers exists. 172 The employer, however, will have a significantly higher burden of proof in establishing to the USCIS’s satisfaction that a shortage of qualified U.S. workers exists if the DOL has denied the Labor Certification Application. 173 For “returning workers” to be exempted from the H-2B cap, the petitioner must complete the H-2B Returning Worker Certifications. among other things. 174

Stage 2: Petition Once the employer has received the temporary Labor Certificate from the DOL, the employer submits its petition for H-2B workers (Form 1-129) to the USCIS, attaching a copy of the temporary Labor Certification (or DOL denial). The petition must detail the nature of the business, the temporary need for additional employees and the employer’s attempts to recruit U.S. workers for the position in question. The petition must also document the nature of, and the requirements for, the position and clearly demonstrate that the foreign national is fully qualified. A single petition may request H-2B status for 169

8 U.S.C. § 1101(a)(15)(H)(ii)(b); 22 C.F.R. § 41.12. 8 C.F.R. § 214.2(h)(6)(iii)(A). Note that Labor Certifications for temporary positions in Guam are subject to different procedures than those that apply to the United States. 20 C.F.R. § 655.215. 171 20 C.F.R. § 655.23. 172 8 C.F.R. § 214.2(h)(6)(iv)(D). 173 8 C.F.R. § 214.2(h)(6)(iv)(D). 174 The Consolidated Appropriations Act, 2016, Pub. L. No. 114-113 (Dec. 18, 2015) (revising 8 U.S.C. 1184(g)(9)); see also USCIS, H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016, available at https://www.uscis.gov/news/alerts/h-2b-returning-workers-exempted-h-2b-cap-fiscal-year-2016. 170

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

39


multiple foreign nationals, provided the positions to be occupied by each are the same. A strike or other labor dispute involving work stoppage at the worksite where the foreign national is to be employed and affecting the position he or she is to occupy may affect whether the USCIS will approve or suspend approval of the H-2B petition. The USCIS cannot suspend approval of a petition unless the DOL formally advises it (“certifies”) that such a strike or other labor dispute has occurred. 175

Stage 3: Consular Processing of H-2B Visa Stamps & Admission Once the USCIS has approved the Form I-129, the foreign national must apply to a U.S. Consulate abroad for an H-2B visa to enter the United States. Upon admission to the United States, the employee will be issued an I-94 Card reflecting his or her H-2B status. Upon receipt of the I-94 Card, the employee may begin working for the petitioning employer.

§ 2.5(d) H-3 Visa: Trainees H-3 status enables a foreign national to enter the United States for the primary purpose of receiving training for the duration of a training program—but in no case for more than two years. 176 There are a number of limitations on this status. The training must be at the invitation of an organization or individual. 177 The training can be in any field, including the following: agriculture, commerce, communications, finance government, transportation 178 or the professions. 179 Included as well is training in a purely industrial establishment 180 or training for foreign medical school externs or nurses. 181 H-3 status can be used to train foreign nationals in the methods and procedures of the U.S. operations of a multinational company. H-3 status also can be used to provide training on U.S. companies’ products and processes to foreign nationals who work abroad for related or client companies. Immediate family members may accompany the H-3 trainee in H-4 status, but spouses are not eligible for work authorization. Qualifying training programs must provide skills or information not available in the trainees’ home countries, but necessary and beneficial to the foreign nationals in their careers outside the United States. 182 H-3 training programs cannot require that the foreign nationals be placed in positions within the normal operation of the U.S. business and normally occupied by U.S. workers. 183 Foreign nationals cannot engage in “productive employment” unless such employment is “incidental and necessary” to the training. 184

§ 2.5(d)(i) H-3 Visa: Process The U.S. entity providing the training must petition the USCIS for approval of the training program for certain, named foreign nationals. The petition is detailed and requires supporting documents evidencing 175

8 C.F.R. § 214.2(h)(17)(ii). 8 C.F.R. § 214.2(h)(9)(iii)(C)(1). 177 8 C.F.R § 214.2(h)(7)(i). 178 8 C.F.R § 214.2(h)(7)(i). 179 The professions include one of the occupations listed 8 U.S.C. § 1101(a)(32), namely: architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries; as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. See also 8 C.F.R. § 204.5(k)(2). 180 8 C.F.R. § 214.2(h)(7)(i). 181 8 C.F.R. § 214.2(h)(7)(i)(A)–(B). 182 8 C.F.R. § 214.2(h)(7)(ii)(A). 183 8 C.F.R. § 214.2(h)(7)(ii)(A). 184 8 C.F.R. § 214.2(h)(7)(ii)(A). 176

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

40


that the employer, the training and foreign national(s) qualify. Upon issuance of the H-3 visa stamp, the foreign national may apply for admission to the United States at any port of entry. The petition should include a detailed training program that contains the following: • the proportion of time that will be devoted to “productive employment;” • the number of hours to be spent in classroom instruction and on-the-job training; • an explanation of how the training will benefit the foreign national outside the United States; • the reasons the training is not available in the foreign national’s country and why training is to be conducted in the United States; • confirmation that the foreign national is qualified for the training; and • the source of remuneration received by the trainee and any benefit that will accrue to the U.S. employer for providing the training. 185 The U.S. employer must be careful not to suggest that the foreign national is being trained to fill a position in the United States. H-3 status is available for a maximum period of two years,186 and extensions are only available so long as they do not extend the total stay of the foreign national beyond two years. 187 Additional “H-3 time” for a new training program can only be granted to a foreign national who has spent two years in the United States in H-3 status if the foreign national has resided and been physically present outside the United States for the immediate prior six months. 188

§ 2.5(e) L-1 & L-2 Visas The L-1 classification is a useful visa category for multinational companies seeking to transfer high-level and essential employees to provide services in a similar capacity to a related entity in the United States.189 The dependents of L-1 employees are designated L-2 and spouses may apply for work authorization when in the United States. 190 L visas have dual intent, which permits the pursuit of permanent residence in the United States without jeopardizing the nonimmigrant status. There are two principal L-1 classifications: •

L-1A Executives or Managers: L-1A status is available for a total of seven years. 191

L-1B Specialized Knowledge Workers: L-1B status is available for a total of five years.

192

While the L-1 category is generally an efficient and expeditious way of transferring key employees from 185 186 187 188 189 190 191 192

8 C.F.R. § 214.2(h)(7)(ii)(B)(1)–(6). 8 C.F.R. § 214.2(h)(9)(iii)(C)(1). 8 C.F.R. § 214.2(h)(15)(ii)(D). 8 C.F.R. § 214.2(h)(13)(iv). 8 U.S.C. § 1101(a)(15)(L). 8 U.S.C. § 1184(c)(2)(E). 8 U.S.C. § 1184(c)(2)(D)(i). 8 U.S.C. § 1184(c)(2)(D)(ii).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

41


overseas to the United States, increased scrutiny of L-1 visa applications at both the USCIS and the consular level (particularly for L-1B Specialized Knowledge workers) have impeded to a degree the use of the L-1 visa. Careful analysis and planning are essential for successful L-1 visa proceedings. While the typical L-1 intracompany relationships are between corporations, all forms of business entities—including sole proprietorships and partnerships—may utilize the L-1 provisions so long as the U.S. and foreign companies are part of a “qualifying” organization. To address concerns of outsourcing, L-1B temporary workers are prohibited from working primarily at a worksite other than the petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essential to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer.193 The following fees apply for L-1 visas: •

Base fee: $325.

Fraud Prevention and Detection fee: $500. The fee must be paid by petitioners on all initial L1 applications and on changes between the L category (i.e., from L-1B to L-1A and vice versa). Further, a petitioner/employer who is required to submit the $500 fraud prevention fee is required to pay an additional $4,500 fee if: (1) it has 50 or more employees in which more than 50% of the workforce hold an L visa, and (2) the petition is filed on or after December 18, 2015. 195 (For petitions filed before October 1, 2015, the additional fee was $2,250. 196)

194

§ 2.5(e)(i) L-1 & L-2 Visas: Process The U.S. employer must constitute a qualifying organization, meaning that the U.S. business entity and the related (via common ownership and control) foreign entity must be “doing business” in the United States and at least one other country (not necessarily the country in which the foreign national worked for the qualifying organization) at all times during the L-1 transferee’s stay in the United States.197 This requirement is intended to ensure the ongoing international nature of the qualifying organization and that the related foreign operation (to which the L-1 alien can be transferred back at the conclusion of his or her temporary U.S. assignment) continues to exist. The prospective L-1 intracompany transferee must have worked abroad for one year out of the prior three years, and be coming to the United States to work, in a capacity that is executive, managerial or involves specialized knowledge. 198 • Executive: This refers to employees who primarily direct the management of the company and establish organizational goals and policies, exercise wide latitude in discretionary decision 193

8 U.S.C. § 1184(c)(2)(F). 8 U.S.C. § 1184(c)(12). 195 Consolidated Appropriations Act 2016, Pub. L. No. 114-113 (Dec. 18, 2015); see also USCIS, New Law Increases H-1B and L-1 Petition Fees, available at https://www.uscis.gov/news/alerts/new-law-increases-h-1b-andl-1-petition-fees. An additional $4,500 fee applies to covered businesses regarding L-1 visas (i.e., those with 50 or more employees in which more than 50% of the workforce holds an L-1 visa, and the petition is filed on or after December 18, 2015). 196 See Pub. L. No. 111-347 (Jan. 2, 2011) (amending Pub. L. No. 111-230, § 402 (Aug. 13, 2010). 197 8 C.F.R. § 214.2(l)(1)(ii)(G). 198 8 C.F.R. § 214.2(l)(1)(i). 194

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

42


making and receive only general supervision from higher level executives or the board of directors. Examples of executive employees include a president, controller or vice president.199 • Managerial: This applies to those employees who primarily direct a customarily recognized department or subdivision of the organization; supervise and control the work of other supervisory, professional or managerial employees; have the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization); and who exercise discretionary authority over day-to-day operations. The term manager does not include a “first-line supervisor,” unless the employees supervised are professional level. Alternatively, a manager may supervise an “essential function” or component within the organization, or department or subdivision thereof, while reporting directly to a senior-level official. 200 • Specialized knowledge: A specialized knowledge employee is one who, through advanced expertise, carries out a key process or function (often involving proprietary knowledge) that is central to the organization’s operations or serves to enhance its competitiveness in international markets. Often, it is required that the company show that the expertise and proprietary knowledge are not readily available in the U.S. labor market. Examples include employees with knowledge of a company’s unique manufacturing process, equipment, product, service, research or management. Highly skilled employees with only nonproprietary technical knowledge generally will not be able to satisfy this requirement. 201

§ 2.5(f) Blanket L Visa The Immigration and Nationality Act (INA) allows multinational corporations to transfer executives, managers and specialized knowledge “professionals” to the United States without filing an L-petition for each individual under the “Blanket L” program. An L-1B “specialized knowledge” visa is not available under the blanket petition unless the individual applying for the L-1B visa is a “professional” as defined by the INA (i.e., is a person holding at least a bachelor’s degree in a field relevant to the position). The employee to be transferred may go directly to a U.S. Consulate abroad to apply for the L-1 visa.

§ 2.5(f)(i) Blanket L Visa: Process To take advantage of the Blanket L process, the company must first file a Blanket L petition with the USCIS. The petitioner must be a member of a corporate family, but it need not be the parent or the principal office. The Blanket L petitioner must meet the following four conditions: 1. The petitioner and each of its related entities included in the Blanket L petition are engaged in commercial trade or services. 2. The petitioner has an office in the United States that has been doing business for one year or more. 3. The petitioner has three or more domestic and foreign branches, subsidiaries or affiliates. 4. The petitioner and its related organizations have done at least one of the following: 199 200 201

8 C.F.R. § 214.2(l)(1)(ii)(C). 8 C.F.R. § 214.2(l)(1)(ii)(B). 8 C.F.R. § 214.2(l)(1)(ii)(D).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

43


• obtained approval of petitions for at least ten “L” managers, executives or specialized knowledge professionals during the previous 12 months; or • have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or • have a U.S. workforce of at least 1,000 employees.202

§ 2.5(g) O-1 Visa: “Extraordinary Ability” The O-1 category is set aside for individuals with extraordinary ability, i.e., those with a level of expertise showing that the individual is in the small percentage who have “arisen to the very top” of their field of endeavor. 203 A dependent spouse or child may accompany or follow an O-1 nonimmigrant by 204 applying for O-3 nonimmigrant status in the United States or an O-3 visa, if abroad. An extension of stay in O-1 status may be granted in one-year increments, provided the extension of stay is in connection with the same qualifying offer of employment. 205 The O-1 classification requires an offer of employment related to an event or events in the United States requiring the services of an individual with extraordinary ability. The foreign national must show extraordinary ability in the “sciences, arts, education, and business” by demonstrating sustained “national or international acclaim.” 206

§ 2.5(g)(i) O-1 Visa: Process For purposes of O-1 classification, the regulatory guidance defines an event as an activity, or a group of related activities, including, but not limited to, a scientific project, convention, lecture series, tour, exhibit, business project, academic year or engagement. 207 Individuals seeking O-1 classification based upon extraordinary ability must demonstrate sustained national or international acclaim and recognition by providing evidence of: • receipt of a major, internationally recognized award, such as the Nobel Prize; or • documentation of at least three of the following:

202 203 204 205 206 207

receipt of nationally or internationally recognized prizes or awards for excellence in the specific field of endeavor;

membership in associations in the specific field that requires outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

published material about the individual in professional or major trade publications or major media, relating to his or her work in the field, which include the title, date and author, and any necessary translation;

8 C.F.R. § 214.2(l)(4)(i). 8 C.F.R. § 214.2(o)(3)(ii). 8 C.F.R. § 214.2(o)(1)(i). 8 U.S.C. § 1184(a)(2)(A); 8 C.F.R. § 214(o)(6)(iii)(A). 8 C.F.R. § 214.2(o)(1)(i). 8 C.F.R. § 214.2(o)(3)(ii).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

44


participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;

original scientific, scholarly or business-related contributions of major significance in the field;

authorship of scholarly articles in the field, in professional journals or other major media;

employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or

a high salary or the likelihood that the individual will command a high salary or other remuneration for services.208

Additionally, O-1 petitions must be accompanied by copies of any written contracts between the employer and the foreign national or a summary of the terms of an oral agreement, and a peer consultation. 209

§ 2.5(g)(ii) O-1 Visa: Peer Consultation Requirement An unusual aspect of O classification is the requirement of a written advisory opinion from an appropriate U.S. labor and/or management organization describing the nature of the work to be performed and the individual’s qualifications in the area of endeavor. 210 If no appropriate labor and/or management organization exists, the advisory opinion may be issued by any expert source. A supporting advisory opinion may be offered in the form of a “no objection” letter. This requirement may be waived in the following instances: (1) the petitioner demonstrates that no appropriate union exists; (2) the beneficiary is of extraordinary ability in the arts, and is reentering the United States to perform similar services as those performed within two years of obtaining the initial consultation; or (3) the petition merely requests an extension of stay based upon the same qualifying offer of employment as the prior petition. 211 For a template consultation opinion, see “Sample Documentation in Support of O-1 Visa” at § 3.9 below.

§ 2.6 COUNTRY-SPECIFIC WORK VISAS (TN & E-3) § 2.6(a) TN Visa: “Trade NAFTA” The TN work authorization status is a country-specific classification. It is available only to citizens of Canada and Mexico under the North American Free Trade Agreement (NAFTA). 212 TN status may be 213 used only for individuals qualified in those professions specifically listed in a schedule under NAFTA. (For a list of professions, see “Scheduled Professions Eligible for TN Status” at § 3.8 below.) There are two classifications that can often be used as a catch-all for employees who do not qualify in the other categories: Management Consultant and Scientific Technician/Technologist. However, since these are often used as a last resort by practitioners, post-NAFTA guidance has greatly limited the eligibility for these two classifications. 214 208

8 C.F.R. § 214.2(o)(3)(iii). 8 C.F.R. § 214.2(o)(2)(ii)(B). 210 8 C.F.R. § 214.2(o)(2)(ii)(D). 211 8 C.F.R. § 214.2(o)(5). 212 8 C.F.R. § 214.6. 213 North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 app. 1603.D.1 (1993); 8 C.F.R. § 214.6(c). 214 Memorandum from Adjudications Assistant Comm’r Puleo, Management Consultant, CO 1773-C (Oct. 4, 1989), reprinted in 9 AILA MONTHLY MAILING 253–54 (Apr. 1990); Memorandum from Office of Programs Acting Executive Assoc. Comm’r Cronin, Scientific Technician/Technologist, HQINS 70/6.2.23, reprinted in 77 No. 42 INTERPRETER RELEASES 1550, 1556–57 (Oct. 30, 2000). 209

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

45


TN applicants can be admitted to the United States for three years and extend their stay in three-year increments. 215 TN status does not allow for dual intent and thus, with each successive renewal/extension, it becomes more difficult to demonstrate that the employee maintains the intent to return to Canada or Mexico as their permanent place of abode.216 Therefore, while there is no explicit upper limit to how long a foreign national may remain in the United States in TN status, it is recommended that after two to three years in TN status the employee should be switched into a nonimmigrant status that explicitly allows for immigrant intent, such as the H-1B. Spouses and minor children of TN workers can be admitted for renewable three-year periods under the TD category, but TD spouses are not eligible for U.S. work authorization. TD spouses and children need not be citizens of Canada or Mexico.217

§ 2.6(a)(i) TN Visa: Process For both Canadian and Mexican nationals, the TN category provides an advantage over the H-1B category in that it avoids the prevailing wage and labor condition application procedures. Canadians may obtain TN status directly from a U.S. Port of Entry218 without prior USCIS processing and without an appearance at a U.S. Consulate. Canadians can also apply for a TN through USCIS. Thus, the TN work permit for Canadians can be secured much more quickly than the H-1B visa. Mexican nationals must apply directly for TN status at a U.S. Consulate and be issued a visa before being granted entry to the United States. 219 The TN professional must possess the appropriate license, if required by law, to perform the duties of the profession in the state where he or she will be employed. 220 Individuals who will be self-employed (or employed by a corporation that they wholly own) in the United States are not eligible for TN status, but can consider the E visa category. 221

§ 2.6(b) E-3 Visa: Specialty Occupation Worker (Australians) The E-3 Specialty Occupation Worker visa was created as a result of a U.S./Australian Free Trade Agreement and was enacted in legislation as part of the Real ID Act of 2005.222 The E-3 nonimmigrant visa category was implemented specifically for nationals of the Commonwealth of Australia intending to enter the United States solely to perform a specialty occupation on a temporary basis. The definition of specialty occupation as it pertains to E-3 nonimmigrants mirrors the definition in the H1B context, that is: 1. the foreign national will fill a position that requires a university degree or its equivalent in education or experience; and

215

Previously, applicants were admitted only for one year and granted extensions in one-year increments. The change was made in a final rule published by USCIS in 2008. See 73 Fed. Reg. 61,332 (Oct. 16, 2008). 216 8 C.F.R. § 214(B), 8 U.S.C. § 1184(b); 9 FAM § 402.17-6. 217 8 C.F.R. § 214.6(j). 218 8 C.F.R. § 214.6(d)(2). Port-of-Entry processing is overseen by the U.S. Customs Border Protection (USCBP). 219 8 C.F.R. § 214.6(d)(1). Previously, it was required that the petitioner file an application in the United States at a USCIS Service Center prior to an application for the TN visa at the U.S. Consulate. 220 8 C.F.R. § 214.6(b)–(c). 221 8 C.F.R. § 214.6(b). 222 H.R. 418 (the Real ID Act of 2005) was appended to become H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Pub. L. No. 109-13, § 501, 119 Stat. 231 (May 11, 2005). © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

46


2. the foreign national possesses the requisite degree or its equivalent. 223 E-3 status will initially be granted for a two-year period and can be extended in two-year increments so long as the individual intends to depart the United States upon final expiration of the E-3 period of authorized stay. The E-3 visa category does not permit dual intent. Dependents of the principal E-3 employee are eligible for the same E-3 nonimmigrant status. However, it is not required that the dependents be nationals of the Commonwealth of Australia to qualify for E-3 dependent nonimmigrant status. Unlike the H-1B specialty occupation visa category, dependents of E-3 nonimmigrants are eligible to apply for employment authorization. The E-3 visa classification is limited to 10,500 initial visas annually. 224 Petitions to extend the principal’s E-3 nonimmigrant visa status do not count against the annual cap, nor do applications filed on behalf of dependents.

§ 2.6(b)(i) E-3 Visa: Process So long as a visa number is readily available, an Australian national seeking E-3 nonimmigrant status in the United States may apply directly at a U.S. Consulate. The application for E-3 nonimmigrant status requires: 1. the requisite visa application forms; 2. a letter from the prospective U.S. employer detailing the position, salary, duration and requirements for the job; 3. a certified Labor Condition Application (LCA) Form ETA 9035E showing that the E-3 visa holder will be paid above the prevailing wage; 4. evidence of the applicant’s academic or other credentials in the specialty occupation; 5. evidence that the applicant’s stay in the United States will be temporary; and 6. payment of the application fee. 225 If the Australian national is already present in the United States in another visa category, and a visa number is readily available, the employer may petition for a change of status to E-3 by filing the requisite documents with the USCIS Service Center. Similarly, an employer may seek an extension of stay on behalf of an E-3 beneficiary by filing the requisite forms with the USCIS Service Center. Effective February 16, 2016, the regulations were amended to allow E-3 nonimmigrants to continue their employment with the same employer for up to 240 days after their authorized period of stay expires (as specified on their Arrival-Departure Record, Form I-94) while requests for extension of stay on their behalf are pending. Employers or petitioners are required to timely file a Petition for Nonimmigrant Worker (Form I-129) to obtain authorization to continue employment for up to 240 days. There are no additional filing requirements or costs for employers/petitioners to comply as they are already required to 223 224 225

8 C.F.R. § 214(i); 8 U.S.C. § 1184(i). 8 C.F.R. § 214(g)(11)(A) and (B); 8 U.S.C. § 1184(g)(11)(A) and (B). 22 C.F.R. § 41.51(c)(1).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

47


file the Form I-129 to request an extension of stay on behalf of the nonimmigrant worker. 226

§ 3 PRACTICAL GUIDELINES FOR EMPLOYERS § 3.1 COMMON MISTAKES EMPLOYERS MAKE IN I-9 PREPARATION It is imperative that employers develop and maintain an accurate I-9 employment eligibility verification system to comply with the law and to be prepared in the event of a DHS inspection. If I-9s are fully and properly completed and retained, employers are protected from both paperwork and knowing hire charges. The more common mistakes made in preparing I-9s are: • Employee and/or employer fail(s) to sign and date the I-9. • Employee does not complete Section 1 of the I-9 Form on the day of hire. • Employee does not check one of the four boxes in Section 1 attesting to his or her status in the United States or does not provide the required information for the second and third boxes. Ensuring proper information is received is crucial. For example, if an employee checks “Box 3” as a noncitizen/nonpermanent resident worker, the alien number/admission number and expiration date of temporary employment authorization must be listed. • Employer does not complete Section 2 within three business days of hire. • Employer representative reviews photocopies of the employee’s verification documents rather than the original documents. The employee is required to present his or her original verification documents to the employer representative. The employer representative should never accept photocopies of documents for I-9 verification purposes. • Employer representative who sees the verification documents is not the same employer representative who signs the I-9 Form. The employer representative who reviews the verification documents must be the same person who signs the I-9. • Employer fails to ensure that the employee’s verification documents “appear on their face to be genuine.” The employer representative should look to see that the typestyle on the document is consistent and does not contain obvious “white-out” or typeovers. Whether a document appears to be genuine incorporates a standard of reasonableness. Employers are not expected to be experts in detecting fraudulent documents, but they need to apply general knowledge and common sense. • Employer fails to ensure that the employee’s verification documents actually relate to the employee—that is, information contained in the documents does not match other information available to the employer about the employee. The employer representative should look for a match in the employee’s name and date of birth on the documents and ensure they are consistent with other information. The employer should also review any other descriptive information on the documents and make a visual comparison with the employee (e.g., general age, height, eye color, etc.). 226

DHS, Final Rule, 81 Fed. Reg. 2068 (Jan. 15, 2016) (effective Feb. 16, 2016) (amending 8 C.F.R. § 214.1(c)(1)).

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

48


• Employer fails to insert the employee’s start date for work in the “certification” block of Section 2. • Employer fails to calendar the expiration date in “Box 3” concerning an employee’s temporary “time-limited” work authorization. The employer must reverify an employee’s limited employment authorization on or before the expiration date listed on the I-9. Failure to reverify will subject the employer to a “knowing hire” violation if the alien employee has not extended work authorization. • Employer lists too many identity and/or employment authorization documents in Section 2. Over-documenting can result in a discrimination charge against the employer. • Employer fails to keep copies of verification documents presented either for all employees or for none at all. The law permits, but does not require, employers to make copies of the employee’s verification documents to attach to Form I-9. It is important that the employer’s policy in this regard be standardized and applied consistently for all employees. • Employer does not keep the I-9 records separate from its general personnel records. Because I-9 records contain information on an employee’s age, national origin and citizenship status, maintaining separate I-9 records can help employers avoid the appearance that some later personnel action was influenced by information from the I-9. Moreover, as a practical matter, segregated I-9 records allow an employer to assemble these records quickly in response to a DOL or DHS inspection.

§ 3.2 INTERNAL FORM I-9 AUDIT & CORRECTION INSTRUCTIONS In December 2015, USCIS and the Office of Special Counsel for Immigration-Related Unfair Employment Practices issued Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits to help employers “structure and implement internal audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA ... and does not insulate employers from liability under with provision.” 227 The guidance provides clear instructions on how employers should conduct internal audits. Of particular importance are instructions on avoiding potentially discriminatory practices and how employers should handle situations where new documentation must be requested from employees. Company audit teams should generally follow a procedure that includes looking at each Form I-9, checking for errors and incomplete forms, checking the completion date against the hire date and looking for expired or temporary work authorization. A complete list of missing I-9s should be made, and I-9s for terminated employees should be moved to a terminated file. It is important to create a record of audit results, as it will indicate specific process problems, and can guide an employer in revising its procedures. A key used to classify errors is one way to specify the types of errors, but any system that results in a specific error list is appropriate. Review the Form I-9 section-by-section as follows: 227

USICS and Office of Special Counsel for Immigration-Related Unfair Employment Practices, Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits (Dec. 17, 2015), available at https://www.uscis.gov/i-9-central/complete-correct-form-i-9/correcting-form-i-9. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

49


Section 1: The status boxes [make a separate list of employees who checked the fourth box, along with expiration dates], signature of employee, date. Section 2: Documents properly in List A, or in Lists B and C, date of employment, employer signature, date. Section 3: Needed if the fourth status box has been checked, or a document evidencing timelimited work authorization was presented, and work authorization has expired. Corrections to Form I-9s: All corrections may be made in different colored ink, dated and initialed, whether the one making the correction is the employer (in Section 2), or the employee (in Section 1). Mark corrected I-9s with “audit” at the top (if the number of corrected I-9s is large, use a stamp), and attach an audit memo, if necessary, explaining the circumstances of the audit. Section 1: All corrections must be made by the employee, initialed and dated with a brief explanation provided, where appropriate. Section 2: The company can make changes, and fill in missing information regarding the document’s description if a totally legible photocopy of the document is attached to the I-9 and the information can be obtained from the photocopy. The company can also correct a missing date of hire and add missing signatory-related or company information to Section 2, but cannot fill in a missing date of completion. Section 3: The company should consider the use of a new I-9 instead of simply using Section 3. Of course, if elected, the new I-9 should be attached to the old one. Missing Form I-9s: Meet with those employees and prepare late I-9s. Date them in Section 2 as of the actual date of preparation, stamping or writing “audit” on the top of the form. For addition information, see Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits issued in December 2015 by the USCIS and the Office of Special Counsel for Immigration-Related Unfair Employment Practices. 228

§ 3.3 REQUESTING & HANDLING SOCIAL SECURITY NUMBERS Job applications, offer letters and related documents should advise prospective employees that a valid SSN or such other information as required by the IRS must be provided on the first day of work. Advise applicants that the SSN will be verified and that a false name or number is grounds for immediate dismissal. Step 1: On or before the first day of employment, new hire should be asked if he or she has a SSN. •

If employee has a SSN, he or she should be asked to show the card, if it is available; if it is not available, he or she should provide the number and name appearing on

228

USICS and Office of Special Counsel for Immigration-Related Unfair Employment Practices, Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits (Dec. 17, 2015), available at https://www.uscis.gov/i-9-central/complete-correct-form-i-9/correcting-form-i-9. © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

50


card. Copy name and number exactly as they appear on the card, and use for all tax records. •

If employee has no SSN, ask employee whether SSN has been applied for.

If employee has applied for SSN, ask for application receipt and copy receipt. 1. Have employee complete a Social Security statement (for sample statement, see § 3.4 below). 2. Give an SS-5 to employee to complete and file with the SSA within seven days. 3. Ask employee to provide a copy of the application when filed.

Step 2: Depending on the status of the employee’s SSN: • If employee provides SSN: Contact SSA at (800) 772-1213 to verify name and number. Record all information provided by SSA. • If SSN is verified: Advise the employee, in writing, that the number has been verified, but that the employee must immediately notify the company of any future name and/or number changes. • If SSN is not verified: Immediately notify the employee, in writing, that SSA has not been able to confirm the validity of the employee’s SSN and provide any explanation received from SSA regarding validity. Ask employee to double check name and number provided. [PROPOSED POLICY: If the information previously provided is not changed, after such review, have employee verify name and number by making written statement that the name and number is correct, or allow employee one day to produce Social Security card used or be terminated. If the card is produced, verify with SSA. If verified, stop review.] Step 3: Give employee IRS Form W-4 on the first day of employment to be returned in three days or such other time frame provided by the payroll department. If SSN is missing and the application for the SSN is pending, “application pending” should be inserted by the employee. Step 4: Verify that the SSN received as part of Step 1 is the same as the one that appears on the W-4. If it is not, have employee correct form. Step 5: Send W-4 to payroll department and coordinate with payroll department on any necessary follow-up. Step 6: Maintain in the employee’s personnel file a copy of the W-4 and all of the information obtained about the SSN. Step 7: If the employee did not have a SSN as of the date of the hire, require the employee to keep the company informed of the status of the SSN application (SS-5 Form) and require the employee to provide the SSN immediately upon receipt. Step 8: Establish tickler file for follow-up on SSNs for employees without numbers. Consider follow-up at weekly intervals until a copy of the application is provided by the employee and then bi-weekly thereafter.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

51


Step 9: If the employee is terminated before the SSN has been received and verified, have the employee complete the Social Security Number statement (see below) as part of the exit interview process, unless the SSN or the statement is already on file, and advise the employee, in writing, to send the number when received for proper crediting of tax payments.

Š 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

52


§ 3.4 SAMPLE SOCIAL SECURITY NUMBER STATEMENT I do not have a Social Security number as required by Internal Revenue Service regulations. I am providing the following information as required by Treasury Regulation section 31.6011(b)-2(b)(iv): Employee’s full (legal) name: __________________________ Employee’s present address: __________________________ Employee’s date and place of birth: __________________________

Father’s full name: __________________________

Mother’s full maiden name: __________________________

Employee’s gender: __________________________

I have/have not (circle one) applied for a Social Security number by filing Form SS-5 with the Social Security Administration on ____________ at ____________. Date ____________ Place of filing (where sent or filed) ____________________ I can/cannot (circle one) provide a copy of Form SS-5 now. I understand that I need to apply for a number immediately and that I will provide the number to the company as soon as it is received. Dated: ________________________ By: ___________________________ Signature: ______________________ Print Full Name: _________________

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

53


§ 3.5 PROCEDURES FOR OBTAINING SOCIAL SECURITY NUMBER Procedure for Individual to Obtain a Social Security Number (SSN) 229 An individual who does not have a SSN can get one by filling out and submitting the prescribed application and submitting required evidence. •

Application: Form SS-5, Application for a Social Security Card (which is available at the SSA website: http://www.ssa.gov/ or the local SSA office).

Evidence: Required evidence is that which is necessary to assist the SSA to determine the applicant’s age, true identity and U.S. citizenship or lawful alien status. Age: The SSA prefers to see a birth certificate. However, it can accept other documents, such as a religious record marked before an individual was three months old. If a person was born outside the United States, the SSA can accept their passport. Identity: The SSA must see “convincing evidence” of the individual’s identity in the name the individual wants shown on the card. The identity evidence must be of the recent issuance so that the SSA can determine the individual’s continued existence. In addition to the individual’s name, the evidence must contain: the individual’s age, date of birth or parents’ names; or the individual’s photograph or physical description.. The SSA cannot accept a birth certificate or hospital birth record as evidence of identity. Evidence of identity may include: • Driver’s license • Marriage or divorce record • Military records • Employer ID card • Passport • Adoption record • Life insurance policy • School ID card • Health insurance card (not Medicare card) U.S. Citizenship: The SSA can accept most documents that show a person was born in the United States. If the individual is a U.S. citizen born outside the United States, he or she can show a U.S. consular report of birth, a U.S. passport, a Certificate of Citizenship, or a Certificate of Naturalization. Alien Status: The SSA must see an unexpired document issued to the individual by the Department of Homeland Security such as Form I-551, I-94, I-688B, or I-766. The SSA CANNOT accept a receipt showing the individual applied for the document. If a person is not authorized to work in the United States, the SSA can issue a person a Social Security card only if the person is lawfully here and needs the number for a valid nonwork reason. The person’s card will be marked to show he or she cannot work.

229

See 20 C.F.R. §§ 422.103- 422.107 (as revised by 80 Fed. Reg. 47831, 47834 (Aug. 10, 2015), effective Sept. 9, 2015). © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

54


§ 3.6 NONIMMIGRANT (TEMPORARY) CLASSIFICATIONS Nonimmigrant (Temporary) Classifications Classification 230

Description

A-1 through A-3

Diplomat & entourage/family

B-1

Temporary business visitor

B-2

Temporary visitor for pleasure (tourist)

C-1

Alien in transit

D E-1 E-2

Crewman vessel/aircraft Treaty trader, spouse & children Treaty investor, spouse & children Specialty Occupation Worker— Australian Citizens

E-3

Length of Initial Authorized Stay (with Extensions Available) Duration of service Usually less than 6 months, with maximum of 1 year (extensions in increments of up to 6 months) Usually 6 months, with maximum of 1 year (extensions in increments of up to 6 months) 8 hours or next available connecting flight (no extension) Maximum 29 days (no extension) 2 years (extensions in 2-year increments) 2 years (extensions in 2-year increments) 2 years (extensions in 2-year increments)

F-1

Student

Duration of status plus 60 days in which to depart

G-1 though G-5

Representation of foreign government or international organization

Duration of service

H-1B

Temporary worker in “specialty occupation”

Up to 3 years (extensions allowed up to maximum 6-year stay, with possible 1-year or 3-year extensions under certain conditions)

H-2 H-3 I J-1 K-1 L-1 M-1 O-1 230

Temporary worker performing temporary services in short supply in U.S. Alien full-time trainee Foreign media specialists, spouse & children Exchange visitor Alien fiancé(e) of U.S. citizen

1 year (extension in 1-year increments up to maximum 3 year stay) 1 year (extension in 1-year increments) Duration of employment

Duration of status 90 days to become married (no extensions) Up to 3 years, except 1 year for new offices (extensions allowed up to maximum 5-year Intracompany transferee stay for specialized knowledge & 7-year stay for managers/executives) Duration of status plus 60 days in which to Vocational school student depart Aliens of extraordinary ability in Duration of event(s), not to exceed 3 years sciences, arts, education, business or (extensions up to 1 year each, plus 10 days in

Bolded categories described in discussion within sections above.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

55


Nonimmigrant (Temporary) Classifications Classification 230

P-1

P-2

P-3 Q R-1 TN

Length of Initial Authorized Stay (with Extensions Available) athletics, or demonstrated record of which to depart) extraordinary achievement in motion picture or television industry Up to 5 years for individual athletes Internationally recognized athlete or (extensions allowed up to maximum 10-year member of an internationally stay); duration of performance, competition or recognized entertainment group & event (up to 1 year) for team athletes & essential support personnel entertainment groups Artists & entertainers performing under a reciprocal exchange Duration of performance or event up to 1 year program & essential support personnel Artists & entertainers in a culturally Duration of performance or event, up to 1 unique program & essential support year personnel International cultural exchange Up to 15 months, plus 30 days in which to program visitors depart Up to 3 years (extensions allowed up to a Religious workers maximum of 5 years) Canadian or Mexican citizen Up to 3 years (no limit to number of seeking temporary entry to engage extensions, granted in 3-year increments) in activities at a professional level Description

Š 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

56


§ 3.7 E-1 TREATY TRADER & E-2 TREATY INVESTOR VISAS E visas are available only to nationals of countries that have a Treaty of Friendship, Commerce, and Navigation or a Bilateral Investment Treaty with the United States. • •

The E-1 treaty trader: is an alien coming to the United States solely to carry on substantial trade principally between the United States and his or her home country. The E-2 treaty investor: is an alien coming to the United States solely to develop and direct the operations of an enterprise in which he or she has made, or is in the process of making, a “substantial investment.”

The alien must have “control” of the business. (In some situations, 50-50 joint ventures or minority ownership may be sufficient to establish control). In practice, use of the E category is less prevalent among individual traders and investors. It is most often used by U.S. companies owned by one or more persons who are nationals of a country having the required treaty with the United States (treaty nationals). These companies utilize the E visa category to bring treaty nationals to work in managerial or other key positions for the U.S. company. Common examples of qualifying E visa employers would include a U.S. subsidiary of a foreign parent company owned by treaty nationals, as well as a completely independent U.S. business established by treaty national owners. As mentioned, E-1 or E-2 status is not limited to individuals who qualify on the basis of their own business investments or trading activities. Qualifying alien employees of foreign companies may enjoy E1 and E-2 status as well. A summary of countries conferring E-1 and/or E-2 status: Treaties of Friendship, Commerce, and Navigation (or their equivalent) conferring both E-1 and/or E-2 status exist between the United States and the following countries: • Argentina • Estonia • Liberia • South Korea • Australia • Ethiopia • Luxembourg • Spain • Austria • Finland • Macedonia • Suriname • Belgium • France • Mexico • Sweden Netherlands (including • Bolivia • Germany • Aruba and Netherlands • Switzerland Antilles) • Bosnia & • Honduras • Norway • Taiwan, R.O.C. Herzegovina • Iran • Oman • Thailand • Canada • Ireland • Pakistan • Togo • Chile • Israel • Paraguay • Turkey United Kingdom • Colombia • Italy • Philippines • (including Gibraltar) • Costa Rica • Japan • Poland • Yugoslavia • Croatia • Jordan • Singapore • Denmark • Latvia • Slovenia Treaties of Friendship, Commerce, and Navigation conferring only E-1 treaty trader status © 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

57


exist with the following countries: • Brunei • Greece

• Israel

Bilateral Investment Treaties conferring only E-2 treaty investor status exist with the following countries: • Albania • Czech Republic • Mongolia • Armenia • Ecuador • Morocco • Azerbaijan • Egypt • Panama • Bahrain • Georgia • Romania • Bangladesh • Grenada • Senegal • Bulgaria • Jamaica • Slovak Republic • Cameroon • Kazakhstan • Sri Lanka • Congo, Dem. Rep. • Kyrgyzstan • Trinidad & Tobago (Kinshasa) • Lithuania • Tunisia • Congo (Brazzaville) • Moldova • Ukraine

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

58


§ 3.8 SCHEDULED PROFESSIONS ELIGIBLE FOR TN STATUS Profession GENERAL PROFESSIONS ♦Accountant ♦Architect ♦Computer Systems Analyst ♦Disaster Relief Insurance Claims Adjuster (Claims Adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) ♦Economist ♦Engineer ♦Forester ♦Graphic Designer ♦Hotel Manager ♦Industrial Designer ♦Interior Designer ♦Land Surveyor ♦Landscape Architect ♦Lawyer (including Notary in the province of Quebec)

Qualifications

Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A. Baccalaureate or Licenciatura Degree; or state/provincial license Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate and three years’ experience Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years’ experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree; or state/provincial license Baccalaureate or Licenciatura Degree; or state/provincial license Baccalaureate or Licenciatura Degree; or post-secondary diploma and three years’ experience Baccalaureate or Licenciatura Degree in hotel/restaurant management; or post-secondary diploma or post-secondary certificate in hotel/restaurant management and three years’ experience in hotel/restaurant management Baccalaureate or Licenciatura Degree; or post-secondary diploma or post-secondary certificate, and three years’ experience Baccalaureate or Licenciatura Degree; or post-secondary diploma or post-secondary certificate, and three years’ experience Baccalaureate or Licenciatura Degree or state/provincial/federal license Baccalaureate or Licenciatura Degree L.L.B., J.D., L.L.L., B.C.L., or Licenciatura degree (five years); or membership in a state/provincial bar

M.L.S. or B.L.S. (for which another Baccalaureate or Licenciatura degree was prerequisite) Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential ♦Management Consultant attesting to five years’ experience as a management consultant, or five years’ experience in a field of specialty related to the consulting agreement ♦Mathematician Baccalaureate or Licenciatura Degree (including Statistician) ♦Librarian

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

59


♦Range Manager/Range Conservationist ♦Research Assistant (working in a postsecondary educational institution) ♦Scientific Technician/ Technologist ♦Social Worker ♦Sylviculturist (including Forestry Specialist) ♦Technical Publications Writer ♦Urban Planner (including Geographer) ♦Vocational Counselor

Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree, or post-secondary diploma or post-secondary certificate, and three years’ experience Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree

MEDICAL/ALLIED PROFESSIONALS D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental ♦Dentist or state/provincial license ♦Dietitian Baccalaureate or Licenciatura Degree; or state/provincial license ♦Medical Laboratory Technologist Baccalaureate or Licenciatura Degree; or post-secondary diploma or (Canada)/Medical post-secondary certificate, and three years’ experience Technologist (Mexico and the United States) ♦Nutritionist Baccalaureate or Licenciatura Degree ♦Occupational Therapist Baccalaureate or Licenciatura Degree; or state provincial license ♦Pharmacist Baccalaureate or Licenciatura Degree; or state provincial license ♦Physician (teaching or M.D., Doctor en Medicina; or state/provincial license research only) ♦Physiotherapist/Physical Baccalaureate or Licenciatura Degree; or state/provincial license Therapist ♦Psychologist State/provincial license; or Licenciatura degree ♦Recreational Therapist Baccalaureate or Licenciatura Degree ♦Registered Nurse State/provincial license or Licenciatura degree ♦Veterinarian D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license SCIENTISTS ♦Agricultural (including Agronomist)

Baccalaureate or Licenciatura Degree

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

60


♦Animal Breeder ♦Animal Scientist ♦Apiculturist ♦Astronomer ♦Biochemist ♦Biologist ♦Chemist ♦Dairy Scientist ♦Entomologist ♦Epidemiologist ♦Geneticist ♦Geologist ♦Geochemist ♦Geophysicist (including Oceanographer in Mexico and the United States) ♦Horticulturist ♦Meteorologist ♦Pharmacologist ♦Physicist (including Oceanographer in Canada) ♦Plant Breeder ♦Poultry Scientist ♦Soil Scientist ♦Zoologist TEACHERS ♦College ♦Seminary ♦University

Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree Baccalaureate or Licenciatura Degree

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

61


§ 3.9 SAMPLE DOCUMENTATION IN SUPPORT OF O-1 VISA (PRINTED ON SIGNATOR’S LETTERHEAD) (Date) To Whom It May Concern: I write this letter to support the visa petition on behalf of Mr./Ms. ___________. Mr./Ms. ___________, has made significant contributions to the field of ___________. I. Identify yourself by name and title, and provide evidence of your ability to review and evaluate the applicant’s contribution; append your resume or C.V., and briefly discuss the specific area of your expertise that qualifies you to comment. II. Describe how you came to know the applicant, any relationship with him/her and your knowledge of his/her work. Briefly review what you know of his/her career and the focus of his/her work in [field]. III. Provide a detailed description of his/her major contributions; this should include the major significance of any contribution in specific and simple to understand terms (i.e., What can we do now that we couldn’t do before? What did not exist before? What had never been done before?). If appropriate, discuss future implications and potential applications of his/her achievements. Cite his/her papers published (or any other type of extraordinary achievement or recognition) in this area and comment on the publication of this work within the community. Please explain to the best of your ability how the applicant’s past work (research or any kind of work) relates to his/her current position with his/her current employer. IV. Conclude with a statement evaluating the quality of this [achievement], and of the applicant’s work and a statement indicating that the individual is among the top in the field.

© 2016 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.

62


Littler on I-9 Compliance and Work Authorization