Law 6


Temporary Work Visas

The law as passed by Congress provides an alphabet soup of possible work visa options for foreign workers. The requirements for each category are detailed and precise. There is no overarching “work visa” applicable all situations. Restrictions imposed by the law as well as the realities of how specific visa programs are administered must be taken into account in developing a successful strategy for obtaining a lawful U.S. work authorized status. Factors include the type of work to be performed, the foreign worker’s qualifications, and in some case the ownership structure of the employing entity. Some types of visas, including E and TN visas, are based on treaties and are only available to citizens and nationals of specified countries. Other visas are available to all qualified applicants regardless of nationality. Further, timing may also be an important factor as in the case of H-1B and H-2B visas, which are only available at certain times of the year due to quota restrictions. Visas may also be limited a specific maximum duration of stay in the U.S. The maximum possible stay can range from a few months for some types of J-1 visas, to 6 years for the H-1B visa, to a much longer possible timeframe for E-1 and E-2 visas.

The B-1 business visitor visa and visa waiver categories DO NOT provide a U.S. work authorized status. Business visitors can come to the U.S. to sign a contract, to engage in meetings and consultations, or to attend a trade show as an attendee. Domestic employment in positions of a type normally filled on a competitive basis with U.S. workers is not allowed. A business visitor must remain on the foreign employer’s payroll for the duration of his or her stay in the U.S. Business visitors who enter on the visa waiver program must enter with evidence confirming an intent and an ability to depart the U.S. at the end of the stay, which is normally provided in the form of a pre-paid round trip ticket to facilitate a return abroad. Training or after sales service scenarios must be reviewed on a case-by-case basis to determine eligibility.

Law 7


Permanent Residence

Employment-based lawful permanent residence status is allocated through a quota system divided into five separate preference categories. Each year, immigration under the five categories is limited to no more than 140,000 individuals. A per country limitation of 7% means that the process can take longer for persons from certain high immigration countries, including China, India, Mexico and the Philippines. The State Department publishes a monthly visa bulletin listing the wait times for the various preference categories, with specific reference made to those countries whose nationals can expect the process to take longer.

The first preference category includes processes that allow multinational managers, outstanding researchers, and persons of extraordinary ability to obtain lawful permanent residence. These persons are exempt from the labor certification process described below. Also, certain persons of exceptional ability may also qualify under the second preference category for an exemption from the labor certification process if such a waiver is found to be in the national interest.

Except as noted above, the second and third preference categories require a certification from the U.S. Department of Labor confirming that the labor market has been adequately tested and that no U.S. workers were able, available, qualified or willing to take the proposed position. To qualify under the second preference, the job must require at least a master’s degree or alternatively, a bachelor’s degree followed by at least 5 years of progressive job experience. Cases requiring less are allocated to one of two subcategories found under the third preference. There is a third preference subcategory for professional positions requiring a degree or at least two years of work experience as well as a separate subcategory for skilled worker positions that require less than two years of experience.

The fourth preference category allows for the immigration of special immigrants, including certain religious workers. The fifth preference was established to facilitate the immigration of investors who have invested at least $1.8 million in the U.S. and hired at least 10 full-time U.S. workers. For certain targeted employment areas, the required investment amount may be reduced to $900,000.

Law 2


Law Compliance

I-9/ IRCA Compliance

The IRCA (Immigration Reform and Control Act of 1986) established the employer’s requirement to complete a Form I-9 to confirm an employee’s legal right to work in the U.S. within 3 business days of hire. This requirement applies to any employee hired after November 6, 1986. To confirm work authorization, the employer reviews the documents presented by the employee to confirm the person’s identity and employment eligibility. The employer cannot request the production of a specific document. Instead, the employee is free to present documentation from the list promulgated by the Department of Homeland Security, as appropriate to his or her circumstance. A refusal to accept documents of the type listed as acceptably by DHS, or requesting documentation beyond what the law requires, can subject the employer to liability on the basis of national origin discrimination.

Mergers, Acquisitions and Reorganizations

Mergers, acquisitions, spin-offs and other types of reorganizations can impact a company’s ability to continue to employ a foreign worker in a lawful status. The specific nature of the transaction may affect persons in H, L, E or TN status differently. Changes in the corporate structure can also impact the employer sponsored permanent residence process. Involving immigration counsel prior to the execution of the change can maximize the company’s ability to facilitate a smooth transition.

Deemed Exports

Foreign worker access to certain technologies may be deemed to be an export, as this access may lead to the transfer of knowledge to a non-U.S. entity. For some technologies, foreign worker access if freely allowed, while in other cases access may be prohibited. Finally, there are limited cases in which access may only be allowed after an export license has been obtained. The extent to which these restrictions apply can vary based on citizenship, the specific immigration status of the foreign worker. Permanent residents may be treated differently than citizens or nonimmigrant workers regarding these restrictions.


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