Business Immigration in the United States: overview

A Q&A guide to business immigration in United States.

This Q&A gives an overview of the key factors affecting business immigration, including information on the jurisdiction's sources of immigration law; relevant government entities; requirements for unsponsored and sponsored immigration; requirements for sponsors; civil and criminal penalties for sponsors; common issues and concerns; dependants; settlement and citizenship; recent trends and proposals for reform.

To compare answers across multiple jurisdictions, visit the Business Immigration Country Q&A tool.

The Q&A is part of the global guide to business immigration. For a full list of jurisdictional Q&As visit www.practicallaw.com/immigration-guide.

Anastasia Tonello and Murty Gollakota, Laura Devine Attorneys LLC
Contents

Anastasia Tonello, Murty Gollakota and Ashley Puscas, Laura Devine Attorneys LLC

 

Relevant governmental entities

1. What are the relevant government entities (agencies, departments, branches, bodies, and so on) relating to immigration in your jurisdiction?

The US Department of Homeland Security presides over numerous agencies with immigration functions including the:

  • US Citizenship and Immigration Services (UCSIC).

  • US Immigration and Customs Enforcement (ICE).

  • US Customs and Border Protection.

In addition, the US Department of Homeland Security works in conjunction with the US Department of State and the US Department of Labor in administering and enforcing immigration laws.

Administration

USCIS. The USCIS is the primary administrative body overseeing immigration services and benefits and is responsible for processing:

  • Non-immigrant and immigrant visa petitions.

  • Permanent residence applications.

  • Naturalisation applications.

  • Applications for asylum.

The Student Exchange and Visitor Program (SEVP). SEVP is under the jurisdiction of ICE and administers and monitors student and training visa programmes.

Department of State. Working alongside the Department of Homeland Security, the Department of State administers US immigration benefits at US Consular posts abroad. Specifically, the Office of Visa Services in the Consular Affairs Bureau of the Department facilitates the processing of non-immigrant and immigrant visas to the US by the US Consular posts.

Office of Foreign Labor Certification (OFLC). The OFLC is in the jurisdiction of the Department of Labor and processes labour certification applications for employers seeking to bring foreign workers into the US. It grants certifications if employers can demonstrate that there is a lack of willing and qualified US workers who are able to perform the work at wages that meet or exceed the prevailing wage paid for the occupation in the area of intended employment.

Enforcement

ICE. ICE is the primary investigation and enforcement agency of the US Department of Homeland Security. Among other things, ICE is responsible for enforcing immigration laws within the US.

US Customs and Border Protection is another enforcement agency in the US Department of Homeland Security that is responsible for apprehending individuals attempting to enter the US illegally at the border or through US ports.

Executive Office for Immigration Review (EOIR). EOIR is within the jurisdiction of the US Department of Justice and conducts removal proceedings, which are administrative court proceedings to determine removability of foreign nationals within the US. The immigration courts and the Board of Immigration Appeals, which hears appeals from immigration courts, are both parts of EOIR.

The Office of Special Counsel for Immigration Related Unfair Employment Practices (part of the Department of Justice's Civil Rights Division) protects immigrants and other workers from employment discrimination based upon citizenship status, national origin, language, accent or similar factors.

Wage and Hour Division (WHD). The WHD is a part of the Department of Labor and is responsible for:

  • Enforcing the Migrant and Seasonal Agricultural Worker Protection Act and a number of employment standards and worker protections as provided in immigration-related statutes.

  • Administering and enforcing the prevailing wage requirements of certain work visas and labour condition applications.

Legislative

Congress. Congress has power over immigration issues (Article 1, section 8, US Constitution). Laws established by Congress grant departments, such as the Department of Homeland Security and its agencies, the authority to administer and enforce immigration laws. These departments and agencies can establish regulations to further administer and enforce immigration laws.

US court system. Federal district courts, US courts of appeals, and ultimately the US Supreme Court, interpret US immigration law in instances of legal dispute.

 

Sources and conflicts of law

Sources of law

2. What are the principal sources of law relating to immigration in your jurisdiction?

Domestic statutes, rules and regulations

US Code (USC)

The USC is a compilation and codification of the general and permanent federal laws of the US, including immigration laws. The backbone of this code is the Immigration and Nationality Act (Title 8, USC).

The Code of Federal Regulations (CFR)

CFR is the codification of the general and permanent rules and regulations

(sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the US federal government. The sections of the CFR that address immigration include Titles 6, 8 and 22 of the CFR.

Case law

The following courts interpret the application of immigration laws in instances of legal disputes:

  • Federal district courts.

  • US courts of appeal.

  • US Supreme Court.

International law and international treaties

Chile and Singapore Free Trade Agreements. These free trade agreements contain provisions allowing for the temporary entry of business professionals into the US. To accommodate these agreements, the H-1B1 visa was created; 1,400 visas to Chilean professionals and 5,400 visas to Singaporean nationals are provided yearly.

Australia-United States Free Trade Agreement. As a result of this agreement, Congress enacted a law which created the E-3 visa category; 10,500 visas for Australian professionals are provided yearly.

North American Free Trade Agreement. This free trade agreement resulted in the creation of the TN visa, which permits certain Canadian and Mexican professionals to work in the US. Appropriate professions include accountants, lawyers, engineers, scientists, pharmacists and teachers (see Question 5).

E-1 and E-2 Treaty Investor visas. The E-1 and E-2 visas allow nationals of a country with which the US maintains a treaty of commerce and navigation to enter the US to engage in international trade or invest in a US business. Company employees can also qualify for these visas (see Question 5).

Conflicts of law

3. What potential conflicts (if any) arise between the various sources of law?

Violation of the supremacy clause

Many state governments have enacted their own immigration laws in disagreement with federal immigration laws and regulations. These laws have been challenged in courts as a violation of the US Constitution's supremacy clause, which states that the federal government alone has the jurisdiction to enact laws affecting federal issues such as immigration.

Section (g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Apart from these conflicts between federal and state governments, the federal government has developed partnerships with local law enforcement in various states. Local law enforcement acts as agents of the federal government by enforcing US immigration laws. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 introduced section 287(g) (performance of immigration officer functions by state officers and employees) to the Immigration and Nationality Act. The Immigration and Nationality Act allows the:

  • Local law enforcement to assume federal responsibility.

  • Director of US Immigration and Customs Enforcement to enter into agreements with state and local law enforcement agencies to permit designated officers to perform immigration law enforcement.

 

Business immigration

Unsponsored business-related immigration

4. What are the primary options available for unsponsored work and investment in your jurisdiction?

Self-employment

Non-immigrant work visas in the US require US-employer sponsorship, or a contract to perform services for a US employer. There is no visa specific to individuals who are self-employed. Arguably, the E-2 non-immigrant visas are available to self-employed individuals if they (see Question 3, Investors):

  • Have a corporate presence in the US.

  • Can demonstrate an employer-employee relationship.

Entrepreneurs

To date, there is no non-immigrant work visa specific to entrepreneurs. In February 2012, US Citizenship and Immigration Services launched the entrepreneur in residence programme (EIR). The programme optimises existing visa categories used by entrepreneurs to provide a clearer and more consistent procedure which is aligned with business realities. Therefore, an entrepreneur interested in entering the US for the purposes of starting a business as a non-immigrant must enter through an existing E-2 non-immigrant visa category (see Question 3, Investors).

Investors

The E-2 non-immigrant classification allows a national of a treaty country (that is, a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US when investing a substantial amount of capital in a US business. Certain employees of these investors may also be eligible for this classification.

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the US maintains a treaty of commerce and navigation.

  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide commercial or entrepreneurial enterprise in the US, which is more than marginal depending on the type of business.

  • Be seeking to enter the US solely to develop and direct the investment enterprise. To prove this, the investor must either:

    • own at least 50% of the enterprise; or

    • have operational control through a managerial position or other corporate device.

Qualified treaty investors and employees are allowed a maximum initial stay of two years. Requests for extension of stay may be granted in periods of up to two years each. There is no maximum limit to the number of extensions an E-2 non-immigrant may be granted. However, all E-2 non-immigrants must maintain an intention to depart the US when their status expires or is terminated.

Business visitors

A visitor may qualify for a B-1 visa if he will be participating in business activities of a commercial or professional nature in the US, including, but not limited to:

  • Consulting with business associates.

  • Travelling for a scientific, educational, professional or business convention or conference on a specific date.

  • Settling an estate.

  • Negotiating a contract.

  • Participating in short-term training.

  • Transiting through the US.

  • Deadheading (that is, complete a trip without paying passengers or freight. Certain air crewmen may enter the US as deadhead crew with a B-1 visa).

To be eligible to obtain a B-1 visa a visitor must demonstrate that he:

  • Is proposing to enter the US for business of a legitimate nature.

  • Plans to remain for a specific limited period of time.

  • Has the funds to cover the expenses of the trip and the stay in the US.

  • Has the following:

    • a residence outside the US which he has no intention of abandoning;

    • other binding ties which will ensure the visitor's return abroad at the end of the visit.

  • Is otherwise admissible to the US, in that he or she does not fall under one of the inadmissibility grounds which include:

    • health-related grounds;

    • criminal and related grounds;

    • security and related grounds.

Visa waiver programme (VWP)

The VWP allows citizens of participating countries to travel to the US for business (or pleasure) without a visa for stays of 90 days or less. The requirements for VWP are similar to the B-1 and the B-2 visas (see Questions 4 and 10). For a list of all counties see https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.

The VWP is now restricted for dual nationals of Iran, Iraq, Sudan and Syria. These individuals must seek a visa or obtain a waiver. Individuals who have travelled to Iran, Iraq, Libya, Somalia, Yemen, Sudan and Syria on or after 1 March 2011 are also restricted.

Sponsored business-related immigration

5. What are the options available for sponsor-based employment in your jurisdiction?

Types of sponsor-based employment visas

The following are the types of sponsor-based employment visas in the US:

  • E-1 visa.

  • E-3 visa.

  • H1-B visa.

  • H-2A visa.

  • H-2B visa.

  • H-3 visa.

  • L-1A visa.

  • L-1B visa.

  • O-1 visa.

  • P-1A visa.

  • P-1B visa.

  • P-2 visa.

  • P-3 visa.

  • R-1 visa.

  • TN visa.

  • Education and cultural exchange visas.

General requirements

E-1. The E-1 non-immigrant classification allows a national of a treaty country (that is, a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organisation may also be eligible for this classification.

To qualify for E-1 classification, the applicant must:

  • Be a national of a country with which the US maintains a treaty of commerce and navigation.

  • Carry on substantial trade.

  • Carry on principal trade between the US and the same treaty country.

E-3. The E-3 classification applies only to nationals of Australia. An individual must be coming to the US solely to perform services in a specialty occupation. The specialty occupation requires:

  • Theoretical and practical application of a body of knowledge in professional fields.

  • A bachelor's degree (or its equivalent) as a minimum for entry into the occupation in the US.

To qualify for an E-3 visa, an applicant must:

  • Be a national of Australia.

  • Have a legitimate offer of employment in the US.

  • Possess the necessary academic or other qualifying credentials.

  • Fill a position that qualifies as a specialty occupation.

H-1B. The H-1B classification applies to individuals who wish to perform services as follows:

  • Services in a specialty occupation (H-1B1). All of the following requirements must be satisfied:

    • the position must require the applicant to possess at least a bachelor's, a higher degree or its equivalent;

    • the degree requirement for the position is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;

    • the employer normally requires a degree or its equivalent for the position;

    • the nature of the specific duties is so specialised and complex that the knowledge required to perform them is usually associated with obtaining a bachelor's or higher degree.

  • Services of exceptional merit and ability relating to a Department of Defence (DOD) co-operative research and development project (H-1B2). All of the following requirements must be satisfied:

    • the co-operative research and development project (or a co-production project) is provided for under a government-to-government agreement administered by the US Department of Defence;

    • a bachelor's or higher degree, or its equivalent, is required to perform the assigned duties.

  • Services as a fashion model of distinguished merit or ability (H-1B3). All of the following requirements must be satisfied:

    • the position/services must require a fashion model of prominence;

    • the applicant must be a fashion model of distinguished merit and ability.

The H-1B visa has an annual cap of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a US master's degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at institutions of higher education or affiliated or related non-profit entities, non-profit research organisations, or government research organisations are not subject to the cap.

H-2A. The H-2A programme allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the US to fill temporary agricultural jobs.

To qualify for H-2A non-immigrant classification, the petitioner must satisfy all of the following:

  • Offer a job that is of a temporary or seasonal nature.

    • Demonstrate that there are not sufficient US workers who are able, willing, qualified, and available to do the temporary work.

    • Show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed US workers.

    • Submit with the H-2A petition, a single valid temporary labour certification from the US Department of Labor.

H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A programme.

H-2B. The H-2B classification allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the US to fill temporary non-agricultural jobs. H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B programme.

To qualify for H-2B non-immigrant classification, the petitioner must

prove all of the following:

  • There are not enough US workers who are able, willing, qualified, and available to do the temporary work.

    • The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers.

    • Their need for the prospective worker's services or labour is temporary, regardless of whether the underlying job can be described as temporary.

There is a statutory cap on the total number of foreign individuals who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year. Currently the H-2B cap set by Congress is 66,000 per fiscal year, out of which:

  • 33,000 allocated for employment beginning in the first half of the fiscal year (1 October to 31 March).

    • 33,000 allocated for employment beginning in the second half of the fiscal year (1 April to 30 September).

H-3. The H-3 non-immigrant visa category allows foreign nationals coming temporarily to the US as either a:

  • Trainee to receive training in any field of endeavour, other than graduate medical education or training, that is not available in the foreign national's home country.

    • Special education exchange visitor who will participate in a special education exchange visitor training programme that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

I visa category for foreign media representatives. An individual can apply for the I visa category if he:

  • Represents a foreign information media outlet (including press, radio, film, or other foreign information media).

    • Is coming to the US to engage solely in this profession.

    • Has a home office in a foreign country.

Occupations under this category include reporters, film crews, editors, and similar occupations.

L-1A. The L-1A non-immigrant classification allows a US employer to transfer an executive or a manager from one of its affiliated foreign offices to one of its offices in the US. This classification also allows a foreign company that does not yet have an affiliated US office to send an executive or manager to the US with the purpose of establishing one.

To qualify for L-1 classification in this category, the employer must:

  • Have a qualifying relationship with a foreign company (such as a parent company, branch, subsidiary, or affiliate).

    • Currently be doing business, or anticipate doing business as an employer in the US and in at least one other country directly or through a qualifying organisation for the duration of the beneficiary's stay in the US as under an L-1A visa. While the business must be viable, there is no requirement that it be engaged in international trade.

    • Have employed the employee as an executive or manager or in a specialised knowledge position for one continuous year in the three years preceding the filing of the petition.

For foreign employers seeking to send an employee to the US as an executive or manager to establish a new office, the employer must also show both that:

  • He has secured sufficient physical premises to house the new office.

    • The intended US office will support an executive or managerial position within one year of the approval of the petition.

L-1B. The L-1B non-immigrant classification allows a US employer to transfer employees with specialised knowledge relating to the organisation's interests from one of its affiliated foreign offices to one of its offices in the US. This classification also enables a foreign company which does not yet have an affiliated US office to send employees with specialised knowledge to the US to help establish one.

To qualify for L-1B classification, the employer must:

  • Have a qualifying relationship with a foreign company (such as a parent company, branch, subsidiary, or affiliate).

    • Currently be doing business, or anticipate doing business as an employer in the US and in at least one other country directly or through a qualifying organisation for the duration of the beneficiary's stay in the US as an L-1B. While the business must be viable, there is no requirement that it be engaged in international trade.

    • Have employed the employee as an executive or manager or in a specialised knowledge position for one continuous year in the three years preceding the filing of the petition.

For foreign employers seeking to send an employee with specialised knowledge to the US to be employed in a qualifying new office, the employer must show that:

  • The employer has secured sufficient physical premises to house the new office.

    • The employer has the financial ability to compensate the employee and begin doing business in the US.

O-1. The O-1 non-immigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognised nationally or internationally for those achievements.

The O non-immigrant classification comprises the following categories:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

    • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

    • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2's assistance must be an integral part of the O-1A's activity. For an O-1B, the O-2's assistance must be essential to the completion of the O-1B's production. The O-2 worker must have critical skills and experience with the O-1 that cannot be readily performed by a US worker and which are essential to the successful performance of the O-1.

To qualify for an O-1 visa, the beneficiary must both:

  • Demonstrate extraordinary ability by sustained national or international acclaim.

    • Be coming temporarily to the US to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the few people who have risen to the very top of their field of expertise.

Extraordinary ability in the field of arts is equivalent to distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that a person is described as renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognised as outstanding, notable or leading in the motion picture and/or television field.

P-1A. The P-1A classification applies if the beneficiary is coming to the US temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognised level of performance.

As an individual athlete, the beneficiary must be coming to the US to participate in an individual event, competition or performance in which they are internationally recognised with a high level of achievement. This must be evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned, leading or well known in more than one country.

As part of an athletic team, the beneficiary must be coming to the US to participate in team events and must have achieved significant international recognition in the sport. The event in which the team is participating must be distinguished and require the participation of athletic teams of international recognition

P-1B. The P-1B classification applies if the beneficiary is coming to the US temporarily to perform as a member of an entertainment group that has been recognised internationally as outstanding in the discipline for a sustained and substantial period of time.

The entertainment group must be internationally recognised, having a high level of achievement in its field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential. Individual entertainers not performing as part of a group are not eligible for this visa.

P-2. The P-2 classification applies if the beneficiary is coming temporarily to perform as an artist or entertainer, individually or as part of a group, under a reciprocal exchange programme between an organisation in the US and an organisation in another country.

An individual must be an artist entering the US through a government recognised reciprocal exchange programme. In addition, the individual must possess skills comparable to those of the US artists and entertainers taking part in the programme outside the US.

P-3. The P-3 classification applies if the beneficiary is coming temporarily to perform, teach or coach artists or entertainers, individually or as part of a group, under a programme that is culturally unique.

To obtain a P-3 visa, the applicant must be coming to the US either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, the applicant must be coming to the US to participate in a cultural event or events which will further the understanding or development of their art form. The programme may be of a commercial or non-commercial nature.

R-1. An R-1 is classification for foreign nationals who are coming to the US temporarily to be employed at least part time (average of at least 20 hours per week) by a non-profit religious organisation in the US (or an organisation which is affiliated with the religious denomination in the US) to work as a minister or in a religious vocation or occupation.

To qualify, the foreign national must have been a member of a bona fide non-profit religious organisation in the US for at least two years immediately before the filing of the petition.

TN. The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the US, Canada and Mexico. The TN non-immigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities at a professional level.

Among the types of professionals who can seek admission as TN non-immigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. An individual may be eligible for TN non-immigrant status, if:

  • He or she is a citizen of Canada or Mexico.

    • He or she is qualified to practise in the profession in question.

    • He or she has a prearranged full-time or part-time job with a US employer.

    • The profession qualifies under the regulations.

    • The position in the US requires a NAFTA professional.

Education and cultural exchange visas. There are two non-immigrant visa categories for persons who want to participate in exchange visitor programmes in the US:

  • The J non-immigrant visa which applies to educational and cultural exchange programmes designated by the Department of State, Bureau of Consular Affairs.

    • The Q non-immigrant visa which applies to international cultural exchange programmes designated by Citizenship and Immigration Services (USCIS).

The J non-immigrant visa category is for individuals approved to participate in work and study-based exchange visitor programmes. Participants are integral to the success of the programme.

The Q-1 non-immigrant visa is available to individuals seeking to participate in an international cultural exchange programme.

The Q non-immigrant exchange programme is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of the individual's home country with the US.

Lengths of leave

E-1. The initial period of stay is granted for a maximum of two years.

E-3. The initial period of stay is granted for a maximum of two years.

H-1B. The initial period of stay is granted for a period of up to three years.

H-2A. Generally, USCIS may grant H-2A classification for up to the period of time authorised on the temporary labour certification.

H-2B. Generally, USCIS may grant H-2B classification for up to the period of time authorised on the temporary labour certification.

H-3. If the petition is approved, the trainee may be allowed to remain in the US for up to two years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the US for up to 18 months.

I visa category for foreign media representatives. Admission as a non-immigrant is generally authorised for the duration of status (annotation D/S is placed in the individual's passport upon entry).

L-1A. Qualified employees entering the US to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years.

L-1B. Qualified employees entering the US to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years.

O-1. The initial period of stay under the O-1 visa is granted for a maximum period of three years.

P-1A. As both an individual athlete and as a part of a team, the initial period of stay granted is the time needed to complete the event, competition or performance, not to exceed five years. Essential support personnel are also granted an initial period of stay to complete the event, activity, or performance, and this period may not exceed one year.

P-1B. P-1B status is granted for an initial period to complete the event, competition or performance, not to exceed one year.

P-2. P-2 status is granted for an initial period to complete the event, competition or performance, not to exceed one year.

P-3. P-3 status is granted for an initial period to complete the event, competition or performance, not to exceed one year.

R-1. R-1 status is granted for an initial period of admission of up to 30 months.

TN. The TN visa is initially granted for a period of up to three years.

Education and cultural exchange visas. J-1 visitors are admitted for the duration of status and may remain in the US until the end of their exchange programme. Q-1 visitors may remain in the US for up to 15 months.

Extensions for each route

E-1. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 non-immigrant may be granted. All E-1 non-immigrants, however, must maintain an intention to depart the US when their status expires or is terminated.

E-3.Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-3 non-immigrant may be granted. However, all E-3 non-immigrants must intend to depart the US when their status expires or is terminated.

H-1B.Extensions may be extended, but generally cannot extend beyond a total of six years. However, certain exceptions apply if the employee has reached certain stages in the green card process.

H-2A. H-2A classification may be extended for qualifying employment in increments of up to one year each. A new, valid, temporary labour certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is three years.

H-2B. H-2B classification may be extended for qualifying employment in increments of up to one year each. A person who has held H-2B non-immigrant status for a total of three years must depart and remain outside the US for an uninterrupted period of three months before seeking readmission as an H-2B non-immigrant.

H-3. The H-3 cannot be extended beyond the 2 year maximum.

I visa category for foreign media representatives. The visa holder does not need to apply for an extension of stay as long as he continues working for the same employer in the same information medium.

L-1A. For all L-1A employees, requests for extension of stay may be granted in increments of up to two years, until the employee has reached the maximum limit of seven years.

L-1B. For L-1B employees, requests for extension of stay may be granted in increments of up to two years, until the employee has reached the maximum limit of five years.

O-1.Extensions of stay are granted in increments of one year.

P-1A. Individual athletes can apply for extensions of stay in increments of up to five years to continue or complete the event, competition or performance.

Individuals applying as a part of a team can apply for extensions in increments of up to one year in order to continue or complete the event, competition or performance.

Extensions of stay for essential personnel are granted in increments of up to five years in order to continue or complete the event, competition or performance. Total stay is limited to ten years.

P-1B. Extensions of stay are granted in increments of up to one year in order to continue or complete the event, competition or performance.

P-2. Extensions of stay are granted in increments of up to one year in order to continue or complete the event, competition or performance.

P-3. Extensions of stay are granted in increments of up to one year in order to continue or complete the event, competition or performance.

R-1. Extensions may be granted for up to an additional 30 months. The religious worker's total period of stay in the US in R-1 classification cannot exceed five years.

TN. Extension of status is granted so long as the terms and conditions of the TN visa remain valid.

Education and cultural exchange visas.The J can be extended to the program's maximum length, which is determined based on the program category and the program sponsor's designation. The Q visa cannot be extended.

Requirements for sponsors

 
6. What are the requirements for becoming a sponsor of employment-based migrants and what are the role and reporting duties of sponsors?

Requirements to become a sponsor

Any employer can be a visa sponsor. Employers sponsoring L or E visas must meet certain requirements (see Question 5, General requirements).

Role of sponsors

Employers must sign the forms and petition on behalf of the employee. Employers may be required to pay the filling fees, and, if they terminate the employment, may be required to pay the reasonable costs of the employee's return abroad. If the employer has made attestations regarding the wage, work location and/or job description, then any changes should be reported to USCIS.

Reporting duties of sponsors

All employers must verify that each individual who is hired by them after 6 November 1986 is eligible for employment in the US, even if the individual is a US citizen. Failure to do so can result in severe penalties against the employer. To verify that an individual is eligible for employment, the employer must complete a copy of Form I-9 (Employment Eligibility Verification) for each employee. Form I-9 is issued by Citizenship and Immigration Services. Completing Form I-9 includes an:

  • Employee's attestation of work authorisation.

  • Employer's review of the documents presented by that employee to demonstrate identity and work authorisation.

The employee and employer must both provide information and signatures as indicated on the form.

The Handbook for Employers which provides guidance on completing Form I-9 (Employment Eligibility Verification Form), can be found at www.uscis.gov/files/form/m-274.pdf.

Civil and criminal penalties for sponsors

 
7. What are the types of civil and criminal penalties that sponsors may face for non-compliance with the rules?

There are many ways in which an employer can incur liability under Immigration and Naturalization Act (INA). Depending on the violations, an employer may face civil and criminal sanctions.

Civil penalties

It is illegal for employers to hire new workers without first performing the requisite employment verification procedures (see Question 3). In some instances, employers may be held liable for accepting illegal or fraudulent documentation of a worker's employment eligibility.

In addition, a US employer hiring an H-1B employee must pay the employee the prevailing wage based on the job description and location, or the actual wage of similarly situated employees, whichever is higher. If the Department of Labor determines that the employee was not paid the higher of two wages, the employer may be liable for back wages and, in some instances, civil penalties.

Criminal penalties

The criminal penalties would depend on the scope of the violations.

Common issues or concerns for business immigration

 
8. What common issues or concerns may arise under business immigration in your jurisdiction?

There have been many calls to reform the US business immigration system, including everything from further limiting it to further expanding it. Supporters of expansion point to the possible economic benefits while opponents refer to the lack of available jobs for American citizens.

 

Dependants

9. What persons qualify as dependants (for example, family members)? What are the general requirements and restrictions for bringing dependants into your jurisdiction for sponsored and unsponsored business-related immigration?

Persons qualifying as dependants

Spouses and children (under 21) of the beneficiaries of non-immigrant visas are eligible to enter the US on dependant visas. With the repeal of the Defense of Marriage Act, same sex spouses now also qualify as dependants.

General requirements and restrictions

While most dependant visa classifications permit dependants' employment authorisation in the US, some do not (for example O-1 and O-3 visas).

In 2015, the Citizenship and Immigration Services announced that it would extend eligibility for employment authorisation to H-4 dependent spouses of an H-1B visa holder when the H-1B holder is seeking Lawful Permanent Resident status. The H-1B holder must have an approved immigrant petition, or have been granted permission to work beyond the six-year H-1B limit because their Permanent Labor Certification application has been pending for 365 days.

 

Settlement and citizenship

10. What is the general time frame and processes for obtaining permanent residence and citizenship in your jurisdiction for sponsored and unsponsored business-related immigration?

General process and time frame for obtaining permanent residence

The US Department of State (DOS) makes available 140,000 employment- based immigrant visas each year. A visa must be available before a person can obtain an employment-based permanent residency, commonly referred to as a "green card". Due to the yearly limitation of visas issued, there are more applicants for permanent residence than there are visa numbers available, often leading to backlogs and wait times of several years before a visa is available and the person can file a permanent residence application or obtain an immigrant visa.

Employment-based permanent residency is divided in the following five preference categories:

  • Priority workers of extraordinary ability (EB-1).

  • Professionals with advanced degrees (EB-2).

  • Skilled and unskilled workers (EB-3).

  • Religious workers (EB-4).

  • Investors (EB-5).

Priority workers of extraordinary ability (EB-1). No specific job offer is required for this class of immigrants. Individuals can file their own petitions with the US Citizenship and Immigration Services (USCIS). Applicants must show extensive documentation of sustained national or international acclaim and recognition in their field of expertise. The following individuals are eligible for an EB-1 visa:

  • Outstanding professors and researchers with at least three years' experience in teaching or research recognised internationally.

  • Certain executives and managers of multinational companies who have been employed for at least one of the preceding three years with a qualified foreign company in a managerial or executive role.

Professionals with advanced degrees (EB-2). The following individuals are eligible for an EB-2 visa:

  • Individuals with graduate-level or professional degrees.

  • Individuals with "exceptional ability" in the arts, sciences or business.

A labour certification may not be required if the person's presence will have a national and substantial benefit to the US in the future deriving from their talent or skills.

Skilled and unskilled workers (EB-3). Skilled workers, professionals, or other workers may be eligible for an EB-3 visa. Skilled workers are individuals whose job both:

  • Requires a minimum of two years training or work experience.

  • Is not of a temporary or seasonal nature.

Professionals are individuals who are members of a profession and whose job requires at least a US baccalaureate degree or a foreign equivalent.

The "other workers" subcategory includes individuals performing unskilled labour which:

  • Requires less than two years training or experience.

  • Is not of a temporary or seasonal nature.

Religious workers (EB-4). Ministers and non-ministers in religious vocations and occupations may immigrate to, or adjust status in, the US for the purpose of performing religious work in a full-time compensated position. There is a statutory cap of 5,000 workers who may be issued a special immigrant non-minister religious worker visa during each fiscal year. There is no cap for special immigrant religious workers entering the US solely for the purpose of carrying on the vocation of a minister. The current cut-off date for non- minister religious workers is 30 September 2015. Unless extended by Congress, this portion of the EB-4 eligibility will expire after that date.

Investors (EB-5). This visa is available to individuals investing a minimum of either:

  • US$1 million in a new commercial enterprise.

  • US$500,000 if the enterprise is in an economically-depressed or rural area.

The immigrant investor must create or preserve at least ten full-time jobs for qualifying US workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor's admission to the US as a conditional permanent resident.

General process and time frame for obtaining citizenship

Naturalisation is the process by which US citizenship is granted to a foreign citizen or national after he or she fulfils the requirements established by Congress in the Immigration and Naturalization Act. A person qualifies for naturalisation if he:

  • Has been a permanent resident for at least five years.

  • Is 18 or older at the time of filing.

  • Has lived within the state, or USCIS district with jurisdiction over his or her place of residence, for at least three months before to the date of filing the application.

  • Has had continuous residence in the US as a green card holder for at least five years immediately preceding the date of filing the application.

  • Has been physically present in the US for at least 30 months out of the five years immediately preceding the date of filing the application.

  • Has resided continuously within the US from the date of application for naturalisation up to the time of naturalisation.

  • Can read, write, and speak English and has knowledge and an understanding of US history and government (civics).

  • Is a person of good moral character, attached to the principles of the US Constitution.

  • Is well disposed to the good order and happiness of the US during all relevant periods.

 

Present climate and future legislation

Present climate and trends

11. What are the recent trends, both political and social, that have impacted your jurisdiction with regard to immigration policy and law?

Executive action

In 2014, President Obama announced executive action on immigration. His plan consisted of numerous revised removal priorities, focusing on individuals who pose national security threats rather than law-abiding individuals. It also expanded Deferred Action for Childhood Arrivals (DACA) protections to cover undocumented immigrants who entered the US before 1 January 2010 and were under the age of 16 at entry. In addition, among other things, his plan extended eligibility for deferred action to parents of Americans and Lawful Permanent Residents.

26 states challenged the executive action, alleging that President Obama ignored federal procedures for changing rules and abused his power by sidestepping Congress. The 5th Circuit Court of Appeals ruled in favour of the states. The Obama administration has appealed the ruling, and the Supreme Court is scheduled to rule on the issue in the summer of 2016.

STEM OPT

In March, the US Department of Homeland Security published a new rule for the STEM OPT program, which should take effect 10 May 2016. At that time, STEM OPT will offer an additional 24 months of work authorisation for graduates holding a science, technology, engineering or math degree (the previous rule only offered 17 months). There is an updated list of degrees that apply. Additionally, the new rule imposes other requirements, including:

  • A completed and signed Form I-983 Mentoring and Training Plan.

  • Increased site visits.

  • Commensurate wages and working conditions to these of similarly-situated US employees.

Future legislation

12. Are there any anticipated changes in the immigration laws of your jurisdiction?

Immigration reform is one of the key issues in the 2016 election. The candidates seeking their party's nomination for president have taken opposing stances, from developing a path to citizenship for the 11 million undocumented immigrants already in the US to securing the borders and limiting the amount of people allowed to enter. As much of immigration reform depends on Congressional action, it is likely that these candidates will also run on carefully crafted immigration reform platforms. Therefore, the 2016 election can have a profound effect on the current immigration system.

 

Online resources

Department of Homeland Security

W www.dhs.gov

Description. The US Department of Homeland Security (DHS) oversees all national security interests, including administration and enforcement of US immigration laws. This overarching entity encompasses a number of agencies including the US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (ICE), and the US Customs and Border Protection (CBP). The website for DHS is.

US Citizenship and Immigration Services (USCIS)

W www.uscis.gov

Description. USCIS is the government agency that handles lawful immigration to the US. This body is responsible for processing all non-immigrant and employment-based and family-based immigrant visa petitions, permanent residence applications, naturalisation applications and applications for asylum.

Fees for applications and petitions submitted to USCIS can be found at www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=db029c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD. The USCIS website offers services for before and after a case has been filed including processing times by case type and case status of petitions received by USCIS. Current processing times organised by Service Center or Field Office, can be found at https://egov.uscis.gov/cris/processTimesDisplayInit.do, by following the instructions at the bottom of the page on how to use the available drop down menus.

Information regarding visa application fees, reciprocity fees, and maximum validity periods of visas organised by countries, can be found at http://www.ustraveldocs.com/in/in-niv-visafeeinfo.asp by selecting the relevant country from the drop down menu.

USCIS provides an internet-based system which allows businesses to determine the eligibility of their employees to work in the US. This system, E-Verify, is free and information can be found at www.dhs.gov/e-verify

US Immigration and Customs Enforcement (ICE)

W www.ice.gov

Description. ICE is the principal investigative arm of the DHS, and was formed in 2003 as a unification of the various interior enforcement elements of the former Immigration and Naturalization Service. ICE is charged with enforcing immigration laws within the US.

Student Exchange and Visitor Program (SEVP)

W www.ice.gov/sevis

Description. SEVP, which is under the jurisdiction of the US Immigration Customs and Enforcement, administers and monitors student and training visa programmes.

US Customs and Border Protection (CBP)

W www.cbp.gov

Description. CBP is one of the largest and most complex components of the DHS, and is charged primarily with securing the borders of the US and keeping dangerous individuals and items out of the US. CBP is also responsible for facilitating lawful international trade and travel within the confines of US laws and regulations, including immigration laws.

Department of State (DOS)

W www.state.gov

Description. DOS is the federal executive department of the US which is responsible for international relations. DOS works alongside DHS to administer US immigration benefits at US Consular posts abroad, providing an array of important services to US citizens and to foreigners seeking to visit or immigrate to the US Activities of DOS include US visa services, US passport services, protecting and assisting US citizens living or traveling abroad, assisting US businesses in the international marketplace, co-ordinating and providing support for international activities of other US agencies and many others.

The Department of State lists visa application fees and other visa related fees, by visa type. This list includes immigration-related forms which are submitted to the Department of State and can be found at http://www.ustraveldocs.com/in/in-niv-visafeeinfo.asp.

The Visa Bulletin, published by the Department of State every month, provides information regarding the cut-off dates which govern visa availability in the numerically limited visa categories, as well as other immigrant visa related information. The visa bulletin for the current month, as well as the upcoming month and archived bulletins can be found at http://www.travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

Department of Justice (DOJ)

W www.justice.gov

Description. DOJ and the Executive Office for Immigration Review (EOIR), whose responsibility is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering US immigration laws (www.justice.gov/eoir).

This body is primarily responsible for conducting removal proceedings which determine the removability of foreign nationals within the US. The Board of Immigration Appears (BIA) is the highest administrative body under the jurisdiction of the DOJ, which deals with interpreting and applying immigration laws (www.justice.gov/eoir/biainfo.htm). DOJ also includes the Special Counsel for Immigration Related Unfair Employment Practices. Information regarding free legal service providers can be found by visiting the US Department of Justice Pro Bono Program website at www.usdoj.gov/eoir/probono/states.htm.

Department of Labor (DOL)

W www.dol.gov

Description. DOL is a department of the US federal government which is responsible for occupational safety, wage and hour standards, and many other areas. The DOL houses departments the Office of Foreign Labor Certification (OFLC) and the Wage and Hour Division (WHD), which deal with immigration-related areas.

A list of Frequently Asked Questions (FAQs) found on the Department of Labor website covers a number of topics including the Foreign Labor Certification Processes. These FAQs can be found at http://webapps.dol.gov/dolfaq/dolfaq.asp.

Permanent labour certification processing times, can be found at www.doleta.gov.

Office of Foreign Labor Certification (OFLC)

Wwww.foreignlaborcert.doleta.gov

Description. One arm of the DOL is the Office of Foreign Labor Certification (OFLC), which processes labour certification applications for employers seeking to bring foreign workers into the US.

Wage and Hour Division (WHD)

Wwww.dol.gov/WHD

Description. The WHD is the branch of the DOL that enforces the Migrant and Seasonal Agricultural Worker Protection Act and a number of employment standards and worker protections as provided in immigration related statutes. The website for the WHD is www.dol.gov/WHD.

Social Security Administration

W www.ssa.gov

Description. The Social Security Administration provides some non-citizens with Social Security Numbers, which are important for work.

The Internal Revenue Service (IRS)

W www.irs.gov

Description. The IRS provides tax information for aliens and US citizens, including citizens living abroad, as well as downloadable tax forms and publications. Information for US taxpayers living abroad can be found at www.irs.gov/uac/Contact-My-Local-Office-Internationally.

US embassies

W www.usembassy.gov

Description. A complete list of all US Embassies, Consulates and Diplomatic Missions by geographic region.

I-94 number application

W https://i94.cbp.dhs.gov/I94/request.html

Description. The official website for Non-immigrants to view their admission status, including class and length of admission, as well as his or her I-94 number.



Contributor profiles

Anastasia Tonello, Managing Partner and Global Head of US Immigration

Laura Devine Attorneys

T +1 212 661 5401
F +1 212 661 5405
E anastasia.tonello@lauradevine.com
W www.lauradevine.com

Professional qualifications. New York, US, Attorney (1999); England and Wales, Solicitor (2004).

Areas of practice. US and UK immigration.

Non-professional qualifications. JD, University of Notre Dame; BA, Indiana University.

Professional associations/memberships. American Immigration Lawyers Association; Society of Trust and Estate Practitioners.

Publications. US immigration, European Lawyer Reference, 2013

Murty Gollakota, Senior Associate Attorney

Laura Devine Attorneys

T +1 212 661 5401
F +1 212 661 5405
E murty.gollakota@lauradevine.com
W www.lauradevine.com

Professional qualifications. Illinois, US, Attorney (2006).

Areas of practice. US immigration

Non-professional qualifications. JD, Chicago-Kent College of Law; BS, Virginia Commonwealth University.

Languages. Telugu

Professional associations/memberships. American Immigration Lawyers Association

Publications.

  • US immigration, European Lawyer Reference, 2013


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