TABLE OF CONTENTS BUSINESS IMMIGRATION: LAW & PRACTICE VOLUME 1

Transcription

1 EDITOR S NOTE... vii TABLE OF CONTENTS... xiii PREFACE... xi DEDICATION... v ACKNOWLEDGMENTS...xlv ABOUT THE AUTHORS...xlvii SUBJECT-MATTER INDEX... TABLE OF CASES AND DECISIONS... TABLE OF STATUTES AND CITATIONS... VOLUME 1 CHAPTER ONE: INTRODUCTION...1 I. Purpose and Organization...1 II. Guide to Using the Book...1 CHAPTER TWO: BASIC NONIMMIGRANT CONCEPTS...5 I. Key Considerations...5 A. Employment in the United States vs. Employment Abroad...5 B. Appropriate Intent...8 C. Permanent Residence as Long-Term Employment Authorization...11 II. Obtaining Nonimmigrant Status and Changing Status...12 A. Petition Filing and Adjudication Important Issues for Petition Filing...12 a. Delivery...13 b. Complete Petition Documents...13 (1) Forms and Supporting Documents...13 (2) Eligibility...14 (3) Denial Without RFE or NOID...17 c. Signatures...18 d. Payment...18 e. Form G-28 and Changing Attorney Information...20 f. Premium Processing...22 g. Expedites...25 h. Erroneous Rejection Petition Adjudication...30 a. Standard of Review...31 (1). Burden of Proof...31 (2). Standard of Proof...31 (3). Evidence...32 b. Review by the USCIS Adjudicator...35 (1). RFEs and NOIDs...36 (a). RFEs...37 xiii

2 xiv (b). NOIDs...42 (c). Deadline for Response...43 (d). Response to the RFE or NOID...45 (2). Checking the Status of a Pending Petition or Application...47 (3). Final Decision of the Petition...49 (a). Withholding Adjudication of the Petition...51 (b). Withdrawal Duplicate Approval Notices Appeals and Motions to Reopen...53 a. Appeals...54 b. Motions to Reopen and Motions to Reconsider...56 B. Change of Nonimmigrant Status...60 III. Nonimmigrant Visa Applications...66 A. The Visa Application Process Scheduling a Nonimmigrant Visa Application Interview Paying the Nonimmigrant Visa Application Processing Fee Completing the DS-160, Nonimmigrant Visa Electronic Application Generally Required Documents for Nonimmigrant Visa Applications What to Expect After the Nonimmigrant Visa Application Interview...70 B. Visa Reciprocity...71 C. The Petition Information Management Service...71 D. Administrative Processing...73 E. Visa Application Denials and Refusals...76 F. Third Country National Visa Applications TCNs who may apply for visas in Mexico or Canada TCNs who may not apply for visas in Mexico or Canada TCN visa applications at U.S. consulates in Mexico TCN Visa Applications at U.S. Consulates in Canada Special Considerations...81 a. Possibility of Visa Application Denial and Impact of Administrative Processing Delays...81 b. Mexican Visa Requirements...82 c. Canadian Visa Requirements...83 d. Visa Application Forms...84 IV. Admission to the United States...85 A. Documents Necessary for Application for U.S. Admission...87 B. Form I-94, Arrival/Departure Record Correction of an Erroneous Form I-94 at the Port-of-Entry Return of Form I-94 upon Departure Correction of Departure Record After the Fact...96 C. Waiver of Documentary Requirements...98 D. Deferred Inspection E. Inadmissibility, Expedited Removal, and Withdrawal of the Application for Admission F. DHS Traveler Redress Inquiry Program G. Automatic Revalidation V. Extending Nonimmigrant Status A. Form I B. Common Issues Previous Petition Approval Does Not Guarantee Extension Approval Nunc Pro Tunc Extensions...116

3 xv VI. Accompanying Dependents VII. Maintaining the Status A. Unlawful Presence B. Filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival Record VIII. NSEERS Registration A. Registration at a Port-of-Entry and Notification of Changes B. Appearance Before DHS Office and Re-registration C. Departure Control D. Exemptions and Relief E. Consequences of Failure to Comply with Special Registration Failure to Comply with the Departure Control Requirement F. Strategies IX. Western Hemisphere Travel Initiative and United States Visitor and Immigrant Status Indicator Technology Program A. Western Hemisphere Travel Initiative B. U.S. Visitor and Immigrant Status Indicator Technology Program CHAPTER THREE: VISITORS: B VISAS AND STATUS AND THE VISA WAIVER PROGRAM I. Executive Summary A. Checklist of Requirements B. Documents and Information Necessary to Prepare a Petition C. Checklist of Questions to Ask the Client II. B Visas and Nonimmigrant Status A. Introduction B. Requirements and Interpretations Permitted Activities a. Business Visits (1) Engaging in Commercial Transactions (2) Negotiating Contracts (3) Consulting with Business Associates (4) Litigating (5) Participating in Scientific, Educational, Professional or Business Conventions, Conferences, or Seminars (6) Undertaking Independent Research b. Other Permissible Types of Business Visits (1) B-1 in Lieu of H-1 or H (2) B-1 Status for Personal and Domestic Employees (a) Personal and Domestic Employees of U.S. Citizens Who Reside Abroad (b) Personal and Domestic Employees of U.S. Citizens on Temporary Assignment in the United States (c) Personal and Domestic Employees of Foreign Nationals Who Hold Nonimmigrant Status in the United States (d) Managing Client Expectations: Common Issues with B-1 Visas for Personal and Domestic Employees Key Issues: Managing Client Expectations a. Building and Construction-Related Activities b. Commercial and Industrial Activities c. Payment of Expenses from a U.S. Source d. The B Visa Applicant Is the Beneficiary of an Immigrant Visa Petition...209

4 xvi e. The B Visa Applicant Has Family Members Who Are U.S. Citizens or Lawful Permanent Residents or Who Hold Other Nonimmigrant Status f. Business or Tourist Trips While a Nonimmigrant Petition Is Pending g. B Visa Application by an HIV-Positive Individual C. B Status for Canadian and Mexican Nationals Research and Design Growth, Manufacture, and Production a. Harvester Owners b. Purchasing and Production Managers Marketing a. Market Researchers and Analysts b. Trade Fair and Promotional Personnel Sales a. Sales Representatives and Agents b. Buyers Distribution a. Transportation Operators b. Customs Brokers After-Sales Service General Service a. Professionals b. Commercial Transactions c. Public Relations and Advertising Personnel d. Tourism Personnel e. Tour Bus Operators (1) Admission with Passengers on U.S. Tours That Begin and End in Canada or Mexico (2) Admission with Passengers Unloaded in the United States (3) Admission to Meet Passengers in the United States f. Translators and Interpreters Border Crossing Cards D. Pleasure Visits Common-Law Spouses, Same-Sex Partners, Extended Family Members, and Other Household Members of Foreign Nationals in Other Nonimmigrant Status a. Cohabitating Partners b. Extended Family Members and Other Household Members Amateur Entertainers and Athletes Attending School in B-2 Status E. Additional Permissible Uses of the B Visa Category Visiting University Lecturers and Honoraria Payments Religious, Charitable, and Missionary Activities Employment with an International Fair or Exposition Exhibitor Professional Entertainers Other Situations III. Process A. The Visa Interview Foreign Residence Specific and Limited Duration of the U.S. Visit Sufficient Funds for the U.S. Visit Appropriate Business or Pleasure Activities...265

5 xvii B. Visa Issuance Special Considerations for B Visa Applications Bond for B Visas Double Entry Visas Visa Denial C. Admission to the United States and Maintenance of B Status D. Change of Status from B IV. The Visa Waiver Program A. Requirements and Interpretations VWP Countries Admission Period of 90 Days Machine-readable Passport Enrollment in the Electronic System for Travel Authorization Completion of Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Record Manner of Travel a. Travel by Air and Sea b. Arrival by Land Threats to the Welfare, Health, Safety, or Security of the United States Previous Violation of the Terms and Conditions of Previous VWP Admission Waivers of Rights B. Strategy: B Visa vs. VWP C. Refusal of VWP Admission CHAPTER FOUR: E-1 AND E-2 VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare L-1 Petition C. Checklist of Questions to Ask the Client II. Requirements and Definitions A. Treaty Between the U.S. and the Foreign Country B. Nationality C. Intent to Depart the U.S. upon Termination of Status D. E-1 Treaty Traders E-1 Trade Activities a. Exchange of Goods, Services, or Business Activities b. International Scope of Trade Activities c. Qualifying Trade Activities The Trade Is Substantial The Trade Is Principally Between the United States and the Treaty Country E. E-2 Treaty Investors The Investment Must Be Real a. Possession and Control of the Funds or Assets b. Risk of Investment c. Irrevocable Commitment of the Capital The Investment Must Be Substantial The U.S. Enterprise Must Be Bona Fide The Foreign National Will Have Executive or Supervisory Duties in the United States F. Managing Client Expectations: Increased Scrutiny for Certain Situations Joint Ventures Employees of E-1 and E-2 Entities a. Executive or Supervisory Duties...339

6 xviii b. Essential Duties Substantive Changes of E Status Eligibility and Employment With a Related Corporate Entity E Employees Will Perform Activities Pursuant to a Contract Between a U.S. Entity and Either Foreign Corporation or an E-2 Entity Impact of Labor Disputes on Canadian and Mexican Transferees III. Process A. Preparing the E Visa Application or Petition Form G U.S. Company Support Statement B. E Visa Application vs. E Change of Status Petition Request for Change of Status Canadian and Mexican Citizens C. E Registration and Visa Application at a U.S. Consulate E Registration E Visa Application Form DS-156E a. Part I b. Part II c. Part III D. Admission to the United States E. E Change of Status Petition Filed with USCIS Form I E Supplement Form I IV. Additional Follow-up A. EADs for E Spouses B. E Visa Renewals C. E Extensions D. Change in Duties or Ownership E. Sponsoring an E Nonimmigrant for Permanent Residence Impact of Owner or Majority Shareholder Pursuing Permanent Residence on Other E Employees Moonlighting under EAD CHAPTER FIVE: E-3 VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Interpretations A. Professional Specialty Occupation Assignment in the United States B. Qualification as a Professional Educational Qualifications Equivalence to a University Degree Through Professional Experience Evidence of Licensure C. Australian Citizenship D. Certified Labor Condition Application E. Intent to Depart the United States upon Termination of Status IV. Process...382

7 xix A. Preparing the E-3 Visa Application or Petition U.S. Company Support Statement The Labor Condition Application B. E-3 Visa Application vs. E-3 Change of Status Petition C. E-3 Visa Application at a U.S. Consulate D. Admission to the United States E. E-3 Change of Status Petition Filed with USCIS Form G Form I V. Additional Follow-up A. E-3 Extensions B. E-3 Change of Employer Petitions C. EADs for E-3D Spouses CHAPTER SIX: THE LABOR CONDITION APPLICATION I. Executive Summary II. Required Wage Attestation A. Prevailing Wage A Working Definition When to Determine the Prevailing Wage How to Determine the Prevailing Wage a. Government Determination (1) Using Alternative Source While Awaiting Government Determination (2) Government Determination Based on Employer-Provided Survey (3) Contesting a PWD b. Independent Authoritative Source c. Other Legitimate Source (1) OES Wages (2) Special Case for Prevailing Wages: 212(p)(1) Entities d. Area of Intended Employment e. Similarly Employed Stating the Wage Documentation of the Prevailing Wage B. Actual Wage Changes in the Actual Wage Documenting Establishment of the Actual Wage C. Benefits D. Documenting Payment of Wages E. When the Required Wage Must Be Paid F. Prohibition Against Benching G. Deductions from Wages H. Penalties for Ceasing Employment I. Job for Which Required Wage Must Be Paid III. Working Conditions Attestation IV. Strike or Lockout Attestation V. Notice Attestation VI. Dependents, Willful Violators and TARP Recipients A. Determining Who Is Dependent Single Employer Rule Documenting Dependency Status Changes in Dependency Status...427

8 xx B. Identifying Willful Violators C. Determining When TARP Recipient Provisions Apply D. Exempt H-1Bs E. The Additional Attestations The Non-displacement Attestation a. Definition of Lay Off b. Essentially Equivalent Position c. Documenting the Non-displacement Attestation The Secondary Non-displacement Attestation Recruitment of U.S. Workers Attestation VII. Other Issues A. Supporting Evidence for P Petitions B. Short-term Placements C. Displacement in the Course of a Willful Violation D. Retaliation VIII. Process and Filing A. Registering for and Using the icert System B. The PWDR, Form ETA Parts A Through C Part D C. Preparing the LCA Completing the ETA-9035 Parts A and B Completing the ETA-9035 Parts C Through F Completing the ETA-9035 Part G Completing the ETA-9035 Parts H and I Completing the ETA-9035 Parts J through N D. Filing the LCA and Certification IX. Recordkeeping Requirements A. The Public Access File B. Non-public Records That Must Be Maintained X. Enforcement A. Complaint by Aggrieved Party B. Credible Information Creating Reasonable Cause C. Random Investigations D. If Prevailing Wage Violations Are at Issue E. Statute of Limitations F. Determinations and Hearings G. Appeals H. Remedies CHAPTER SEVEN: H-1B VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Requirements and Interpretations A. Profession and Specialty Occupation Profession Specialty Occupation a. A Degree Is Normally a Minimum Requirement for the Occupation (1). DOL Job Description...473

9 xxi (2). Focus on Job Duties (3). Petitioner s Size and Industry b. A Degree Is Normally Required in the Industry by the Employer, and/or the Job Duties Are Specialized and Complex B. Qualifying for the Specialty Occupation Positions Requiring Licensure a. State Requirements for Licensure vis-à-vis H-1B Eligibility Requirements b. Healthcare Occupations Credentials Evaluations of Foreign Degrees and Three-Year Bachelor s Degrees Experience and Training Equivalent to a Degree a. Professional Experience b. Recognition in the Specialty Occupation C. Numerical Limitation Filing Procedure and Lottery System Prohibition of Multiple Petitions on Behalf of a Single Beneficiary Exemption for Certain Employees of Educational and Non-Profit Institutions Previous H-1B Visa Number Issuance D. Labor Condition Application Attestations and Compliance Requirements a. Labor Disputes and the LCA b. Notice of Filing an LCA c. Benching Provisions and Nontraditional Payment of Wages d. H-1B Dependent Employers Short-term Placement at Other Worksites Enforcement of Compliance with Employer Attestations a. Investigation and Hearing b. Penalties c. Good Faith Compliance d. Relief for Whistleblower H-1B Nonimmigrants E. H-1B Employment Relationship, Termination of the Relationship, and Return Transportation Obligation Right to Control Evidence of the Employment Relationship F. Technical Considerations Agent-Petitioners Emergent Situations, Multiple Worksites, and Multiple Employers Additional Fees a. Exemption from the ACWIA Fee for Certain Employers b. Exemption from the ACWIA Fee in Certain Situations G. Impact of Labor Disputes H. Exemption from Nonimmigrant Intent Requirement I. H-4 Dependents III. Common Issues A. Interrelationship Between F-1 and H-1B Status Practical Training a. Cap-Gap Relief b. International Travel During OPT Month OPT for STEM Degree Students Strategies if the H-1B Petition Is Rejected or Denied B. Change of Employer Petitions and H-1B Portability...580

10 xxii a. Filing While the Beneficiary Is in an Authorized Period of Stay b. Portability from Cap-Exempt to Cap-Subject Employer c. International Travel During Pendency of the H-1B Portability Petition C. Compliance Programs Fraud Detection and National Security (FDNS) Petition Verification by DOS IV. Process A. H-1B Petition Form G Form I Form I Form I-129W H Supplement Support Statement B. RFEs C. Approval Notice and Petition Validity D. Denial, Revocation, and Appeals E. Visa Application H-1B1 Visa Applications Information on Worker Rights DOS Reporting of Violations to DOL F. Admission to the United States Admission of H-4 Dependents in B-2 Status Canadian and Mexican Citizens V. Additional Follow-up A. Amended Petitions B. H-1B Time Limitations AC21 Exemptions from Time Limitations for Beneficiaries Sponsored for Permanent Residence Recapture of H-1B Time C. Extensions Evidence of the Employment Relationship AC21 Extensions a. AC21 Extensions Requesting H-1B Time Recapture b. Appeal of Labor Certification Application and Immigrant Visa Petition for AC21 Extension D. Sponsoring an H-1B Worker for Permanent Residence E. H-1B Petition Withdrawals CHAPTER EIGHT: H-2B VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Requirements and Interpretations A. Temporary Services or Labor One-time Occurrence Seasonal Need Peakload Need Intermittent Need B. Full-time Employment with Employer...650

11 xxiii C. Numerical Limitation D. Temporary Labor Certification Date of Need Prevailing Wage Determination Mandatory Recruiting a. Advertising and Job Order Requirements b. Recruitment Report c. Layoff Provisions d. Document Retention Requirements Role of Attorney or Agent in the Temporary Labor Certification Process Requests for Further Information and Post-Adjudication Audits Appeal of Denied Temporary Labor Certification Applications Employer Attestations a. Normal Terms and Working Conditions b. Impact of FLSA on H-2B Employees c. Enforcement of Compliance With Employer Attestations Supervised Recruitment, Debarment, and Other Penalties for Noncompliance E. Timing Considerations for Filing the H-2B Petition and the Temporary Labor Certification Application F. Multiple Worksites, Multiple Employers, Foreign Employers, and Agent-Petitioners G. Multiple and Unnamed Beneficiaries and Substitution of Beneficiaries H. Prohibition on Fee Payments by H-2B Beneficiaries I. Petitioner Notification Requirements for No-Show, Termination, and Abscondment J. Return Transportation Obligation K. Citizens of Certain Named Countries L. Nonimmigrant Intent M. Temporary Worker Visa Exit Program Pilot III. Managing Client Expectations: Increased Scrutiny and Special Processing for Certain Situations A. The H-2B Nonimmigrant Will Provide Training B. Restrictive Requirements: Professional Certifications, Combination of Occupations, Foreign Languages, and the Business Necessity Justification C. Temporary Labor Certification Applications Filed by Job Contractors D. Tree Planting, Reforestation, and Logging Occupations Temporary Need Temporary Labor Certification Applications Filed by Farm Labor Contractors Filing the Temporary Labor Certification Application E. Professional Athletes F. Entertainers G. Emergency Boilermakers IV. Process A. Prevailing Wage Determination Parts A through C Part D B. Temporary Labor Certification Part B Part C Part D Part E Part F...732

12 xxiv 6. Part G Part H Part I and Appendix B C. H-2B Petition Form G Form I Form I H Supplement Support Statement D. Visa Application E. Admission to the United States Admission of H-4 Dependents in B-2 Status Canadian and Mexican citizens V. Additional Follow-up A. Extensions, Renewals, and Change of Status B. Interruptions to Accrual of H-2B Time C. Sponsoring an H-2B Worker for Permanent Residence CHAPTER NINE: H-3 VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Interpretations A. Nonimmigrant Intent B. General H-3 Training Programs The Training Is Unavailable in the Home Country The Trainee s Role vis-à-vis Positions for U.S. Workers Productive Employment May Only Be Incidental and Necessary to the Training Program Benefit to Trainee in Pursuing a Career Outside the United States Specific Training Program Source of Remuneration and Benefit to the Petitioner Other Considerations a. Size and Nature of the Petitioner s Business b. The Beneficiary Has Education and/or Experience in the Field or a Related Field c. The Beneficiary Previously Received Practical Training in F-1 Status C. Special Education Exchange Visitor Program IV. Managing Client Expectations: Increased Scrutiny in Certain Situations A. Training Programs for Medical Students B. Training Programs for Nurses C. Impact of Labor Disputes V. Preparing the H-3 Petition A. Form G B. Form I C. Form I D. H Supplement E. Support Statement F. Training Program and Index of Exhibits VI. Process...773

13 xxv A. The H-3 Petition B. Visa Application C. Admission to the United States Admission of H-4 dependents in B-2 status Canadian and Mexican Citizens VII. Additional Follow-up A. Extensions, Renewals, and Change of Status H-3 Extensions Change of Status from H B. Sponsoring an H-3 Trainee for Permanent Residence CHAPTER TEN: J-1 VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Application (Filed with J-1 Program Sponsor) C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Interpretations A. Internships and Training Programs B. Special Programs for Certain Nationalities C. Training Programs and Internships vs. Employment D. J-1 Program Sponsors Site Visits of Host Organizations Issuance of Form DS The SEVIS System Detailed Internship or Training Program and Form DS J-1 Program Evaluations Use of Third-Parties by J-1 Sponsors E. Nonimmigrant Intent F. Sufficient Funds IV. Process A. Preparing the J-1 Training Program or Internship Application The Form DS a. Page (1) Participant Information (2) Site of Activity Information (3) Signature Attestations b. Page (1) Training/Internship Placement Plan (2) Sample Experience Confirmation Letters Letter of Offer of Training or Internship Program Declaration Regarding Compliance with Obligations B. Visa Application The SEVIS Fee C. Admission to the United States Canadian Citizens V. Additional Follow-up A. Name and/or Address Changes B. Extensions, Subsequent J-1 Programs, and Program Transfers C. International Travel...822

14 xxvi D. Change of Status E. EADs for J-2 Dependents F. Two-Year Foreign Residence Requirement The Skills List Strategies to Avoid the Foreign Residence Requirement and/or Avoid a Waiver Application a. The Field Is Not on the Skills List for the Foreign National s Home Country b. Only a Related Field Is Stated on the Skills List c. The Foreign National Holds Dual Citizenship or Citizenship and Permanent Residence in Two Different Countries d. Impossibility of Fulfillment G. Waiver of Two-Year Foreign Residence Requirement Exceptional Hardship to U.S. Citizen or Permanent Resident Spouse or Child Fear of Persecution Based on Race, Religion, or Political Opinion Request by an Interested Government Agency (IGA) No Objection Statement from the Home Country s Government H. Sponsoring an J-1 Intern or Trainee for Permanent Residence CHAPTER ELEVEN: L-1 VISAS AND NONIMMIGRANT STATUS I. Executive Summary A. Checklist of Requirements B. Documents and Information Necessary to Prepare L-1 Petition C. Checklist of Questions to Ask Client II. Requirements and Definitions A. Qualifying Relationship B. Qualifying Employment by the Transferee C. Executive, Managerial, or Specialized Knowledge Assignment The L-1A Manager The L-1A Executive The L-1A Function Manager The L-1B Specialized Knowledge Transferee III. Key Issues A. L-1A vs. L-1B: Planning Ahead for Permanent Residence B. Managing Client Expectations: Increased Scrutiny for Certain Situations The L-1B Transferee Will Be Placed at a Worksite of Another Company The Transferee Was a Contractor Abroad Specialized Knowledge Role Abroad and Managerial Assignment in the United States The Transferee Will Open New Office Petitioner Is a Small Company in the United States Impact of Closure of a Foreign Entity Employment That Is Other Than Full-Time Employment in L-1 Status Impact of Labor Disputes on Canadian and Mexican Transferees C. Additional fee IV. Process A. Preparing and Filing the Petition Form G Form I Form I L Supplement U.S. Company Statement Foreign Company Statement...894

15 xxvii 7. Evidence of the Qualifying Relationship B. Petition Approval C. Visa Application V. Additional Follow-up A. Blanket L Petition Obtaining Blanket L Certification L-1 Visa Applications Under the Blanket L Petition Admission to the United States with L-1 Visa and Blanket L Petition B. Sponsoring an L-1 Employee for U.S. Permanent Residence Dual Intent Is Explicitly Permitted for Those in L Status Dual Intent for Major Shareholders or Owners and for Specialized Knowledge Employees of New Offices International Travel While Permanent Residence Is Pursued Multinational Managers Function Managers Specialized Knowledge Employees C. Recapture of L-1 Time D. Strategies After the Maximum Period of Authorized Stay Has Been Exhausted E. H-1B Change of Status for L-1B Transferees F. Calendar Expiration and Follow-Up G. Extensions H. EADs for L-2 Spouses VI. Practice Pointers CHAPTER TWELVE: O VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Interpretations A. The O-1 Assignment Field of Endeavor Event B. O-1 Petitioners C. Industry-specific Requirements Extraordinary Ability in Science, Education, Business, or Athletics Extraordinary Ability in the Arts Extraordinary Ability in Motion Picture or Television Production D. Criteria to Establish Extraordinary Ability Major, Internationally or Nationally Recognized Award Membership in a Prestigious Industry Association Published Materials Describing the Beneficiary s Achievements Beneficiary s Role as a Judge of the Work of Others Original and Significant Contributions to the Field Authorship of Published Scholarly Articles in the Field Employment in a Critical or Essential Capacity for Organizations with Distinguished Reputations High Salary or Remuneration Performance in a Lead, Starring, or Critical Role in Productions, Events, or Organizations with Distinguished Reputations...972

16 xxviii 10. Achievement of National or International Recognition Record of Major Commercial or Critical Acclaimed Successes Significant Recognition for Achievements from Government Organizations or Experts in the Field Comparable Evidence E. Supporting Evidence for O-1 and O-2 Petitions Testimonials from Industry Experts Advisory Opinion from a Peer Group, Labor Organization, or Management Organization Exceptions to the Advisory Opinion Requirement Employment Contracts and Summaries of Terms of the Oral Agreement Under Which the Beneficiary Will Be Employed Explanation of Services and Itinerary F. Nonimmigrant Intent IV. Managing Client Expectations: Increased Scrutiny in Certain Situations A. Support Personnel for O-1 Nonimmigrants B. Coaches, Trainers, and Instructors of Athletic Competitors C. Impact of Labor Disputes D. Return Transportation Obligation V. Preparing the O-1 or O-2 Petition A. Form G B. Form I C. Form I D. O Supplement E. Support Statement F. Index of Exhibits VI. Process A. The O Petition B. RFEs C. Visa Application D. Admission to the United States Canadian and Mexican Citizens VII. Additional Follow-up A. Extensions B. Amended and Change of Employer Petitions C. Sponsoring a O-1 Beneficiary for Permanent Residence CHAPTER THIRTEEN: P VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Definitions A. Competition, performance, or event of the P assignment B. P Petitioners Agent-Petitioners C. P-1 Petitions P-1 Athletes a. Evidence for P-1 Athlete Petitions (1) Significant Participation in a Prior Season with a Major U.S. Sports League

17 xxix (2) Participation in International Competition with a National Team (3) Significant Participation in a Prior Season for a U.S. College or University in Intercollegiate Competition (4) Statement of the International Recognition of the Beneficiary or Team (5) Statement of International Recognition from Sports Media or Recognized Expert (6) International Ranking (7) Significant Honor or Award b. No P-1 Visas to Beneficiaries Who Are Nationals of Countries that Are State Sponsors of International Terrorism (1) P-1 Arts and Entertainment Groups (a) Standards for Entertainment Groups (b) Evidence for Artist and Entertainer P-1 Petitions (2) Performance as a Starring or Leading Entertainment Group in Productions or Events Which Have a Distinguished Reputation (3) International Recognition and Acclaim for Outstanding Achievement (4) Performance as a Starring or Leading Group for Organizations and Establishments that Have a Distinguished Reputation (5) Record of Major Commercial or Critically Acclaimed Success (6) Significant Recognition from Organizations, Critics, Government Agencies, or Other Recognized Experts (7) High Salary or Remuneration Exceptions D. P-2 Artists and Entertainers E. P-3 Artists and Entertainers F. Supporting Evidence for P Petitions Testimonials from Industry Experts Advisory Opinion from a Labor Organization Exceptions to the Advisory Opinion Requirement Employment Contracts and Summaries of Terms of the Oral Agreement under Which the Beneficiary Will Be Employed Explanation of Services and Itinerary G. Nonimmigrant Intent IV. Managing Client Expectations: Common Issues A. Substitution of Beneficiaries B. Essential Support Personnel C. Impact of Labor Disputes D. Return Transportation Obligation V. Preparing the P Petition A. Form G B. Form I C. Form I D. P Supplement E. Support Statement F. Index of Exhibits VI. Process A. The P Petition B. Visa Application C. Admission to the United States Canadian and Mexican Citizens

18 xxx VII. Additional Follow-up A. Extensions B. Amended and Change of Employer Petitions C. Sponsoring a P Nonimmigrant for Permanent Residence CHAPTER FOURTEEN: TN VISAS AND STATUS I. Executive Summary A. Checklist of Requirements B. Documents and Information Necessary to Prepare L-1 Petition C. Checklist of Questions to Ask Client II. Requirements and Definitions A. Professional Assignment in the United States B. Qualification as a Professional C. Qualification as a Business Person D. Canadian or Mexican Citizenship E. Temporary Entry III. Managing Client Expectations: Increased Scrutiny in Certain Situations A. Management Consultants B. Scientific Technicians and Technologists C. Medical and Health Care Professions Registered Nurses Medical Laboratory Technologists and Medical Technologists Occupational Therapists Physiotherapists and Physical Therapists Physicians D. Disaster Relief Insurance Claims Adjusters E. Hotel Managers F. Sylviculturists, Foresters, and Range Managers G. Computer Systems Analysts H. Engineers and Software Engineers I. Animal and Plant Breeders J. Actuaries K. Training L. Impact of Labor Disputes on Canadian and Mexican Transferees M. Self-Employment Prohibited N. The Foreign National Is a Beneficiary of an Immigrant Visa Petition O. Unemployment Benefits for TN Professionals in Washington State IV. Process A. Canadian Citizens Application for U.S. Admission Admission to the United States Denial of TN Petition and U.S. Admission Dependents of Canadian Citizens B. Mexican Citizens Application for a TN Visa Admission to the United States V. Preparing the TN Petition A. Support Statement B. Form G-28 for Canadian Citizens VI. Strategy: TN vs. H-1B A. Numerical and Time Limitations

19 xxxi B. Professional Occupations C. Timing and Cost Issues D. State Licensure E. Employment Relationships and Employer Responsibilities F. Change in Duties or Work Location G. Dual Intent VII. Additional Follow-up A. Extensions TN Extensions Filed with USCIS a. Form G b. Form I c. Form I d. NAFTA (FT) Supplement e. TN Extension Support Statement Filing a New TN petition at a Port of Entry or U.S. Consulate TN Extension Filed with USCIS vs. New TN Petition Filed with Port of Entry or U.S. Consulate a. Extension of Employment Authorization b. Travel to the Port of Entry or U.S. Consulate c. Processing Times d. Premium Processing e. Review of Denials B. Sponsoring a TN Professional for Permanent Residence C. H-1B Change of Status Petitions VOLUME 1: APPENDIX THE BASICS OF EXPORT CONTROL FOR IMMIGRATION PRACTITIONERS U.S. Dept. of Commerce [Bureau of Industry and Security (BIS)] and U.S. Dept. of State, Directorate of Defense Trade Controls (DDTC) What Are the Export Regulations? Foreign Person Under ITAR or EAR Technology or Technical Data Fundamental Research vs. Proprietary Research E, F and J Nonimmigrants May Also Be Subject to Export Laws Release: Export and Deemed Export Preventing Access of Controlled Data in the Workplace/Firewalls Does the Company Have Foreign National Computer Support Personnel with Master Access? Do You Need a License for Your Beneficiary? Classification License Determination Restricted Party Screen Use of Subcontractors How Long Does It Take to Obtain a License and How Long Are They Valid? What Happens if an Export License Application Is Denied? What Happens After an Export License Is Issued? When Is a Compliance Program Needed? Penalties for Violations

20 xxxii Expect Delays at Consular Posts: The Technology Alert List and Visas Mantis Security Advisory Opinions Documents an Applicant with Potential Mantis Issues Should Bring to an Interview Validity of Visas Mantis Clearances VOLUME 2 CHAPTER ONE: BASIC IMMIGRANT VISA CONCEPTS...1 I. Numerical Limitations of Immigrant Visa Numbers...2 A. Per-Country Limitations and Chargeability...3 B. Preference System...5 C. Cross-Chargeability...6 II. Priority Dates...8 A. Visa Bulletin...11 B. Priority Date Retention...12 C. Priority Dates for Derivative Beneficiaries...13 III. Immigrant Visa Retrogression...13 IV. How IVs Are Allocated...17 A. Allocation of IVs for Applications to Adjust Status Filed with USCIS...23 B. Recapture of Unused IVs...25 V. Derivative Beneficiaries...26 VI. Child Status Protection Act...30 A. Final Decision or Final Determination...33 B. Sought to Acquire...34 C. Examples...38 D. Availability of CSPA Protection Based on Effective Date USCIS Treatment DOS Treatment...41 CHAPTER TWO: THE LABOR CERTIFICATION APPLICATION...43 I. Executive Summary...43 A. Checklist of Requirements...43 B. Documents Necessary to Prepare the Petition...43 C. Checklist of Questions to Ask the Client...44 II. Introduction...45 III. Requirements and Interpretations...49 A. Full-Time Employment...49 B. U.S. Employer...52 C. Employer Attestations Other Potential Obligations...57 D. Professional and Nonprofessional Occupations Work Experience in Lieu of Education...58 E. U.S. Worker-Applicants...59 F. Job Requirements Identifying the Position for Which to Request Labor Certification...61 a. Job Title...62 b. Multiple Openings Actual Minimum Requirements...64 a. Employer s Previous Hiring Practices...64 b. Foreign National s Background...64

21 xxxiii 3. Normal Requirements...65 a. Determining the SVP and Job Zone...66 b. Qualifications Possessed by the Foreign National Beneficiary at the Time of Hire...71 c. Infeasibility to Train a U.S. Worker Historically Imposed Requirements and a Change in Condition to Justify New Job Requirements Articulating Minimum Job Requirements...75 a. Types of Specificity in Job Requirements...77 b. No Grocery List or Tailoring of Requirements...81 c. Requirements that Are Already Included...83 d. Knowledge or Familiarity Requirements...84 e. Subjective Requirements...85 f. English Fluency...86 g. Experience Gained with Related Entities...86 h. Tension with Traditional Hiring Practices Alternative Job Requirements and Kellogg Language...88 G. Bona Fide Job Opportunity...92 H. Prevailing Wage Determination Area of Intended Employment Sources for Prevailing Wage Determinations Submitting Supplemental Information for a PWD PWD for Employees of Academic, Nonprofit, or Tax-Exempt Organizations Appeal of PWDs Payment of PW When the Foreign National Obtains Permanent Residence I. Mandatory Recruitment Efforts The 30-Day Job Order Print Advertisements Notice of Filing a Labor Certification Application a. Stating the Address of the Certifying Officer in the Notice b. In-House Media Three Supplemental Forms of Recruitment a. Timing Considerations b. Recruitment Efforts J. Consideration of U.S. Worker-Applicants Day Quiet Period and Good Faith Recruitment Efforts Résumé Review and Contact with Potentially Qualified Applicants Timely Contact Documenting Contact with Applicants and Use of Certified Mail, Return Receipt Requested Interviewing Applicants a. Technical or Performance Tests and Questionnaires Lawful Rejection of U.S. Applicants a. Unqualified Applicants (1) Subjective Reasons (2) Overqualification b. Unable Applicants c. Unwilling and Unavailable Applicants Recruitment Report Layoff Provisions K. Audits...178

22 xxxiv 1. Notification of Audit Consequences of Failing to Respond to an Audit Responding to the Audit a. Documents for the Audit Response b. Independent Evidence L. Document Retention Requirements M. Role of Attorneys, Agents, and Authorized Representatives in the Labor Certification Process N. Prohibitions on Purchase, Barter, or Sale of Labor Certification Applications and on Fee Payments by Beneficiaries O. Enforcement Actions Supervised Recruitment a. Recruitment Steps b. Recruitment Report c. New Attorney or Agent After Supervised Recruitment Is Required Investigation Suspension Debarment IV. Managing Client Expectations: Common Issues, Increased Scrutiny, and Special Processing A. Timing Considerations for Preparing and Filing a Labor Certification Application B. Restrictive Requirements and the Business Necessity Justification Exceeding the SVP or Job Zone a. Responding to the Audit Foreign Language Requirement Combination of Occupations Professional Certifications Home Office, Telecommuting, and Roving Employees C. The Foreign National Gained Qualifying Experience with the Sponsoring Employer Substantive Differences Between Positions Previous Standard Related Entities D. Immigrant Visa Classifications Based on Labor Certification Applications: EB-2 vs. EB E. Documenting that the Foreign National Meets the Minimum Requirements Educational Degrees and Credentials Evaluation Experience Letters Licensure and Certification F. Certain Clerical Errors on Labor Certification Applications G. Influence and Control by the Foreign National Beneficiary and Related Business Entities H. The Beneficiary Lacks Valid Immigration Status I. Domestic Employees Common Issues a. Motive for Mischaracterization of the Job s Minimum Requirements b. Business Necessity Justification for a Live-In Requirement Documents to Respond to an Audit a. Business Necessity Justification for a Cooking Specialization V. Special Procedures A. College and University Teachers...254

23 xxxv 1. Alternative Recruitment Requirements The U.S. Worker Must Be Equally Qualified as the Foreign National Beneficiary Managing Client Expectations B. Professional Athletes VI. Process A. Prevailing Wage Determination Parts A through C Part D a. Job Description b. Minimum Job Requirements c. Place of Employment B. Labor Certification Application Form ETA Filing and Processing of the Labor Certification Application a. Signatures on Filed Applications b. Filing by Mail Registering with the Online System Completing Form ETA a. Section B Foreign Worker s Name b. Section C Employer Information (Headquarters or Main Office) c. Section D Employer Point of Contact Information d. Section E Attorney or Agent Information e. Section F Prevailing Wage Information f. Section G Wage Offer Information g. Section H Job Opportunity Information (1) Subsection a: Worksite Information (2) Subsection b: Additional Worksite Information (3) Subsection c: Job Description (4) Subsection d: Primary Requirements (5) Subsection e: Alternative Requirements (6) Subsection f: Other Requirements (7) Subsection g: Suitable Combination (8) Subsection h: Business Necessity h. Section I Recruitment Information (1) Subsection a: General Information (2) Subsection b: Occupation Type (3) Subsection c: Supervised Recruitment (4) Subsection d: Professional/Nonprofessional Recruitment Information (5) Subsection e: Additional Recruitment Steps for Professional Occupations (6) Subsection f: Special Recruitment Procedures for College and University Teachers (7) Subsection g: General Information i. Section J Foreign Worker Information (1) Subsection a: Foreign Worker Contact Information (2) Subsection b: General Questions (3) Subsection c: Foreign Worker Employment and Qualifying Experience (4) Subsection d: Foreign Worker Education (5) Subsection e: Foreign Worker Work Experience (6) Subsection f: Foreign Worker Training (7) Subsection g: Foreign Worker Skills, Abilities, and Proficiencies j. Section K: Declaration of Foreign Worker...288

24 xxxvi k. Section L: Declaration of Attorney/Agent l. Section M: Declaration of Employer DOL Verification of Sponsorship Processing of the Labor Certification Application a. No Expediting of Filed Applications b. No Modifications to Filed Applications Final Determination of the Labor Certification Application a. Validity of Approved Labor Certification Applications b. Adverse Effect on Wages and Working Conditions of Similarly Employed U.S. Workers Denial, Revocation, and Invalidation of Labor Certification Applications Appeal of Denied or Revoked Labor Certification Applications a. Government Error b. Filing a Subsequent Application While an Appeal Is Pending c. Request for Reconsideration by CO vs. Request for Review by BALCA d. Request for Review by BALCA VII. Additional Follow-up A. Checking the Status of a Filed Application Online B. Re-filing or Filing a New a Labor Certification Application C. Withdrawing a Filed Labor Certification Application D. Obtaining a Duplicate Approved Certification CHAPTER THREE: THE IMMIGRANT VISA PETITION I. Executive Summary II. Requirements and Interpretations A. Preference Classifications for Which Labor Certification Is Not Required Extraordinary Ability a. Checklist of Requirements b. Documents Necessary to Prepare Petition c. Checklist of Questions to Ask the Client d. Demonstrating Extraordinary Ability (1) One-time Achievement (2) Other Evidence of Sustained National or International Acclaim (a) Evidence of Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field of Endeavor (b) Evidence Of Membership in Associations in the Field for Which Classification Is Sought, Which Require Outstanding Achievements of Their Members, as Judged by Recognized National or International Experts in Their Disciplines or Fields (c) Published Material About the Foreign National in Professional or Major Trade Publications or Other Major Media, Relating to the Foreign National s Work in the Field for Which Classification Is Sought (d) Evidence of Participation, Either Individually or on a Panel, as a Judge of the Work of Others in the Same or an Allied Field of Specialization for Which Classification Is Sought (e) Evidence of Original Scientific, Scholarly, Artistic, or Business-Related Contributions of Major Significance to the Field (f) Evidence of Authorship of Scholarly Articles in the Field, in Professional or Major Trade Publications or Other Major Media (g) Evidence of Display of the Foreign National s Work in the Field at Artistic Exhibitions or Showcases...348