IMMIGRATION GLOSSARY

Transcription

1 IMMIGRATION GLOSSARY

2 DEFINITIONS & EXPLANATIONS The U.S. immigration system is a great resource for employers recruiting skilled workers from around the world. To help you understand how the process works, we ve created the Envoy Immigration Glossary to define and explain common immigration words and phrases especially as they apply to your foreign national (FN) employees and prospects. THIS GUIDE FEATURES: EMPLOYMENT-BASED VISAS AND GREEN CARDS GOVERNMENT AGENCIES GOVERNMENT FORMS, NOTICES AND DOCUMENTS COMMON IMMIGRATION TERMS ENVOY IMMIGRATION GLOSSARY 2

3 01 EMPLOYMENT-BASED VISAS AND GREEN CARDS B-1 Business Visitor Grants FNs short trips to the United States to conduct business matters, including: contract negotiations, short-term training, attending conferences and in-person consulting. An FN can t engage in productive work activities or receive a salary from a U.S. source under any circumstance. Visa Waiver Program: Citizens in select countries, such as Japan, Portugal, South Korea and the United Kingdom, can travel to the United States for a stay of 90 days or less without a business visitor visa. For a full list of visa waiver countries, visit: EB-1 Priority Workers A green card category available to priority workers with extraordinary expertise in the sciences, arts, education, business or athletics. This classification is also available to outstanding professors or researchers and multinational managers or executives. Testing the labor market through the PERM (Program of Electronic Review and Management) Labor Certification process is necessary for select green card categories, such as EB-2 and EB-3. The three sub-categories within the EB-1 green card are exempt from this process. EB-2 Advanced Workers E-2 Treaty Investor A visa category that allows managers, supervisors, executives, essential employees or investors from select treaty countries, such as Egypt, Belgium and Colombia, to temporarily travel and stay in the United States to conduct business. For a list of treaty countries, please visit: html The United States maintains commerce and navigation treaties with certain countries around the world to encourage mutual trade and business negotiations. E-3 Certain Specialty Occupation Professionals from Australia A visa category that grants Australian nationals the ability to work in the United States if employed in a specialty occupation. E-3 holders often have at least a bachelor s degree in a field related to the specialty job position. A green card category available to FNs with exceptional ability in the sciences, arts or business, or those who possess an advanced degree, such as master s degrees or bachelor s degrees and five years of post-bachelor s work experience. In addition, people can qualify for an EB-2 if they are seeking a National Interest Waiver. EB-3 Skilled or Other Workers A green card category available to skilled workers, professionals with a bachelor s degree or foreign equivalent who are filling a role that requires a college degree. Unskilled workers who perform positions that are not temporary or seasonal in nature are also eligible. ENVOY IMMIGRATION GLOSSARY 3

4 01 EMPLOYMENT-BASED VISAS AND GREEN CARDS H-1B Person in Specialty Occupation A commonly used work visa that allows FNs in specialty occupations, such as engineers and computer developers, to seek temporary employment in the United States. This visa category is very popular and, as a result, it s subject to a cap on the number of new visa applications processed each year. 85,000 = The H-1B cap The government accepts 65,000 petitions each year and an additional 20,000 petitions for individuals who possess a U.S. master s degree. H-1B1 Free Trade Agreement Professional from Chile or Singapore A subset of the H-1B category that offers a special visa classification for the U.S. Free Trade Agreement with Chile and Singapore. Nationals of these countries in specialty occupation roles may seek temporary employment in the United States under the H-1B1. H-2B Temporary Nonagricultural Worker A visa category available to seasonal workers seeking U.S. employment in nonagricultural industries. FNs from select countries, such as South Africa, Canada, Brazil and Mexico, may apply for this visa if the work they seek is defined as a seasonal, one-time occurrence, of a peakload need or intermittent need. A list of acceptable countries can be found here: Temporary work is defined as: Intermittent need: A phrase often used for L-1 or H-2B visas when FN employees will only come to the United States for short periods of time and return to their home country periodically. One-time occurrence: A phrase often used in connection with H-2B visas when employers have to establish a temporary need for employment. For this requirement, the work described should not have happened in the past and won t occur again in the future. Peakload need: A phrase often used in connection with H-2B visas when employers have to establish a temporary need for employment (i.e., staff needs to be temporarily supplemented due to a seasonal or short-term demand). L-1A Intracompany Transferee for Executives or Managers A visa classification available to employers wishing to transfer managers and executives from a foreign entity to a U.S. branch and who have been employed with the foreign entity for at least one year. During the L-1A and L-1B application processes, the employer must establish a relationship between the foreign and U.S. entities. To save time, HR professionals can apply for Blanket L certification before filing the L-1 visa petitions to get a head start on the application process. L-1B Intracompany Transferee for Employees With Specialized Knowledge A visa classification available to employers wishing to transfer individuals with specialized knowledge within foreign entities who have a corporate relationship with the U.S. entity and who have been employed with the foreign entity for at least one year. O-1 Individuals With Extraordinary Ability or Achievement A visa category for individuals employed in the sciences, education, business and athletics who display an extraordinary ability or achievement, or those who have an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. ENVOY IMMIGRATION GLOSSARY 4

5 01 EMPLOYMENT-BASED VISAS AND GREEN CARDS P-1A Internationally Recognized Athlete This visa category is available to internationally known athletes wishing to travel to the United States to perform at a specific event or competition. P-3 Artist or Entertainer Coming to be Part of a Culturally Unique Program A visa category available to internationally known entertainers traveling to the United States either individually or as a group for the purpose of developing, coaching or teaching a unique cultural program, such as a traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation. TN NAFTA (North American Free Trade Agreement) Professionals A special visa classification for citizens of Canada and Mexico as part of the NAFTA. Professionals who are eligible to seek admission in TN status include accountants, engineers, lawyers, pharmacists, scientists and teachers. For an in-depth look at these visa and green card categories, read The ABCs of Immigration. THE ABC s OF IMMIGRATION The HR Guide to U.S. Immigration Visas and Green Cards ENVOY IMMIGRATION GLOSSARY 5

6 02 GOVERNMENT AGENCIES Field Office Located in select U.S. Citizenship and Immigration Services (USCIS) districts, these offices schedule interviews for certain visa applications and can also provide information and customer service. An FN can be asked to visit a field office so that an adjudicating officer can verify information listed in his or her green card application. Office of Special Counsel for Immigration- Related Unfair Employment Practices Part of the U.S. Department of Justice s (DOJ) Civil Rights Division, this office enforces provisions of the Immigration and National Act, which protects U.S. citizens and certain work permit holders against employment discrimination based on immigration status and other reasons. Port of Entry Any location in the United States or its territories designated as an entry point for FNs and U.S. citizens. All district offices and service centers are also considered ports, since they become points of entry for FNs adjusting to immigrant status. U.S. Citizenship and Immigration Services (USCIS) A federal agency that oversees lawful immigration to the United States by issuing employment authorization documentation, maintaining Form I-9 and administering the E-Verify employment eligibility verification program. This agency will adjudicate most work authorization petitions. Once you ve filed a work visa petition and received a receipt number, you can check the status of your case via the USCIS website at: U.S. Consulate or Embassy Foreign branches of the DOS located in various countries around the world. FNs visit U.S. consulates or embassies while in their country of origin to complete the interview requirement of the application process and receive their visa. The United States only has one embassy in a foreign country s capital; however, there may be multiple consulates. U.S. Customs and Border Protection (CBP) An agency of the U.S. Department of Homeland Security (DHS) responsible for facilitating legitimate travel and trade while preventing the illegal entry of people and goods. The CBP ensures people traveling to the United States are entering for the purpose the visa was issued. U.S. Department of Homeland Security (DHS) A department of the executive branch tasked with preventing terrorism, managing risks to critical infrastructure, administering and enforcing immigration laws and more. USCIS, U.S. Immigration and Customs Enforcement (ICE) and CBP fall under the umbrella of the DHS. U.S. Department of Justice (DOJ) An executive branch department responsible for enforcing the law and the United States interests to ensure public safety against domestic and foreign threats. ENVOY IMMIGRATION GLOSSARY 6

7 02 GOVERNMENT AGENCIES U.S. Department of Labor (DOL) A government agency that fosters and promotes the welfare of workers, job seekers and retirees by improving and maintain working conditions and benefits. The DOL also regulates certain immigration visas and green card petitions in the interest of protecting the U.S. labor market. U.S. Department of State (DOS) A part of the federal executive branch responsible for making and conducting foreign policy. It is also called the State Department. Each month the agency releases the Visa Bulletin, which highlights updated application filing dates and final action dates for family and employmentbased green cards. In addition, the DOS manages U.S. consulates and is in charge of issuing FNs a visa to enter the United States as needed. Did you know? In many cases, if an FN is outside the United States while applying for a work visa, he or she can submit the application directly to the DOS. Sending prepared applications to USCIS is common for petitions filed inside the United States. U.S. Immigration and Customs Enforcement (ICE) The investigative arm of the DHS tasked with promoting homeland security and public safety by enforcing laws and governing customs, trade, border control and immigration. ENVOY IMMIGRATION GLOSSARY 7

8 03 COMMON GOVERNMENT FORMS, NOTICES AND DOCUMENTS Admission Number (I-94 Number) An 11-digit number found on Form I-94 or I-94A, the arrival and departure record. Alien Registration Number or Alien Number (A Number or A#) A unique seven-, eight- or nine-digit number assigned to a noncitizen by the DHS. It s also referred to as a USCIS number. Approval Notice A notice mailed to the employer or an attorney establishing that an FN has been approved for the applicable employment authorization, work visa or green card. Arrival/Departure Record (Form I-94) An electronic card found at cbp.gov/i94 that indicates how long the traveler is allowed to stay in the United States with a specific expiration date or note highlighting the duration of status. Employment Authorization Document (Form I-766/EAD) The card issued by USICS authorizing the recipient to legally work in the United States. The card contains a photograph of the individual and, at times, his or her fingerprint. An EAD is given to holders of certain work visas and some dependent classifications. It s also called a work authorization document or work permit. Federal Employment Issuance Number (FEIN) Issuance Letter A letter sent by the Internal Revenue Service displaying a company s official FEIN Number, which is used for tax administration purposes and is required on certain immigration forms. This form is needed, at times, to establish a company s right to file labor condition applications on behalf of certain visa holders. Labor Condition Application (LCA) An application submitted to the DOL that establishes an employer is paying at least the prevailing wage to its FN worker in a given geographical area. An approved LCA is required for the H-1B and E-3 visas. National Interest Waiver A special condition exempting employers from completing the labor certification requirement for a green card application if the job description for an FN supports the United States national interest, among other factors. Detailed documentation is required to obtain this waiver. Notice of Entry of Appearance as Attorney or Accredited Representative (G-28) An attorney or accredited representative may file this form with an FN s visa or green card application to inform the government agency he or she is serving as a legal representative. As a result, the government agency can mail official notices to the representative. Employment Eligibility Verification (Form I-9) A document created by DHS and USCIS to verify an employer s candidate has legal work authorization. ENVOY IMMIGRATION GLOSSARY 8

9 03 COMMON GOVERNMENT FORMS, NOTICES AND DOCUMENTS Permanent Resident Card (Green Card) Receipt Notice Issued by the USCIS, this card serves as evidence an FN has permanent resident status. Also called green cards, some contain no expiration date; however, most are valid for 10 years. An official notice from USCIS, the DOS or another government agency with a numerical designation establishing official receipt of the work visa or green card application. Supporting Evidence Authenticating documentation, such as financial documents, company brochures, photos and resumes that proves an FN and employer meet the necessary visa or green card requirements. Types of Documentation Company Supporting evidence that must accompany an employment-based visa application to prove eligibility, such as financial reports, company brochures, and other marketing and financial materials. Education Supporting evidence, such as diplomas and certificates, which prove an FN s stated educational history is accurate. Employee A list of documents provided by the attorney helping a company sponsor an FN for a work visa. These documents, such as a resume and copy of diplomas, help the employee prove his or her eligibility for a work visa. Immigration Documentation, including passports, previous visa approvals and denials that provides an accurate representation of an FN s immigration history. Travel Plane tickets, itineraries and other documentation proving the FN is traveling for a certain period. For example, a return plane ticket helps USCIS establish that the B-1 Business Visitor beneficiary will stay in the United States for only a short time. Travel Authorization (Form I-131) This form allows FNs to apply for a U.S. re-entry travel document for certain individuals in the green card process. Holders of non-dual intent visas, such as the TN: NAFTA professional work visa, often face travel restrictions when applying for legal permanent residency, and this document helps remove those limitations. Visa An endorsement added to an FN s passport granting entry into the United States. The stamp is often added at a U.S. Consulate or Embassy. Work Authorization Denial A notice sent by a government agency indicating the immigration officer did not have enough information to determine visa eligibility. Employers can resend the visa application with additional supporting evidence for further processing and review. Financial Statements, such as annual reports, bank statements and income tax returns, that employers and FNs can use to prove their eligibility for a visa category. For example, B-2 Business Visitor applicants often have to prove the beneficiaries have enough funds to support themselves during the length of stay in the United States. ENVOY IMMIGRATION GLOSSARY 9

10 04 COMMON IMMIGRATION TERMS Applicant The person filing the visa or green card petition, often the employer sponsoring a visa for an FN. At times, this person is also called the petitioner. Audit Application A completed packet that is sent to USCIS or the DOS for processing. It often includes government forms, supporting evidence and fee payments. A compliance check performed by a government agency to ensure all regulations and laws are followed. The DOL audited 30 percent of PERM applications in fiscal year 2014, according to the Office of Foreign Labor Certification. Beneficiary The individual benefiting from the nonimmigrant or immigrant visa status if the application is approved. Cap A limit on the number of visa applications processed for a particular category. A cap applies to H-1B visas, which limits the number of new applications processed annually to 85,000. A cap also applies to the H-2B Temporary Nonagricultural classification, resulting in only 66,000 new applications filed each fiscal year. Cap-Gap Extension An F-1 OPT status extension granted to student visa holders waiting for their H-1B transfer of status to begin. Due to the H-1B cap season, a status gap occurs when the student s F-1 OPT status ends and the H-1B start date has yet to take effect. The extension is automatically terminated if the H-1B petition is rejected, denied or revoked. The OPT employment authorization extension is granted through September 30 of the calendar year the H-1B petition is being filed, but only if the employment start date in H-1B status will begin on October 1. Change of Status A request filed with USCIS stating an individual would like to officially change the purpose of his or her visit to the United States. Foreign students on F-1 visas often transfer to H-1B statuses to gain work authorization. Consular Processing The procedure beneficiaries of an immigration petition, who are outside of the United States, use to apply for a visa at a U.S. Consulate or Embassy overseas. Curricular Practical Training A program that allows active students to accept paid alternative work/study or any other required internship or practicum that employers offer though cooperative agreements with the school. Dependent Visa A special visa classification offered to spouses and unmarried children 21 years old and younger to allow them to travel and stay in the United States with a work visa holder, such as the H-1B and its H-4 dependent status. Dependents can often study while living in the United States; however, they are only allowed to work under select classifications. Domestic Worker An individual who performs casual domestic services for families and homes, such as housekeeping and child caring. ENVOY IMMIGRATION GLOSSARY 10

11 04 COMMON IMMIGRATION TERMS Dual Intent A special circumstance that allows work visa holders to seek legal permanent residency while in a temporary nonimmigrant status. H-1B, L-1A and L-1B visas are dual intent. Duration of Status (D/S) A notation on certain nonimmigrant forms (e.g., I-94) indicating that the individual, such as an F-1 student visa holder, is authorized to remain in the United States as long as he or she maintains the status. Duration of Stay Refers to the longest period the visa holder is allowed to stay in the United States for each visit before having to travel back to his or her country of origin. For example, the duration of stay may be one year, but the status may be active for three years. Eligibility Describes whether or not an FN meets the necessary visa requirements, such as five years of work experience or a four-year bachelor s degree. Employer Sanctions A series of civil fines or criminal penalties imposed on employers for violating regulations, such as hiring or recruiting FNs without the proper work authorization documentation. E-Verify A Web-based system that compares information from an employee s Form I-9 to data from DHS and Social Security Administration records to confirm employment authorization. Exchange Visitor Executive Capacity Refers to the employee s ability to make senior-level decisions without much oversight. This term is often used in L-1A Intracompany Transferee Executive or Manager eligibility requirements. Extension of Status The act of renewing a visa category to extend the length of stay in the current status. For example, H-1B visas can be renewed for up to three years until the six-year, maxout date is reached. Also commonly referred to as a visa renewal. Extraordinary Ability or Achievement A term describing an individual who has risen to the very top of the field of endeavor and is known internationally or nationally for his or her achievements. For example: O-1 visa holders are expected to have extraordinary ability in the sciences, arts, education, business or athletics. Foreign National (FN) A person who is not a citizen of the host country in which he or she is temporarily residing. All nonimmigrant visa holders, such as L-1A or TN recipients, are FNs. Government Fees Costs associated with the visa applications that are paid to government agencies such as USCIS or the DOS. Only government agencies, not attorneys or immigration service providers, can refund these fees. Immigrant Status A term used for individuals living in the United States permanently. The majority of work visa holders have nonimmigrant status, denoting the temporary nature of their stay in the United States, while green card holders have immigrant status. An FN admitted temporarily to the United States in J-1 Exchange Visitor status to teach, instruct, observe, lecture, study, consult, demonstrate skills or receive training. ENVOY IMMIGRATION GLOSSARY 11

12 04 COMMON IMMIGRATION TERMS Job Description An accurate written explanation of the job duties and requirements to be performed by the FN. For example, during the PERM application process, employers are required to write a detailed job description, which the DOL uses to determine the prevailing wage. Labor Certification DOL certification required for U.S. employers seeking to recruit individuals for, among other things, professional, skilled or unskilled positions for which there are no qualified, authorized workers available in the United States. Lawful Permanent Resident Any person who is not a citizen of the United States but is residing in the United States under a legal permanent status also called green card holder. Lottery In order to impart a fair visa approval process, the act of government agencies, such as USCIS, randomly selecting visas to process when the number of visas filed surpasses the approval allotment. Managerial Capacity Refers to the ability of the employee to supervise and direct the work of other employees and to manage the organization, department, subdivision, function or another component of the organization. This term often applies to the L-1 or E-2 Treaty Visa. Max-out Date The maximum amount of time an FN is allowed to stay in the United States under a specific visa category. Not all classifications have max-out dates, but others H-1Bs have specific time frames (six years). NAFTA (North American Free Trade Agreement) An act established in 1993 that created special economic and trade relationships between the United States, Canada and Mexico. As a result, nationals from Canada and Mexico have the ability to apply for a special TN nonimmigrant classification to travel and stay in the United States to engage in business activities at a professional level. NAFTA Professions Accountant, engineer, scientist, healthcare professional, architect, lawyer, teacher, economist, social worker, mathematician, psychologist, computer systems analyst, industrial designer and more. A full list of NAFTA designated professions can be found at: National of the United States A citizen of the United States or a person who, though not a citizen of the United States, has permanent allegiance to the United States (e.g., people born in American Samoa or Swains Island). Naturalization The manner in which a person not born in the United States voluntarily becomes a U.S. citizen. The citizenship process includes a biometrics appointment, applicant interview, English and civics test and oath ceremony. Nonimmigrant An FN who is admitted to the United States for a specific, temporary period of time. For example, H-1B holders have nonimmigrant status since the visa has a max-out date, at which they are required to return to their country of origin. Optional Practical Training (OPT) A work authorization program available to foreign students with an F-1 student visa status so they may obtain employment while studying in the United States. ENVOY IMMIGRATION GLOSSARY 12

13 04 COMMON IMMIGRATION TERMS Out of Status Applies to an FN residing in the United States without a valid or legal status. Pay Wages or other remuneration. This term is often used during the prevailing wage process as part of PERM labor certification. PERM Labor Certification A step of the green card application process that tests the labor market to ensure there are no qualified U.S. citizens available to perform the job duties for which an employer is seeking to sponsor an FN for legal permanent residency. Petition A term used to describe a visa application. For example, Form I-140 is the standard immigrant petition establishing that an employer wishes to sponsor an FN for a work visa. Premium Processing An add-on USCIS feature that reduces the processing time for certain visas and certain parts of the green card application process to 15 days. Prevailing Wage The hourly wage or salary paid to the majority of workers within a particular area. This is used during the green card application s PERM requirement or in other visa categories to establish a fair working wage that doesn t undercut U.S. workers in a given industry. Priority Date The date a PERM application is filed with a government agency. This date is often used as a placeholder to signify how long an FN has to wait until his or her green card application is filed. to backlogs. Recruitment Processing Time The time it takes a visa or green card to complete processing. Once accepted for processing, a work visa may take months; however, green cards can span years due Describes the actions required during the PERM process that tests the labor market within a given area to determine there are no qualified U.S. workers available to perform the job duties. It usually requires placing a job order on the DOL s website, employer s website and in a Sunday print publication and other outlets. Regulations Rules issued by an executive authority, such as a government department or agency in the executive branch, to carry out the intent of the law. Rejected Application A USCIS notice indicating a deficiency in the application that must be refiled when the petitioner is able. Request for Evidence (RFE) A notice sent by USCIS informing visa applicants that there wasn t enough information provided or that they need more clarification in the application in order to make a determination. Employers and FNs must resend the requested information to USCIS in order for their visa to be approved. Failure to do so may result in a visa denial. Specialized Knowledge Specialized knowledge relates to an individual possessing an advanced level of knowledge or specialized skill relating to the company s product, services, research, equipment, techniques or management. The individual must be one of few employees with the same level of advanced knowledge. ENVOY IMMIGRATION GLOSSARY 13

14 04 COMMON IMMIGRATION TERMS Employment- Based All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 01JUN13 01OCT08 C C 3rd 15FEB15 01SEP11 22JAN04 15FEB15 01JAN05 Other Workers 15FEB15 01JAN06 22JAN04 15FEB15 01JAN05 4th C C C C C Certain Religious C U C C C Workers 5th Targeted Employment C 01MAY13 C C C Areas/Regional Centers and Pilot Programs Specialty Occupation Transfer An occupation which requires theoretical and practical application of a body of highly specialized knowledge in architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology or the arts. It also requires the attainment of a bachelor s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The act of switching visa classifications. Foreign students in F-1 statuses often transfer to H-1Bs during their last year of schooling. Additionally, FNs on non-dual intent visas, such as TNs, often transfer to a dual intent visa an H-1B to help simplify the green card application process. Validity Period A time period for which the visa remains valid. For example, a B-1 visa has a validity period of up to 10 years, depending on the FN s country of citizenship. However, the traveler may only stay in the United States for up to six months at a time. Sponsorship The act of a company petitioning the U.S. government on behalf of an FN for the purpose of requesting a work visa or green card. The employer must prove it has an available job position and the FN recruit has the necessary qualifications. Sporadic Occurring occasionally or in irregular, random instances. Often used to describe eligible employment periods for the H-2B Temporary Nonagricultural work visa. Start Date The date an FN recruit can start employment in the United States as stated on the visa approval notice. STEM An acronym for science, technology, engineering and mathematics. FN students on F-1 statuses may apply for OPT authorization under a special STEM major requirement. These students are granted 12 months of work authorization while studying and may transfer to an H-1B after graduation. Visa Bulletin A monthly update issued by the DOS highlighting application filing dates and final action dates for specific family and employmentbased green card categories. Certain countries have long backlogs due to the amount of green card petitions received each year and per-country allotments. For example, if the final action date is 01SEP07 it means USCIS is processing applications that were filed on September 1, 2007 or before. If the FN s priority date is prior to the filing date, it is possible to move forward with the next step in the green card process an adjustment of status (I-485) application. Visa Status A term used to measure the current state of a U.S. visa application (e.g., whether it s been received, accepted for processing, approved, denied or rejected). Work Authorization Legal permission to work inside the United States. Individuals granted work authorization are often given an employment authorization card. ENVOY IMMIGRATION GLOSSARY 14

15 04 COMMON IMMIGRATION TERMS Work Experience Skills or knowledge obtained on the job that can be used to substitute years of study at an academic institution. Three years of work experience is equivalent to one year of study. Work Location A building or worksite where the job duties described in the visa application will be performed. ENVOY IMMIGRATION GLOSSARY 15

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