IMMIGRATION INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

Transcription

1 IMMIGRATION 101 INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

2 3 THE CASE FOR CHANGE: WHY WE NEED TO GET IMMIGRATION RIGHT 7 CFGI S PRINCIPLES FOR IMMIGRATION REFORM 11 MAKING SENSE OF THE SYSTEM 12 The Agencies 14 Nonimmigrant Visas 15 Immigrant Visas 19 Worksite Enforcement

3 21 EMPLOYMENT-BASED IMMIGRATION RESOURCES 22 Fees for Key Employment-Based Visas and Green Cards 24 A Select History of Major Employment-Based Immigration Provisions in U.S. Law 29 Glossary of Key Terms 35 ABOUT US 36 ENDNOTES IMMIGRATION 101 INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM

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5 THE CASE FOR CHANGE WHY WE NEED TO GET IMMIGRATION RIGHTA 74 % OF EMPLOYERS REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES.

6 FIGURE 1 PERCENTAGE OF EMPLOYERS WHO REPORT DIFFICULTY IN FILLING JOBS 68% Source: SHRM, The New Talent Landscape: Recruiting Difficulty and Skills Shortages, 2016 FIGURE 2 MOST DIFFICULT HIGH-SKILLED POSITIONS TO FILL High-Skilled Medical (nurses, doctors, specialists) Engineering & Architecture 72% Scientists & Mathematicians 70% Executives 66% IT/Computer Specialists 65% Source: SHRM, The New Talent Landscape: Recruiting Difficulty and Skills Shortages, % GETTING IMMIGRATION RIGHT IS MORE CRITICAL THAN EVER The world of work is rapidly evolving and the United States is falling further behind in the competition. U.S. corporations, universities, research institutions, small businesses and startups must increasingly compete with organizations around the world to hire and retain top talent. In developed economies, demand for high-skilled labor is growing faster than supply, with up to 40 million fewer workers with advanced education than employers will need worldwide by Here in the United States, more than two-thirds of employers have recently indicated difficulty recruiting for full-time positions, an increase of 18 percent since (see Figure 1). These employers report difficulty filling specific jobs (see Figure 2), and nearly 5.5 million positions remain open. 3 Many factors influence U.S. workforce competitiveness, including the skills gap and our aging workforce. There is no single path to maximizing workforce competitiveness in the 21st-century economy. Competitive employers must invest in tomorrow through workforce policies that enhance employer-sponsored benefit programs, increase workplace flexibility, provide fair employment practices, promote effective labor-management relations, close the skills gap (including programs for veterans, individuals with disabilities and the long-term unemployed) and allow them to access the best global talent. 4 COUNCIL FOR GLOBAL IMMIGRATION

7 Shaping our immigration system for the 21st century must fuel growth, protect and invest in the U.S. workforce, and allow employers to respond to future changes that are impossible to predict. Employers uniformly recognize that immigration is a key component of the broader talent equation. In 2016, 74 percent of employers reported that the ability to obtain visas in a timely, predictable and flexible manner is critical to their business objectives (see Figure 3). However, employers that rely on the U.S. immigration system remain frustrated because it takes too long and does not allow organizations to meet their business objectives within an appropriate time frame (see Figure 4). Despite round after round of debate in Washington, D.C., the employment-based immigration system remains misaligned with today s business realities, and U.S. employers and their employees cannot afford to wait. The U.S. employment-based immigration system has not been updated to keep pace with the modern economy for nearly three decades. The world of work continues to evolve, while the U.S. immigration system harms employers and employees alike. To compete in the modern workplace, the United States must get immigration right. By realigning our system around a framework that is flexible enough to meet the workforce needs of the future, we can once again make our immigration system the envy of the world. An Immigration Guide for You The U.S. immigration system is extremely complex. The Council for Global Immigration (CFGI) and the Society for Human Resource Management (SHRM) have put together this Immigration 101 guide to give you straightforward answers to questions about the employment-based immigration system, including how it works today and how to navigate its intricacies, and to share with you our principles to reform the system so it can work better. FIGURE 3 PERCENTAGE OF EMPLOYERS WHO REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES 74% Source: CFGI, Employer Immigration Metrics: 2016 Survey Results, 2017 FIGURE 4 PERCENTAGE OF U.S. EMPLOYERS WHO DO NOT BELIEVE IMMIGRATION PROCESSING TIMES ARE REASONABLE 63% Source: CFGI, Employer Immigration Metrics: 2016 Survey Results, 2017 COUNCIL FOR GLOBAL IMMIGRATION 5

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9 CFGI S PRINCIPLES FOR IMMIGRATION REFORM THE U.S. MUST GET IMMIGRATION RIGHT. WE CALL ON POLICYMAKERS TO CREATE A 21st CENTURY IMMIGRATION SYSTEM THAT IS FAIR, INNOVATIVE AND COMPETITIVE.

10 PRINCIPLES FOR IMMIGRATION REFORM The CFGI board of directors adopted these Principles for Immigration Reform on November 16, We call on the President and the 115th Congress to work together to enact bipartisan solutions that will provide U.S. employers and employees with a 21st-century immigration system, giving them the ability to recruit, hire, transfer and retain the talent they need, while ensuring they have the tools to hire a legal workforce. The Principles for Immigration Reform that follow outline these needs. The world of work is rapidly evolving, but U.S. immigration laws have not kept pace. Our employment-based immigration system is misaligned with today s business realities harming employers and employees alike. American employers have lost opportunities to grow, reducing opportunity to produce new jobs for U.S. workers and increasing opportunity for global competitors to hire U.S.-educated talent. To compete in the modern workplace, America must get immigration right. This is especially true for the highest skilled professionals those most sought after to fill skills gaps and generate the next waves of innovation. We must take action. CFGI stands ready to provide solutions that will shape the 21st-century immigration system one that fuels growth, protects and invests in the American workforce and responds to future changes that affect the world of work. Fair Innovative Competitive 8 COUNCIL FOR GLOBAL IMMIGRATION

11 For America s employers and employees to compete and win in the global economy, we call on policymakers to create an employment-based immigration system that is: FAIR To adopt policies that protect and develop the U.S. workforce, policymakers should: Prioritize visas for employers who are growing the U.S. workforce and investing in the education and training of U.S. employees. Partner with employers to enact fair recruitment policies that are clear, transparent and effective providing employer safe harbors for good actors. Enforce existing immigration laws against bad actors, not employers acting in good faith. INNOVATIVE To provide solutions that increase system effectiveness and predictability, policymakers should: Enact a Trusted Employer program that creates efficiencies for low-risk, immigration-compliant employers and saves resources for top government priorities. Provide a reliable, national and entirely electronic employment verification system with state-of-the-art tools to accurately authenticate identity to hire a legal workforce, including a safe harbor for good-faith users. Control fees and use them to improve immigration services and strengthen the U.S. talent pipeline. COMPETITIVE To create and boost U.S. economic growth and innovation, policymakers should: Recognize that employers are best positioned to determine their skills and workforce needs now and in the future. Provide a market-based green card cap and critical exemptions for U.S. STEM advanced degrees and dependents, while eliminating backlogs and per country limits. Provide enough visas for employers to recruit, hire, transfer and retain the best talent. COUNCIL FOR GLOBAL IMMIGRATION 9

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13 MAKING SENSE OF THE SYSTEM THE U.S. IMMIGRATION SYSTEM IS COMPLEX, LIKE THE TAX CODE LEADING MOST EMPLOYERS TO HIRE OUTSIDE COUNSEL FOR ASSISTANCE WITH NONIMMIGRANT AND IMMIGRANT VISA FILINGS.

14 COMPONENTS OF THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM FIGURE 5 PERCENTAGE OF EMPLOYER IMMIGRATION PETITIONS AND APPLICATIONS FILED BY OUTSIDE COUNSEL, BY CATEGORY First-Time H-1Bs 78% H-1B Extensions 84% Concurrent H-1Bs 78% Blanket L-1s 86% First-Time L-1As (USCIS) 89% L-1A Extensions (USCIS) 91% First-Time L-1Bs (USCIS) 80% L-1B Extensions 73% F-1 Optional Practical Training (OPT) (excluding STEM extensions) 70% F-1 STEM OPT extensions 63% J-1 Visas 85% Treaty-Based Visas (TN, E-3, H-1B1) 89% Labor Certification Applications (PERM) 88% I-140 Petitions For EB-2 and EB-3 84% Source: CFGI, Employer Immigration Metrics: 2016 Survey Results, 2017 Adjustment of Status 90% Consular Processing 92% Employment-based immigration is governed by an elaborate set of laws, regulations, agency policy memoranda, court decisions and other interpretive guidance. U.S. immigration laws are often compared to the tax code because they are myriad and complex, and clear-cut answers are not always available, despite the fact that employers and their staffs may be subject to severe monetary and/or criminal penalties for failing to abide by the laws. These complexities often lead employers to use outside counsel to assist in filing nonimmigrant and immigrant petitions and applications (see Figure 5). In this section, we explain the complex U.S. immigration system in the simplest terms possible by outlining how foreign nationals may come to the United States with legal status. Foreign nationals coming to the United States are placed in one of two categories: Nonimmigrant meaning that the person intends to remain in the United States temporarily; or Immigrant meaning that the person intends to remain in the United States permanently. For the most part, U.S. law presumes that all foreign nationals coming to the United States intend to remain permanently, unless they demonstrate intent to remain only temporarily and to return to their home country at the end of their stay. A few nonimmigrant categories allow for dual intent, meaning the foreign national may pursue permanent residency while residing in the United States on a temporary visa. The Agencies The Department of Homeland Security (DHS), the Department of State (DOS), the Department of Labor (DOL), the Department of Justice (DOJ) and the Department of Commerce (DOC) are cabinet-level agencies centrally involved in employment-based immigration (see Figure 6). 12 COUNCIL FOR GLOBAL IMMIGRATION

15 FIGURE 6 EMPLOYERS FACE A MAZE OF GOVERNMENT AGENCIES Department of Homeland Security (DHS) Department of Labor (DOL) Department of State (DOS) Department of Commerce (DOC) Department of Justice (DOJ) U.S. Citizenship and Immigration Services (USCIS) U.S. Immigration and Customs Enforcement (ICE) U.S. Customs and Border Protection (CBP) Citizenship and Immigration Services (CIS) Ombudsman Bureau of Consular Affairs Office of Visa Services Overseas Embassies and Consulates Bureau of Educational and Cultural Affairs (ECA) Immigrant and Employee Rights Section (IER) Executive Office for Immigration Review (EOIR) Employment and Training Administration Office of Foreign Labor Certification (OFLC) Bureau of Industry and Security (BIS) Source: CFGI, 2017 COUNCIL FOR GLOBAL IMMIGRATION 13

16 Within the DHS, U.S. Citizenship and Immigration Services (USCIS) processes most immigration paperwork, Customs and Border Protection (CBP) welcomes foreign nationals at our ports of entry, and Immigration and Customs Enforcement (ICE) is responsible for enforcing immigration laws within the interior of the country, including worksite enforcement. The DOS issues visas abroad at U.S. consulates and embassies. The DOS s Bureau of Educational and Cultural Affairs (ECA) works to build friendly, peaceful relations between the people of the United States and other countries through academic, cultural, sports and professional exchanges. The DOL ensures that foreign workers do not adversely impact opportunities for U.S. workers. The DOJ s Immigrant and Employee Rights Section (IER) enforces the anti-discrimination portion of the Immigration and Nationality Act; the DOJ s Executive Office for Immigration Review conducts immigration court proceedings, appellate reviews and administrative hearings; and the DOC s Bureau of Industry and Security issues deemed export control licenses to certain foreign nationals working with controlled technologies (see the Glossary of Key Terms on page 29 for more details). Nonimmigrant Visas Nonimmigrants can be categorized as those individuals coming to the United States for business for pleasure or for a family or humanitarian reason. The nonimmigrant categories in which foreign nationals can be temporarily admitted to the United States follow. Their alphabetical labels correspond with their place in the Immigration and Nationality Act. Visas that are employment-based or that have specific applications for employers are noted with an asterisk (*). A: Diplomats and Foreign Government Employees* B-1: Temporary Visitors for Business* (Note: Nationals of select countries can enter the United States without a visa for temporary tourist or business visits under the Visa Waiver Program) B-2: Temporary Visitors for Pleasure C: Transit Aliens D: Crew Members* E: Treaty Traders and Investors* F: Students in Academic Programs* G: Employees of International Organizations* H-1A: Professional Nurses* H-1B: Foreign Nationals in Specialty Occupations* H-1C: Registered Nurses in Health Shortage Areas* H-2A: Nonimmigrant Agricultural Workers* H-2B: Nonimmigrant Workers in Temporary Positions (seasonal workers)* H-3: Trainees* I: Foreign Media Representatives* J: Exchange Visitors* K: Fiancés and Fiancées of U.S. Citizens L-1A: Intracompany Managers and Executives* L-1B: Intracompany Specialized Knowledge* M: Vocational Students N: Parents and Children of Certain Special Immigrants O: Aliens of Extraordinary Ability* P: Entertainers, Athletes and Artists* Q: Participants in Certain International Cultural Exchange Programs* R: Religious Workers* S: Foreign Nationals Assisting Law Enforcement T: Victims of Human Trafficking TN: Certain Canadian and Mexican Professionals* U: Victims of Criminal Activity V: Spouses and Children of Legal Permanent Residents 14 COUNCIL FOR GLOBAL IMMIGRATION

17 The Requirements Each category has unique qualifications for entry, as well as limits on length of stay and permissible activities while within the United States. A few categories have annual quotas, and most require foreign nationals to demonstrate sufficient ties to their home countries as evidence that they will stay only temporarily. Sometimes a foreign national qualifies for more than one visa category. The choice of category can impact many aspects of the foreign national s life, from salary requirements to permanent residency opportunities to whether their dependents can work. Further information about the employment-related visas can be found in the Glossary of Key Terms at the end of this book (see page 29). The Process Most of the employment-related nonimmigrant visa categories require employer sponsorship. As a general rule, to sponsor a nonimmigrant employee, the employer must have offices in the United States and must petition USCIS to obtain permission for the employment by showing that the foreign national is qualified for the position and demonstrating the employer s bona fides. Sometimes, DOL approval is also required to demonstrate that the foreign national will not displace U.S. workers. Once these approvals are received, the foreign national must obtain a nonimmigrant visa stamp from a U.S. consulate abroad. The visa stamp permits the foreign national to travel to a U.S. port of entry, but it does not guarantee that the foreign national will be admitted to the United States. The CBP agents at the port of entry have concurrent authority with the consular officers abroad to decide whether the foreign national qualifies as a nonimmigrant intending to stay in the United States temporarily and whether there are any reasons he or she cannot be legally permitted to enter the United States. Immigrant Visas Persons seeking to immigrate to the United States and obtain legal permanent residence (often called LPR status or a green card) can be generally grouped into four categories: FAMILY-SPONSORED: Persons who are relatives of U.S. citizens and/or permanent residents. EMPLOYMENT-SPONSORED: Persons with offers of employment in occupations in which U.S. workers are in short supply; certain highly talented foreign nationals who may enter the country regardless of the availability of U.S. workers and, in some instances, regardless of job offers; entrepreneurs investing in the United States; and certain special immigrants (see below). DIVERSITY: Persons from countries that historically have low levels of immigration to the United States, who are allotted visas through a lottery process. HUMANITARIAN STATUS: Persons who qualify for asylee or refugee status. Those receiving employment-sponsored visas are further divided into preference categories, with a total pool of 140,000 visas per year allocated to workers and their dependent family members. EB-1: First Employment-Based Preference (40,000 visas/year): EB-1A: Extraordinary Ability EB-1B: Outstanding Professors and Researchers EB-1C: Multinational Executives and Managers EB-2: Second Employment-Based Preference (40,000 visas/year): EB-2A: Advanced Degrees EB-2B: Exceptional Ability Professional EB-2C: National Interest Waiver EB-3: Third Employment-Based Preference (40,000 visas/year; including ~5,000 visas/year for EB-3Cs): EB-3A: Skilled Workers EB-3B: Professionals EB-3C: Other Workers EB-4: Fourth Employment-Based Preference (10,000 visas/year): Certain Special Immigrants and Religious Workers EB-5: Fifth Employment-Based Preference (10,000 visas/year): Employment Creation Immigrant Investors COUNCIL FOR GLOBAL IMMIGRATION 15

18 The Quotas While the spouses and minor children of U.S. citizens and some special immigrants may enter the United States without regard to any numerical limitations, the admission of most family-sponsored or employment-sponsored foreign nationals is restricted numerically, both as to the maximum number of persons in each preference category and as to the maximum number of persons permitted from each foreign country, known as the per-country caps. Each preference category has its own set of skill requirements, quotas and per-country caps. Some categories allow a foreign national to obtain permanent residence in a relatively short period of time, while others can take decades due to processing delays, insufficient quotas in the category or insufficient quotas for persons from particular countries. The Process Employers seeking to hire foreign nationals on a permanent basis are required in most cases to obtain labor certification from the DOL showing that there are no able, willing, qualified and available U.S. workers for the position. The current electronic filing system for labor certification is known as PERM. EB-1 and some EB-2 workers are exempt from this requirement. Once the individual labor certification is obtained, or it is determined that there is no such requirement for the foreign national, the employer files a petition with USCIS, which determines whether the foreign national qualifies for classification in one of the employment-based preference categories. An intending immigrant is then assigned a priority date based upon when the initial paperwork was filed, either with the DOL or USCIS, to determine the order in which his or her petition will be considered for a green card. Since demand for green cards has consistently exceeded the annual supply, many of the categories are severely backlogged, meaning that only those with priority dates from many years ago are able to obtain an immigrant visa number today. Each month the DOS publishes a Visa Bulletin with two charts related to employment-based preference cases: 1) final action dates and 2) dates for filing visa applications. A foreign national may follow one of two paths for the final step in applying for permanent residence. If the foreign national already holds valid nonimmigrant status in the United States, this process is known as adjustment of status. Each month, USCIS makes a determination as to whether it will honor only final action dates or whether it will also honor dates for filing visa applications from the Visa Bulletin for purposes of filing for adjustment of status. A foreign national may file for adjustment of status when his or her priority date is on or prior to the date indicated in the chart chosen by USCIS for that month. While the foreign national becomes eligible for ancillary benefits, like work authorization, upon application for adjustment of status, he or she will not receive permanent residence until an immigrant visa number becomes immediately available based upon the final action date. If the foreign national applies abroad, it is known as consular processing. In this case, the foreign national may file a visa application based upon the dates for filing visa applications in the Visa Bulletin, but he or she will not receive permanent residence until an immigrant visa number becomes immediately available based upon the final action date. For either path, the government will determine whether the foreign national or any accompanying family member is subject to one of the grounds of inadmissibility specified in the immigration law. These grounds include a review of criminal, health, financial and other records that could block a foreign national s entry into the country. Legal permanent residents (LPRs) have most of the rights and responsibilities of U.S. citizenship, with one significant exception: They are not permitted to vote in federal elections. In addition, if an LPR leaves the United States for an extended period of time, he or she may have to take additional steps to maintain status, or the U.S. government may presume that the LPR has abandoned his or her status as a legal permanent resident. U.S. permanent residents are eligible to apply for U.S. citizenship after passage of a period of time mandated by the immigration laws, generally five years. 16 COUNCIL FOR GLOBAL IMMIGRATION

19 FIGURE 7 TYPICAL PATH FOR HIGHLY EDUCATED U.S. UNIVERSITY GRADUATE TO GREEN CARD START STEP 1 Agencies: DOS, DHS (ICE/Student Exchange Visitor Program) Cost: about $445 Time: 2-5+ years depending on degree earned 1 STUDENT APPLIES FOR A VISA TO EARN A U.S. UNIVERSITY DEGREE 2 EMPLOYER HIRES U.S. UNIVERSITY GRADUATE ON H-1B VISA WHEN NEED EXISTS ** STEP 2 Agencies: DOL, DHS (USCIS) Cost: Up to $11,675 per filing* Time: Up to 6 years in H-1B status (longer where there are waits for green card availability) STEP 3 Agencies: DOL 3 4 EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS AVAILABLE FILE PETITION, WAIT FOR GREEN CARD AVAILABILITY THEN APPLY FOR GREEN CARD FINISH STEP 4 Agencies: DHS (USCIS), DOS Cost: Up to $14,045* Time: Months to process petition, but green card availability can take up to 10 years. Application for green card undergoes security background check that can take months Cost: about $1,000 $5,000 advertising and recruiting costs + attorney fees* Time: At least six months (while employee is in H-1B status) if approved receive green card Agencies: DHS, DOL, DOS Cost: Up to $37,395+ Time: Up to 22+ years * To learn more about the fees listed in this figure see pages ** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced. COUNCIL FOR GLOBAL IMMIGRATION 17

20 FIGURE 8 TYPICAL PATH FOR HIGHLY EDUCATED OVERSEAS GRADUATE TO GREEN CARD START STEP 1 Agencies: DOS, DHS (USCIS) Cost: Up to $11,675 per filing* Time: Up to nine months to file and receive H-1B visa, up to 6 years in H-1B status (longer if waits for green card availability) 1 EMPLOYER HIRES GRADUATE ON H-1B VISA FROM OVERSEAS WHEN NEED EXISTS** 2 EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS AVAILABLE STEP 2 Agencies: DOL, DHS (USCIS) Cost: about $1,000 $5,000 advertising and recruiting costs + attorney fees* Time: At least six months (while employee is in H-1B status) 3 FILE PETITION, WAIT FOR GREEN CARD AVAILABILITY THEN APPLY FOR GREEN CARD STEP 3 Agencies: DHS (USCIS), DOS Cost: Up to $14,045* Time: Months to process a petition, but waits for green card availability can be up to 10 years, Application for green card undergoes security background check that can take months FINISH if approved receive green card * To learn more about the fees listed in this figure see pages ** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced Agencies: DHS, DOL, DOS Cost: Up to $37,395+ Time: Up to 17 years 18 COUNCIL FOR GLOBAL IMMIGRATION

21 Worksite Enforcement Prior to 1986, employers were not subject to federal civil and criminal penalties for the unauthorized employment of foreign nationals, although such penalties existed within the laws of some states. With the passage of the Immigration Reform and Control Act of 1986 (P.L ), employers were prohibited from knowingly hiring or continuing to employ any individual who was unauthorized to work in the United States, and were also required to verify the employment eligibility of all new hires, including U.S. citizens. This verification is recorded on Form I-9. In 1996, Congress authorized the government to pilot three electronic employment verification systems. The only one that remains today is known as E-Verify. E-Verify is voluntary except where it is mandated by federal, state or local law. This is a rapidly evolving area of the law and will continue to be until Congress mandates use of one federal employment verification system. Generally, within three days of a new hire beginning employment, any employer in the United States must complete a Form I-9 by examining one or more documents approved by the DHS that establish the employee s identity and authorization to work in the United States. After inspecting the employee s documents and determining that they appear to be genuine, the employer and employee make certain attestations on Form I-9. These records must be maintained for at least three years after the date of hire, or for one year after the employment relationship is terminated whichever is later. If the employer is enrolled in E-Verify, the employer enters information from the completed Form I-9 into the system, which then compares that information to the government s records in order to provide the employer with a determination of whether the employee is work-authorized. If a discrepancy arises, the employer and employee must take certain steps to resolve the issue. Certain employees may have only temporary authorization to work in the United States. In those situations, the employer must reverify the employee s eligibility status on the Form I-9 before the date that the temporary authorization expires. If the employer discovers that an employee lacks work authorization, or that the employee s authorization to work has expired (and cannot immediately be reverified), the employer must terminate the employment relationship. The obligation to verify work authorization must be carefully balanced with the concurrent legal duty not to discriminate against persons based upon their national origin, citizenship or immigration status an important part of our law enforced by the DOJ s Immigrant and Employee Rights Section (IER). Significant civil fines and criminal penalties can be assessed against employers that fail to properly verify work authorization or that engage in discriminatory behavior. The greatest challenge confronting employers is that this system can be defeated by individuals using stolen identities. Efforts to make the system more secure have been insufficient to date. COUNCIL FOR GLOBAL IMMIGRATION 19

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23 EMPLOYMENT-BASED IMMIGRATION RESOURCES 68 % IMMIGRATION IS AN INVESTMENT IN TOMORROW S WORKPLACE. ON AVERAGE, MORE THAN $35,395 IS SPENT ON FILING FEES ALONE OVER THE LIFETIME OF A FOREIGN NATIONAL PROFESSIONAL S CAREER.

24 FEES FOR KEY EMPLOYMENT-BASED VISAS AND GREEN CARDS 4 For employers, immigration is an investment in tomorrow s workplace. In addition to salaries and benefits for employees working in the immigration function, employers must plan for government fees and anticipate the use of outside counsel. Some examples of the most common immigration government fees for multinational employers follow. VISA APPLICATION FEES ATTORNEY FEES 5 OTHER FEES AND COSTS TOTAL $1,500 education and training fee (for employers with over 25 employees) or $750 (for employers with 25 or fewer employees) employers pay, unless exempt 6 H-1B VISA & EXTENSION $460 employer pays $1,000 $3,000 employer pays fees related to filing the labor condition application and the H-1B petition and typically pays other attorney fees $500 anti-fraud fee (employer pays, but not required if extension with same employer) $1,225 (optional) premium processing (employer or employee may pay, employer typically pays and employee may pay for personal travel) $4,000 (50/50 fee) for employers with over 50% H-1B/L-1 in their U.S. workforce (employer pays) 7 Initial H-1B: $3,460 $11,675 Extension: $2,960 $11,675 $190 visa application processing; $0 $800 visa issuance/ reciprocity $500 anti-fraud fee (employer pays, but not required if extension with same employer) L-1 VISA & EXTENSION $460 employer pays $1,000 $3,000 employer pays fees related to filing the L-1 petition and typically pays other attorney fees $1,225 (optional) premium processing (employer or employee may pay, employer typically pays and employee may pay for personal travel) $4,500 (50/50 fee) for employers with over 50 employees and over 50% H-1B/L-1 in their U.S. workforce (employee pays) 8 Initial L-1: $1,960 $10,675 Extension: $1,460 $10,675 Additional fees consular-processed: $190 visa application processing; $0 $800 visa issuance/reciprocity 22 COUNCIL FOR GLOBAL IMMIGRATION

25 VISA APPLICATION FEES ATTORNEY FEES OTHER FEES AND COSTS TOTAL H-4 OR L-2 DEPENDENT $370 employer often pays, but not required $450 $750 employer often pays, but not required Additional fees if consular-processed: $190 visa application processing; $0 $400 visa issuance/reciprocity $820 $1,710 LEGAL PERMANENT RESIDENCE (GREEN CARD) $1,925 employment-based green card fee ($700 Form I-140; $1,140 Form I-485; $85 biometric fee) 9 employer is not required to pay but the I-140 is filed by and typically paid for by the employer Additional fees if consularprocessed: $430 ($345 immigrant visa application fee per person; $85 biometrics fee) fees same for each family member $5,000 or more (includes legal fees for labor certification work, adjustment, consular processing); $500 per family member; $500 per employment authorization document extension; $500 per advance parole extension (employer to pay attorney fees for green card if the same attorney represents both employer and employee) $1,000 $5, estimated cost for advertising/recruiting will vary depending on location, dates and length of advertising, including if supervised recruitment should apply (employer must pay for labor certification costs, cannot ask employee to reimburse) $1,225 (optional) premium processing for Form I-140 (available for certain EB-1, EB-2 and EB-3 applicants) $150-$300+ estimated cost for medical exam and any necessary vaccinations (employee may pay) $165 covers costs of processing immigrant visa packages after visa holders receive their packages from the Department of State and are admitted into the United States. 11 $8,075 $14,045 (does not include family members, legal fees for EAD or advance parole extension costs that may be due to processing delays) GRAND TOTAL FOR H-1B TO GREEN CARD: $14,495 $37,395 + GRAND TOTAL FOR L-1 TO GREEN CARD: $11,495 $35,395+ COUNCIL FOR GLOBAL IMMIGRATION 23

26 A SELECT HISTORY OF MAJOR EMPLOYMENT-BASED IMMIGRATION PROVISIONS IN U.S. LAW Over the past three decades, several key immigration acts have changed U.S. law, at times significantly reforming the employment-based immigration system and impacting the way employers manage their workforces. The following is a detailed summary of the major laws that Congress has enacted since 1986 that are of particular interest to U.S. employers. The Immigration Reform Act of 1986 (IRCA) (P.L ) Required employers to attest to all employees identities and employment eligibility verification by completing a Form I-9. Created tough new penalties for employers who know or have reason to know that they are employing or recruiting unauthorized workers. Prohibited employers from discrimination in employment because of an applicant s national origin or citizenship status. Created the SAVE (Systematic Alien Verification for Entitlements) program to allow the government to obtain information on immigrant status to determine eligibility for public benefits. Created a pilot diversity visa program to enable persons from countries with historically low immigration rates to apply for one of 5,000 (now 55,000) permanent resident visas. Created the Visa Waiver Pilot Program, which currently allows citizens from (now 38) countries to travel to the United States for up to 90 days without a visa. The Immigration Act of 1990 (IMMACT90) (P.L ) Modified the employment-based (EB) preference system by establishing five categories of EB immigration. Placed a worldwide cap on EB immigration of 140,000 visas per year. Divided high-skilled temporary workers into distinct temporary work visa categories. Placed a numerical cap on the H-1B program of 65,000 visas per year. Replaced the previous standard of distinguished merit and ability with specialty occupation in the H-1B visa category. Codified the doctrine of dual intent for H-1 and L-1 visa applications. Required that prospective employers of H-1Bs file a labor condition application with the Department of Labor (DOL) attesting that they pay the higher of the actual wage or the prevailing wage. Limited the maximum length of stay for H-1 nonimmigrants to six years. Created the blanket L-1 program, permitting qualifying employers to expedite global transfers by filing a single petition for a group of nonimmigrants, rather than individual petitions. Raised existing fines for any use or acceptance of fraudulent documents. Established the O and P visa categories for athletes and entertainers, Q visas for international cultural exchange. 24 COUNCIL FOR GLOBAL IMMIGRATION

27 Modified criminal inadmissibility waiver requirements and increased the number of crime-related grounds of inadmissibility. Expanded the diversity visa pilot program into a permanent visa category that allots 55,000 visas annually to qualified applicants selected in an annual lottery. Required individuals receiving diversity visas to possess at least a high school education or its equivalent, or have at least two years of work experience. Expanded provisions under Immigration-related Unfair Employment Practices to include protection against employer retaliation, requests for unnecessary documentation and defenses based on failure to file declarations of intending citizenship. Imposed new certifications on foreign physicians. Established the temporary protected status (TPS) program, allowing the government to designate nationals of countries experiencing political, civil or environmental strife to remain in the United States for up to 18 months. Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L ) Eliminated the numerical limits on P visas. Clarified requirements for extraordinary ability, international recognition and one-year affiliation for O visas. Clarified requirements for labor condition applications. Allowed certain doctors and fashion models to qualify for H-1B visas. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (P.L ) Required entry and exit control systems to track nonimmigrant visa overstays and established a requirement for biometric machine-readable identifiers for border crossing cards. Created new grounds of inadmissibility, including three- and 10-year bars to re-entry for persons unlawfully present in the United States. Nonimmigrant visas are automatically invalidated upon an overstay, and such nonimmigrant must return to his or her home country to obtain a new visa. Permanently barred those who falsely claim to be U.S. citizens from becoming permanent residents. Redefined aggravated felony to include any crime or theft or violence for which a one-year sentence may be imposed. Created the voluntary basic pilot program now called E-Verify. Prohibited fines against employers for technical Form I-9 paperwork errors made in good faith. Required proof of discriminatory intent for an employee to prevail in an immigration-related unfair employment practices claim. Made the Visa Waiver Program permanent. Prohibited F-1 students from attending public schools other than secondary schools, and then only for 12 months if they reimburse the school for attendance costs. This act was originally intended to be retroactive, but legal challenges have limited its retroactive reach. American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (P.L ) Required H-1B dependent employers (employers with 15 percent or more of their U.S. workforce on H-1Bs) to attest there have been no layoffs of U.S. workers 90 days before or after the filing of an H-1B petition. Required that H-1B dependent employers take good faith steps to recruit U.S. workers that are equally or better qualified for a job for which a foreign national worker is sought. Increased the H-1B cap to 115,000 for FY 1999 and FY Imposed the initial H-1B education and training fee of $500. American Competitiveness in the 21st Century Act of 2000 (P.L ) Increased the H-1B cap to 195,000 for FY , retroactively raising the cap for FY 2001, to accommodate the existing backlog in these years. Increased the H-1B fee from $500 to $1,000 and exempted specific nonprofits, institutions of higher education and governmental research organizations from the H-1B education and training fee as well as the cap. Required visas obtained by fraud or misrepresentation to be recaptured and restored to the H-1B cap. Required that H-1B employees may only be counted against the H-1B cap for initial petitions. H-1Bs employed at institutions of higher COUNCIL FOR GLOBAL IMMIGRATION 25

28 education or related nonprofits, or nonprofit or governmental research organizations are not counted against the cap. Allowed for H-1B visa portability by permitting employees to accept new employment upon the filing of a non-frivolous petition by a prospective employer. Allowed unused employment-based visas to be used for employees from oversubscribed (high-demand) countries. Allowed certain EB-1, EB-2 or EB-3 beneficiaries who are not able to obtain a visa due to per-country limitations to obtain H-1B extensions beyond six years and to change employers. Allowed EB-1, EB-2 or EB-3 beneficiaries whose adjustment of status application has been pending 180 days or more to change employers without affecting their applications if the new job is in the same or similar occupational classification as the job for which the petition was filed. Allowed B-1 business visitors to accept honorarium payments and incidental expenses for certain academic activities. USA Patriot Act of 2001 (P.L ) Required the National Institute of Standards and Technology to develop a technology standard to verify the identity of persons applying to enter and exit the United States. This program is now a part of the Office of Biometric Identity Management (formerly US-VISIT). Ultimately, the United States aims to create a cross-agency, cross-platform electronic system to conduct background checks, confirm identities, collect biometric information and ensure that people do not receive visas under varying names. Permitted the U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) to receive information from the Federal Bureau of Investigation s National Crime Information Center database and allowed the DOS to share information with foreign governments through a visa lookout database. Established grounds of inadmissibility for soliciting funds for terrorist groups or activities, or commission of any act that one knows or should have known affords material support to terrorist groups or individuals. Required government to implement entry/exit data system for all land, sea and airports. Allowed DOS to share information in the visa lookout database with foreign governments. Work Authorization for Spouses of Treaty Traders and Treaty Investors (P.L ) Permitted the spouses of E (treaty trader and investor) visa employees the opportunity to seek work authorization. Work Authorization for Nonimmgrant Spouses of Intracompany Transferees (P.L ) Permitted the spouses of L-1 (intracompany transferees) visa employees the opportunity to seek work authorization and reduced the period of time during which certain intracompany transferees have to be continuously employed before applying for admission to the United States. Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L ) Required Visa Waiver Program countries to issue machine-readable, tamper-resistant passports with biometric identifiers. Implemented a tracking system for F, M and J visas (SEVIS) and required designated school officials to notify the Department of Homeland Security (DHS) of any foreign national student who does not report to school and enroll within 30 days of the school s registration deadline. Required the implementation of an integrated entry and exit database containing arrival and departure information gleaned from machine-readable visas, passports and other travel and entry documents. Originally mandated by section 110 of IIRAIRA as a pilot program, this program is now run by the Office of Biometric Identity Management (formerly US-VISIT). Required the government to make all security databases involved in determining the admissibility of foreign nationals interoperable. Restricted issuance of nonimmigrant visas to nationals of countries determined to be state sponsors of terrorism. Required USCIS to determine that foreign nationals do not appear in federal lookout databases. 26 COUNCIL FOR GLOBAL IMMIGRATION

29 Homeland Security Act of 2002 (P.L ) Abolished the Immigration and Naturalization Service. Brought immigration within the purview of the newly created DHS, dividing responsibility for immigration management between Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and USCIS. Established an Ombudsman to assist USCIS stakeholders in resolving problems with the agency and proposing changes to the system. The DHS secretary was given ultimate authority to enforce the Immigration and Nationality Act (INA) and issue pertinent regulations, although this does not affect the DOS s authority under the INA, including the authority to deny a visa. Denied private rights of action regarding visa denials or visa issuance. L-1 Visa and H-1B Visa Reform Act of 2004 (P.L ) Created an H-1B cap exemption for up to 20,000 U.S. university master s degrees and Ph.D. graduates. Raised the H-1B education and training fee to its current level of $1,500 for petitioners that employ more than 25 employees and $750 for petitioners that employ 25 employees or fewer. Improved methodology for prevailing wage determinations. Expanded the Secretary of Labor s authority to investigate labor condition application violations. Modified attestation requirements for H-1B dependent employers. Established a good-faith exception for technical failures to comply with labor condition application rules. Initiated a $500 fraud prevention and detection fee for initial H-1B and L-1 petitions. Required that blanket L-1s be employed abroad by the petitioner for 12 months, up from six months. Required that employees seeking to enter the Unites States on any L-1B visa (initial petition or extension) who will be stationed primarily at the worksite of an employer other than the petitioner, affiliate, subsidiary or parent, be ineligible for L-1B status if: (1) the worker will be controlled and supervised principally by that employer; or (2) the placement of the worker at the unaffiliated worksite is essentially an arrangement to provide labor for hire for the unaffiliated employer. Intelligence Reform and Terrorism Prevention Act of 2004 (P.L ) Required most nonimmigrant visa applicants to submit to an in-person interview before a consular officer overseas. Required that nonimmigrant visa holders and U.S. citizens enter the United States with passports or other DHS-approved documents. The Real ID Act of 2005 (P.L ) Set standards for state-issued driver s licenses and identification documents, including proof of lawful status. Recaptured employment-based visas that went unused in previous fiscal years due to agency processing delays (approximately 50,000 visas), for use by nurses and physical therapists. Created the E-3 visa, allowing up to 10,500 visas per year for Australian nationals to enter the United States to perform specialty occupation services. The Emergency Border Security Supplemental Appropriations Act of 2010 (P.L ) Funded $600 million in border security efforts from August 13, 2010, until September 30, 2014, by imposing a new H-1B fee of $2,000 and L-1 fee of $2,250 on employers whose U.S. workforces have 50 or more workers and more than 50 percent H-1B and L-1 nonimmigrant workers. The James Zadroga 9/11 Health and Compensation Act of 2010 (P.L ) Extended the H-1B and L-1 visas fees set out in P.L by one year until September 30, Easing Service Members Ability to Remove Conditional Residency Act of 2011 (P.L ) Amended the Immigration and Nationality Act to toll, during active-duty service abroad in the Armed Forces, the periods of time to file a petition and appear for an interview to review the conditional basis for permanent resident status. COUNCIL FOR GLOBAL IMMIGRATION 27

30 E-2 Immigration Extenders Act of 2012 (P.L ) Permitted eligible Israeli nationals to receive an E-2 nonimmigrant visa, if similarly situated United States nationals are eligible for similar nonimmigrant status in Israel. The Immigration Extenders Act of 2012 (P.L ) Extended the authorization of the EB-5 Regional Center program, the Special Immigrant Non-Minister Religious Worker program, the E-Verify program and the Conrad State 30 J-1 Visa Waiver Program until September 30, The Consolidated Appropriations Act of 2016 (P.L ) Extended the authorization of the EB-5 Regional Center program, the Special Immigrant Non-Minister Religious Worker program, the E-Verify program and the Conrad State 30 J-1 Visa Waiver Program until September 30, Implemented the H-2B returning worker exemption until September 30, Increased and extended P.L H-1B and L-1 fees to $4,000 an H-1B and $4500 an L-1 on employers whose U.S. workforces have 50 or more workers and more than 50 percent H-1B and L-1 nonimmigrant workers. The fees apply to initial and change of status filings. The increased fee amounts are extended for ten years until September 30, The fees go to fund 9/11 first responders and biometric entry and exit efforts. Added Visa Waiver Program (VWP) Security Measures. Enacted the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (H.R. 158). Effective on enactment, employers executives, contractors and other key professionals must apply for a visa and may not use the VWP if they are a national of Iraq or Syria or if they have traveled to Iraq, Iran, Sudan or Syria as of March 1, An exemption exists for VWP travelers who were present in any of these countries to perform military service in the armed forces of a VWP country or to carry out official duties as a full-time employee of the government of a VWP country. The Department of Homeland Security may also waive the provision if it determines that such a waiver is in the law enforcement or national security interests of the United States. The Continuing Appropriations Act of 2017 (P.L ) Extended the authorization of the EB-5 Regional Center program, the Special Immigrant Non-Minister Religious Worker program, the E-Verify program and the Conrad State 30 J-1 Visa Waiver Program until December 9, Did not extend the H-2B returning worker exemption in P.L The Further Continuing and Security Assistance Appropriations Act of 2017 (P.L ) Extended the authorization of the EB-5 Regional Center program, the Special Immigrant Non-Minister Religious Worker program, the E-Verify program and the Conrad State 30 J-1 Visa Waiver Program until April 28, Did not extend the H-2B returning worker exemption which expired on September 30, COUNCIL FOR GLOBAL IMMIGRATION

31 GLOSSARY OF KEY TERMS Departments and Agencies CITIZENSHIP AND IMMIGRATION SERVICES (CIS) OMBUDSMAN: The CIS Ombudsman role was created by Congress in the Homeland Security Act of The CIS Ombudsman is appointed to help employers and individuals navigate the immigration benefits system. DEPARTMENT OF COMMERCE (DOC), BUREAU OF INDUSTRY AND SECURITY: Within the DOC, this bureau issues export control licenses in cases where a foreign national will work with sensitive technologies. DEPARTMENT OF HOMELAND SECURITY (DHS): The DHS has multiple roles in the U.S. immigration system including, but not limited to, welcoming foreign nationals to our shores, securing our borders, conducting immigration enforcement at worksites and tracking immigration statistics. DHS, STUDENT AND EXCHANGE VISITOR PROGRAM (SEVP) WITHIN U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: SEVP acts as a bridge for government organizations that have an interest in information on nonimmigrants whose primary reason for coming to the United States is to be a student or an exchange visitor, including overseeing the rules for Optional Practical Training (OPT). DHS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS): USCIS oversees lawful immigration to the United States, adjudicating most applications for immigrant and nonimmigrant visas. DHS, U.S. CUSTOMS AND BORDER PROTECTION (CBP): CBP is responsible for admitting travelers through the United States air, land and sea ports of entry. DHS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE): ICE is responsible for enforcing immigration laws at worksites. DEPARTMENT OF JUSTICE (DOJ), EXECUTIVE OFFICE OF IMMIGRATION REVIEW (EOIR): Works to adjudicate immigration cases by fairly, expeditiously and uniformly interpreting and administering the nation s immigration laws. Under delegated authority from the attorney general, EOIR conducts immigration court proceedings, appellate reviews and administrative hearings. DOJ, IMMIGRANT AND EMPLOYEE RIGHTS SECTION (IER): Part of the Department of Justice s Civil Rights Division, enforces the anti-discrimination portion of the Immigration and Nationality Act (INA). DEPARTMENT OF LABOR (DOL): The DOL is responsible for protecting the rights and working conditions of both U.S. and foreign workers. The DOL s Bureau of Labor Statistics analyzes, collects, processes and disseminates labor economics statistical data to Congress, other federal agencies and the public. DOL, OFFICE OF FOREIGN LABOR CERTIFICATION WITHIN THE EMPLOYMENT AND TRAINING ADMINISTRATION: One of the agencies involved in granting permission for foreign workers to work in the United States, and assuring that the admission of foreign workers in certain categories on a permanent or temporary basis will not adversely affect the job opportunities, wages and working conditions of U.S. workers. DEPARTMENT OF STATE (DOS), BUREAU OF CONSULAR AFFAIRS, OFFICE OF VISA SERVICES: Serves as a liaison with the Department of Homeland Security and between the DOS and U.S. embassies and consulates abroad on visa matters; interprets visa laws and regulations and acts as a point of contact for the public. DOS, BUREAU OF CONSULAR AFFAIRS, U.S. EMBASSIES AND CONSULATES ABROAD: Issue visas to eligible foreign nationals coming to the United States. COUNCIL FOR GLOBAL IMMIGRATION 29

32 DOS, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS (ECA): Works to build friendly, peaceful relations between the people of the United States and the people of other countries through academic, cultural, sports and professional exchanges, as well as public-private partnerships. Nonimmigrant Visas Temporary Employment for Professionals DUAL INTENT: Dual intent represents the ability of a nonimmigrant visa holder to reside temporarily in the United States with the intent to immigrate permanently. The ability to hold dual intent varies with each visa category. E-3 (SPECIALTY OCCUPATION PROFESSIONALS FROM AUSTRALIA): E-3 visas are similar to H-1B visas but are available only to nationals of Australia pursuant to a free trade agreement between Australia and the United States. There are 10,500 visas available annually to those who qualify. The application procedures differ somewhat from H-1B visas. H-1B (FOREIGN NATIONALS IN SPECIALTY OR PROFESSIONAL OCCUPATIONS): H-1B visas are used by U.S. employers to hire foreign nationals who possess at least a bachelor s degree, or equivalent work experience, who will hold a professional occupation in the United States. The employer must file a labor condition application attesting that the working conditions will be equal to those offered to U.S. workers. Visas may be issued for an initial period of up to three years, which can be extended for an additional three years and, at times, for a seventh year and beyond. Dual intent is allowed. H-4 visas are issued to family members. There is an annual limit of 65,000 regular H-1B visas and an additional 20,000 visas for advanced degree graduates of U.S. universities. H-1B1 (PROFESSIONALS FROM CHILE AND SINGAPORE): H-1B1 visas are equivalent to H-1B visas but are available only to nationals of Chile and Singapore pursuant to free trade agreements between those countries and the United States. The application procedures differ somewhat from H-1B visas. There are 6,800 H-1B visas reserved from the 65,000 H-1B cap for this category each year. LABOR CONDITION APPLICATION (LCA): Employers of H-1B professionals are required to file an attestation with the Department of Labor that the foreign national will receive the same wages, benefits and working conditions as U.S. workers. Employers must also attest that they have provided notice of the hiring of an H-1B worker to labor officials and other employees. O (FOREIGN NATIONALS OF EXTRAORDINARY ABILITY IN THE SCIENCES, THE ARTS, EDUCATION, BUSINESS OR ATHLETICS): O-1 visas are used by U.S. employers for foreign nationals who possess extraordinary ability in the sciences, the arts, education, business or athletics. O-2 visas are issued to accompanying support personnel and O-3 visas to accompanying family members. Visas may be issued for an initial period of up to three years, which can be extended. P-1 (OTHER ENTERTAINERS AND ATHLETES): P-1 visas are used by U.S. employers for internationally recognized entertainers and athletes who do not qualify for O visas. The visa may be used for entertainment groups or sports teams and may be available for essential support personnel. P-2 (OTHER ENTERTAINERS AND ARTISTS): P-2 visas are for artists and entertainers (as well as groups and essential support personnel) coming to the United States through reciprocal exchange programs. TN (BUSINESS PERSONS FROM CANADA AND MEXICO): The North American Free Trade Agreement (NAFTA) provides certain privileges to U.S., Canadian and Mexican business professionals traveling between the three countries. NAFTA enables Canadians and Mexicans to enter the United States on B, E and L visas in an expedited manner, and creates a special TN visa for certain 30 COUNCIL FOR GLOBAL IMMIGRATION

33 Canadian and Mexican professionals who may work for a U.S. employer, be self-employed or enter pursuant to a contract with a U.S. company. Family members are issued TD visas. TN visas may be issued for an initial period of up to three years but can be extended almost indefinitely. Intracompany Transfers and Investors E-1 AND E-2 (TREATY TRADERS AND INVESTORS): E visas are available to companies and individuals pursuant to treaties between the United States and over 80 other countries. 12 The E-1 visa supports trade activities, and the E-2 visa promotes investment. The United States maintains both types of treaties for some countries and just one type with others. Both the foreign national and the company must be nationals of the treaty country. Family members receive the same type of visa as the principal beneficiary. E visas may be issued for an initial period of up to two years but can be extended almost indefinitely. L-1A (INTRACOMPANY EXECUTIVES AND MANAGERS): The L-1A visa allows a U.S. organization to transfer an executive or a manager from a parent company, subsidiary or other affiliate abroad to the United States. The employee must have worked for the organization abroad for at least one of the previous three years. Family members receive L-2 visas. L-1A visas may be issued for an initial period of up to three years and can be extended for a total stay of seven years. Dual intent is allowed. L-1B (INTRACOMPANY SPECIALIZED KNOWLEDGE PROFESSIONAL): The L-1B visa allows a U.S. organization to transfer workers with special knowledge of the employer s business, products or services from an overseas parent company, subsidiary or other affiliate to the United States. The employee must have worked for the organization abroad for at least one of the previous three years. Family members receive L-2 visas. L-1B visas may be issued for an initial period of up to three years and can be extended for a total stay of five years. Dual intent is allowed. Trainees, Interns and Students H-3 (TRAINEE): U.S. employers can use the H-3 visa to bring foreign nationals to the United States to participate in an established training program. The trainee cannot engage in productive employment in the United States. Family members are given H-4 visas. H-3 visas may be issued for a maximum period of two years. J (EXCHANGE VISITORS): The J category is very broad and encompasses a variety of exchange visitor programs and activities that are approved by the Department of State (DOS) to promote intercultural exchange and public diplomacy. Unlike other visas that are administered by United States Citizenship and Immigration Services, J visas are issued through sponsor organizations that have been approved by the DOS. Exchange visitors can include the following: students, trainees, interns, research scholars, professors, specialists, foreign medical graduates, summer work travel, au pairs, international and government visitors, and camp counselors. Each J-1 category has its own criteria for participation and limits on length of stay and permissible activities. Family members are given J-2 visas. OPTIONAL PRACTICAL TRAINING (OPT) FOR F-1 STUDENTS (WORK AUTHORIZATION FOR STUDENTS): Foreign nationals engaged in academic study at an accredited U.S. college or university may be eligible to engage in work related to their studies. F-1 students may engage in up to 12 months of OPT pre- and/or post-graduation. OPT can be extended for certain graduates in science, technology, engineering and mathematics fields up to 24 months (for a total of 36 months of OPT) subject to new obligations for employers, including a training plan, attestations and potential site visits. Some students may also be eligible for on-campus employment or training incidental to their course of study known as Curricular Practical Training (CPT). Q (INTERCULTURAL EXCHANGE VISITORS): Similar to the J visa, the Q visa promotes intercultural exchange through training and work opportunities. The Q-1 visa is open to all nationalities while the Q-2 visa is specific to persons from Northern Ireland or a county that borders Northern Ireland. Family members receive Q-3 visas. The maximum period of stay is 15 months. International Business Visitors B-1 (TEMPORARY BUSINESS VISITORS): Most foreign nationals coming to the United States to conduct business must obtain B-1 visas. Tourists obtain B-2 visas. B-1 visitors cannot engage in productive employment nor receive remuneration in the United States, but they can meet with colleagues or clients, attend conferences and engage in similar activities. B-1s are admitted for the period of time necessary to complete their work, usually less than three or six months. Persons from certain countries with which the United States has a close relationship are exempt from this visa requirement and can enter under the Visa Waiver Program instead of a B visa. VISA WAIVER PROGRAM (INTERNATIONAL BUSINESS VISITORS): Foreign nationals from a group of 38 countries are able to enter the United States as short-term visitors without obtaining COUNCIL FOR GLOBAL IMMIGRATION 31

34 a B-1 or B-2 visa, known as visa waiver. These visitors must register with the U.S. government through the Electronic System for Travel Authorization (ESTA) in advance of their travel. Admission is for no more than 90 days. 13 Immigrant Visas DIVERSITY VISA LOTTERY: Each year the U.S. government provides permanent residence (or green cards) to persons from around the world through a diversity visa lottery process. The lottery is intended to provide opportunities to persons from countries that historically have low levels of immigration to the United States and who may not have family, employment opportunities or other ties that would otherwise enable them to immigrate. EB-1: The employment-based first preference category (EB-1) is reserved for three subcategories of foreign nationals: Extraordinary ability in the sciences, the arts, education, business or athletics. Outstanding professors and researchers. Multinational executives and managers. No labor certification is required, but the qualifying criteria are quite demanding. There are 40,000 visas a year reserved for EB-1 workers and their family members. Backlogs in this category have occurred. EB-2: The employment-based second preference category (EB-2) has the following subcategories: An advanced degree, or a bachelor s degree plus five years of work experience. Exceptional ability in the sciences, the arts or business. National Interest Waiver. Labor certification is generally required. There are 40,000 visas available annually to EB-2 professionals and their family members. Significant backlogs in this category exist for persons from China and India. EB-3: The employment-based third preference category (EB-3) has three subcategories: Skilled workers whose job requires a minimum of two years of training or work experience. Professionals holding at least a bachelor s degree. Other workers. Labor certification is required. There are 40,000 visas available annually to EB-3 workers and their family members. Note that significant backlogs exist in this category for all countries, particularly for other (unskilled) workers who are technically limited to 5,000 of the 40,000 visas per year. EB-4: The employment-based fourth preference category is for certain special immigrants and religious workers. EB-5: The employment-based fifth preference category is for employment creation immigrant investors. Worksite Enforcement E-VERIFY: E-Verify is an online employment verification program administered by the United States Citizenship and Immigration Services (USCIS). E-Verify confirms certain information from Form I-9 with information maintained in the USCIS and the Social Security Administration databases. E-Verify is optional for the majority of U.S. employers. However, a growing number of states require employers to use E-Verify and certain federal contractors must participate. Note that E-Verify does not replace Form I-9 requirements but is an additional step in the employment verification process. 32 COUNCIL FOR GLOBAL IMMIGRATION

35 FORM I-9: All U.S. employers must complete an Employment Eligibility Verification form (Form I-9) for all persons hired on or after November 6, The purpose of this form is to prove that the employee is authorized to work legally in the United States. It must be completed for citizens and noncitizens alike. The form is accompanied by lengthy instructions and a Handbook for Employers (M-274), as well as guidance from the Department of Justice s Immigrant and Employee Rights Section (IER) regarding nondiscrimination. Unwary employers can easily run afoul of the law, from inadvertent discrimination to fines for paperwork errors to criminal penalties for knowingly employing someone who does not have proper work authorization. IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES: When Congress passed the Immigration Reform and Control Act of 1986 (P.L ), which required employers to verify work authorization, there was concern that employers would discriminate against legal workers who appeared foreign. Thus, safeguards were incorporated into the law to prohibit discrimination against legal U.S. workers. This group includes U.S. citizens, legal permanent residents, refugees and asylees, and certain temporary workers. This law is administered by the Immigrant and Employee Rights Section (IER) at the Department of Justice. Common Employment-Based Immigration Forms U.S. Citizenship and Immigration Services Forms G-28: notice of entry of appearance as attorney or accredited representative I-9: employment eligibility verification form I-129: petition for a nonimmigrant worker I-129S: nonimmigrant petition based on a blanket L petition 1-131: application for travel document I-140: immigrant petition for alien worker I-485: application to register permanent residence or adjust status I-539: application to extend or change nonimmigrant status I-765: application for employment authorization I-907: request for premium processing service U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program Forms I-983: training plan for science, technology, engineering and mathematics optional practical training for students Department of State Forms DS-160: online nonimmigrant visa application DS-260: immigrant visa and alien registration application DS-2019: certificate of eligibility for exchange visitors DS-7002: training/internship placement plan Department of Labor Forms ETA 9035 AND 9035E: nonimmigrant worker labor condition application ETA 9089: application for permanent employment certification COUNCIL FOR GLOBAL IMMIGRATION 33

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37 ABOUT US THE COUNCIL FOR GLOBAL IMMIGRATION The Council for Global Immigration (CFGI), founded in 1972 as the American Council on International Personnel, is a strategic affiliate of SHRM. It is a nonprofit trade association comprised of leading multinational corporations, universities and research institutions committed to advancing the employment-based immigration of high-skilled professionals. CFGI bridges the public and private sectors to promote sensible, forward-thinking policies that foster innovation and global talent mobility. CFGI has testified before the U.S. Congress, appeared before federal agencies and is frequently called upon to lend its expertise in international forums, including before the United Nations, the World Trade Organization and the Global Forum on Migration and Development. Learn more about CFGI and how to become a member at cfgi.org. THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT The Society for Human Resource Management (SHRM) is the world s largest HR professional society, representing 285,000 members in more than 165 countries. For nearly seven decades, the Society has been the leading provider of resources serving the needs of HR professionals and advancing the practice of human resource management. SHRM has more than 575 affiliated chapters within the United States and subsidiary offices in China, India and United Arab Emirates. Visit us at shrm.org.

38 ENDNOTES 1 McKinsey Quarterly, The World at Work: Jobs, Pay and Skills for 3.5 Billion People, June 2012, employment-and-growth/the-world-at-work 2 Society for Human Resource Management, The New Talent Landscape: Recruiting Difficulty and Skills Shortages, 2016, shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/ talent-landscape.aspx 3 Bureau of Labor Statistics, Job Openings and Labor Turnover, January 10, 2017, 4 The range of estimates provided in this chart are for employers utilizing attorney services and for those nonexempt education and training fee employers (with over 25 employees). 5 Data regarding attorney fees reflects a majority of Council for Global Immigration member respondents surveyed in October For additional information on the ACWIA fee, please see pages of Form I-129 at 8 Ibid. 9 There are no additional fees for Forms I-131 (Application for Travel Document) or I-765 (Application for Employment Authorization) when filed concurrently with Form I Costs represent a majority of Council for Global Immigration member respondents surveyed in October Costs for an employer can go much higher when bundling multiple applications together, such as the cost of advertising and recruiting for green cards. 11 For additional information about this fee, effective February 1, 2013, visit 12 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, Treaty Countries, 13 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, Visa Waiver Program Overview, visit/visa-waiver-program.html 7 P.L , 50/50 employer fee extended through September 30, COUNCIL FOR GLOBAL IMMIGRATION

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