BASICS OF FAMILY AND EMPLOYMENT BASED IMMIGRATION LAW

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Adele Susan Fowler
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1 BASICS OF FAMILY AND EMPLOYMENT BASED Presented by: Reaz H. Jafri, Esq. Abrams Fensterman Fensterman Eisman Greenberg Formato & Einiger, LLP 1111 Marcus Avenue, Suite 107 Lake Success, NY Tel: Fax: Mobile: Website:

2 Immigrant vs. Nonimmigrant Immigrant = permanent Nonimmigrant = temporary Quotas for immigrant visas factors that play into this are category and country Limited quotas for nonimmigrant visas

3 Annual cap of 480,000 family-based immigrant visas (IVs) 140,000 employment-based IVs 55,000 Diversity IVs ( Lottery ) Immediate Relatives (IR) defined as child under 21, parent or spouse of USC counted toward the annual cap of family-based immigrant visas but no numerical limitation All other family-based petitions are classified under a Preference System next slide Widow/Widower if deceased spouse was USC at time of death, the surviving spouse may apply for Lawful Permanent Resident (LPR ) status or green card within 2 years of death

4 Non-IR family-based petitions divided into four preferences: 1. First Preference: Unmarried sons/daughters of USCs (21 or older) 2. Second Preference: Spouses and unmarried children (2A) and unmarried sons & daughters (2B) of LPRs 3. Third Preference: Married sons and daughters of USCs 4. Fourth Preference: Siblings of USCs Significant backlogs exist in each of these categories. Priority dates can be found on the US Department of State s website

5 Family-based cases filed on Petition for Alien Relative (Form I-130) When an IV becomes available in the particular family-based preference, a beneficiary may file an Application to Register Permanent Resident or Adjust Status (Form I-485) if in US or, if abroad, apply for an IV at US Consulate Because IRs are not subject to numerical limitation, the beneficiary of an IR petition may file an I-485 concurrently with the I-130 With an I-485, one may file for employment authorization and Advance Parole travel permission (travel abroad without Advance Parole may be deemed an abandonment of I-485)

6 Violence Against Women Act (VAWA) permits the battered spouse of a USC or LPR to self-petition for a LPR status Children included without having to file a separate petition Marriage must have been entered into in good faith Must have resided with the USC/LPR Must be able to document battery or extreme cruelty Filed with Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) Eligible for naturalization 3 years after getting LPR status

7 Key point: All employment-based NIVs (E, H, I, L, O, P, R, And TN) must have an employer or agent. E-1 ( Treaty Trader ) and E-2 ( Treaty Investor ) Nationals of countries with whom US has a Friendship, Commerce & Navigation, Bilateral Investment Treaty or other agreement (i.e.: NAFTA ) INA 101(a)(15)(E); 8 CFR 214.2(e) Generally indefinite in duration Spouse eligible for employment authorization

8 H-VISAS - Persons engaged in specialty occupations, temporary agricultural workers, seasonal workers and trainees. INA 101(a)(15)(H). The most common is the H-1B ( specialty occupation ). - Specialty occupation defined as a position that requires a theoretical and practical application of a body of highly specialized knowledge and a baccalaureate or its equivalent as a minimum for entry into the occupation. INA 214(i)(1); 8 CFR 214.2(h)(4)(ii); 22 CFR

9 H-1B (continued) - Requires employer to file a Labor Condition Application (LCA) with the US Department of Labor with numerous attestations including that the H-1B will be paid the higher of the prevailing or actual wage in the area of intended employment. LCA is completed on Form ETA-9035E and filed online through the DOL s icert Visa Portal System Maximum period of stay is 6 years. Can be extended beyond the 6 th year in 1-year increments if a PERM case was filed and/or remains pending for 1 year and in 3-year increments if an Immigrant Petition for Alien Worker (Form I-140) is approved. (Refer to slides on PERM and I-140)

10 H-1B (continued) - 65,000 annual cap. Additional 20,000 for individuals that have obtained a Master s or higher degree from US university. - Certain not-for-profit employers, research foundations and institutes of higher education are exempt from the annual caps. - Employer must maintain and have available a public access file containing documentation that supports the LCA. - Spouse not eligible for employment authorization.

11 L-VISA - Intracompany transferee of a foreign company to its US parent, subsidiary, branch or affiliate. - Distinguish between L-1A (executive or manager) and L-1B (employee possessing specialized knowledge). 8 CFR 214.2(l)(ii)(C), 8 CFR 214.2(l)(ii)(D). - L-1A valid for up to 7 years; L-1B 5 years - L-1A easily convertible to LPR - Foreign worker must have worked for foreign company for at least 1 year of the preceding 3 years. - Spouse eligible for employment authorization.

12 O-1 VISA - Persons with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by national or international acclaim, 8 CFR 214.2(o)(1)(ii)(A)(1), or for persons in the motion picture or TV production occupations that have a demonstrated record of extraordinary achievement, 8 CFR 214.2(o)(1)(ii)(A)(2). Must be of a definite duration but can usually be extended indefinitely. Can be filed by an agent. Spouse not eligible for employment authorization. O-2 visa issued to persons accompanying artist or athlete for specific event.

13 P- VISA - P-1 visas are available to athletes and group entertainers (individually or part of a group or team). 8 CFR 214.2(p); 22 CFR P-2 is for artist or entertainer coming to the US to perform under a reciprocal exchange program between a US and foreign organizations. 8 CFR 214.2(p)(5) - P-3 is for artist or entertainer coming to US to perform, teach or coach in a culturally unique program 8 CFR 214.2(p)(6) - Includes essential personnel - Spouse not eligible for employment authorization

14 R VISA - Minister - 8 CFR 214.2(r)(3) - Religious worker - 8 CFR 214.2(r)(1) TN VISA - Pursuant to North American Free Trade Agreement (NAFTA), Canadian and Mexican citizens may enter the US for employment in occupations listed in Appendix 1603.A.1 to Annex 1603 of NAFTA. 8 CFR 214.2(b)(4)(i)(A)-(G) - Canadians need not apply for an NIV prior to entering. - Mexicans must have either an NIV issued b y a US Consulate or a special Border Crossing Card.

15 Employment-based (EB) IVs petitions may be filed by an employer or by an individual alien in one of several Preference Categories. First Preference (EB-1) - Extraordinary ability in science, art, education, business or athletics. INA 203(b)(1)(A), 8 CFR 204.5(h)(3). Can be self-petition or filed by an employer. - Outstanding Professor and Researcher. INA 203(b)(1)(B), 8 CFR 204.5(i)(3). Must be filed by employer. - Multinational Executives and Managers. INA 203(b)(1)(C), 8 CFR 204.5(j)(3). Must be filed by employer.

16 Second Preference (EB-2) - Member of professions holding an advanced degree or person of exceptional ability. INA 203(b)(2), 8 CFR 204.5(k) - General prerequisite is a certified Application for Permanent Employment Certification (PERM case) filed by an employer. (More on PERM later) - An employer or the individual alien may bypass the requirement that an employer obtain labor certification if it is in the national interest known as National Interest Waiver (NIW). A successful NIW petition must establish that (1) the person seeks employment in an area of substantial intrinsic merit, (2) the benefit will be national in scope, and (3) the national interest would be adversely affected if a labor certification were required. See In the Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (1998)

17 Exceptional Ability established by any 3 of the following: - Degree relating to area of exceptional ability - Letter from current or former employer showing at least 10 years of experience - License to practice profession - Person has commanded a salary or remuneration demonstrating exceptional ability - Membership in professional association - Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations - 8 CFR 204.5(k)(3)(ii)

18 Third Preference (EB-3) - Professionals or skilled workers (job requires at least 2 years of experience of training). - Requires Labor Certification - INA 203(b)(3) Fourth Preference (EB-4) - Special immigrants (VAWA, religious workers, special juveniles, certain Iraqi/Afghan nationals, etc.) - INA 203(b)(4) - May petition without employer. INA 204(a)(1)(E)

19 Fifth Preference (EB-5) - Employment-creation/Investment based. - Invest $1,000,000 in a new commercial enterprise that creates at least 10 fulltime positions for American or otherwise authorized workers. - Reduced investment of $500,000 permitted if commercial enterprise in a Target Employment Area (TEA) defined as either a rural area (outside of a Metropolitan Statistical Area and outside of city or town with a population of more than 20,000) or an area of high unemployment (150% of the national average). - May also invest $500,000 in US Department of State approved Regional Centers (RC) - Must be involved in day-to-day business or policy formulation. - INA 203(b)(5), 8 CFR 204.6

20 Application for Permanent Employment Certification - Administered by US Department of Labor. 20 CFR 656, 69 FR Filed under the DOL s Program Electronic Review Management System (PERM) - Prerequisite for all most EB-2 (and all EB-3 petitions) - Requires employer to test the local job market for qualified US workers (advertisements, notifying union (if any), postings, etc.) - Can reject US workers only for job-related reasons - Employer cannot make requirements unduly restrictive absent business necessity - Employer is statutorily obligated to pay all fees (including attorneys fees) and costs associated with a PERM case. 22 CFR (b)

21 EB petitions filed on Petition for Alien Worker (Form I-140). If an IV available in the specific EB category at time of filing, one may file I-485 concurrently with I-140. IV priority dates found at EB-1 and EB-5 current worldwide; EB-2 retrogressed for India (May 2006) and China (July 2006); EB-3 retrogressed worldwide (July 2005, more so for China, India and Mexico) Forms, filing instructions, relevant regulations available at

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