Immigration Law Basics

Transcription

1 Immigration Law Basics Presented to: August 2004

2 CONTACT LIST Terri A. Simmons Arnall Golden Gregory L.L.P Natalie Tynan Hogan & Hartson L.L.P Megan Millard Paul Hastings

3 NONIMMIGRANTS Coming to U.S. temporarily Petition vs. Non-Petition Visa Application Admitted at Port of Entry

4 AGENCIES INVOLVED Department of Homeland Security CIS ICE CBP The Department of State The Department of Labor

5 ROLE OF DEPARTMENT OF HOMELAND SECURITY Admitting Aliens at Ports of Entry Adjudicating Immigrant and Non-Immigrant Visa Petitions and Related Applications Determining Naturalization Eligibility Enforcing Borders Investigating and Prosecuting Immigration Violations

6 ROLE OF STATE DEPARTMENT Issuing Visa Stamps Adjudicating Non-Petition Visas Determining Inadmissibility Administering J-1 Programs

7 ROLE OF DEPARTMENT OF LABOR Processing LCA Applications Processing Labor Certification Applications Investigating and Prosecuting Violations

8 IMMIGRATION CATEGORIES Lawful Permanent Resident Alien Non-immigrant Visa Holder Refugee / Asylee Entry Without Inspection

9 MAINTENANCE OF STATUS Governed by I-94 card, not visa stamp If overstay by even one day, subject to 222(g): visa automatically cancelled; must obtain future visa stamps in home country If overstay by 180 days, then leave U.S., barred from reentering for 3 years If overstay by one year, then leave U.S., barred from reentering for 10 years

10 NONIMMIGRANT VISAS

11 NONIMMIGRANTS Coming to U.S. temporarily Most work visas require advance petition approval by CIS (Premium processing available in some cases) Role of American Embassy, or Consulate in issuing visa Role of Customs/Immigration Inspector at point of entry

12 NEED TO STRATEGIZE Several options for each type of employee Initial status can impact subsequent status Plan ahead

13 BUSINESS VISITOR (B-1 VISA) Short-Term Visitor for Business On foreign payroll Plan ahead Business Meetings Receive training Joint development projects Visa Waiver Program 27 countries 90 day maximum stay

14 E VISA Only for citizens of countries with qualifying treaty with U.S. E-1 - To conduct substantial trade between U.S. and home country E-2 - Overseeing qualifying investment in U.S.

15 E VISA (contd.) 50% Ownership of Company must be by citizens of treaty country Entry for 2 years; 2-yr extensions available Maximum stay virtually unlimited

16 L-1 VISA Company Relationship: parent, subsidiary, affiliate, or branch abroad Employee Qualifying Employment: employed 1 out of past 3 years abroad Duration: 7 yrs max for managers/ executives 5 yrs for specialized knowledge employees Blanket program

17 L-1 VISA (cont.) L-1A Manager: supervises professionals or manages a function L-1A Executive: directs a major component of the company, broad authority L-1B Specialized Knowledge: knowledge of the company s product, services, processes and procedures [insert recent controversy re L classifications]

18 H-1B VISA: IMMIGRATION PROVISIONS Specialty Occupation Entry level requirement Bachelor degree, or equivalent, in specialty field 3 years experience = 1 year of college Six year maximum stay; 1 yr extensions available under certain circumstances H-1B Cap Visas limited annually (195,000 for FYs ; FY 2004 onward 65,000) Big Problem because cap reached 2/2004; no new visas until 10/1/05 (FY05)

19 H-1B VISA: IMMIGRATION PROVISIONS $1000 fee per petition for scholarship/ training fund, in addition to $185 processing fee [eliminated for FY 2004] If employee is terminated, company is responsible for employee s return transportation; Company should withdraw LCA if blanket, and notify CIS of termination

20 H-1B DOL PROVISIONS LABOR CONDITION APPLICATION ( LCA ) Filed with Dept. of Labor before filing H-1B with INS Attesting to: Wages higher of: prevailing wage in area or actual wage at worksite Working conditions No Strike or lockout Notice (posting at worksite) Must maintain public inspection file

21 H-1B DOL PROVISIONS LCA Additional attestations for H-1B dependent and willful violator employers regarding [In effect until FY 2004 have sunset and are yet to be reinstated]

22 LCA PENALTIES Assessment of back wages Civil fines of $1,000 - $35,000 Debarment from receiving approval for nonimmigrant and immigrant petitions for 1-3 years Debarment from filing labor certifications or LCAs for 1-3 years

23 H-1B PORTABILITY How quickly can H-1B worker start working at new company after leaving previous employer? As soon as new H-1B petition is filed with CIS if FN entered legally FN hasn t worked w/o authorization Non-frivolous petition is filed before I-94 card expires

24 TN CATEGORY For Canadians and Mexicans in specific occupations listed on NAFTA Schedule 2 One-year initial admission extensions available in one year increments Must maintain intent to remain temporarily in the U.S.

25 TN CATEGORY (cont.) No LCA required for Canadians No CIS petition approval needed for Canadians; adjudication at port of entry Mexicans require CIS petition approval in advance and must obtain TN visa from U.S. consular post to enter

26 O VISA Extraordinary ability in science, education, business, arts, motion picture/tv Initial approval for up to 3 years, 1-year extensions, no maximum stay For aliens in the small percentage at the top of their field Has been a useful classification for certain FN unable to obtain H-1B visas due to the cap

27 F-1 VISA Academic studies admitted for duration of status Full-time matriculated student at approved school Students can engage in 3 kinds of practical training, pre- or postgraduation

28 J-1 VISA Exchange visitor program administered by Dept. of State Limit of stay depends on category: trainees, research scholars, specialists, students Emphasis on cross-cultural activities Some J Visa holders must return to home country for at least 2 years after program waivers of this requirement extremely difficult to obtain

29 HYPOTHETICAL 1 Your company recruiter identifies an H-1B worker who has been employed by XYZ company, but was laid off 1 month ago. The recruiter wants to know what needs to happen before the worker can begin work for your company.

30 HYPOTHETICAL 2 John was hired by your company abroad and has worked for over a year as an entry-level sales person. John spent 4 of the last 12 months in the U.S. on B-1 business trips. Your company now wants you to get John a working visa in the United States (John has no degree).

31 PERMANENT RESIDENT VISAS

32 3 STEPS TO PERMANENT RESIDENT Obtain Labor Certification from Department of Labor ( DOL ) Obtain approved Immigrant Visa petition from CIS Become a permanent resident through Adjustment of Status in the U.S. - OR Consular Processing abroad

33 3 STEPS TO PERMANENT RESIDENT Step 1 is bypassed for individuals in the First Preference immigrant visa category Can t go to Step 3 until Priority Date is current

34 PRIORITY DATE Established on the date labor certification is filed with SWA, or if labor certification is waived, on the date immigrant visa petition (I-140) is filed with CIS Priority date is necessary because immigrant visas are numerically limited Visas are issued in priority date order Historically there existed backlogs for aliens from China and India; other countries generally current

35 TIMING ISSUES H-1B Status is normally issued for a maximum of 6 years On 11/2/2002, President Bush signed 21st Century Department of Justice Appropriations Authorization Act which includes provision to extend H status beyond 6 years for people who have Labor Certification applications pending over 365 days

36 PERMANENT RESIDENCE PROCESSING Also called immigrant visa processing Separate track from nonimmigrant track Fact that nonimmigrant visa runs out does NOT mean that immigrant visa processing stops

37 Step 1 LABOR CERTIFICATION Means of Filing Reduction in Recruitment ( RIR ) process requires prior recruitment by employer which meets DOL guidelines Traditional process requires placement of individual advertisements PERM proposed rule could replace RIR and Traditional options and become the only option

38 REDUCTION IN RECRUITMENT ( RIR ) Reduction in Recruitment ( RIR ) process requires prior recruitment by employer which meets DOL guidelines Traditional process requires placement of individual advertisements PERM proposed rule could replace RIR and Traditional options and become the only option

39 TRADITIONAL METHOD Case is filed with State Workforce Agency ( SWA ) and recruitment is conducted pursuant to directives Recruitment will be normal to occupation and industry Recruitment phase takes place about years after filing with SWA Ad will usually be 3-day blind print ad, including Sunday, that is normal to the occupation and industry; SWA will also post in job bank Case is forwarded to Regional DOL office

40 PROPOSED PERM PROGRAM (Program Electronic Review Management System) No yet implemented; interim rule issued; pending OEM review; final review expected this year Audit-based electronic-filing system; instead of assessments, audits will be conducted More restrictive filing requirements anticipated May become the only option of filing May become effective by the end of this year

41 Step 2 IMMIGRANT VISA PROCESSING Employment based ( EB ) preferences First Preference: Priority Workers Second Preference: Advanced-degree holders (MS) & aliens of exceptional ability Third Preference: Professional, skilled, and other workers Family based preferences

42 First Preference PRIORITY WORKERS No labor certification required for First Preference categories: Persons of extraordinary ability Professors & Researchers Multinational Managers and Executives

43 First Preference, Category 1 EXTRAORDINARY ABILITY Arts, sciences, business and athletics Very high standards No offer of employment required Document minimum 3 of 10 criteria

44 First Preference, Category 2 OUTSTANDING RESEARCHERS International recognition 3 years experience Tenured/tenure-track position or comparable research position with research facility Document minimum 2 of 6 criteria

45 First Preference, Category 3 MANAGERS AND EXECUTIVES Taking managerial or executive position in the U.S. Hold managerial or executive position for same or related company overseas for one of the three years before coming to the U.S. Similar to L-1A nonimmigrant visa

46 HYPOTHETICAL 1 Candy Barr is a marketing manager with a leading candy company. The company has told her that they cannot pursue a labor certification for her because the company has recently gone through layoffs. They also know that there will be hundreds of potentially qualified U.S. workers, who will likely be responding to the advertisements placed in connection with the labor certification process. Candy is about to reach her 5-year time limit in L-1B status. Does she have any other options?

47 HYPOTHETICAL 2 Candy has a brother, Handle Barr, who is a famous scientist. He is currently working on a cure for diabetes. He does not currently have an employer who is willing to sponsor him for a labor certification. Are there any other options for him?

48 Step 3 FINAL STAGE Adjustment of status by mail in the U.S. Consular processing through interview at consular post abroad

49 ADJUSTMENT OF STATUS ( AOS ) Filed at CIS Regional Service Center in U.S. Medicals required; fingerprints given after submission of application Dependents can get employment authorization to work and advance parole to travel Can travel on certain nonimmigrant visas while AOS is pending if alien holds valid visa stamp

50 CONSULAR PROCESSING Filed at U.S. Consulate in country of last residence before entering U.S. Additional documents required Medicals Police certificates Military record

51 CONSULAR PROCESSING Must travel to Consulate for medical exam and final interview No interim employment authorization for dependants Potentially Faster than adjustment DECISION BY CONSULAR OFFICER IS NOT APPEALABLE

52 PORTABILITY IN THE PERMANENT RESIDENT PROCESS Portability of Adjustment of Status: If more than 180 days after adjustment of status was filed, employee may port permanent resident application to another employer or location, if the new job is in the same or similar occupational classification