Legislation: The Immigration and Nationality Act (INA) and other public laws govern immigration in the United States. The INA, passed by Congress and signed by the president in 1952, consolidated many existing provisions and reorganised the structure of immigration law. It has been amended many times over the years based on new public laws enacted by Congress. With every new law affecting immigration, Congress either amends the INA or passes the law without amending the INA.
Regulations: The INA and most other immigration laws are codified in Title 8 (Immigration and Nationality) of the United States Code (or Code of Federal Regulations (CFR)). The most frequently used US Code sections for corporate immigration lawyers are:
Other US Code sections relevant to practitioners include:
The US president can impact immigration on grounds of national health and/or security. For example, various COVID-19-based executive orders limited the entry of both immigrants and non-immigrants whose work visas were sponsored by US companies (see Proclamations 10014 and 10052).
The US Department of Homeland Security (DHS) was created under the administration of George W Bush in November 2002 in response to the terrorist attacks of 9/11. With the primary mission to protect the United States, the DHS unified 22 different federal departments and agencies into one cabinet agency. Of the many offices and agencies that now make up the DHS, there are three federal agencies that directly regulate immigration:
The United States, through its consulates and embassies around the world, administers the issuance of both non-immigrant and immigrant visas.
The United States has jurisdiction over the labour certification process – a mandatory component of certain employment-based visa applications such as the H-1B, E-3 and Program Electronic Review Management-based green card sponsorship.
The Executive Office for Immigration Review administers and interprets federal immigration law and regulations through immigration court proceedings, appellate reviews and administrative hearings.
US immigration policies and adjudication trends tend to be dictated by the political and economic climate. Although the INA and the US Code provide the legal framework, the rules and regulations are written such that federal agencies/officers have significant discretionary authority over the interpretation and application of those rules. In turn, corporate immigration lawyers must always keep abreast of the various immigration agencies' policies and adjudication trends in addition to the nation's political and economic climate when approaching every case. See also question 9.
Business visitors must apply for a B-1 Business Visitor visa when participating in certain business or commercial activities in the United States. Certain exceptions apply, as discussed below.
Visa Waiver Program or Visa Waiver for Business: Business visitors who are citizens or nationals of participating Visa Waiver Program (VWP) countries may enter the United States without obtaining a visa if the following requirements are met:
Canadian citizens: In general, Canadian citizens are US visa exempt; they are not required to secure a US visa stamp in order to enter the United States. Instead, Canadians are granted admission under the applicable visa type at the US port of entry or land border. However, Canadian-citizen business visitors should nonetheless be prepared to present documentation demonstrating that the purpose of their US visit is aligned with B-1 business activities and meets the B-1 requirements (see questions 2.2 to 2.4).
To be eligible to enter the United States, business visitors applying for a B-1 Business Visitor visa or seeking admission under the VWP should be prepared to demonstrate that the following requirements are met:
B-1 Business Visitor visa:
Visa Waiver for Business: Business visitors entering on the Visa Waiver for Business will be granted a period of stay for no more than 90 days. The visitor must depart the United States by no later than the expiration date granted at the time of entry. Extensions of stay are not available.
Business visitors are permitted to participate in business activities of a commercial or professional nature in the United States, including, but not limited to:
(See 9 Foreign Affairs Manual (FAM)41.31.)
Participation in short-term training is a permissible business activity and does not require a special or separate authorisation. However:
The business visitor seeking entry for the purposes of short-term training should be prepared to present documentation demonstrating the following:
The extent of this evidence will depend on the intended period of stay or the duration of the programme. Depending on the circumstances surrounding the short-term training programme, a H-3 Trainee visa or J-1 Trainee visa may be more suitable.
The US immigration system provides for a wide variety of work-authorised visa classifications. Some of the most common work visas include the following:
*The adjudicating officer always has the discretionary authority to shorten the requested period of stay for any visa type.
No. In general, the US immigration system does not require any particular language skills, unless specified by the sponsoring/petitioning employer.
Several work visa classifications are subject to annual quotas. For instance, the H-1B category is subject to an annual numeric cap of 65,000 plus an additional 20,000 slots for individuals holding a master's degree from a US college or university. Non-profit employers seeking H-1B status are not subject to the annual cap. In addition, previous beneficiaries of cap-subject H-1B petitions are not subject to the quota.
Similarly, the H-2B visa category is limited to a quota of 22,000 per year. H-1B1 visas for Chilean and Singaporean nationals are subject to an annual cap of 1,400.
(a) Work in specific sectors?
Several US work visa categories are sector specific. For instance, H-2A visas are intended for temporary agricultural workers, while H-2B visas are designated for seasonal workers in non-agricultural sectors. P visas are designated for internationally recognised athletes, entertainers and artists.
(b) Shortage occupations?
Most non-immigrant visa categories do not require the petitioner to establish a labour shortage for the occupation in question. However, petitioners seeking H-2A or H-2B visas must establish that there are not enough US workers who are able, willing, qualified and available to do the temporary work.
(c) Highly skilled workers?
Highly skilled workers most often seek the H-1B, H-1B1, E-3, L-1A, L-1B, O-1 or TN visa classifications; although the H-1B1, E-3 and TN visa classifications are reserved specifically for professionals/highly skilled workers of a particular nationality (H-1B1: Chilean/Singaporean; E-3: Australian; and TN: Canadian/Mexican). Researchers, scientists, artists, business executives and professionals who at are the very top of their field and can meet the government's regulatory requirements will typically seek the O-1 Extraordinary Ability visa classification.
(d) Investors and high-net-worth individuals?
The E-1 visa category is available to owners of enterprises that engage in substantial trade between the United States and a country with which the United States maintains a treaty of commerce and navigation.
Similarly, the E-2 visa is available to investors from commerce/navigation treaty countries. E-2 investor applicants must:
In general, the regulatory agencies charged with administering US immigration law require those seeking immigration benefits to present documentary evidence that the petitioner/applicant has satisfied each of the regulatory requirements for a given visa classification. Question 3.3 outlines the criteria that must be documented for each type of work visa.
A list of current fees for each work visa is set out below (see US Citizenship and Immigration Services (USCIS) Fees and Consular Processing Fees for up-to-date information in this regard).
Applying from abroad: Applicants for certain visa types (E-1, E-2, E-3, H-1B1 and TN) may apply for the work visa directly at a US consulate in their local jurisdiction. However, for those seeking the H-1B, H-2A, H-2B, O-1 or P visa classifications, the petitioning US employer must first secure an approval from USCIS by submitting a Form I-129 petition. Once the visa classification has been approved by USCIS, the prospective employee may then apply for the visa stamp at a US consulate in his or her local jurisdiction.
Applying while in the United States: In certain cases, where a prospective employee is already lawfully studying/working and living in the United States, it is possible that he or she may not need to depart the United States and may instead be eligible to change or transfer his or her immigration status to the visa classification sponsored by the petitioning US employer. In such cases, the US employer need only file the visa petition with USCIS.
Work visas requiring a certified LCA: As indicated in question 3.3., several visa classifications require LCAs to be filed with and certified by the DOL prior to submitting the visa petition to USCIS or the US consulate. The H-1B, H-1B1 and E-3 classifications, for instance, require an LCA to be filed with and certified by the DOL. For the H-2A and H-2B classifications, petitioners must first obtain a temporary labour certification from the DOL and then submit this certification as part of the petition filed with USCIS.
Individual L-1 versus Blanket L-1: For the L-1A and L-1B visa categories, a USCIS petition is required unless the petitioner has existing Blanket L-1 approval. Qualified L-1 visa applicants may apply directly at the US consulate if their employer has existing Blanket L-1 approval (see question 6.6).
Timeline: The timeline for obtaining a work-authorised visa varies widely depending on the visa classification sought, as well as on visa appointment waiting times at the local US consulate and Department of State processing times. Generally, classifications that require a petition approval take longer and the exact timeframes vary depending on the agency's workload. However, petitioners seeking USCIS approval can request a Premium Processing service for a fee of $2,500. The Premium Processing service guarantees that USCIS will act on the petition within 15 calendar days.
Canadians: Canadians do not require a visa stamp issued by a US consulate and instead may apply for visa classification and admission directly at a US port of entry.
Once a work visa/permit has been obtained, the permit holder must maintain his or her visa status by ensuring that his or her work activities are aligned with the information as presented to, and approved by, the US government. Further, each of the work permits discussed in question 3 is employer specific and the permit holder must thus remain employed by the petitioning employer for the entire duration of his or her stay. If the permit holder wishes to terminate his or her employment and work for another US employer, that employer must formally ‘transfer' the holder's work visa/permit and assume sponsorship of the respective employee's work visa by filing a petition with the government.
Likewise, the sponsoring employer must ensure that work activities and conditions remain aligned with the information as presented to, and approved by, the US government. For certain visa types (eg, H-1B, H-1B1 and E-3), the employer must maintain certain minimum salary requirements; work location or job changes may necessitate an amendment. Further, if the employer terminates a H-1B employee prior to the work permit's expiration date, it must pay for the H-1B employee's return transportation home. Non-compliance can result in serious monetary and legal sanctions for the employer.
There are two major pathways to secure ‘settlement', or US permanent residency:
Family-based sponsorship: Under this pathway, permanent residency is secured through the sponsorship of a US family member who is either a US citizen or a US permanent resident. Eligibility to apply for permanent residency depends on the familial relationship, marital status and age of the foreign national:
Under the family-based pathway, there are a total of four preference categories:
The family-based pathway also includes ‘immediate relatives', defined as:
Employment-based sponsorship: Under this pathway, permanent residency is secured based on employment in the United States. There are a total of five employment-based preferences; of these, the first three preference categories are the most commonly pursued, requiring the sponsorship of a US employer whose intent is to offer the individual long-term employment upon obtaining US permanent residence status. Within each preference, there are categories as follows:
Only very limited rules.
Foreign nationals with the following US ancestral connection(s) may qualify for US permanent residency:
Immediate relatives: Permanent residency is “immediately available” to those foreign nationals who are ‘immediate relatives'. In other words, unlike other permanent residency categories, there are no numerical visa limitations for immediate relatives and therefore a green card visa is immediately available to immediate relatives. Those who qualify simply need to submit their Form I-130 and I-485 applications to the government and need not wait for a visa to become available (see question 4.5).
A foreign national is an ‘immediate relative' if he or she is:
The formal and documentary requirements for obtaining US permanent residency under the three employment-based preferences mentioned in question 4.1 are as follows.
According to Section 203(b)(1)(A) of the US Immigration and National Act (INA), ‘extraordinary ability' is defined as “a level of expertise indicating that the individual is one of a small percentage who have risen to the very top of the field of endeavor”.
To be eligible, the individual must submit adequate documentation evidencing that he or she has sustained national or international acclaim and that his or her achievements have been recognised in the field of expertise. In making its decision, USCIS considers the following types of evidence:
The successful applicant need not meet all of the regulatory criteria outlined above. Rather, a minimum of three must be met, such that the overall evidence demonstrates that “the individual is one of a small percentage who have risen to the very top of the field of endeavor”.
The professor or researcher:
The successful applicant need not necessarily meet all of the regulatory criteria outlined below. Rather, a minimum of two must be met, such that the totality of evidence demonstrates that the individual has “sustained international recognition for outstanding achievement” in his or her field:
Yes – an offer of employment from the prospective US employer. The private employer must show documented accomplishments and that it employs at least three full-time researchers.
The job offer must be for tenure/tenure-track teaching or a comparable research position at a university, institution of higher education or private employer.
A statement from the sponsoring US employer demonstrating:
‘Managerial capacity' is defined an assignment within an organisation in which the employee:
‘Executive capacity' means an assignment within an organisation in which the employee:
(Section 101(a)(44) of INA and 8 CFR 204.5(j)(2))
The ‘exceptional ability' documentation, when taken together, must demonstrate that the individual possesses a level of expertise which is “significantly above that ordinarily encountered”, such that the individual's work has received “widespread acclaim and international recognition” in the sciences, arts or business.
The individual must meet the ‘exceptional ability' requirements under both DOL and USCIS regulations.
DOL requirements: The petitioning employer must submit the following on behalf of the beneficiary-employee:
USCIS requirement: The petitioning employer must submit documentation demonstrating that the benefiting employee meets at least three of the following criteria:
(8 CFR 204.5(k)(3)(ii))
As the DOL has pre-determined that there are not sufficient US workers who are able, willing, qualified and available for the role requiring ‘exceptional ability' in the sciences, arts, or business, the sponsoring US employer is exempt from:
However, the US employer must nonetheless:
This is a pathway where an employer-sponsored labour certification from the DOL is waived on grounds of national interest, while the individual nonetheless qualified for the EB-2 preference under either the ‘advanced degree' or ‘exceptional ability' category.
US employer sponsorship is not required. Instead, those seeking a national interest waiver may self-petition and may file their labour certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
Though no statutory authority exists, USCIS will typically grant national interest waivers to those who meet the exceptional ability requirements (see above) and whose employment in the United States would greatly benefit the nation (see Matter of Dhanasar, 26 I&N Dec 884 (AAO 2016)).
The petitioning employer or individual must submit the following:
The long-term US job offer must require a minimum of a US bachelor's degree or foreign equivalent. A combination of education and experience cannot be substituted to satisfy the equivalent of a US bachelor's degree.
The individual must meet the minimum US bachelor's degree requirement or its foreign equivalent and any other skill requirements contained in the PERM application filed by the sponsoring US employer and certified by the DOL.
The long-term US job offer must require at least two years of work experience, education or training.
The individual must meet the minimum two years of work experience, education or training and any other skill requirements contained in the PERM application filed by the sponsoring US employer and certified by the DOL.
The long-term US job offer must require unskilled labour (requiring less than two years training or experience), which is not of a temporary or seasonal nature.
The individual must demonstrate the ability to perform the unskilled labour (requiring less than two years of training or experience) and any other skill requirements contained in the PERM application filed by the sponsoring US employer and certified by the DOL.
The table below sets out the US government filing fees pertaining to employment-based green card processes described in question 4.3:
For a comprehensive list of fees pertaining to all green card pathways, including Form I-130, family-based sponsorship and consular processing, please visit USCIS Fees and Consular Processing Fees.
Obtaining settlement or US permanent residency entails either a two or three-stage green card application process, depending on the immigrant visa preference category that serves as the underlying basis for the green card application.
Two-stage application process:
Three-stage application process:
PERM labour certification: For certain employment-based EB-2 and EB-3 immigrant visa preference categories (see question 4.3), a prerequisite to filing the Form I-140 Immigrant Visa Petition is securing a certified PERM from the DOL. In such cases, it is the sponsoring US employer that must file for both the PERM and the I-140 on behalf of the beneficiary employee or prospective employee. The US employer must meet certain employer obligations, including:
(See 20 CFR 655 and 8 CFR 204.5.)
Immigrant visa petition: Applying for US permanent residency is a multi-stage application process. Whether applying for permanent residency from abroad or in the United States, the individual must secure an approved immigrant visa petition. For employment sponsorship, this visa petition is known as the Form I-140 Immigrant Visa Petition; whereas for family sponsorship permanent residency applicants, the immigrant visa petition is known as the Form I-130 Immigrant Visa Petition. The immigrant visa petition under both the employment and family-based routes contains several preference categories. An individual's eligibility for a green card is based on one of those preference categories. The approved immigrant visa preference category then forms the basis for the green card application and will determine how quickly the individual receives his or her green card.
Individual background application (‘Form I-485 Adjustment of Status' or ‘consular processing'): Aside from securing government approval of the relevant immigration visa, applicants must also undergo an application process that evaluates their background, to include aspects such as:
For applicants applying in the United States, this application stage is known as Form I-485 or I-485 Adjustment of Status Application (AOS). Once the AOS is approved, the physical green card is produced and mailed to the US applicant, at which time he or she has officially secured permanent residency.
For applicants applying for a green card while abroad, this background application stage is known as ‘consular processing': the individual must go to the US consulate for an interview and his or her background documents will be submitted to the National Visa Center prior to the interview. If approved, the US consulate will issue an immigrant visa stamp in the individual's passport and the individual can then enter the United States based on the immigrant visa. Upon entry into the United States, US Customs and Border Patrol will then admit the individual as a US permanent resident. Once admitted as a US permanent resident, the physical green card is mailed to the individual's US residence.
Timeframe: Applying for a green card is a lengthy process that entails multiple steps. Aside from completion of the various requirements outlined above, green card applicants (and petitioning employers) should consider two factors that are beyond their control:
Government processing times: Each of the application stages above will require the adjudication of the respective government agency with jurisdiction over that particular application process. Government processing times vary and applicants should refer to the respective government agency websites for the most current government processing times.
Visa availability: Whether applying for the green card through the two-stage or three-stage process, the PERM application and the immigrant visa petition stages may be pursued as soon as the employer and employee have met all requirements and can produce the required documentation (see above). There are no quota limits in terms of the number of PERM applications which the government may approve; nor are there numerical limitations on the number of I-130 or I-140 Immigrant Visa Petitions approved. However, the government has set numerical limitations on the number of green card visas allotted per year. Therefore, irrespective of the two-stage or three-stage process, an individual cannot proceed with the last application stage (I-485 AOS or consular processing) until a green card visa is available.
The government and the regulations refer to the green card numerical limitation as a numerical limitation on ‘immigrant visas'. Its usage of the term ‘immigrant visa' in this numerical limitation context should not be confused with its ability to grant the I-130 or I-140 Immigrant Visa Petition, as there are no numerical limitations on the number these granted per year. Therefore, for clarity, we use the term ‘green card visa'.
Whether a green card visa is available will depend on several variables:
An individual's immigrant visa priority date is the date on which the I-130 or I-140 Immigrant Visa Petition is filed and is reflected on the government's immigrant visa receipt or approval notice. However, for certain employment preference categories where a PERM labour certification is a prerequisite to filing the I-140 petition, the date on which the PERM was filed is the priority date and is subsequently reflected on the government's I-140 receipt or approval notice.
Each month, the DOS releases a Visa Bulletin identifying the priority dates that are ‘current' or ripe for the last application stage submission and approval – based on country of birth and preference category. USCIS will then use the DOS Visa Bulletin to determine which I-485 AOS applications it will accept and adjudicate for that particular month (in-county applicants); and US consulates and embassies will similarly use the DOS Visa Bulletin to determine which consular processing applicants will be afforded an interview (abroad applicants). Unlike the I-485 application, where the in-country applicant must closely monitor both the monthly DOS Visa Bulletin and the USCIS website to discern when his or her priority date is ripe for application submission, consular processing applicants applying from abroad should automatically receive an interview notification from the US consulate or embassy within several weeks of their priority date becoming current. Therefore, the applicant's priority date, preference category and country of birth/chargeability determine his or her ‘place in line' for the green card.
Numerical limitations: Only 226,000 family-based visas and 140,000 employment-based visas are allotted annually. If any visas are unused in a given fiscal year, the visa numbers roll over to the following year. However, for many of the family-based preference categories, as well as for EB-2 and EB-3 India or mainland China-born applicants, demand exceeds supply. For example, based on the below February 2022 Visa Bulletin, the government is only issuing green cards to EB-3 India-born applicants with a priority date earlier than 15 January 2012. This means that a typical India-born applicant filing for a green card under the EB-3 preference category must currently wait 10 to 12 years before receiving his or her green card (this estimate takes into account current USCIS processing times of up to 18 months).
(See US Department of State February 2022 Visa Bulletin.)
Exceptions to numerical limitations – ‘immediate relatives': As mentioned in question 4.2, US permanent residency is “immediately available” to those foreign nationals who are ‘immediate relatives'. In other words, unlike all other immigrant visa preference categories, there are no numerical visa limitations for immediate relatives and therefore a green card ‘visa' is immediately available to immediate relatives. Those who qualify simply need to submit their Form I-130 and I-485 applications to the government and need not wait for a visa to become available, but should still account for government processing times.
A foreign national is an immediate relative if he or she is:
Employment-based categories that typically exceed supply: The EB-1 preference category (‘priority workers') typically remains current year-round, irrespective of birth/chargeability country. In the occasional months where the EB-1 category retrogresses (typically in the summer/autumn, when the fiscal year end is nearing), this category will typically become current again by October of the new fiscal year.
To qualify as a dependant, an individual must be the spouse or child of the principal applicant or beneficiary. To qualify as a child dependant, the child must be unmarried and under the age of 21. Dependent applicants must prove their relationship to the principal visa holder. For instance, spouse-dependent applicants must present a marriage certificate; while a child-dependent applicant must submit a birth certificate and/or adoption papers establishing the age of the child and the legal relationship between the child and the principal applicant.
As of 31 January 2022, E and L spouse-dependants are automatically eligible to work upon lawful admission into the United States. They are no longer required to apply separately for a work permit; rather, mere admission as a E or L spouse-dependant automatically provides lawful work authorisation.
In addition, certain H-4 visa holders (dependants of H-1Bs) may apply to US Citizenship and Immigration Services (USCIS) for an employment authorisation document (EAD). Specifically, H-4 spouses may apply for an EAD if the principal H-1B holder has an approved I-140 Immigrant Visa Petition and has been granted H-1B status beyond his or her six-year maximum stay under the American Competitiveness in the 21st Century Act
Dependants of other visa categories (eg, the J-1) and those with pending I-485 Adjustment of Status applications related to the green card process may also apply for an EAD/work permit.
Married same-sex partners are fully eligible for dependant visas. Civil/unmarried partners are generally not eligible for dependant visas, but may apply for B-2 Domestic Partner visas. However, B-2 domestic partners are only admitted to the United States in increments of six months, and then must either travel outside the United States or file an I-539 extension of status petition with USCIS.
Yes. Under the L-1 Intracompany Transferee visa, a US employer may transfer employees from one of its overseas/foreign branch offices to one of its offices in the United States, provided that all visa requirements are met. By the same token, a foreign company that does not yet have an office in the United States but wishes to establish one may leverage this L-1 visa to send an executive, manager or specialised knowledge employee for the purpose of establishing one.
The L-1 Intracompany Transferee visa classification includes two subcategories:
(See Immigration and Nationality Act (INA) §101(a)(15)(L); 8 Code of Federal Regulations (CFR) §214.2(l).)
L-1 visas are typically issued for an initial validity period of three years. L-1A visas can be extended in two-year increments for a maximum stay of seven years. The L-1B classification can also be extended for a maximum stay of five years.
For both the L-1A and L-1B classifications, the US petitioning employer must satisfy the following initial requirements:
(See 8 CFR §214(1)(1)(ii)(A); CFR §214(1)(3)(iii); and INA §101(a)(15)(L).)
Specific L-1A and L-1B requirements: Aside from the above initial requirements, the employer must also satisfy specific L-1A and L-1B requirements.
L-1A managers and executives: For the L-1A visa category, the employer must also show that the beneficiary-employee will be employed in the United States in a managerial or executive capacity. For the purposes of the L-1A, ‘managerial capacity' is defined as an assignment or role in which an employee primarily:
‘Executive capacity' is defined as an assignment or role in which an employee primarily:
(See 8 CFR §214(1)(1)(ii).)
L-1B Specialized Knowledge: For the L-1B Specialized Knowledge visa classification:
Qualifying relationship: To establish that the US employer and employer abroad are qualifying organisations, L-1 visa petitions must include corporate ownership or registration documentation showing that the foreign company is a parent, branch, affiliate or subsidiary of the US employer.
Doing business: L-1 petitions are usually accompanied by recent financial statements or tax documents showing that the organisation is doing business in the United States and at least one foreign country.
One-year employment abroad: L-1 visa petitions must also include proof that the beneficiary-employee was employed by the affiliate abroad for at least one continuous year within the last three years preceding application for entry into the United States. That proof could include pay statements covering one year of employment or year-end tax documentation. Any time spent in the United States will not be counted towards this requirement. Therefore, aside from pay statements or salary/income tax documentation, initial L-1 applications should contain all pages of the beneficiary-employee's passport demonstrating the individual's physical presence and employment abroad.
Specific L-1A and L-1B requirements: For L-1A visa cases, the petitioner must submit documentary evidence that the beneficiary-employee holds managerial or executive responsibilities, such as an employer statement and organisational chart(s).
For L-1B petitions, employers should submit documentation demonstrating the specialised knowledge held by the beneficiary, including but not limited to:
For most L-1 visa cases, the employer is required to pay a $460 petition processing fee to US Citizenship and Immigration Services (USCIS). In addition, employers must pay a one-time $500 dollar fee to support fraud prevention and detection. Employers with more than 50 employees in the United States are subject to an additional $4,500 fee if more than 50% of their employees hold H-1B, L-1A or L-1B non-immigrant status. (See www.uscis.gov for current fees.)
The individual visa applicant must also pay a fee of $190 to the US consulate when applying for the actual visa. Applicants from certain countries are subject to additional visa fees depending on reciprocity agreements with the United States. (See www.uscis.gov for current fees.)
Obtain USCIS approval and secure visa stamp from US consulate: The first step in obtaining an L-1 visa is for the employer to file a petition with USCIS.
USCIS typically requires at least several months (potentially between eight and 10 months) to process L-1 petitions filed under regular processing (see USCIS regular processing times). A Premium Processing service for L-1 petitions is available for a fee of $2,500. USCIS will act on petitions filed under Premium Processing within 15 calendar days of receipt. However, if USCIS require additional evidence to adjudicate the petition, processing will be suspended until the petitioner furnishes the requested evidence.
If USCIS approves the L-1 petition, the employee can then schedule a visa interview with the US consulate in his or her jurisdiction. Once the employee passes the US visa interview and the US consulate completes its security/background checks, the US consulate will issue the L-1 visa stamp inside the employee's passport.
Blanket L-1 petitions: US employers may apply for and participate in the Blanket L-1 visa petition programme. If USCIS grants the blanket, the US employer may transfer its employees to the United States by skipping the USCIS petition stage and having employees apply for their L-1 visa directly at a US consulate. This provides the employer with the flexibility to transfer employees to the United States quickly and easily.
To qualify for the Blanket L-1, the US employer must meet the following requirements:
For eligible employers, Blanket L-1 approval greatly improves their ability to quickly transfer qualified L-1 applicants to the United States.
(See 8 CFR §214(1)(4) and (5).)
For the vast majority of US work visas, employers are not required to test the labour market before hiring from overseas. However, certain short and long-term work visas require a labour market test:
The US Department of Labor (DOL) has a set of labour market testing requirements for employers sponsoring those mentioned in question 7.1 For example, employers intending to sponsor current or prospective employees for long-term or permanent employment by means of green card sponsorship under the EB-2 and EB-3 PERM-based categories must meet the following requirements:
(See 20 Code of Federal Regulations (CFR) § 656.17.)
Employer best practice: The DOL's job is to protect the jobs of US workers. Therefore, employers are strongly encouraged to conduct all recruitment efforts in good faith and full compliance with DOL regulations. The DOL will conduct employer audits at random (though audits tend to increase when the economy is slow) and where an employer is suspect of any fraudulent, misrepresentation or non-compliance.
Below is a list of work visas that are typically used for new hires. Each of these visas requires the sponsorship of a US employer, which acts as the ‘petitioner' on the application. The process for obtaining the visa will depend on whether the individual is abroad or already in the United States.
Applying from abroad: Applicants for certain visa types (E-3, H-1B1 and TN) may apply for the work visa directly at a US consulate in their local jurisdiction. However, for those seeking H-1B, H-2A, H-2B, O-1 or P visa classifications, the petitioning US employer must first secure approval from US Citizenship and Immigration Services (USCIS) by submitting a Form I-129 petition. Once the visa classification is approved by USCIS, the prospective employee may then apply for a visa stamp at a US consulate in his or her local jurisdiction.
Applying while in the United States: In certain cases, where a prospective employee is already lawfully studying/working and living in the United States, it is possible that the prospective employee may not need to depart the United States and may instead be eligible to change or transfer his or her immigration status to the visa classification sponsored by the petitioning US employer. In such cases, the US employer need only file the visa petition with USCIS.
Yes, both the H-2A and H-2B classifications require a new labour market test if the US employer chooses to request an extension of the new hire's stay/work permit. Once the employer has secured a new and valid temporary labour certification covering the requested period of extended stay, the employer may then petition an extended H-2A/2B on behalf of the new hire.
New hires on certain ‘dual intent' work visas (eg, the H-1B and L-1) may apply for US permanent residence. In certain situations, new hires on single ‘non-immigrant intent' only work visas may commence the US permanent residence application process but will face international travel limitations during the application process; therefore, employers should consult immigration counsel on the best pathway to US permanent residency for new hires.
All US employers are eligible to sponsor a foreign national for a work visa/permit, provided that the employer:
In general, sponsoring employers must meet the following requirements:
As explained in question 1, there are various US government agencies with jurisdiction over the US immigration lifecycle, depending on the type of application (see also questions 3, 4 and 7). For example, the DOL will conduct audits randomly and/or when it suspects fraud or misrepresentation – typically with respect to labour certifications for permanent residency. Likewise, the US Department of Homeland Security's Fraud Detection National Security Directorate will conduct onsite, in-person audits and/or telephonic interviews randomly and/or when any fraudulent or misrepresentation activity is suspected, typically pertaining to the H-1B work visa. Similarly, the US Department of State will conduct random security/background checks when an individual is applying for a visa from abroad; the interviewing officer is tasked with exploring or identifying any detection of fraud/misrepresentation during the interview and application review.
Penalties for non-compliance should be taken seriously. For example, where an employer violates the conditions of an LCA – typically associated with H-1B, H-1B1 and E-3 visas – civil penalties will apply for each violation ($1,848 to $52,641 per violation), plus other remedies, including the payment of back wages. In addition, an employer's immigration programme can be completely barred from any future visa sponsorship for a period of at least one year (see 20 Code of Federal Regulations §655.810; DOL Wage and Hour Division, Field Operations Handbookat 71e). Therefore, an employer should always make good-faith efforts to remain compliant with all visa requirements, given the overall business consequences – both financial and reputational – of breach.
While extreme and harsh immigration measures were quickly implemented and arbitrarily applied under the former administration's “Buy American, Hire American” policy, the current Biden administration has made clear its intent “to restore faith in the legal immigration system” and “believes that one of America's greatest strengths is [its] ability to attract global talent to strengthen [the US] economy and technological competitiveness”.
As a result, we can expect not only continued restoration of a more transparent and consistent decision-making process, but also modernisation of the adjudicating agency's application of law, with a particular emphasis on attracting global science, technology, engineering and mathematics (STEM) talent to strengthen the US economy and technological competitiveness.
Already, the Department of Homeland Security (DHS) has announced that it will be updating adjudication manuals “to advance predictability and clarity” for the hiring of STEM global talent that will contribute to US “scholarly, research and development, and innovation communities”. The changes include:
(See White House Fact Sheet, 21 January 2022.)
In addition, the DHS, in coordination with the US Department of State (DOS), is committed to adjudicating as many employment-based green card application to ensure that no green card ‘visa' is ‘unused' in FY 2022. An “exceptionally high number” of employment-based green card visas are available due to the effects of past visa travel bans and extreme visa backlogs originating from the prior administration. In demonstration of its commitment, US Citizenship and Immigration Services (USCIS) implemented a process in late January 2022 in which an applicant can revert a pending green card application to the EB-2 preference category in order to take immediate advantage of the excess green card visa availability (see USCIS interfile guidance.)
Finally, the House of Representatives recently passed a bill, the America COMPETES Act of 2022, in furtherance of the administration's efforts to strengthen the nation's economy and competitiveness. The bill – which still awaits Senate approval before it reaches the president's desk – includes two significant immigration-related measures designed to boost the country's innovation:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
© Mondaq® Ltd 1994 – 2022. All Rights Reserved.
Forgot your password?
Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms
Articles tailored to your interests and optional alerts about important changes
Receive priority invitations to relevant webinars and events
You’ll only need to do it once, and readership information is just for authors and is never sold to third parties.
We need this to enable us to match you with other users from the same organisation. It is also part of the information that we share to our content providers (“Contributors”) who contribute Content for free for your use.