Hill's Visa Notes

Clients are often perplexed by the complicated requirements in the immigration laws governing various visa categories. For that reason, we have prepared a series of informal memos - "Hill's VisaNotes" - explaining the basic requirements and process for obtaining appropriate employment-related nonimmigrant visas or permanent residence in the United States.

These VisaNotes are intended to be only a very broad discussion of general principles and requirements, and are not to be construed as definitive legal advice applicable in any specific matter. Facts and circumstances will vary from case to case, and adequate counsel can be provided only upon deliberate consideration of the needs and circumstances of an individual client. We hope you will find them a useful resource and we look forward to working with our clients in providing such counsel if and when required.

Bob Hill

Celebrities and Others Recognized for Extraordinary Ability or Achievement (O Visas)

The O-1 visa is for prominent individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics or for individuals of “extraordinary achievement” in the motion picture or television industry.

 There are sub-categories of the O Visa for essential support personnel (O-2) accompanying the principal alien for a specific performance or event as well as for dependent family members (O-3).

[Read more…]

Immigrant Visas & “Green Cards”

Consular Processing and Adjustment of Status

Obtaining permanent residence in the United States through employment or family- based immigration requires successful completion of a multi-stage process subject to strictly defined substantive criteria, confusing bureaucratic regulatory procedures, and lengthy government processing delays.  In most employment-based cases, after the Department of Labor has issued a certification that no qualified American workers were available for the position offered (“labor certification”), the sponsoring employer must  file an immigrant preference petition with US Citizenship and Immigration Services (“USCIS”) on behalf of the foreign worker it wishes to employ.  Only after approval may the employee and any dependent family members file applications for “adjustment of status,” with USCIS or for immigrant visas at a consular office abroad.

Similarly, in family-based cases, a sponsoring relative must first file an immigrant petition on behalf of his or her qualifying family member(s) before those member(s) may apply for immigrant visas or for adjustment of status.  Under limited circumstances in both employment and family cases, the immigrant petition and application for adjustment of status may be filed “concurrently” but not always.

As part of a series of informal memos we have prepared for our clients and friends explaining basic immigration and visa-related concepts, this edition of Hill’s VisaNotes discusses the specific requirements and procedures that must be followed in the last stage of the permanent residence process: visa processing at an American Consulate or adjustment of status at USCIS. The labor certification process and various employment-based immigrant preference categories are discussed in separate editions.

[Read more…]

Specialty Occupation Workers (H-1B Visas)

In order to obtain permission to employ a foreign worker in H-1B visa status, an American employer must first submit a Labor Condition Application (“LCA”) to the United States Department of Labor (“DOL”), attesting to certain requirements related to wages and working conditions.  The employer must then file a petition with US Citizenship and Immigration Services (“USCIS”) on behalf of the worker establishing 1) that the position it seeks to fill qualifies as a “specialty occupation” and 2) that the person it wishes to hire in that position possesses the necessary professional qualifications.

 “The H-1B Visa Cap”

H-1B visas are limited by a “cap” on the number of new petitions that may be approved each year.  In Fiscal Year 2013 (“FY 2004”) which started on October 1, 2012, that number continues to be set at a limit of 65,000 [Read more…]

Priority Workers & Professionals

Employment-based Immigration: Priority Workers & Professionals

The EB-1 “Priority Worker” immigrant preference classification is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics; for “outstanding professors and researchers” in an academic or research environment; or for certain qualifying “multinational managers or executives.”  It is the highest priority of employment-based immigration under current law.

The EB-2 immigrant preference classification is for individuals who have “exceptional ability” in the sciences, arts, or business.

EB-3 classification is for individuals who qualify for permanent employment in positions requiring professionals – individuals possessing a minimum of a Bachelor’s Degree in a field directly related to the prospective employment – or “skilled workers” who possess at least two years of employment experience or related training. [Read more…]

Intracompany Transfers (L-1 Visas)

The L visa category is designed to allow multinational enterprises to transfer key personnel to the United States for relatively long-term but temporary assignments.  In most cases, the individual to be assigned to the United   States must have worked in a qualifying capacity for the enterprise or one of its related companies abroad for at least one year prior to eligibility for transfer in L-1 status. The process involves two distinct steps: filing an employer’s petition with the United States Citizenship & Immigration Services (“USCIS”) at one of its four regional service centers, and, after approval, submitting an individual nonimmigrant visa application to an American consular office overseas.

Qualifying Business Relationship

The current employer abroad and the prospective employer in theUnited States can be a corporation, partnership, or even a sole proprietorship, and need not be a large, multinational organization.  However, a “qualifying relationship” must exist between these two entities.  [Read more…]

Labor Certification Under “PERM”

Obtaining permanent residence in the United States based upon an offer of permanent employment can be a difficult and protracted process. That process includes in most cases undertaking defined recruitment steps appropriate to the industry and occupation in which a job opening is to be filled and subsequent filing of an application for labor certification under the United States Department of Labor (“USDOL”) new “PERM” Regulations.

Only after this recruitment has been completed and USDOL has issued its formal “labor certification” may an employer normally proceed with the filing of a preference petition with US Citizenship and Immigration Services (“USCIS”, formerly, Immigration and Naturalization Service) on behalf of the foreign worker to be hired permanently in the position offered. The process concludes with the filing of individual applications for adjustment of status through USCIS or for immigrant visas with an American consular office outside the United States. [Read more…]

E Visa: Treaty Traders and Investors

Requirements of the  E-1/E-2 Visa Category

Section 101(a)(15)(E) of the Immigration and Nationality Act permits eligible enterprises engaged in trade with, or investment in, the United States to transfer key employees to this country for extended periods of time in either E-1, “treaty trader,” or E-2, “treaty investor,” nonimmigrant status. In order to obtain such status, an underlying reciprocal treaty of “friendship, commerce, and navigation” or bilateral investment treaty between the trader/investor’s country of nationality and the United States must be in force. Depending upon its terms, a treaty may confer eligibility for either one or both E categories if both the individuals seeking such status and the employing enterprise meet certain requirements with respect to nationality, substantiality of the proposed trade or investment, and responsibilities of the individuals to be employed.

Nationality

The nationality of an enterprise is determined by the nationality of the persons who ultimately own it. To be considered a national of a treaty country, at least 50% of the enterprise must be owned by nationals of that country. In the case of a company wholly-owned by another corporate entity, the consular official adjudicating an application for E-visa status must look to the nationality of the majority shareholders of the parent company to determine the subsidiary’s nationality. Documentation establishing the business relationship between, and the nationality of, all related companies must be included in the initial application package submitted to the Consul. [Read more…]

Lawful Permanent Residence for Athletes

Professional Athletes in Team Sports:
Obtaining Lawful Permanent Residence in the United States

The “EB-1” immigrant preference classification is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics; “EB-2 immigrant preference classification is for individuals who have “exceptional ability” in the sciences, arts, or business (the government has interpreted this to include athletics);   and “EB-3 classification is for individuals who qualify for permanent employment in positions requiring professionals – individuals possessing a minimum of a Bachelor’s Degree in a field directly related to the prospective employment – or “skilled workers” who possess at least two years of employment experience or related training. [Read more…]

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