Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson
Non‐Immigrant Visas/ Statuses
Presented by Jay Gairson and Rachel Han Huneryager
Note: Some visas require Petition Application DOL certification or SEVIS certification before Petition or Application
USCIS DS‐160
Nonimmigrant Visa Process Approval Embassy
Admin Revocation Approval Processing
Waiver Denial Application Process
February 14-15, 2019 Page 1 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson
Principal is present to do purpose of the visa (work, visit, study). NIV study: All principals except B, C, and D visas. B visa can do short‐term avocational or recreational courses. All derivatives except I visa. B children can do incidental study. F and M derivatives can only do PT study or avocation/recreational. F can transfer schools at any time; M can transfer in first 6 months. NIV work: General NIV Principal restricted to purpose of employment visa, except F for OPT/CPT. Limitations E, TN,F, M, and J do not require a petitioning employer. Derivatives: E and L can obtain EAD. H and other classifications can sometimes obtain EAD or work. Q and B visas do not have derivatives.
See also https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study. pdf and http://hr.gmu.edu/welcome/docs/WorkAuthorizationforNonImmigrants.pdf
U.S. Consulate/Embassy Procedures can be found at the websites for the specific Consulate or Embassy. Click on Non‐immigrant Visas and find the one you are looking for. There is usually a separate section for E‐1/E‐2 Treaty Trader and Treaty Investor visas Department of State website also has procedures for non‐immigrant visas at https://travel.state.gov/content/travel/en/us‐visas/visa‐ information‐resources/all‐visa‐categories.html. Click on the specific non‐immigrant visa to get more information. The process for K‐1 visas are laid out at https://travel.state.gov/content/travel/en/us‐visas/immigrate/family‐ Visa Resources immigration/nonimmigrant‐visa‐for‐a‐fiance‐k‐1.html. • Visa Reciprocity Table lists the period of time each visa will be issued by country of citizenship. It also gives information on obtaining official documents such as birth certificates, marriage certificates, police certificates, etc. by country. See: https://travel.state.gov/content/travel/en/us‐visas/Visa‐Reciprocity‐ and‐Civil‐Documents‐by‐Country.html. • Directory of Visa Categories by Purpose of Travel: https://travel.state.gov/content/travel/en/us‐visas/visa‐information‐ resources/all‐visa‐categories.html
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Admin Processing has different causes: security checks, background checks, bona fide application checks, eligibility verification, petition verification, visa history check, and government holds. Communication is key: polite, firm, regular inquiries seeking Administrative answers to specific questions. Client counseling is necessary: build confidence to prevent rash Processing actions that undermine eligibility. Patience is a virtue, but too much patience can be detrimental to a case. Be prepared to escalate delays: inquire, congressional query, inquire again, analyze potential causes, litigate.
H‐1B – Professional position in a specialty occupation L‐1A – Manager or executive for a qualifying organization (QO) NIV’s L‐1B – Specialized knowledge position for a QO commonly O‐1 –Person of extraordinary ability in field of expertise involving T –Victims of human trafficking attorneys U –Victims of crimes who have suffered substantial mental or physical abuse while in the U.S. K‐1/K‐3 –Fiancé(e) or spouse of a U.S. citizen
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H‐1B is one of the most commonly used nonimmigrant statuses. Dual intent: may work in H‐1B nonimmigrant status and meanwhile apply for permanent residency. Criteria U.S. employer must petition for a foreign national employee. The offered position must be professional, e.g., it must require at least a Bachelor’s degree, or equivalent, in a specific field, where “equivalent” can mean a foreign equivalent degree or 12 years of relevant work experience. See 8 CFR 214.2(h)(d). H‐1B The foreign national must meet the requirements for the position at the time of filing. U.S. employer must pay the foreign national the prevailing wage according to the work location.
PRACTICE TIP: The employer can require a Bachelor’s degree or equivalent in multiple related fields of study (e.g., Bachelor’s degree in Computer Science, Information Technology, Engineering, or related field.)
H‐1B status limited to 6 years Extension beyond 6 years if employment‐based permanent residency application has been started. If a PERM application has been filed more than one year prior to the end of the 6 year limit, then H‐1B status can be extended for one year. See AC 21. If an I‐140, Immigrant Petition has been approved, and there are no immigrant visa numbers available for the foreign national, H‐1B status can be extended for 3 years at a time. H‐1B Recapture of time Can request recapture of time spent outside the U.S. while in valid H‐1B status. All days outside the U.S. must be counted (departure and arrival dates do not count as days outside the U.S.). Must include evidence of the trips such as passport stamps, boarding passes, trip itineraries, etc. When approved, the 6‐year limit will become the later date after time spent outside the U.S. is recaptured.
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Cap/Lottery Cap to H‐1B visas at 65,000 per year for Bachelor’s degree, and 20,000 per year for U.S. Master’s degrees. H‐1B petitions are subject to the cap if the individual has not worked in the U.S. in H‐1B status for the previous 6 years. Government fiscal year begins on October 1. Can file H‐1B petitions up to 6 months prior to work start date. Cap season begins April 1 for October 1 work start date. USCIS accepts petitions for 5 business days starting April 1. If more H‐1B than allotted numbers are received, then conducts a random lottery, and will not accept any more H‐1B cap‐subject petitions for that fiscal year. Cap Gap Relief: Foreign Nationals in F‐1 status working with an EAD pursuant to OPT which expires before October 1, will have EADs extended to Sept. 30th. PRACTICE TIP: F‐1s in STEM OPT may file H‐1B petitions in next cap season if H‐1B petition is not chosen in current lottery.
Procedure for Filing Must obtain a certified Labor Condition Application (LCA). See CFR636.700. LCA must list all work locations. If there is a change in work location to a different Metropolitan Statistical Area (MSA), must get a new LCA certified and file an amended petition. May request up to 3 years at a time. H‐1B Submit H‐1B petition to USCIS, including: Forms G‐28, I‐129, I‐129H, I‐129W Certified LCA Educational docs for foreign national (including educational evaluation if foreign degree) Passport, I‐94 document, and previous NIV docs PRACTICE TIP: Draft LCA for start date earlier than October 1, so that it can be filed before April 1 for cap season filing.
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Procedure for filing continued: Letter from U.S. petitioner describing the position, offered salary, and the foreign national’s qualifications Info about U.S. employer Duplicate copy of petition should be submitted with petition so that it can be sent to Kentucky Consular Center (KCC) in case the foreign national needs to apply for an H‐1B visa abroad. If no duplicate copy is submitted, must submit I‐824 petition to USCIS for duplicate copy to be sent to KCC before the foreign national can apply for an H‐1B visa. H‐1B Portability: • May file petition with USCIS at any time when foreign national wishes to change employers. H‐1B • Not subject to cap. • Foreign national may begin working for new employer as soon as H‐1B petition has been filed with USCIS. • Procedure for filing: similar to H‐1B cap filing. Period of Admission • May be admitted for period of stay requested not to exceed 3 years on initial petition. • May extend H‐1B status for 3 years. PRACTICE TIP: Create a checklist to make sure that you don’t forget any documents. If you forget to include some forms or documents, the whole petition may be sent back to you and you may miss the lottery.
Dual intent: may work in L‐1A nonimmigrant status and meanwhile apply for permanent residency. L‐1A Criteria Intracompany Qualifying organization must petition for employee. A qualifying organization may be a parent company, branch office, Transferee subsidiary, or affiliate company. Executive or Employee must have worked in a managerial or executive capacity for a qualifying organization abroad for at least one continuous Manager year in the 3 years immediately preceding the filing of the petition for L‐1A status. Employee must be coming to the U.S. to work in a managerial or executive capacity in L‐1A status.
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Definition of “manager”: The employee primarily: 1. Manages the organization, or a department, subdivision, function, or component of the organization; 2. Supervises and controls the work of other supervisory, L‐1A professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of Intracompany the organization; 3. Has the authority to hire and fire or recommend those as well as Transferee other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly Executive or supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect Manager to the function managed; and 4. Exercises discretion over the day‐to‐day operations of the activity of function for which the employee has authority. A first‐line supervisor is not considered to be acting in a managerial capacity merely by a virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
Definition of “executive”: The executive primarily: L‐1A 1. Directs the management of the organization or a major Intracompany component or function of the organization; 2. Establishes the goals and policies of the organization, component, Transferee or function; 3. Exercises wide latitude in discretionary decision‐making; and Executive or 4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the Manager organization.
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L‐1A status limited to 7 years Limit of working in the U.S. in L‐1A status for 7 years. Cannot extend beyond 7 years. Recapture of time L‐1A Can request recapture of time spent outside the U.S. while in valid L‐ 1A status. Intracompany All days outside the U.S. must be counted (departure and arrival Transferee dates do not count as days outside the U.S.). Must include evidence of the trips such as passport stamps, boarding Executive or passes, trip itineraries, etc. Manager Intermittent L • L‐1A employees who spend less than 180 days per year in the U.S. in L‐1A status can obtain intermittent L status and these employees are not subject to the 7‐year limit.
Procedure for Filing • Submit in duplicate Forms G‐28, I‐129, I‐129L • Letter from petitioning employer describing the offered position and the beneficiary’s qualifications L‐1A • Documentation of the qualifying relationship • Documentation of the employee’s continuous one year of Intracompany employment abroad for qualifying organization Transferee Executive or Period of Admission • May be admitted for period of stay requested not to exceed 3 years Manager for initial petition. • May extend L‐1A status for up to 2 years until 7 year limit is reached. PRACTICE TIP: If L‐1A supervised people, helpful to provide org charts of 1) direct reports in position abroad and 2) direct reports for position in U.S.
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Dual intent: may work in L‐1B nonimmigrant status and meanwhile apply for permanent residency. Criteria L‐1B Qualifying organization must petition for employee. Intracompany A qualifying organization may be a parent company, branch office, subsidiary, or affiliate company. Transferee Employee must have worked in a specialized knowledge capacity with for a qualifying organization abroad for at least one continuous year in the 3 years immediately preceding the filing of the petition Specialized for L‐1B status. Knowledge Employee must be coming to the U.S. to work in a specialized knowledge capacity in L‐1B status. See USCIS Policy Memo from November 15, 2018 on satisfying one‐ year abroad requirement (AILA Doc. No. 18112933)
Definition of “specialized knowledge”: Special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally L‐1B found in the particular industry; or Intracompany Advanced knowledge, which is knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not Transferee commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that with generally found within the employer. Specialized See USCIS Policy Memo from August 17, 2015 on L‐1B Adjudications Knowledge Policy (AILA Doc. No. 15081801). PRACTICE TIP: Helpful to show that the employee gained proprietary knowledge not common in industry, and possibly knowledge of a particular product or process uncommon within the company.
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L‐1B status limited to 5 years Limit of working in the U.S. in L‐1B status for 5 years. Cannot extend beyond 5 years. L‐1B Recapture of time Can request recapture of time spent outside the U.S. while in valid L‐ Intracompany 1B status. All days outside the U.S. must be counted (departure and arrival Transferee dates do not count as days outside the U.S.). with Must include evidence of the trips such as passport stamps, boarding Specialized passes, trip itineraries, etc. Intermittent L Knowledge • L‐1B employees who spend less than 180 days per year in the U.S. in L‐1B status can obtain intermittent L status and these employees are not subject to the 5‐year limit.
Procedure for Filing • Submit in duplicate Forms G‐28, I‐129, I‐129L • Letter from petitioning employer describing the offered position L‐1B and the beneficiary’s qualifications Intracompany • Documentation of the qualifying relationship • Documentation of the employee’s continuous one year of Transferee employment abroad for qualifying organization with Specialized Period of Admission • May be admitted for period of stay requested not to exceed 3 Knowledge years for initial petition. • May extend L‐1B status for up to 2 years.
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Criteria • Must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by O‐1 Person of sustained national or international acclaim, OR Extraordinary • Must demonstrate a record of extraordinary achievement in motion picture and/or television productions. Ability • Must be coming to the U.S. temporarily to continue to work in area of extraordinary ability or achievement.
Evidence of “sustained national or international acclaim” for extraordinary ability in science, education, business, or athletics: • Receipt of a major internationally recognized award (e.g., Nobel Prize), or • Documenting at least 3 of the following: 1. Receipt of nationally or internationally recognized awards; 2. Membership in an organization that requires outstanding O‐1 Person of achievement; 3. Published materials about the applicant in professional or major Extraordinary trade publications; Ability 4. Judgment of the work of others; 5. Original scientific or scholarly work of major significance in his or her field; 6. Evidence of authorship of scholarly work; 7. Evidence that s/he has been employed in a critical or essential capacity at an organization with a distinguished reputation; or 8. Has commanded or will command a high salary in relation to others in the field.
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Evidence of “Distinction in the Arts”/”Extraordinary Achievement in Motion Picture or TV Industry”: Nomination for or receipt of a significant international or national award or prize (e.g., Academy Award, Emmy, Grammy, or O‐1 Person of Director’s Guild Award), or Documentation of at least 3 of the following: Extraordinary 1. Lead in production having a distinguished reputation; 2. Critical reviews in major newspapers or trade journals; Ability 3. Lead for organization that has a distinguished reputation; 4. Record of major commercial or critically acclaimed successes; 5. Significant recognition from organizations, critics, government agencies or other recognized experts in the field; or 6. Has commanded or will command a high salary.
Consultation Requirement • Those with extraordinary achievement in motion picture and/or television productions must include a written advisory opinion from an appropriate union and management group. O‐1 Person of • All other O‐1 petitions must include written advisory opinions Extraordinary from appropriate unions, if one exists. Ability PRACTICE TIP: Even if not submitting an advisory opinion from a union, helpful to provide advisory opinion letters from leaders in the industry attesting to and describing the foreign national’s extraordinary ability.
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Procedure for filing File Forms G‐28, I‐129, I‐129O to USCIS with supporting evidence O‐1 Person of Extraordinary Period of Admission Ability • O‐1 may be admitted for period of stay requested not to exceed 3 years for initial petition. • O‐1 may extend status for up to one year at a time.
Criteria • Victim of a severe form of human trafficking • Must have assisted law enforcement in an investigation or prosecution of human trafficking, unless under 18 years old or unable to cooperate due to physical or psychological trauma • Must demonstrate that s/he would suffer extreme hardship involving T Victim of unusual and severe harm if removed from the U.S. • Must be admissible to the U.S. (but may apply for a waiver if not) Human Definition of “severe form of trafficking”: Sex trafficking: When someone recruits, harbors, transports, Trafficking provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age; or Labor trafficking: When someone recruits, harbors, transports, provides, or obtains a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.
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Procedure for Filing • Submit Forms G‐28, I‐914, I‐914 Supplement B with supporting evidence to USCIS
T Victim of Period of Admission • May be admitted for 4 years. Human • Principal applicants granted T status will also receive an Trafficking Employment Authorization Document (EAD) without filing Form I‐ 765.
PRACTICE TIP: Although not required, should submit with petition a declaration from law enforcement officer that the foreign national are a victim of human trafficking crime.
Criteria • Victim of a qualifying crime who has suffered mental or physical abuse U Victim of • Must have assisted or be assisting law enforcement or government officials in the investigation or prosecution of criminal Certain Crimes activity • The crime must have occurred in the U.S. or violated U.S. laws • Must be admissible to the U.S. (but may apply for a waiver if not)
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Qualifying Crimes: • Abduction • Abusive Sexual Contact • Blackmail • Domestic Violence U Victim of • Extortion Certain Crimes • False Imprisonment • Female Genital Mutilation • Felonious Assault • Fraud in Foreign Labor Contracting • Hostage • Incest
Qualifying Crimes continued: • Involuntary Servitude • Kidnapping • Manslaughter • Murder U Victim of • Obstruction of Justice Certain Crimes • Peonage • Perjury • Prostitution • Rape • Sexual Assault • Sexual Exploitation
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Qualifying Crimes continued: • Slave Trade • Stalking • Torture • Trafficking U Victim of • Witness Tampering Certain Crimes • Unlawful Criminal Restraint • Other Related Crimes (includes similar activity where elements of crime are substantially similar) • Also includes attempt, conspiracy, or solicitation to commit any of the above or related crimes.
U Visa Cap U Victim of • Limit of grant of U visas to principal petitioners is 10,000 per year. • If cap is reached before all U petitions have been adjudicated, Certain Crimes USCIS will create a waiting list for any eligible principal or derivative petitioners with pending petitions.
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Procedure for Filing • Submit Forms G‐28, I‐918, I‐918 Supplement B, and supporting evidence Period of Admission • May be admitted for four years. U Victim of • Extensions available if: • needed based on request from law enforcement, Certain Crimes • needed based on exceptional circumstances, • needed due to delays in consular processing, or • automatically extended upon filing or pendency of application for adjustment of status • After U petition is approved, an Employment Authorization Document (EAD) will be automatically issued without filing Form I‐ 765.
Criteria • Engaged to marry a U.S. citizen • Intend to marry U.S. citizen fiancé(e) within 90 days of entry to U.S. in K‐1 status Procedure for Filing K‐1 Fiancé(e) • Submit Forms G‐28, I‐129F to USCIS with supporting evidence
PRACTICE TIP: It is required to submit a statement from both the citizen and foreign national stating that s/he intends to marry the U.S. citizen fiancé(e) within 90 days of entering the U.S. in K‐1 status.
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Process after filing • After I‐129F is approved, file will be sent o the National Visa Center (NVC) for scheduling of K‐1 visa appointment at U.S. Consulate/Embassy abroad. It will generally be treated like an immigrant visa. • NVC will then gather civil documents and financial documents including Form I‐134 Affidavit of Support from U.S. Citizen, with copies of Federal Income Tax Returns for last 3 years. K‐1 Fiancé(e) • After successful K‐1 visa interview, K‐1 visa will be stamped into passport and valid for 4 months. If denied, a new application is required. • After entering U.S. in K‐1 status, must marry U.S. citizen fiancé(e) within 90 days of entry. • K‐1 may apply for Employment Authorization Document by filing Form I‐765 and paying filing fee, but is only valid for the 90 day stay and is rarely granted in time. However, Form I‐765 is included with Adjustment of Status application which can be filed after marriage.
Presented by Jay Gairson, Rachel Han QUESTIONS? Huneryager
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