EMPLOYMENT BASED IMMIGRATIONIMMIGRATION SERVICES
An immigrant is a foreign national who has been authorized to live and work permanently in the United States. If you want to become an immigrant based on the fact that you have a permanent employment opportunity in the United States, or if you are an employer that wants to sponsor someone for lawful permanent residency based on permanent employment in the United States, you must go through a multi-step process.
- First, foreign nationals and employers must determine if the foreign national is eligible for lawful permanent residency under one of employment immigration categories (see below).
- Second, most employment categories require that the US employer complete a labor certification request (Form ETA 9089) for the applicant, and submit it to the US Department of Labor (DOL)’s Employment and Training Administration. DOL must either grant or deny the certification request. Qualified alien physicians who will practice medicine in an area of the United States which has been certified as underserved by the US Department of Health and Human Services are relieved from this requirement. You may wish to read more about this program.
- Third, US Citizenship and Immigration Services (USCIS, formerly INS) must approve an immigrant visa petition (Form I-140, Petition for Alien Worker) for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition. However, if a labor certification is needed the application can only be filed after the certification is granted. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the United States.
- Fourth, the US Department of State (DOS) must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant. You can check the status of a visa number in the DOS’ Visa Bulletin.
- Fifth, if the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available. You may wish to read about application procedures on becoming a permanent resident while in the United States. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local US consulate office.
There are five categories for granting permanent residence to foreign nationals based on employment skills. If you are an employer and are unsure which employment category applies to the foreign national you wish to sponsor, or if you are a foreign national and want more information on which category matches your particular situation, click one of the employment categories:
- EB-1 Priority workers (Read More)
- EB-2 Professionals with advanced degrees or persons with exceptional ability (Read More)
- EB-3 Skilled or professional workers(Read More)
- EB-4 Special Immigrants (Read More)
- EB-5 Immigrant Investors (Read More)
PERM LABOR CERTIFICATION PROCESS
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the US employer can submit an immigration petition to the Department of Homeland Security’s US Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified US workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed US workers.
To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005.
Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Elimination Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (ETA Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.
The DOL processes applications for Alien Employment Certification (ETA Form 9089). The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker. You can access the State Department Visa Bulletin by Clicking Here to learn which priority dates are currently being processed.
Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations;
- The employer must hire the foreign worker as a full-time employee;
- There must be a bona fide job opening available to US workers;
- Job requirements must adhere to what is customarily required for the occupation in the US and may not be tailored to the worker’s qualifications.
In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Process for Filing:
Application: The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant’s qualifications.
Signature requirement: Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
Prevailing wage: Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
Pre-Filing Recruitment Steps: All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor’s or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
The employer must categorize the lawful job-related reasons for rejection of US applicants and provide the number of US applicants rejected in each category. The recruitment report does not have to identify the individual US workers who applied for the job opportunity.
Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
Retention of records: The employer is required to retain all supporting documentation for 5 years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
Refiling. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
Online filing: The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed.
The employer can access a customer-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
Registration: To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:
- Save time by pre-populating your general information
- View the status of your labor certification applications online
- Update your profile information online
- Track newly submitted labor certification applications5.
- Email saved labor certification applications to others within the company
- Add new users to your account
- Withdraw labor certification applications no longer needed
Filing by mail: National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located.
Approvals: If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” stamped by the Certifying Officer and returned to the employer/agent who submitted the application.
The USCIS Petition
Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department has determined there are not sufficient US workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of US workers similarly employed.
The occupations listed under Schedule A include:
Physical Therapists – who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy;
Professional Nurses – the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
Sciences or arts (except performing arts) – Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term “science or art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
Performing arts – Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
An employer shall apply for a labor certification for a Schedule A occupation by filing an ETA Form 9089, in duplicate with the appropriate USCIS Center, NOT with the Department of Labor or a SWA.
NON IMMIGRANT VISAS
- H1B Professional Worker
- L1 Intracompany Transferees
- TN Treaty NAFTA Professionals
- E2 Treaty Investor
- B1 Business Travel Visa
- B2 Tourist Visa
- J1 Exchange Visitor
- O1 Extraordinary Ability
- P1 Athletes, Artists, and Entertainers
- F1 Academic Students
- M1 Vocational Students
- K1 Fiancee of US Citizen
- K3 Spouse of US Citizen
H1B Professional Worker
The H1B visa is a nonimmigrant work visa used by aliens who will be employed temporarily in a specialty occupation. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor’s degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor’s degree.
Specialty occupation includes accounting, architecture, business specialties, engineering, education, law, mathematics, medicine and health, physical sciences, social sciences, theology, and arts. Other professions may also qualify as specialty occupations.
The H1B work visa requires a sponsoring US employer. The sponsor must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The H1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service). Based on the USCIS petition approval, the alien may apply for an H1B visa stamp at an American Embassy or Consulate abroad or a change of nonimmigrant status with the USCIS. An H1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition.
An alien may be admitted into the US in H1B work visa statusinitially for up to three years with possible extension for three more years. After six years in H1B status, an alien must remain outside the United States for one year before another H1B petition can be approved. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition.
An H1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting the H1B status. This is known as “dual intent” and is recognized under the immigration laws. During the time that the application for LPR status is pending, an alien may travel on his or her H1B work visa rather than obtaining advance parole or request other advance permission from the USCIS to return to the US.
H1B Quota – The law limits the number of H1B visas to 65,000 per year. Generally, the quota does not apply to H1B aliens filing for extension of status or change of employer. However, H1B aliens employed by quota exempt organizations, such as institutions of higher education or nonprofit research organizations, may become subject to the H1B quota, if they apply to change jobs to a non-exempt employer. Under the H1B Visa Reform Act of 2004, Congress allocated 20,000 additional H1B numbers for aliens who have received a Master’s or higher degree from a US College or University.
H1B Transfer – Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), an alien previously issued an H1B visa and/or granted H1B status may transfer to a new H1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H1B alien CEASES upon denial.
Due to the numerous H1B layoffs in recent times, employers must understand their obligations upon termination of H1B workers. Employers who dismiss their H1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H1B worker voluntarily terminates his or her employment prior to the expiration of the H1B status, then the employer is not liable for the alien’s return transportation. The USCIS regulations also require the employer who no longer employs the H1B nonimmigrant to notify the USCIS of the termination in writing.
L1 Intracompany Transferees
The L1 visa applies to aliens who work for multinational companies doing business in both the United States and abroad. These workers come to the United States as intracompany transferees who are coming temporarily to perform services either in a managerial or executive capacity (L1A) or which entail specialized knowledge (L1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the foreign corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify. There is currently no annual cap on L1 visas.
L2 VISA / FAMILY MEMBERS
Spouses and unmarried children under 21 years of age of L1 workers are entitled to L2 status with the same restrictions as the principal. Dependents may be students in the US while remaining in L2 status and may apply for work authorization with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service).
L1 A VISA REQUIREMENTS
A US employer or foreign employer may file the L1 petition, but a foreign employer must have a legal business in the US. The petition must be filed with:
(1) Evidence of the qualifying relationship between the US and the foreign employer which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements, or stock certificates;
(2) A letter from the alien’s foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the alien worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge; and
(3) A detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.
If the alien is coming to the US as a manager or executive (L1 A) to open or to be employed in a new office, also file the petition with evidence that:
(1) Sufficient premises to house the new office have been secured;
(2) The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and
(3) The intended US operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding:
(a) The proposed nature of the US office (size and scope, organizational structure, and financial goals);
(b) Financial information about the foreign entity (the size of the U.S. investment and the financial ability to compensate the beneficiary and to commence doing business in the US); and
(c) The organizational structure of the foreign entity.
If the alien is coming to the US in a specialized knowledge capacity (L1 B) to open or to be employed in a new office, also file the petition with evidence that:
(1) Sufficient premises to house the new office have been secured;
(2) The business entity in the US is or will be a qualifying organization; and
(3) The petitioner has the financial ability to compensate the alien beneficiary and to begin doing business in the US.
BLANKET L1 VISA PETITION
Employers who regularly file L petitions may wish to consider filing for a blanket L petition in order to obtain continuing approval for itself (and some or all of its parents, branches, subsidiaries and affiliates in the US). This simplifies the process of approving and admitting additional individual L1A and L1B workers.
The blanket L petition must be filed by a US employer who will be the single representative between the USCIS and the qualifying organizations and must be filed with copies of evidence that the:
(1) Petitioner and its branches, subsidiaries, and affiliates are engaged in commercial trade or services;
(2) Petitioner has an office in the United States that has been doing business for one year or more;
(3) Petitioner has 3 or more domestic and foreign branches, subsidiaries, or affiliates; and
(4) Petitioner and its qualifying organizations have obtained approved petitions for at least ten L1 professionals during the previous year or have US subsidiaries or affiliates with combined annual sales of at least 25 million dollars, or have a US work force of at least 1,000 employees.
TN Treaty NAFTA Professionals
Certain Canadian and Mexican professionals are eligible to obtain 3 year work permits, which can be renewed indefinitely in 3-year increments. The 1994 North American Free Trade Agreement (“NAFTA”) makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, “TN” for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the US under other nonimmigrant classifications.
TN employment must be in a profession listed in Appendix 1603.0.1 to NAFTA and the TN employee must possess the credentials required. There is no annual limit on TN admissions.
Professions under NAFTA Appendix 1603.0.1
Accountant, Architect, Computer Systems Analyst, Disaster Relief Insurance Claims Adjuster, Economist, Engineer, Forester, Graphic Designer, Hotel Manager, Industrial Designer, Interior Designer, Land Surveyor, Landscape Architect, Lawyer (including Notary in the province of Quebec), Librarian, Management Consultant, Mathematician (including statistician), Range Manager/Range Conservationist, Research Assistant (working in a post-secondary educational institution), Scientific Technician/ Technologist, Social Worker, Sylviculturist (including forestry), Technical Publications Writer, Urban Planner (including Geographer), Vocational Counselor.
Dentist, Dietitian, Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States), Nutritionist, Occupational Therapist, Pharmacist, Physician (teaching or research only), Physiotherapist/Physical Therapist, Psychologist, Recreational Therapist, Registered Nurse, Veterinarian.
Agricultural (Agronomist), Animal Breeder, Animal Scientist, Apiculturist, Astronomer, Biochemist, Chemist, Dairy Scientist, Entomologist, Epidemiologist, Geneticist, Geochemist, Geophysicist (including Oceanographer in Mexico and the United States), Horticulturist, Meteorologist, Pharmacologist, Physicist (including Oceanographer in Canada), Plant Breeder, Poultry Scientist, Soil Scientist, Zoologist.
College, Seminary, University.
Family Members – TD Status
Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the US, but may not be employed under the TD status.
TN Canadian or Mexican under NAFTA
The TN classification applies to a Canadian or Mexican citizen seeking admission as a professional temporarily under the North American Free Trade Agreement.
Canadian Citizen Requirements:
The TN classification does not require a petition for employment, if the alien is a Canadian citizen and is outside of the US. Canadian citizens need not obtain TN visas, and may apply directly at Class A US ports of entry. They must provide:
1. A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;
2. Evidence that the beneficiary meets the education and/or alternative credentials for the activity;
3. Evidence that all licensure requirements, where applicable to the activity, have been satisfied; and
4. Evidence of Canadian citizenship.
Mexican Citizen Requirements:
As of January 1, 2004, the procedures were simplified for Mexicans by removing the requirement for petition approval and for filing of a labor condition application. Mexicans are no longer subject to numerical limitation for these professionals. Mexican citizens still require a visa to request admission to the United States.
Mexican citizens may apply at US Embassies or Consulates around the world for a NAFTA professional TN visa. As part of the visa application process, an interview at the embassy consular section is required for most visa applicants. Interviews are generally by appointment only. As part of the visa interview, an ink-free, digital fingerprint scan can generally be expected. The waiting time for an interview appointment for most applicants is a few weeks or less, but for some embassy consular sections it can be considerably longer.
Mexican applicants for a TN visas must present these documents to the US Embassy or Consulate:
1. Completed Nonimmigrant Visa Application Forms;
2. A Mexican passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States;
3. One 2 inches by 2 inches visa photo;
4. A statement from the US employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward. Part-time employment is permitted. Self-employment is not permitted;
5. Evidence that the beneficiary meets the education and/or alternative credentials for the activity;
6. Evidence that all licensure requirements, where applicable to the activity, have been satisfied; and
7. Evidence that the applicant’s stay in the US will be temporary and has a reasonable, finite end that does not equate to permanent residence;
How Long Can I Stay?
The maximum period of admission into the US is 3 years. The US Citizenship and Immigration Services (USCIS) grants extensions of stay in 3-year increments. There is no limit on the number of extensions a TN visa holder may apply. However, the TN visa status is not for permanent residence.
Extension of Stay
For Canadian or Mexican citizens admitted as a TN Professional may seek an extension of stay, which may be granted up to 3 years.
No assurances regarding the issuance of visas can be given in advance. Therefore, final travel plans or the purchase of nonrefundable tickets should not be made until a visa has been issued.
Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid U.S. visitor visa in an expired passport, do not remove the visa page from the expired passport. You may use it along with a new valid passport for travel and admission to the United States. Misrepresentation of a Material Facts, or Fraud.
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States. Classes of Aliens Ineligible to Receive Visas , provides important information about ineligibilities.
If the consular officer should find it necessary to deny the issuance of a TN visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.
Entering the U.S. – Port of Entry
Applicants should be aware that a visa does not guarantee entry into the United States. The visa allows a foreign citizen to travel to a port of entry in the United States, such as an international airport, a seaport or a land border crossing, and request permission to enter the US immigration officer will permit or deny admission to the United States, and determine your length of stay in the US, on any particular visit. Form I-94, Record of Arrival-Departure, which notes the length of stay permitted, is validated by the immigration officer. Form I-94, which documents your authorized stay in the US, is very important to keep in your passport. Additionally, as a Mexican citizen seeking entry as a TN professional, you must present evidence of professional employment to satisfy the immigration officer of your plans to be employed in prearranged business activities for a US employer at a professional level.
Staying Beyond Your Authorized Stay in the U.S. and Being Out of Status
You should carefully consider the dates of your authorized stay and make sure you are following the procedures under US immigration laws. It is important that you depart the US on or before the last day you are authorized to be in the US on any given trip, based on the specified end date on your Form I-94, Arrival-Departure Record. Failure to depart the US will cause you to be out-of-status.
Staying beyond the period of time authorized by the immigration authorities and being out-of-status in the United States is a violation of US immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the US.
Staying unlawfully in the United States beyond the date the immigration officer has authorized, even by one day, results in your visa being automatically voided. If you overstay on your nonimmigrant authorized stay in the US your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
E2 Treaty Investor
Foreign investors who invest a substantial amount of capital in a US enterprise, and who will develop and direct the enterprise, may apply for E2 visas if their country of citizenship has the required treaty with the US.
If the investor is inside the US, he or she may apply to the US Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for a change of status, extension of stay, or change of employment. The E2 category does not require a petition for employment if the investor is outside of the US. In that case, the investor may apply for the E2 visa on his or her own behalf directly to a US consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
E2 INVESTMENT VISA – DOCUMENT REQUIREMENTS
The visa application must be filed with evidence that:
1. The investor is a national of a country with whom the USA has the requisite treaty or agreement;
2. The applicant (or in the case of an employee of a treaty investor who seeks classification as an E2, the owner of the treaty enterprise) will direct or develop the enterprise. The applicant must demonstrate that he or she controls the enterprise by showing ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
3. The investor has invested in or is actively in the process of investing in the enterprise;
4. The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
5. The investment enterprise is not a marginal enterprise;
6. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify; and
7. That the applicant intends to depart the United States upon the expiration of E2 status.
E2 DEPENDENTS / FAMILY MEMBERS
Spouses and unmarried children under age 21, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Family members may be students in the US while remaining in E2 dependent status and spouses may apply for work authorization with the USCIS.
Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.
The J1 visa for exchange visitors is designed to promote the interchange of persons, knowledge, and skills in the fields of arts, business, education, and sciences. Participants include trainees and interns obtaining on-the-job training with businesses, institutions, and agencies; professional trainees in the medical and allied fields; students at all academic levels; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; and international visitors coming for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.
Applicants for the J1 visa must have sufficient funds to cover all expenses, or funds must be provided by the sponsoring organization in the form of a scholarship or other stipend. J1 exchange visitors must have sufficient scholastic preparation to participate in the designated program, including knowledge of the English language, or the exchange program must be designed to accommodate non-English speaking participants.
J1 DOCTOR / PHYSICIAN / HEALTH CARE
J1 exchange visitors coming to the United States for graduate medical education or training must meet certain special requirements. They include having passed the Foreign Medical Graduate Examination in Medical Sciences, demonstrating competency in English, being automatically subject to the two year foreign residence requirement, and being subject to time limits on the duration of their program. Doctors coming to the United States on exchange visitor programs for the purpose of observation, consultation, teaching, or research in which there is little or no patient care are not subject to the above requirements.
J1 visa applicants must present a Form DS2019 prepared by a designated sponsoring organization. Please note that as of September 1, 2002, the Form DS2019 will replace the IAP66 as the official form to be used in the administration of the exchange visitor program. The cut-off date for the use of the Form IAP66 is August 31, 2002. Exchange Visitor Program sponsors should use only Form DS2019 to document exchange visitors after August 31, 2002. Forms IAP66 issued and dated prior to August 31 should be accepted by consular officers in support of visa applications.
J1 visa applicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they are coming to the United States for a temporary period. It is impossible to specify the exact form the evidence should take since applicants’ circumstances vary greatly.
Employment while in J1 exchange visitor status depends upon the terms of the program. Participants in programs which provide for on-the-job training, teaching, research, or other activities, which involve paid employment may accept such employment. Participants in programs which do not involve work may not accept outside employment.
J1 WAIVER / FOREIGN RESIDENCY REQUIREMENTS
Certain J1 exchange visitors who participate in programs which are financed by an agency of the U.S. Government or by the exchange visitor’s government, or who are nationals or residents of a country which has been designated by the Exchange Visitor Program as requiring the skills of the exchange visitor, must return to their country of nationality or last residence after completing their program in the United States, and reside there physically for two years before they may become eligible to apply for an immigrant or temporary worker visa.
These individuals may apply for a waiver of the two year foreign residency requirement. There are five statutory bases to apply for a J1 waiver:
1. A no objection statement from your host government;
2. A request from an interested U.S. Government agency on your behalf;
3. A claim that you will be persecuted if you return to your country of residence;
4. A claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence; and
5. A request by a designated State health agency or its equivalent.
J2 VISA / FAMILY MEMBERS
The spouse and minor children of participants in exchange programs may apply for derivative J2 dependent visas to accompany or follow to join the principal alien. They must demonstrate that they will have sufficient financial resources to cover all expenses while in the United States. Dependents may apply to the U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for authorization to accept employment in the U.S.
O1 Extraordinary Ability
The O1 category is designed for foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim. To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. There is currently no annual cap on O1 visas.
SCIENCE / EDUCATION / BUSINESS / ATHLETICS
The O1 category applies to aliens coming temporarily who have extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television).
O1 VISA PETITION REQUIREMENTS
A U.S. employer should file the petition with:
1. A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien’s area of ability;
2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
3. Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:
a. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
b. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts;
c. Published material in professional or major trade publications, newspapers or other major media about the alien and his work in the field for which classification is sought;
d. Original scientific, scholarly, or business-related contributions of major significance in the field;
e. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
f. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
g. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;
h. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
If the above standards do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence in order to establish the alien’s eligibility.
ARTS / MOTION PICTURE / TELEVISION
The O1 category also applies to aliens who are coming temporarily and have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
O1 VISA PETITION REQUIREMENTS
A U.S. employer should file the petition with:
1. A written advisory opinion, describing the alien’s ability as follows:
a. If the petition is based on the alien’s extraordinary ability in the arts, the consultation must be from a peer group (including labor organizations) in the alien’s field of endeavor; or a person or persons designated by the group with expertise in the alien’s area of ability.
b. If the petition is based on the alien’s extraordinary achievements in the motion picture or television industry, separate consultations are required from a labor and a management organization with expertise in the alien’s field of endeavor.
2. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
3. Evidence the alien has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least three of the following:
a. Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
b. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
c. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
d. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the alien’s achievements;
e. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence; or
f. If the above standards do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence in order to establish the alien’s eligibility.
O3 VISA / FAMILY MEMBERS
Spouses and minor children (dependents) of O1’s are admitted under O3 status with the same restrictions as the principal. They may not work in the U.S. under this classification.