Business and Employment Based Immigration

It is no secret that U.S. employers need foreign national workers or that many talented foreign nationals are enthusiastic about the opportunity to work in the United States. It our global economy, it is more crucial than ever for U.S. employers to have clear employment-based immigration strategies to hire foreign workers and clear immigration policies to retain these employees.

Frequently, employers and their foreign national employees must employ a multiple prong visa strategy– utilizing nonimmigrant (temporary) work visas for shorter term employment authorization, while also providing sponsorship for Lawful Permanent Residency (“LPR” or “green card”) for a long-term, permanent immigration solution.

At Kolko & Casey, we offer tailored immigration counsel with an eye toward both short-term and long-term goals for employers and for their foreign national employees and their families.  We also assist employers in drafting corporate immigration policies to ensure that their foreign national workers understand what the company is willing to do in terms of visa sponsorship over the course of employment.

Employment Based Lawful Permanent Residency (Green Card)

Under U.S. immigration law, at least 140,000 permanent visas (LPRs/green cards) are allocated annually to foreign nationals based on employment. These Employment Based (EB) visas are divided into preference categories: EB-1, EB-2, EB-3, EB-4, etc., with each preference category allocated a specific percentage of the worldwide EB visa numbers.

Most of the EB preference categories require that the U.S. employer first complete the Labor Certification process (commonly known as “PERM”) with the U.S. Department of Labor before the employer can submit an I-140 Immigrant Visa Petition on behalf of their foreign national employee in one of the EB preference categories.

However, there are certain categories, such as the individuals with  Extraordinary Ability (EB-1), Outstanding Professor of Researcher (EB-1), Multinational Manager and Executive (EB-1), and National Interest Waiver (NIW) (EB-2), that waive the PERM Labor Certification requirement and allow the employer, or in certain cases the foreign national employee, to file the I-140 Immigrant Visa Petition without completing the Labor Certification process.

Additionally, certain Special Immigrants (EB-4), including certain Religious Workers, Former Employees of the Panama Canal Zone, Former Employees of the U.S. Government and U.S. Armed Forces, Retired Employees of International Organizations, Retired Civilians on NATO-6 visa, Employees of the International Broadcasting Bureau, Special Agricultural Workers and Foreign Medical Graduates, may also be sponsored for residency without completing the Labor Certification process, and instead file an I-360 Application for Special Immigrant with USCIS.

Three Step Process: Labor Certification (PERM) to Lawful Permanent Residency (EB-2 and EB-3 Immigrant Visa Categories)

One of the most common pathways to Lawful Permanent Residency for foreign national workers is through Labor Certification (or PERM) sponsorship through an employer.  The Labor Certification to LPR process involves three (3) separate steps that occur over several years.

Step 1: Labor Certification Process with Department of Labor

Labor Certification is essentially the employer’s testing of the U.S. labor market. It requires that the employer demonstrate that there are no available, willing and qualified U.S. workers to fill the permanent position with their organization, and that they have a specific foreign national employee that they wish to hire on a permanent basis for the position. Through the Labor Certification process, the employer demonstrates to the Department of Labor that it has completed sufficient efforts to recruit U.S. workers and was unable to do so.

1. First, the employer submits the job description for the permanent position, including the job duties and minimum educational, experience and special requirements, as well as the geographic location of the job, to the DOL for the issuance of a Prevailing Wage Determination (PWD).
2. Once the DOL issues its PWD, the employer then completes advertising and recruitment of U.S. workers through a highly regulated process.
3. After advertising and recruitment is completed, if the employer can demonstrate that it did not receive applications from any fully qualified and available U.S. workers, the employer then submits its Application for Permanent Labor Certification to the DOL for final approval and certification.

The Labor Certification Process can take 1-2 years to complete.

Step 2: I-140 Application for Immigrant Visa

Once the DOL approved and certified the Application for Permanent Labor Certification, the employer must file its I-140 Immigrant Visa Petition with the U.S. Department of Homeland Security (DHS) U.S. Citizenship & Immigration Services (USCIS) within 180 days. The employer must demonstrate that it has the available permanent position for the foreign national employee, and the ability to pay the required prevailing wage for the position. The employer must also demonstrate that the foreign national employee is fully qualified for the permanent job with their organization.

Additionally, the Employer will specify the employment-based visa category (EB-1, EB-2, EB-3, etc.) under which it is applying.

Step 3: I-485 Adjustment of Status (in the United States or Consular Processing of Immigrant Visa (U.S. Embassy abroad)

Once the I-140 Petition is approved and there is an available visa number in the appropriate EB visa category, the foreign national employee (and their dependent spouse and minor children, if applicable) can submit their applications for lawful permanent residency or immigrant visa.

It is important to be aware that for nationals of certain countries including China, India and the Philippines, demand for EB-2 and EB-3 visas far exceeds supply. Thus, foreign national workers from these countries often must wait many years before they are able to proceed with Step 3 in the LPR process.  The Department of State’s monthly Visa Bulletin alerts us to which visas are currently available and which categories are backlogged.

Once the EB visa number is available, whether or not the foreign national employee submits an I-485 Application for Adjustment of Status in the United States or applies for their Immigrant Visa at the U.S. Embassy abroad will depend on a variety of factors, including the employee’s geographic location and temporary non-immigrant status in the United States.

If the application for residency / immigrant visa is approved the foreign national employee (and their qualified family members) become LPRs of the United States.

This final step in the journey towards lawful permanent residency can take anywhere from a couple of months to several years, depending on processing times and visa allocation.

Two Step Process: I-140 Immigrant Visa Petition to Lawful Permanent Residency (EB-1 and EB-2 NIW Immigrant Visa Categories)

Some foreign nationals can file for their immigrant visa (I-140 Petition) without Labor Certification. These I-140 Petitions can be filed by either an employer on behalf of a specific qualified employee, or “self-sponsored” by the foreign national.

Step 1: I-140 Immigrant Visa Petition for EB-1 Individuals of Extraordinary Ability; Outstanding Professors & Researchers and Multinational Executives/Managers, EB-2 National Interest Waiver (NIW) and Schedule A Professions

Certain individuals can file I-140 Petitions without going through the Labor Certification process.  These include:

• EB-1-A – Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. This category is reserved for those individuals who have risen to the very top of their field. Applicants in the extraordinary ability category are not required to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. These individuals can “self-sponsor.”
• EB-1-B, Outstanding professors and researchers with at least three years of experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.
• EB-1-C, Intra-corporate executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.
• EB-2 National Interest Waiver (NIW), individuals holding an advanced degree, or a bachelor’s degree plus 5 years of progressive experience in their field who demonstrates that their area of expertise or employment is of substantial intrinsic merit and of national importance in the area of business, entrepreneurialism, science, technology, culture, health or education.
• EB-2 Schedule A Professions, individuals working as physical therapists and nurses, or individuals of extraordinary ability in the sciences or arts, or extraordinary ability in the performing arts.

Employers or qualified foreign nationals in the above categories can file an I-140 Immigrant Visa Petition with USCIS, without first completing Labor Certification, and if they establish that they meet the rigorous criteria for EB category, have their I-140 Petition Approved.

Step 2: I-485 Adjustment of Status (in the United States or Consular Processing of Immigrant Visa (U.S. Embassy abroad)

Once the I-140 Petition is approved and there is an available visa number in the appropriate EB visa category, the foreign national employee (and their dependent spouse and minor children, if applicable) can submit their applications for LPR/green card or immigrant visa.

It is important to be aware that for nationals of certain countries including China, India and the Philippines, demand for EB-1 and EB-2 visas far exceeds supply. Thus, foreign national workers from these countries often must wait many years before they are able to proceed with the final step in the LPR process.  The Department of State’s monthly Visa Bulletin alerts us to which visas are currently available and which categories are backlogged.

Whether or not the foreign national employee submits an I-485 Application for Adjustment of Status in the United States or applies for their Immigrant Visa at the U.S. Embassy abroad will depend on a variety of factors, including the employee’s geographic location and temporary non-immigrant status in the United States.

If the application for lawful permanent residency / immigrant visa is approved the foreign national employee (and their qualified family members) become lawful permanent residents of the United States.

This final step in the journey towards lawful permanent residency can take anywhere from a couple of months to several years, depending on processing times and visa allocation.

Two Step Process: I-360 Special Immigrant Visa Petition to Lawful Permanent Residency (EB-4 Immigrant Visa Categories, including Special Religious Worker)

Certain “special immigrants” including LIST, may be sponsored for lawful permanent residency by an employer or organization, through the I-360 Special Immigrant Visa Petition Process.

Step 1: I-360 Special Immigrant Visa Petition

Certain individuals can file I-360 petitions without going through the Labor Certification process.  These include Religious Workers, Former Employees of the Panama Canal Zone, Former Employees of the U.S. Government and U.S. Armed Forces, Retired Employees of International Organizations, Retired Civilians on NATO-6 visa, Employees of the International Broadcasting Bureau, Special Agricultural Workers and Foreign Medical Graduates.

Employers, organizations or qualified foreign nationals in the above categories can file an I-360 Petition for Special Immigrant with USCIS, without first completing Labor Certification, and if they establish that they qualify as an EB-4 Special immigrant, have their I-360 Petition Approved.

Step 2: I-485 Adjustment of Status (in the United States or Consular Processing of Immigrant Visa (U.S. Embassy abroad)

Once the I-360 Petition is approved and there is an available visa number in the appropriate EB visa category, the foreign national employee (and their dependent spouse and minor children, if applicable) can submit their applications for lawful permanent residency or immigrant visa.

In recent years, demand for visas in the EB-4 category has far exceeded supply. Thus, foreign national workers in the EB-4 often must wait many years before they are able to proceed with the final step in the LPR process.  The Department of State’s monthly Visa Bulletin alerts us to which visas are currently available and which categories are backlogged.

Employment Based Nonimmigrant (temporary) visa/status

For most foreign nationals seeking employment in the United States, it is critical to secure a nonimmigrant (temporary) status/visa.  There are many different employment-based nonimmigrant categories, with the majority requiring direct sponsorship by a U.S. employer.

Each nonimmigrant category has its own specific criteria, maximum duration and in certain cases annual limit on the number of visas available.

E-1/E-2 – Treaty Traders / Investors

A foreign national who is a citizen of a country that has a specific treaty with the United States can enter and/or remain the United States to engage in international trade (E-1 Treaty Trader) or to invest in a business (E-2 Treaty Investors).

E-1 Treaty Traders

The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on their own behalf.

Certain employees of such a person or of a qualifying organization may also be eligible for this classification. Additionally, the spouse and children of an E-1 Treaty Trader may be eligible for E-1 Dependent status. Spouses in E-1 Dependent are authorized for employment in the United States. Children on E-1 Dependent Status are eligible to attend school in the United States.

E-2 Treaty Investors

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

The E-2 Investor Visa allows an individual to enter and work inside of the United States based on an investment they will be controlling while inside the United States.  An individual’s E-2 status must be extended every two years, but there is no limit to how many times one can renew.

The E-2 investor’s investment must be “substantial”, and the investor must clearly demonstrate the source of the capital invested was lawfully obtained and is the investors own funds.

Certain qualified employees (citizens of the treaty country) at an E-2 enterprise in the United States organization may also be eligible for E-2 status as a executive, managerial or essential worker.

Additionally, the spouse and children of an E-2 Treaty Investor are authorized for employment in the United States. Children on E-2 Dependent Status are eligible to attend school in the United States.

It is possible to file an application for a change to, or extension of, E-2 status with the U.S. Citizenship and Immigration Services (USCIS) in the United States. It is also possible to apply directly for E-1 or E-2 status directly with the U.S. Embassy in the foreign national’s home country, without first filing a petition with USCIS.

E-3 – Australian Specialty Occupation Professionals

The E-3 is a visa and status is specific to citizens of Australia. The E-3 allows U.S. employers to seek temporary employment authorization for certain professional Australian workers to work for the U.S. employer in a specialty occupation.

The position in which the Australian worker will be employed must meet the definition of “specialty occupation” (i.e., require a minimum of a bachelor’s degree or its foreign equivalent to perform the job duties). Additionally, the foreign worker must have a U.S. bachelor’s degree or its foreign equivalent in a relevant field and be otherwise qualified to perform the job duties of the specialty occupation position.

Australian workers may be approved for E-3 status for two (2) years at a time. However, there is no maximum period in which an individual can be employed in E-3 status. There is an annual limit on the number of E-3 visas of 10,500. However, this maximum has never been reached.

It is possible to file an application for a change to, or extension of, E-3 status with the U.S. Citizenship and Immigration Services (USCIS) in the United States. It is also possible to apply directly for E-3 status directly with the U.S. Embassy in the foreign national’s home country, without first filing a petition with USCIS.

Additionally, the spouse and children of an E-3 Australian Specialty Worker may be eligible for E-3 Dependent status. Spouses in E-3 Dependent are authorized for employment in the United States. Children on E-3 Dependent Status are eligible to attend school in the United States.

B-2: Visitors for Business or Tourism

Visa Waiver – ESTA

The first is through the Visa Waiver Program and is available for individuals of 40+ participating countries allowing these individuals to travel without a visa for up to 90 days. The Visa Waiver Program requires that all qualified applications register for the Electronic System for Travel Authorization (ESTA), prior to travel to the United States.

Visitor Visa – Business or Tourism

A B-1 Visitor visa permits individuals to enter the U.S. for business purposes (including but not limited to attending meetings, conferences, short term trainings), but not for employment.   A B-2 Visitor visa is for individuals wanting to visit the United States for tourism purposes (including but not limited to; vacation, visiting family or friends, to receive medical treatment).

Individuals admitted in B-1/B-2 status to the United States can stay for a maximum of 180 days in visitor status.

B-1 and B-2 visas require that the applicant submit a DS-160 Application for nonimmigrant visa with the U.S. Embassy in their home country and attend an in-person interview before receiving the B-1/B-2 visa.  Certain individuals already present in the United States in a valid nonimmigrant status may, in certain situations, qualify to change their status to B-1/B-2 visitor or extend their B-1/B-2 visitor status in the United States.

For more information about temporary business or tourism visas and find out if you are eligible, please contact Kolko and Casey, P.C.

F-1: Student, including Optional Practical Training (OPT)

There are three different types of student visas: the F-1 Academic Student Visa; the M-1 Vocational Student Visa and the J-1 Exchange Visitor visa.

The F-1 Visa is used to allow individuals to enter the United States as full-time students at an accredited college, conservatory, high school, elementary or other types of academic institution.

The M-1 visa category allows students to attend vocational or non-academic schools, including community and junior colleges that offer technical training.

The J-1 Exchange Visitor visa provides a category to promote educational and cultural exchange programs, including for certain students.

Each of the student visa categories require that the foreign national student be admitted to an academic institution that is registered in the Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS), and that the academic institution issue the foreign national the appropriate credentials (Form I-20 or DS-2019). The foreign national student must also demonstrate that they can pay for their tuition, housing and well-being, and that they intend to depart the United States at the conclusion of their period of study.

All the student visa categories require that the applicant submit a DS-160 Application for nonimmigrant visa with the U.S. Embassy in their home country and attend an in-person interview before receiving the student visa. Certain individuals already present in the United States in a valid nonimmigrant status may, in certain situations, qualify to change their status to F-1, J-1 or M-1 student status in the United States.

—

F-1 students completing their degree are often eligible to seek approval for Optional Practical Training (OPT) from their college or university to seek employment and training in an area related to their field of study.

Post Completion OPT – 12 Month Employment Authorization

Leading up to graduation, F-1 students will apply to the International Students Office at their college or university for OPT, and if approved, they will receive a Form I-20 endorsed for OPT for a period of 12 months. The F-1 student must then apply for an Employment Authorization Document (EAD) from the U.S. Citizenship & Immigration Services (USCIS).  Once USCIS approves the EAD, the F-1 student is eligible to work for any U.S. employer in an position related to their field of study.

OPT STEM Extension 24 Month Employment Authorization

F-1 students receiving a degree in a STEM field are eligible to apply for an additional 24 months of OPT. To be eligible, the F-1 student must have a U.S. employer, registered in E-Verify, that is willing to complete an I-983 Training plan on the F-1 student/employee’s behalf. With the complete I-983 Training Plan, the F-1 student can apply to their university for a new I-20 form endorsed for the 24 STEM OPT extension. Once the I-20 is received, the F-1 student must apply for an Employment Authorization Document (EAD) with USCIS.

H-1B – Specialty Occupation Professionals

The H-1B is a nonimmigrant classification allowing U.S. employers to seek temporary employment authorization for certain professional foreign workers to work in a specialty occupation. The position in which the foreign worker will be employed must meet the definition of “specialty occupation” (i.e., require a minimum of a bachelor’s degree or its foreign equivalent to perform the job duties). Additionally, the foreign worker must have a minimum of a U.S. bachelor’s degree or its foreign equivalent in a relevant field and be otherwise qualified to perform the job duties of the specialty occupation position.

An H-1B petition can be approved for up to three years and extended for an additional three years for a maximum of six years. Extensions beyond the six-year limit may be possible for certain employees who have also been sponsored by their employer for lawful permanent residence.

H-1B Cap Cases

There is an annual limit on the number of H-1B visas that can be approved each Fiscal Year (FY) of 65,000 for foreign nationals with a bachelor’s degree, and an additional 20,000 for foreign nationals with a U.S. master’s degree.  This is known as the “H-1B Cap.” Due to the high demand and the limited number of H-1B visas, each year in March, USCIS conducts a lottery for H-1B workers. For those selected, their employers can submit an H-1B petition on behalf of the selected employee, and if accepted and approved, cases submitted under the H-1B Cap will authorize employment of the foreign national beginning on the first day of the Fiscal Year (October 1).

H-1B Cap Exemptions

There are a limited number of employers and employees that are exempt from the H-1B cap. These organizations include:

• Institutions of higher education
• Non-profit entities related or affiliated with an institution of higher education
• Non-profit Research Organizations, and
• Governmental Research Organizations

Employers falling within one of the categories listed above are not subject to the annual H-1B Cap and may file an H-1B petition on behalf of a professional specialized worker at any time of year.

In addition, certain employees may also be exempt from the H-1B cap. These employees include:

• Employees extending or transferring an H-1B petition that has previously been counted under the H-1B Cap
• Employees who have received “Conrad 30” J-1 Waiver

To receive H-1B status, the U.S. Citizenship and Immigration Services (USCIS) must approve an H-1B petition. If the H-1B foreign national is overseas, once USCIS has approved the H-1B petition, the foreign national may apply for an H-1B visa abroad to enter the United States in H-1B status.

H-4 Status for Spouses and Children of H-1B Foreign Workers

The spouse and children of an H-1B foreign national worker may be able to reside in the United States in H-4 status. However, most spouses and children in H-4 status are not authorized for employment in the United States. In May of 2015, certain H-4 spouses became eligible to apply for employment authorization. To qualify, the H-4 spouse must be in the United States and their H-1B spouse must also be the beneficiary of an approved I-140 (Immigration Visa Petition) filed by their employer.

Children on H-4 are eligible to attend school in the United States.

H-1B1 – Chilean / Singaporean Specialty Occupation Professionals

H-2A/H-2B Temporary, Seasonal Agricultural and Non-Agricultural Visas

The H-2A and H-2B programs allow U.S. employers to bring agricultural (H-2A) and non-agricultural (H-2B) foreign national workers to the United States to fill temporary, seasonal jobs.  H-2A and H-2B visas are issued to foreign nationals to work temporarily in jobs for which employers can prove a shortage of qualified American workers.

visas issued annually. There is an annual limit of 66,000 H-2B visas available annually to employers, with 33,000 becoming available on October 1^st and the remaining 33,000 becoming available on April 1^st.  There is far more demand for H-2B visas than available visa numbers. In recent years, Congress has approved additional H-2B visa numbers per year, but even these additional visa numbers have not caught up with demand.  As a result, many employers seeking H-2B visa numbers are thwarted as the H-2B visa numbers are allocated to other employers/workers. There is no limit on the number of H-2A

The H-2A and H-2B visa petitioning process are one of the most complicated processes in U.S. immigration, requiring the employer to post job orders with the State Workforce Agency (SWA) to recruit U.S. workers and complete a Temporary Labor Certification Application with the Department of Labor. Once the Temporary Labor Certification is certified by the DOL, the employer must file an I-129 Petition with USCIS on behalf of multiple H-2A or H-2B workers. Once the I-129 Petition is approved, the individual foreign national workers must apply for their H-2A/H-2B visas at the U.S. embassy in their home country.

J-1 – Cultural Exchange Visitors

The J-1 cultural exchange visa program is administered by the U.S. State Department.  There are several different J-1 visa categories including: Au pair, Camp Counselor, Intern, Trainee, Teacher, Short Term Scholar, Professor & Research Scholar, Physician, Student, Physician, and Summer Work Travel. The Department of State designates Exchange Visitor Program Sponsors, and these organizations issue qualified foreign nationals a DS-2019 Form authorizing the foreign national to apply for a J-1 visa abroad. Each J-1 category has its own maximum duration.

Many J-1 foreign nationals are subject to a two-year home residency requirement at the conclusion of their J-1 period.  This mandates a return to their home country for a period of 2 years prior to returning to the United States in another employment based temporary visa category or applying for permanent residency.

Spouses and children of J-1 Cultural Exchange Visitors may be eligible to reside in the United States in J-2 status. Spouses in J-2 status are eligible to apply for an employment authorization document (EAD) in order to work in the United States. Children on J-2 status are eligible to attend school in the United States.

L – Intracorporate Transfers

The L-1 visa and status permits a U.S. company with a foreign parent, subsidiary or affiliate to transfer certain foreign national executive, managerial or specialized knowledge employees from the foreign parent/affiliate/subsidiary to the U.S. Company.

To qualify, two basic thresholds must be met. First, the foreign company and the U.S. company must have a qualifying parent, subsidiary, or affiliate relationship. Second, the foreign national worker must have been employed for the foreign entity on a full-time basis in an executive, managerial or specialized knowledge role for at least one continuous year during the past three (3) years.

L-1A: Executive or Manager

The L-1A intra-company transferee visa and status is for individuals coming to the United States to serve in an executives or managerial role for the U.S. company. This classification also enables a foreign company which does not yet have a U.S. office to send an executive or manager to the United States with the purpose of establishing a new office.

A qualified L-1A executive or manager can hold L-1A status for up to seven (7) years.

L-1B: Employee with Specialized Knowledge

The L-1B classification permits a U.S. employer to bring on an employee with specialized knowledge in the company product and its application in international markets or advanced knowledge in processes and procedures of the company.

A qualified L-1B specialized knowledge employee can hold L-1B status for up to five (5) years.

To receive L-1 status, the U.S. Citizenship and Immigration Services (USCIS) must approve an L-1 petition. If the L-1 foreign national is overseas, once USCIS has approved the L-1 petition, the foreign national may apply for an L-1 visa abroad to enter the United States in L-1 status.

Blanket L

Larger U.S. companies may be eligible for a Blanket L for their qualified employees.  To qualify for a Blanket L designation, the U.S. Company must have three or more U.S. or foreign subsidiaries or affiliates, be actively engaged in commercial trade or services and have either more than 1,000 employees, have annual U.S. sales of at least $25,000, or had at least 12 individual L petitions approved in the previous 12 months.

L-2 Spouses and Children

Spouses and children of L-1 Intra-Company Transferees may be eligible to reside in the United States in L-2 status. Spouses in L-2 status are authorized for employment in the United States. Children on L-2 status are eligible to attend school in the United States.

O – People with Extraordinary Ability

The O-1 visa and status is a nonimmigrant classification allowing U.S. employers to seek temporary employment authorization for foreign nationals who have demonstrated extraordinary ability in science, education, business, athletics, arts and entertainment. The O-1 is also available to bring certain foreign nationals who have a demonstrated record of extraordinary achievement in the motion picture of television industry to the United States.

O-1A: Extraordinary ability in science, education, business or athletics

Employers seeking to sponsor foreign nationals with extraordinary ability in science, education, business or athletics must demonstrate that the foreign national has a level of expertise indicating that they are one of the small percentage of people who have risen to the very top of the field. The foreign national’s extraordinary ability can be evidenced by either the receipt of a significant national or international award or prize, or evidence that the foreign national meets at least three (3) of the following criteria:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
• Published material in professional or major trade publications or major media about the foreign national;
• Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
• Original scientific, scholarly, or business-related contributions of major significance;
• Authorship of scholarly articles in professional journals or other major media;
• Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
• Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

O-1B: Extraordinary ability in the arts

Employers seeking to sponsor foreign nationals with extraordinary ability in arts, (including, but not limited to, performing arts, culinary arts, visual arts or fine arts) must demonstrate that the foreign national has a level of international or national distinction, prominence or renown.

The foreign national’s distinction or prominence cane be evidenced by either the receipt of a significant national or international award or prize, or evidence that they meet at least three (3) of the following criteria:

• Have performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements;
• National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals, magazines, etc.;
• Have performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;
• Have a record of major commercial or critically acclaimed success;
• Have achieved significant recognition from organizations, critics, government agencies, recognized experts;
• Have commanded or will command a high salary or other remuneration in relation to others in the field.

Foreign nationals intending to travel to the United States temporarily to assist with the O-1B principal’s performance may be able to receive an O-2 visa and status if the petition is filed in conjunction with the O-1B petition filed on behalf of the foreign national with extraordinary ability in the arts.

To receive O-1 status, the U.S. Citizenship and Immigration Services (USCIS) must approve an O-1 petition. If the O-1 foreign national is overseas, once USCIS has approved the O-1 petition, the foreign national may apply for an O-1 visa abroad to enter the United States in O-1  status.

An initial petition for O-1 status may be approved for up to three (3) years, with the opportunity to apply for extensions of O-1 status in either one- or three-year increments. Although the O-1 visa and status is for a temporary period, there is no maximum period during which an individual may be in the United States in O-1 status.

Spouses and children of O-1 Principals may be eligible to reside in the United States in O-3 status. Spouse on O-3 status are not eligible for employment authorization in the United States. Children on O-3 status are eligible to attend school in the United States.

P – Athletes and Entertainers

The P-1 classification applies to people who are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

To receive P status, the U.S. Citizenship and Immigration Services (USCIS) must approve an P petition. If the P-1 foreign national is overseas, once USCIS has approved the P petition, the foreign national may apply for an P visa abroad to enter the United States in P status.

P-1A: Internationally Recognized Athlete

People eligible for a P-1A Visa must be coming to the United States to participate in an individual event, competition or performance in which they are internationally recognized with a high level of achievement, as evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned, leading or well known in more than one country.

To establish eligibility for a P-1A, an athlete must show at least two (2) of the following:

• Significant participation in a prior U.S. major league season;
• Participation in international competition with a national team;
• Significant participation in a prior U.S. intercollegiate competition season;
• Written statement from official of sport’s governing body;
• Written statement from sports media or recognized expert;
• International ranking; or
• Significant honors/awards in the sport.

P-1B: A Member of an Internationally Recognized Entertainment Group

The P-1B visa classification applies to people who are coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.   To establish eligibility for the P-1B category, the entertainment group must provide evidence of either the group’s nomination for or receipt of significant international awards or at least three (3) of the following:

• Starring or leading entertainment group in productions with distinguished reputations;
• International recognition or acclaim for outstanding achievements;
• Leading or starring group for organizations with distinguished reputations;
• Record of major commercial or critically acclaimed successes;
• Significant recognition for achievements; or
• High salary.

P-2: Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program

The P-2 classification applies to foreign nationals who are coming temporarily to perform as an artist or entertainer, individually or as part of a group, and who will perform under a reciprocal exchange program between a U.S. organization and foreign organization.  Those entering on P-2 must be artists entering the United States through a government recognized reciprocal exchange program. In addition, P-2 foreign nationals must possess skills comparable to those of the United States artists and entertainers taking part in the program outside the United States.

P-3: Artist or Entertainer in a Culturally Unique Program

The P-3 classification applies to those who come to the United States temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a culturally unique program.  For a P-3 visa, the foreign national must be coming to the United States either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.  In addition, the foreign national must be coming to the United States to participate in a cultural event or events which will further the understanding or development of the specific art form.

Q – Cultural Exchange Visitors

The Q-1 nonimmigrant classification is designed for U.S. businesses, schools and other organizations to bring nationals of foreign countries to the United States for a temporary period specifically for the purpose of foreign exchange and in order to transmit the foreign national’s culture to the American public through the performance of their job duties.

The Q-1 was initially known as the “Disney visa,” because it was used to bring nationals of countries from around their world to work at Disney’s Epcot Center.  The Q-1 visa category is a good category for Dual Immersion language schools to bring qualified foreign national teachers or teaching assistants to the United States.

To receive Q-1 status, the U.S. Citizenship and Immigration Services (USCIS) must approve an R-1 petition. If the R-1 foreign national is overseas, once USCIS has approved the Q-1 petition, the foreign national may apply for an R-1 visa abroad to enter the United States in Q-1 status.

An individual may be in the United States in Q-1 status for a maximum period of 15 months.

The Q-1 visa and status does not carry any benefits for dependent spouses or children. Therefore, any spouse or child of an individual on Q-1 must apply for their own visa or status separate from their Q-1 relative.

R – Religious Workers

The R-1 nonimmigrant classification is available for foreign nationals who are coming to the United States temporarily to be employed at least part time (minimum of 20 hours per week) by a non-profit religious organization in the United States or an organization which is affiliated with the religious denomination in the United States to work as a minister or in another religious vocation or occupation.

The basic requirements for an R-1 Petition include:

1. The petitioner must be a member of a religious denomination having a bona fide non-profit religious organization in the United States;
2. The religious denomination and its affiliate, if applicable, are exempt from taxation, or the religious denomination qualifies for tax – exempt status;
3. The foreign national has been a member of the denomination for two years immediately preceding admission;
4. The foreign national is entering the United States solely to carry on the vocation of a minister of that denomination, or, at the request of the organization, the foreign national is entering the United States to work in a religious vocation or occupation for the denomination or for an organization affiliated with the denomination, whether in a professional capacity or not; and
5. The foreign national has resided and been physically present outside the United States for the immediate prior year if they have previously spent five (5) years in this classification.

The approval period is limited to 30 months for each petition with a 30-month extension for up to five (5) years of eligibility.    Approval of the R-1 petition may require that a site visit occur by the Department of Homeland Security (DHS)’s Fraud Detection and National Security (FDNS) unit to the sponsoring organization’s location to verify the facts of the R-1 petition.

To receive R-1 status, the U.S. Citizenship and Immigration Services (USCIS) must approve an R-1 petition. If the R-1 foreign national is overseas, once USCIS has approved the R-1 petition, the foreign national may apply for an R-1 visa abroad to enter the United States in R-1 status.

The spouse and children of an R-1 Worker are also eligible for entry into the United States on R-2, but no work is authorized for the R-2 family.   Children on R-2 Status are eligible to attend school in the United States.

Treaty National (TN)

The United States – Mexico – Canada Agreement (USMCA) extended its predecessor, North American Free Trade Agreement (NAFTA)’s creation of the Treaty National (TN) visa and status for certain citizens of Canada and Mexico to work in the United States in designated professional positions.

The position in which the foreign worker will be employed must meet the definition of “USMCA TN Professional” and the foreign national worker must be qualified to perform the job duties of the TN position. Most TN positions require a bachelor’s degree in a specific field in order to qualify.

Although it is possible for an employer to submit a petition to the U.S. Citizenship and Immigration Services (USCIS) on behalf of a qualified employee for TN status, there is no requirement that USCIS approve a petition for TN status. Canadian citizens may be able to present their application or TN status directly to a Customs and Border Protection (CBP) official at the U.S. Border. Mexican citizens must apply for a TN visa at a U.S. Embassy abroad to be admitted to the United States in TN status.

An individual may be admitted to the United States in TN status for up to three (3) years at a time. Although the TN is a temporary visa and status, there is no limit on the amount of time that an individual may hold TN status in the United States.

Spouses and children of TN holders may be eligible to reside in the United States in Treaty Dependent (TD) status. Spouses and children in TD status are not eligible for employment in the United States.

Employer Compliance (Federal Form I-9)

The Immigration Reform and Control Act (IRCA) of 1986 sought to control illegal immigration by prohibiting the hiring and continued employment of undocumented aliens who are not authorized to work in the United States. Since IRCA’s enactment on November 6, 1986, all U.S. Employers have been required to verify that the identity and employment authorization for all employees in the United States. Completion and retention of Form I-9 for all U.S. employees is mandatory for all employers.

Employers may also voluntarily enroll in E-Verify, a program administered by the U.S. Department of Homeland Security, for additional verification of employment authorization of its U.S. employees. In many states, including Colorado, enrollment in E-Verify is

Failure to comply with Federal I-9 requirements can carry significant monetary fines and civil sanctions.

It is critical for Employers to understand that while their verification of employment authorization for all U.S. employees is required, they must also avoid immigration related discrimination in hiring. Employers are strongly advised to pay close attention to both what is required (to ensure they do not employ unauthorized workers) and what is prohibited (to ensure they do not engage in immigration-related discrimination against current and prospective employees). Both the employment of unauthorized workers and immigration-related discrimination against prospective, current and former employees can expose employers to significant civil and criminal liability.

Company Immigration Policy and Practice

U.S. companies employing foreign nationals on various temporary visas are well advised to draft internal immigration policy guidelines.  Questions regarding which employees should be sponsored for temporary visas, and have their visas extended; who is eligible for sponsorship for lawful permanent residency and the timeline under which the Company will consider sponsorship are common.  Additional considerations for companies include payment of costs/fees for visa sponsorship and whether the company will cover the costs for dependent family members.

A clear internal policy goes a long way to providing clear communication with foreign national employees on what they can expect from their employer and can help retain high-value employees.