Geneva September 2008 World Trade Organization Symposium Mode 4 of the GATS- Taking Stock and Moving Forward

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 2 Ellen G. Yost Partner Fragomen, Del Rey, Bernsen & Loewy, LLP 7 Hanover Square New York, NY Phone: Fax: Website:

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 3 The Fragomen Firm Practices exclusively in the area of business immigration and nationality law More than 250 attorneys and almost 1000 professional immigration specialists 30 offices in the Americas, Europe and Asia- Pacific regions

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 4 Involved Government Agencies Department of Homeland Security: 1.United States Citizenship and Immigration Services - USCIS (formerly the Immigration & Naturalization Service – INS or BCIS) 2.Immigration & Customs Enforcement – ICE 3.Customs & Border Protection – CBP 4.CIS Ombudsman Department of Labor –Centralized processing out of Atlanta and Chicago. –State Workforce Agencies (SWAs) Department of State (DOS): U.S. Embassies and Consulates

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 5 Basic Concepts Immigrants vs. non-immigrants, not exactly permanent v. temporary Dual intent Petitions, visas, & status Quotas & chargeability Preservation of family unity Priority workers Preference classification

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 6 Nonimmigrants Coming to the U.S. temporarily Retain residence abroad Dual intent - only for Hs and Ls Alphabet Soup - A-V

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 7 Business and Employment Visas Common business and employment-based visa categories: Business visitors (B-1) Intracompany transferees (L-1 ) Treaty Traders and Investors (E-1 & E-2) Professional Visa for Australians (E-3) New hires (H-1B, TN & O-1) Trainees (J-1 & H-3) Students on Practical Training (F-1 & J-1)

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 8 B-1 Business Visitors On foreign payroll Activity in U.S. benefits foreign employer –Business meetings, training, & joint development projects - Activity in US must not accrue to the benefit of any US entity Visa Waiver Program - 27 participating countries –90-day maximum stay –Ineligible for Change and Extension of Status –ESTA

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 9 L-1 Intracompany Transferees Intracompany Relationship: –Parent, subsidiary, affiliate, branch or joint venture Prior Employment Abroad: –1 year within 3 years preceding transfer to U.S. Qualifying Capacity: –Executive, Managerial (L-1A) –Specialized Knowledge (L-1B) Duration: –L-1A = 7 years –L-1B = 5 years

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 10 F-1 Students Academic studies: elementary through postdoctoral – admitted for duration of status (D/S) Full-time matriculated student at approved school Optional Practical Training: pre- or post-graduation –total = 12 months (29 months for STEM graduates who work with employers that use E-Verify); part-time during school year, full-time during vacations and after graduation –need employment authorization document (EAD); –School endorsed I-20 (issued via SEVIS System) –not tied to particular employer Curricular practical training if part of educational program –Need letter from school –School endorsed I-20 (issued via SEVIS System)

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 11 Specialty Occupation -- Entry level requirement = minimum Bachelor Degree or equivalent 3 for 1 rule -- 3 yrs. experience = 1 yr. of college Labor Condition Application certified prior to filing petition Six-Year Maximum Stay (can extend under certain circumstances - AC-21) 65,000 Annual Ceiling –6,800 of 65,000 reserved for citizens of Chile and Singapore –For FY 2008 and 2009, cap reached at the start of filing. 20,000 additional visa numbers available to foreign nationals holding Masters or higher degrees from U.S. universities Reasonable costs of return transportation for dismissed employee H-1B Category: USCIS Provisions

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 12 Labor Condition Application Filed with U.S. Department of Labor Attests to four basic conditions –Wages –Working conditions –No strike or lockout –Notice Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees H-1B dependent vs. nondependent employers Public Access file

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 13 E-3 Visa for Australians Similar to H-1B visa –For specialty occupations –Employee must have Bachelors degree –Employer must secure LCA from DOL Not subject to 65,000 cap –But limited to 10,500 per year Spouse eligible for work authorization No foreign residence requirement Can be renewed indefinitely

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 14 J-1 Trainees and Interns Exchange visitor program Categories include trainees, interns, research scholars, specialists, students Emphasis on reciprocity, cross-cultural activities, and orientation Some J-Visa holders must return to home country for 2 years after completion of program or seek waiver of this requirement –skills list –government funding –graduate medical education SEVIS (Student Exchange Visitor Information System) web- based system for generation of Forms DS-2019 and tracking

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 15 Es, Os & Ps E-1Treaty Trader E-2Treaty Investor O-1Persons of extraordinary ability PInternationally recognized athletes or entertainment groups

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 16 E-2 TREATY INVESTORS Employer & employee nationals of country with qualifying treaty with U.S. Based on substantial investment in the U.S. Employer > 50% owned by nationals of treaty country Visa typically valid for 5 years 2 year admission; no limit on extensions E spouses authorized to work (must apply for EAD)

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 17 TNs Canadian and Mexican professionals performing certain occupations (based on then-existing US law, NAFTA categories were original model for the GATS) Must be nationals of either Canada or Mexico –Coming to U.S. to work in profession listed on NAFTA schedule –Generally require a Bachelors degree in field –Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate) –Mexicans apply at Consulate –One year stay, renewable in one-year increments

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 18 H-2B Seasonal Workers Since 1990, cap of 66,000 visas annually, has been used up every year since 1994 Seasonal positions (not agriculture), on one-time projects, during times of exceptionally high workload, or intermittently For landscaping, seasonal hospitality, and seasonal construction, or to meet specific needs in manufacturing, food packaging and processing, fisheries, retail and other industries Requires employers to advertise through the state and federal labor departments and first to hire U.S. workers who apply Must return home at the end of the season

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 19 Immigrants Green card holders = permanent residents = immigrants Coming to U.S. permanently Numerically limited –Visa bulletin –Priority date Can become U.S. citizens 3 or 5 years after receiving green card Importantly, not all temporary workers become eligible for permanent visa

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 20 Family-Based Permanent Residence Immediate relatives (spouses, minor children & parents of U.S. citizens) Other close family members of citizens or permanent residents, including: –Unmarried sons & daughters of citizens (over age 21) –Married sons & daughters of citizens –Spouses, children & unmarried sons/daughters of permanent resident aliens –Brothers & sisters of citizens

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 21 Employment-Based Permanent Residence: 2/3-Step Process Labor certification (where required) –filed by employer on behalf of foreign national –processed by U.S. Department of Labor Immigrant preference petition –filed by employer –processed by USCIS Adjustment of status or consular processing –filed by the foreign national & family members

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 22 Employment-Based Categories EB-1:Priority workers EB-2:Advance-degree professionals & aliens of exceptional ability* EB-3: Professional, skilled & unskilled workers* EB-4: Special immigrants EB-5: Employment creation (* labor certification required)

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 23 EB-1: Priority Workers Persons of extraordinary ability (similar to the O-1 nonimmigrant category) Outstanding professors & researchers Multinational executives/managers Labor Certification not required

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 24 EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability Job requires advanced degree (Masters & above) or Bachelors degree + 5 years of progressive professional experience Persons of exceptional ability in science, art or business Labor Certification required Waiver of labor certification requirement if employment is in the National Interest or foreign national is of Exceptional Ability

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 25 EB-3: Professionals, Skilled Workers, & Other Workers Most commonly used / highest demand Professionals: position requires Bachelors degree or foreign equivalent degree Skilled workers: position requires minimum 2 years of experience and/or training Other workers: limited to 10,000 Labor certification required in all cases

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 26 Visit for links to key Web sites

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 27 THANK YOU