1. Employment-Based Immigration Fundamentals for the U.S.
Lucrecia Z. Knapp (Harter Secrest & Emery LLP)
June 2018

2. Overview Employment-Based Immigration in the U.S.
Temporary Work Visa Categories in the U.S.
Brief Overview of Permanent Residence in the U.S.

3. Overview Generally Four Types of People in the U.S.:
Employment options may be limited.
Duration of stay limited.
Can live in the U.S. indefinitely and work for any employer.
Can vote in U.S. elections.
Nonimmigrants
Permanent Residents
Citizens
Can live in the U.S. indefinitely.
Can work for any employer.
Slang: “Green Card.”
“Others”
TPS
DACA
Asylum
Undocumented
Most will need to obtain nonimmigrant status after graduation.

4. Overview of Employment-Based Immigration in U.S.
Temporary Work Visas (Nonimmigrant):
Specific time limitations
Specific authorized activities (job, employer, location specific)
Options depend upon nationality/activity/availability of visas
Permanent Residence (Immigrant):
Unlimited duration
Work authorized for any employer
Path to citizenship

5. U.S. Nonimmigrant Menu
A Ambassador, public minister or diplomatic or consular office
B-1 Visitor for business
B-2 Visitor for pleasure
C Alien in transit
D Crewman
E-1 Treaty trader
E-2 Treaty investor
E-3 Specialty Occupation (Professional) - Australia
F-1 Student
F-2 Spouse or child of student
G Representative to international organization
H-1B Specialty Occupation (Professional)
H-1B1 Specialty Occupation (Professional) – Singapore or Chile
H-2A Temporary/seasonal worker
H-3 Trainee
H-4 Spouse or child of H
I Foreign media
J-1 Exchange visitor
J-2 Spouse or child of J-1
K-1 Fiancé(e) of U.S. Citizen
K-2 Derivative unmarried child of K-1
K-3 Spouse of U.S. Citizen
K-4 Unmarried child of K-3
L-1A Intracompany transferee – manager or executive
L-1B Intracompany transferee – specialized knowledge
L-2 Spouse or child of L-1
M Vocational or nonacademic students
O-1 Aliens of extraordinary ability
O-2 Aliens providing essential support to O-1 artist or athlete
O-3 Spouse or child of O
P-1 Athletes and entertainers
P-2 Artist or entertainer, individual or part of group
P-3 Performer, teacher or coach of culturally unique program
P-4 Spouse or child of P
Q International Cultural Exchange Program
R Religious Workers
S Critical Witness
TN Treaty NAFTA
U Victim of abuse who will be a witness
V-1 Spouse of legal permanent resident
V-2 Unmarried child of V-1 (petitioned for)
V-3 Derivative unmarried child of V-1 or V-2

6. B-1 Business Visitor B-1 Business Visitor Three questions:
U.S. compensation source?
Perform services for which a U.S. worker would have to be hired or are the services inherently part of U.S. labor market?
Services primarily benefiting U.S. entity as local work for hire?
See Johnny N. Williams Memo, AILA Doc. No
If YES to any of the above need a different visa status
Some nationalities will use the visa waiver program to obtain visitor status – has limitations
Canadians can seek admission in B-1 status at the border

7. F-1 Students and OPT OPT - Optional Practical Training
Generally available to those who have completed a U.S. degree
Available at times during the academic program
Curricular Practical Training
Optional Practical Training
Generally, only for a one year period
Can be extended for STEM, if employer registered for E-Verify
New STEM Regulations

8. H-1B Visas Specialty Occupations – Professionals
Bachelor’s degree minimum
Right type of degree
Must pay at least prevailing wage or actual wage – whichever is higher
6 year limit, but possible to extend beyond if permanent residence process pending
Spouse generally cannot work until certain steps taken toward permanent residence

9. H-1B Quota 65,000 base 6,800 for H-1B1 (Singapore & Chile)
20,000 for U.S. Master’s degree or higher
Some employers exempt from the quota – including post- secondary educational institutions and affiliates

10. H-1B – Lottery Years
Occurs when more petitions are filed than the available quota in the first 5 days of “open season” beginning April of each year
First step – Random lottery of 20,000 Master’s cases
Second step – random lottery of leftovers of above + all others

11. H-1B Requests for Evidence (RFEs)
H-1B Level 1 RFEs
Level 1 wage is not appropriate
Position is not a specialty occupation
Highlights and Trends from H-1B Level 1 RFEs
Duties beyond Level 1
Level 1 is not a specialty occupation
Duties beyond Level 1 and not specialty occupation
See “Responding to H-1B Requests for Evidence (RFEs) Raising Level 1 or Level 2 Wage Issues,” AILA Doc. No

12. Other Common H Visas Other Common H Visas:
H-2B – Temporary seasonal workers
H-1B1 – Chile and Singapore, similar to H-1B
E-3 – Australians only, similar to H-1B

13. J-1 Visas Exchange Visitors – several categories
Including students, research scholars, trainees, professors
The two year foreign residence requirement
Home Government Funding
U.S. Government Funding
Skills List
Foreign Medical Graduates seeking post-graduate training

14. L-1 Intracompany Transferees
L-1A – Managers/Executives
See Functional Manager Memo, AILA Doc. No
L-1B – Specialized Knowledge
See Specialized Knowledge Memo, AILA Doc. No
At least one year of work experience abroad with a parent, subsidiary, branch, or affiliate
L-2 spouses can obtain U.S. work authorization
5 years maximum for L-1B; 7 years for L-1A
Dual Intent authorized

15. O-1 Extraordinary Ability
Demonstrated Extraordinary Ability
3 years, then 1 to 3 year extensions, indefinitely
Evidenced by objective standards
Scholarly articles
Presentations
Elite memberships
Judge of the work of others
Original contributions to the field
Articles written about the individual

16. E-1 Treaty Trader/ E-2 Treaty Investor
Treaty must exist between U.S. and Country in question (the Treaty Country)
Majority of ownership or control of the investing or trading company must be held by nationals of the Treaty Country
The employee must be a citizen of the Treaty Country
E-1: trade of the company must be “substantial”, principally between the U.S. and the Treaty Country (more than 50%), and employee must be supervisor, executive or have essential skills
E-2: investment must be active, substantial, create jobs, and employee must be filling a key role (essential skills/managerial)
Spouse can work
Practice Pointer – every consulate has own preferences, check their websites

17. TN Status NAFTA Canadians/Mexicans Limited number of occupations
Including but not limited to: Computer Systems Analysts, Engineers, Graphic Designers, Mathematicians, Statisticians, Research Assistants, numerous scientific disciplines, lawyers, etc.
See The Economist/Financial Analyst Memo, AILA Doc. No
3 year periods
Benefits – speed and expense
Detriment – Temporary Intent
Spouse cannot work
Canadians can apply for TN status at the border

18. Overview of Common U.S. Temporary Work Visa Options
Visa Category
Eligibility Basis
Initial Time Limit
Extension Policy
Canadian Border Adjudication
Spouse Work Authorization
L-1A
Manager, one year employment abroad, transfer to U.S. office
3 Years
2 year increments, 7 year maximum
Yes
L-1B
Specialized Knowledge, one year employment abroad, transfer to U.S. office
2 year increments, 5 year maximum
E-1/E-2
Carry out substantial trade between U.S. and treaty country, or invest substantial capital in U.S. entity
2 Years
2 year increments, no maximum No
(Visa Required) TN
Canadians/Mexicans only, professional in specific job category
3 year increments, no maximum
(but allows for study)
H-1B
Specialty Occupation requiring bachelor’s or advanced degree
3 year increments,
6 year maximum
(with exceptions)
(unless progress made toward PR)

19. Transition to Permanence
Temporary Work Visas are “temporary”
Though many are long term, disadvantages abound:
Lack of stability
Spousal/children work authorization
21 and out for children
Many reasons to transition from temporary  permanent

20. U.S. Employment-Based Permanent Residence
I-140 Immigrant Petition: Employer sponsors employee for permanent residence
Several bases available to sponsor:
Outstanding Researcher: Internationally recognized as outstanding in a particular academic area, and has 3 years teaching/research (O-1)
Extraordinary Ability: Sciences, arts, education, business, or athletics, sustained international acclaim (O-1)
Multinational Manager: Similar to L-1A manager category
National Interest Waiver: Area of substantial intrinsic merit, benefit is national in scope, adversely affected if labor certification required
Approved Labor Certification

21. U.S. Employment-Based Permanent Residence
I-485 Green Card Application: Requires approved I-140 and available immigrant visa
Immigrant Visa Availability:
Per-Country Limitations
Employment-Based Categories:
EB-1: Outstanding Researcher, Extraordinary Ability, Multinational Manager
EB-2: Advanced Degree or Exceptional Ability (Labor Certification and National Interest Waiver)
EB-3: Skilled workers, professionals, and others (Labor Certification)
Filing application provides work and travel authorization

22. Questions?