IMMIGRATION OUTLINE

1. Immigration Forms
o Visa (permits travel to US)
Electronic stamp issued in a foreign nationals passport at a US Embassy Visa stamp entered into passport after gaining approval from US

Immigrant visas have 6 month duration (to enter US)

A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not grant the bearer the right to enter the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), Bureau of Customs and Border Protection (BCBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to deadline when an individual may apply for entry into the U.S. DHS immigration inspectors record the terms of admission on Arrival/Departure Record (I-94 white or I-94W green) and in passport.

o I-94 Card (arrival/departure record) States how long non-immigrant permitted to stay in US When entered What visa status Date permitted to stay till

An I-94 card is a nonimmigrant visitor's Arrival-Departure Record. If you hold a nonimmigrant visa and enter the U.S. through a port of entry (POE), either by air, sea or land, you must complete CBP Form I-94 and present it to a Customs and Border Protection (CBP) officer during inspection. If admitted, you will receive the lower portion of Form I-94 back, which is usually stapled to your passport. The processed I-94 card contains vital information including your:

Full name Date of birth Nationality Date of entry Visa status, and Authorized stay

Regular form I-94 is white, for visitors holding nonimmigrant visas. Visa Waiver Program (VWP) participants must use I-94W, a green form. Crewmen need to fill out Form I-95 (Landing Permit). o Employment Authorization Application for Employment Authorization - Form I-765 Individuals who are temporarily in the United States and eligible for employment authorization may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD). Other individuals who are authorized to work in the United States without restrictions should also use this form to apply for a document evidencing such authorization.

Employment Authorization Document (Form I-688, I-688A, I-668B, I766, or any other successor documents issued by USCIS) is evidence that the holder is authorized to work in the United States Students Asylum See Chart, NON-IMMIGRANTS AUTHORIZED TO WORK IN THE U.S.

o I-551 (PERMANENT RESIDENT CARD) green card

Good for 10yrs Can be renewed BUT puts person at being reevaluated by DHS o Person can be rendered deportable (otherwise atty may advise person to stay under the radar)

Form I-551 is the official name of the Green Card which is otherwise called as Permanent Resident Card. Form I-551 is an evidence that an individual is admitted to live in United States as a permanent resident. The Permanent Resident Card holders are granted many immigration benefits. The green card holder must maintain the permanent residence status and will be put in the removal proceedings if certain conditions of the his/her status are not met.

The Form I-551 is valid for ten years which must be renewed before it expires. If the Permanent Resident Card is valid for two years then it is called as Conditional Green card which will be obtained through marriage and it must be renewed before the card expires.

Also known as green card and alien registration card. The Green Card gives the right to an individual to live and work permanently in the United States, permits to work in any company or institution, permits to start own business or create own corporation, gives the privilege to sponsor spouse and unmarried children below 21 years to obtain Green Card, provides Social Security benefits, allows to legally own properties and vehicles, allows to leave and enter United States under certain conditions and apply to become a US citizen once the individual is eligible.

An individual may obtain the Permanent Resident Card though marriage, employment, refugee and asylum status and other various ways.

WHO IS ELIGIBLE?:

To qualify for the green card the individual must be an eligible candidate for one of the immigrant categories mentioned below, must have a qualifying immigrant petition, an immigrant visa available immediately and be admissible to the United States.

*Immediate relatives of a US Citizen - spouse and children of US Citizen, parents of a US Citizen (if the child is above 21 years of age), step children and step parents of US Citizen *Family members of the US Citizen - spouse, unmarried children (if married, then must have at least one US Citizen parent), brothers or sisters of US Citizens. *Employees and workers (who are offered jobs in US) *Special Immigrants

This petition is used to classify an alien as: 1. An Amerasian; 2. A Widow or Widower; 3. A Battered or Abused Spouse or Child of a U.S. Citizen or Lawful Permanent Resident; or 4. A special immigrant. A special immigrant is defined as one of the following: A. Religious Worker; B. Panama Canal Company Employee, Canal Zone Government Employee, U.S. Government in the Canal Zone Employee; C. Physician; D. International Organization Employee or Family Member; E. Juvenile Court Dependent; F. Armed Forces Member; G. Afghanistan or Iraq national who supported the U.S. Armed Forces as a translator; H. Iraq national who worked for or on behalf of the U.S. Government in Iraq or I. an Afghan national who worked for or on behalf of the U.S. Government in Afghanistan.

Immigrant Categories:

*Refugees and Asylees *Amnesty and Special Agricultural Worker Status

*Long-time residents (people who have lived in US legally for more than 10 years and request green card as a defense in immigration court proceedings) Diversity Visa lottery program - which is administered by the US State Government every year.

Green Card Process and Procedure:

Generally, when applying for Form I-551 the individual must first determine whether he/she is eligible for permanent resident status. Then depending on the immigrant category, the individual must decide the process of the application. If the individual applies from outside United States, he/she must go through the Consular Processing which has to be done in the US Embassy or the consulate of their country. If the individual applies for Form I-551 while being in United States, then he/she must go through the procedure to adjust status to permanent residence.

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3. NONIMMIGRANT VISA CATEGORIES

o NONWORKER CATEGORIES

o B-1 Visitors for Business

A visitor for business must establish that he or she will: Maintain a foreign residence that has not been abandoned (i.e. sold, rented to someone else, etc.); Enter the United States for a specific finite period of time; and Seek admission solely to engage in legitimate activities relating to business;

Business ("business" is not defined in the INA or its regulations) FAM definition: Engage in commercial transactions that do not involve gainful employment in the U.S. (such as a merchant who takes orders for goods manufactured abroad); Negotiate contracts; Consult with business associates; Litigate; Participate in scientific, educational, professional or business conventions, conferences or seminars; or Undertake independent research.

Visa can be extended

B-1 Temporary Business Visitor You may be eligible for a B-1 visa if you will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

Consulting with business associates Traveling for a scientific, educational, professional or business convention, or a conference on specific dates Settling an estate Negotiating a contract Participating in short-term training

Transiting through the United States: certain persons may transit the United States with a B-1 visa Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa

A distinction must be made between ordinary work for hire and work that is incidental to international commerce. In order for an activity to be permitted, it must relate to an international business activity: A commercial activity; A clear intent by the alien to continue a foreign residence; The principal place of business and the place where profits will primarily accrue are in a foreign country; The alien's salary comes from outside the United States; The alien's stay in the United States is temporary, although the business activity need not be; and The alien is a business person or, if employed, is pursuing an activity that is a necessary incident of international trade or commerce.

Eligibility Criteria You must demonstrate the following in order to be eligible to obtain a B-1 visa:

The purpose of your trip is to enter the United States for business of a legitimate nature You plan to remain for a specific limited period of time You have the funds to cover the expenses of the trip and your stay in the United States You have a residence outside the United States in which you have no intention of abandoning, as well as other binding ties which will ensure your return abroad at the end of the visit You are otherwise admissible to the United States

Application Process For information on applying for a B-1 visa, see the Department of State link to the right.

Aliens seeking a B-1 visa from certain countries may be able to enter the United States without a visa. For information about exemptions from the visa requirements, see the Customs & Border Protection link to the right. If you are in the United States in another valid nonimmigrant status, you may be eligible to change to B-1 status. To change to B-1 status, you must file a Form I539, Application to Extend/Change Nonimmigrant Status. For more information, see the Change my Nonimmigrant Status link to the right. Period of Stay/Extension of Stay

Initial Period of Stay

Extension of Stay

1 to 6 months; 6 months Up to 6 months; maximum total amount of time permitted is the maximum in B-1 status on any one trip is generally 1 year.

At the port of entry, an immigration official must authorize your admission to the United States, and, if you are eligible for admission, you may be admitted initially for the period necessary to carry out your business activities, up to a maximum period of 1 year. If you who wish to stay beyond the time indicated on the Form I94 without departing from the United States, you must file Form I-539, Application to Extend/Change Nonimmigrant Status and submit any required supporting documents to USCIS. For more information, see the Extend my Stay link to the right. Family of B-1 Visa Holders Your spouse and children are not eligible to obtain a dependent visa. Each of your dependents who will be accompanying or following to join you must apply separately for a B-2 visa and must follow the regulations for that visa. Certain B-1 Activities that Require an Employment Authorization Document The following types of B-1 business visitors require employment authorization:

A personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States in a B, E, F, H, I, J, L, or TN nonimmigrant classification. A domestic servant of a U.S. citizen accompanying or following to join his or her U.S. citizen employer who has a permanent home or is stationed in a foreign country, and who is temporarily visiting the United States. An employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to treaty trader nonimmigrant classification (E-1) and who is precluded from such

classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality. Note: All applicants for a B-1 visa or admission as a B-1 business visitor as a personal or domestic servant described above must demonstrate the following:

You have a residence abroad in which you have no intention of abandoning You have at least 1 year of experience as a personal or domestic servant You have been employed abroad by your employer for at least 1 year prior to the employers admission into the United States or if you have been employed abroad by the employer for less than 1year, the employer must show that while abroad, he or she has regularly employed a domestic servant in the same capacity as that intended for your employment

Before you may commence employment in any of the above three activities, you will need to file Form I-765, Application for Employment Authorization. For more information on filing the Form I-765, see the Work Authorization link to your right.

Can I enroll in school while in B1 or B2 status? No, you must change your status to F or M before you may enroll in any classes. Recreational classes or casual, short courses that are not considered as part of an academic or certification program are generally acceptable.

Requires a non-immigrant intent and does not permit the holder to be employed, perform day to day job duties, or otherwise be paid a salary in the US.

o B2 Visitors for Pleasure

In order to qualify for B-2 status, THE FOLLOWING REQUIREMENTS MUST BE SATISFIED: The alien has a foreign residence that he or she has no intention of abandoning; The alien is entering the United States for a temporary visit; The aliens purpose of the visit is for pleasure; and The alien has sufficient funds to support himself or herself without resorting to unauthorized employment.

SPECIFICALLY AUTHORIZED ACTIVITIES (The INS Inspectors Field Manual ("IFM")): An alien coming for purposes of tourism or to make social visits to relatives or friends; An alien coming for health purposes; An alien coming to participate in conventions, conferences, or convocations of fraternal, social or service organizations; An alien coming primarily for tourism who also incidentally will engage in a short course of study; An amateur coming to engage in an amateur entertainment or athletic activity, even if the incidental expenses associated with the visit are reimbursed; A dependent of an alien member of any branch of the U.S. Armed Forces temporarily assigned to duty in the United States; A dependent of a category "D" visa crewman who is coming to the U.S. solely for the purpose of accompanying the principal alien; An alien spouse or child, including an adopted alien child, of a U.S. citizen or resident alien, if the purpose of the visit is to accompany or follow to join the spouse or parent for a temporary visit; A dependent of a nonimmigrant who is not entitled to derivative status, such as in the case of an elderly parent of an E-1 alien; An alien coming to marry a U.S. citizen or lawful permanent resident with the intent to return to a residence abroad soon after the marriage; An alien coming to meet the alien's fianc(e)'s family (to become engaged; to make arrangements for a wedding; or to renew a relationship with the prospective spouse); A spouse married by proxy to an alien in the U.S. in a nonimmigrant status who will apply for a change of status after consummation of the marriage;

An alien who is entitled to the benefits of section 329 of the Act (Naturalization) and who seeks to take advantage of such benefits irrespective of the foreign residence abroad requirement of section 101(a)(15)(B); A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under section 328 of the Act and whose primary intent is to accompany the spouse or parent on the service member's assignment to the United States; An alien destined to attend courses for recreational purposes; or An alien seeking to enter the U.S. in emergent circumstances, when he or she is otherwise entitled to lawful permanent resident status. For example: a permanent resident alien employed by a U.S. corporation is temporarily assigned abroad but has necessarily remained more than 1 year and may not use Form I-551 in order to travel to the U.S. for an emergency and then return abroad. The alien has never relinquished permanent residence, has continued to pay U.S. income taxes, and perhaps even maintains a home in the United States. The alien may be issued a nonimmigrant visa for this purpose and Form I-551 need not be surrendered.

Requires a non-immigrant intent

o VWB / VWT (Visa Waiver Program: Business/Tourism)

Waiver of visa requirement for visitors for business ("B-1") or pleasure (B-2) who seek to enter the United States for no more than 90 days.

The VWP benefits are limited to nationals of countries that extend reciprocal privileges to U.S. citizens and whose nationals have not been refused nonimmigrant visas beyond a specified rate. VWP waivers are open to nationals of any designated country regardless of their place of residence or point of embarkation. Countries currently designated as VWP countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.. Requires a non-immigrant intent

Not a Safety Threat The alien may only use the VWP if he or she is found not to represent a threat to the welfare, health, safety, or security of the United States. No Previous Violation If the alien previously was admitted without a visa under the VWP, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant. Therefore, if the alien violates the terms of the VWP, he or she will never be able to use it again. Notwithstanding the above, in a USCBP press release dated August 12, 2004, it was stated that USCBP officers were authorized to grant "no-risk" travelers who overstayed the VWP on a prior visit a one-time parole, after which they would have to obtain a visa to return. Must Be Admissible Under INA 217(g), a visa waiver under the VWP cannot be granted to a person whose admissibility depends upon a waiver of admissibility. Therefore, an alien requiring an INA 212(d)(3) or other waiver of inadmissibility cannot seek a visa waiver under this program. Waiver of Rights Aliens entering the United States under the VWP must waive any right otherwise provided in the Immigration and Nationality Act: 1. To administrative review or appeal of an immigration officer's determination as to their admissibility; and 2. To contest any action for deportation; other than on the basis of an application for asylum in the United States as provided in INA 208. Limitation on Period of Stay, Changes of Status, and Adjustment of Status A person admitted under the VWP cannot be authorized to remain in the United States longer than 90 days, except that, in emergency situations the District INS Director may permit satisfactory departure within another thirty days without a violation of status. VWP aliens may not change nonimmigrant status within the United States under INS 248 and may not adjust status to permanent residence within the United States under INA 245, unless they are the immediate relative of a U.S. citizen, or pay the penalty fee pursuant to the provisions of INA 245(i) [Note: INA 245(i) has expired but some grandfathered aliens may still be entitled to use it]. An alien seeking re-entry to the United States after departure to a foreign contiguous territory or adjacent island may be readmitted but only for the remainder of the authorized period of stay which he or she was originally granted upon initial arrival in the United States

under the VWP. This is to prevent VWP aliens from getting around the 90 day limit simply by travelling to Canada or Mexico and asking for another 90 days.

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TEMPORARY WORKERS

E1 treaty traders/E2 Treaty Investors

E-1 Treaty Trader Visa -- Specific Requirements Requires a non-immigrant intent General The E-1 treaty trader visa is available to enterprises engaged in trade with the United States. Treaty traders must be entering the United States solely to carry on trade of a substantial nature, which is international in scope, principally between the United States and the treaty country. In the case of an E-2 employee of the business, the employee must be working in an executive, supervisory, or essential skills capacity. Definition of "Trade" The word "trade" is defined in 22 CFR 41.51(a)(7) as the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. According to 22 CFR 41.51(a)(8), items which qualify as items of trade include but are not limited to goods, services, technology, banking, insurance, transportation, tourism, communications, and some news gathering services. Trade Must Be in Existence The treaty country must show a continued course of trade so it must have already commenced prior to the alien applying for E status. Trade Must Be International The above definition of "trade" requires an international exchange of items of trade for consideration between the United States and the treaty country. Development of the domestic market without international exchange does not constitute trade in the E-1 visa context. Thus, engaging in purely domestic trade is not contemplated under this classification. The traceable exchange in goods or services must be between the United States and the other treaty country.

Trade Must Be Substantial According to 22 CFR 41.51(a)(9), "substantial trade" entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item is relevant, greater weight is given to more numerous exchanges of larger value. Large corporations engaged in international trades of high monetary value would have no problem establishing that their trade was substantial, as long as they were engaged in more than one transaction. In the case of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family. Trade Must be Principally Between the United States and the Treaty Country The term "principal trade" is defined as meaning where at least 50% of the total volume of the foreign business's international trade is between the U.S. and the treaty country. Accordingly, domestic U.S. trade is not considered when calculating the percentage of principal trade. To measure the requisite trade one must look to the trade conducted by the legal entity that is seeking eligibility as the treaty trader. As a subsidiary is a separate legal entity from its parent, a U.S. subsidiary could qualify as a treaty trader even if its foreign parent corporation was engaged in any trade between the United States and the treaty country. However, the U.S. branch of a foreign parent corporation would not be considered a separate legal entity.

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 his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. (For dependent family members, see Family of E-1 Treaty Traders and Employees below.) See U.S. Department of State's Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation. Who May File for Change of Status to E-1 Classification If the treaty trader is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-1 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employees behalf. How to Obtain E-1 Classification if Outside the United States A request for E-1 classification may not be made on Form I-129 if the person being filed for is physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an

E-1 nonimmigrant visa abroad. Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 nonimmigrant. General Qualifications of a Treaty Trader To qualify for E-1 classification, the treaty trader must:

Be a national of a country with which the United States maintains a treaty of commerce and navigation

Carry on substantial trade Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification. Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country. Items of trade include but are not limited to: Goods

Services International banking Insurance Transportation Tourism Technology and its transfer Some news-gathering activities.

See 8 CFR 214.2(e)(9) for additional examples and discussion. Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value. See 8 CFR 214.2(e)(10) for further details. Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the traders treaty country. See 8 CFR 214.2(e)(11). General Qualifications of the Employee of a Treaty Trader To qualify for E-1 classification, the employee of a treaty trader must:

Be the same nationality of the principal alien employer (who must have the nationality of the treaty country) Meet the definition of employee under the relevant law

Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the

nationality of the treaty country. These owners must be maintaining nonimmigrant treaty trader status. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders. See 8 CFR 214.2(e)(3)(ii). Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organizations overall operation, or a major component of it. See 8 CFR 214.2(e)(17) for a more complete definition. Special qualifications are skills which make the employees services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to: The degree of proven expertise in the employees area of operations

Whether others possess the employees specific skills The salary that the special qualifications can command Whether the skills and qualifications are readily available in the United States

Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date. See 8 CFR 214.2(e)(18) for a more complete definition. Period of Stay Qualified treaty traders and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted. All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation. Terms and Conditions of E-1 Status A treaty trader or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-1 employee, however, may also work for the treaty organizations parent company or one of its subsidiaries as long as the:

Relationship between the organizations is established Subsidiary employment requires executive, supervisory, or essential skills Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details. USCIS must approve any substantive change in the terms or conditions of E-1 status. A substantive change is defined as a fundamental change in the

employers basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty trader or employees previously approved relationship with the organization. The treaty trader or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty trader or affected employee. The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification. It is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty trader or organization may seek advice from USCIS, however, to determine whether a change is considered substantive. To request advice, the treaty trader or organization must file Form I-129 with fee and a complete description of the change. See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-1 treaty trader status. A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty trader or employees ability to obtain E-1 status. See 8 CFR 214.2(e)(22) for details. Family of E-1 Treaty Traders and Employees Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty trader or employee. These family members may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and seeking change of status to or extension of stay in an E-1 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-1 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-1 spouse may work. As discussed above, the E-1 treaty trader or employee may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States. Unless the family members are accompanying the E-1 treaty trader or employee at the time the latter seeks admission to the United States, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been
granted in E-1 status, and apply for an extension of stay before their own validity expires.

Intention to Depart the United States Upon Termination of Status

Pursuant to 22 CFR 41.51(a)(1)(ii)/22 CFR 41.51(b)(1)(iii), an E visa applicant must "intend to depart from the United States upon the termination of his status." However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon. The applicant's

expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary. A limited form of dual intent is recognized for E nonimmigrants. The Department of State ("DOS") position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that she will not remain in the United States to adjust status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status. The USCIS position is that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status after that date. Notwithstanding the above, INA 214(b) still applies to the E nonimmigrants. A prior overstay or violation of status while in the United States will often strongly infer that the applicant does not intend to depart from the United States upon termination of her status and it will be very difficult to overcome such an inference. The only way to overcome the presumption of immigrant intent in such situations is to establish (if possible) that the violation or overstay was brief and inadvertent.

E-2 Treaty Investor Visa -- Specific Requirements

General The E-2 is available to nationals of the treaty country who are engaging in investment in the United States. The investor must show that she has invested or is actively in the process of investing a substantial amount of capital in a real and operating commercial enterprise, other than a marginal one solely to earn a living for the investor and her dependents. He or she must also be in a position to "develop and direct" the enterprise. Investment Must Be at Risk The concept of investment connotes the placing of funds or other capital assets at risk, in the commercial sense, in the hope of generating a return. If the funds are not subject to partial or total loss if business fortunes reverse, then it is not an investment. Therefore, the funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment. Indebtedness secured by the assets of the business is not considered a qualifying investment. This is true even where personal assets in addition to the assets of the business secure the indebtedness. However, unsecured loans or loans secured solely by the alien's own personal assets are considered qualifying investments. Investment Must be Irrevocably Committed Investment capital that is "in the process of being invested" must be irrevocably committed to the enterprise. However, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the necessary commitment of funds. For the alien to be "in the

process of investing", the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. A mere intention to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not suffice. However, a reasonable amount of cash, held in a business bank account or similar fund to be used for routine business operations, may be counted as part of the investment funds. Other Assets as Part of the Investment Payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance. The amount spent for the purchase of equipment and for inventory already in the possession of the applicant may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise. Real and Commercial Enterprise The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. A shell company, passive investment, or uncommitted funds do not qualify as they do not require the intent to direct or develop a commercial enterprise. However, an active real estate development would be a qualifying enterprise. Investment Must Be Substantial According to INA 101(a)(45), the term "substantial" means "such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government." The DOS position continues to be that there is no set minimum dollar amount that will be considered "substantial" for the purposes of E-2 eligibility. The FAM states that, as long as all the other requirements for E-2 status are met, the cost of the business per se is not independently relevant or determinative of qualification for E-2 status. While a manufacturing business might easily cost millions of dollars, the cost of purchasing or establishing a consulting firm may be relatively low. A definition of the phrase "substantial amount of capital" within the context of an E-2 investment is now defined at 22 CFR 41.51(b)(9) as an amount which is: a. Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under construction; b. Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and c. Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. For the most part, this definition reiterates the "proportionality test" described in the FAM. In order for an investment to be substantial, it must be proportional to the total value of the business. The definition also requires a sufficient investment to support the likelihood that the business will be successful.

The FAM states that the requirement of substantiality is met by satisfying the "proportionality test." It defines the proportionality test as a comparison between two figures: a. The amount of qualifying funds invested; and b. The cost of an established business or, if a newly created business, the cost of establishing such a business. The cost of an established business is, generally, its purchase price, which is normally considered to be the fair market value. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. Neither the above definition nor the FAM describe a minimum required investment for E-2 eligibility. The FAM used to include several examples of acceptable proportionality at various levels of investment. However, these examples have since been deleted from the FAM since too many consular officers were using them as bright line tests. In practice, the quantum of the investment is still unofficially considered. In the past, the U.S. Consulate General in Toronto has readily accepted $50,000.00USD investments. This is perhaps because the FAM previously referred to an investment of $50,000.00USD (it requires a percentage of investment approaching 90-100% of the total value of the business) as an example of a substantial investment. However, consulates in other countries often require a higher investment amount. Investment Must Not Be Marginal The alien must not be investing in a marginal enterprise solely for the purpose of earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. At one point, consular officers were permitted to consider other sources of income in determining whether the treaty business was marginal. Unfortunately, 22 CFR 41.51(b)(10) now precludes establishing that the business is not marginal by providing evidence of other sources of income or financial means. 22 CFR 41.51(b)(10) also states that an enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. However, the projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise. Ability to Develop and Direct the Enterprise A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business. The ability to develop and direct can be established by owning at least 50% of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means. Factors considered include ownership, control of stock by proxy, management position and authority, etc. Duration of Stay and Extensions

E visas are generally valid for a period of five years or less. The maximum visa duration permitted will depend upon the nationality of the alien. The maximum period allowed for each nationality can be determined by referring to the Reciprocity Schedules contained in the FAM. For example, the maximum duration of a treaty trader or investor visa for Canadian citizens is 60 months, or five years. It is important to remember that a consular officer may choose to grant an E visa for a shorter period of time. Despite the fact that E visas may be valid for up to five years, pursuant to 8 CFR 214.2(e) (1), treaty traders and investors may not be admitted for an initial period of more than two years and may not be granted extensions of stay in increments of more than two years. Therefore, an alien in treaty trader or investor status with a five year visa will initially be admitted for only two years. He or she can then apply for an extension of stay of two years or simply leave the United States and seek reentry with the valid visa for an additional two years. There is no limit on the number of extensions allowed under this category. One limitation to E-1/E-2 is that they are a "semi-dual intent" visa. The Department of State believes it is not a dual intent visa, therefore, if you seek a visa from a consulate/embassy, and you have a green card petition pending, you are unlikely to obtain the visa.

The US Citizenship and Immigration Service, however, does recognize E-2 as dual intent, therefore it is possible to obtain E-2 status extensions in the US while a green card petition is pending. Another limitation is that dependents in the US are unable to obtain work authorization. Dependent Spouse and Minor Children The dependent spouse and minor child of a treaty trader or investor are entitled to the same classification as the principal alien; the nationality of the spouse or child is immaterial. Dependents may remain in the United States for the duration of the principal alien's stay. Until recently, they could attend school but could not seek employment. However, on January 16, 2002, President Bush signed H.R. 2277 (PL 107-124) into law. This law now permits spouses of treaty traders and investors to obtain employment authorization. This eligibility is effective as of the date of enactment. In a memorandum to field offices dated February 22, 2002, the INS explained that the spouse must obtain an employment authorization ("EAD") by filing Form I-765 with the required fee and evidence of his or her relationship to the principal alien before being permitted to work.

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. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. (For dependent family members, see Family of E-2 Treaty Investors and Employees below.) See U.S. Department of State's Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation. Who May File for Change of Status to E-2 Classification If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employees behalf. How to Obtain E-2 Classification if Outside the United States A request for E-2 classification may not be made on Form I-129 if the person being filed for is physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad. Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant. General Qualifications of a Treaty Investor To qualify for E-2 classification, the treaty investor must:

Be a national of a country with which the United States maintains a treaty of commerce and navigation Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investors placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information. A substantial amount of capital is: Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one

Sufficient to ensure the treaty investors financial commitment to the successful operation of the enterprise Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction. Marginal Enterprises The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investors E-2 classification begins. See 8 CFR 214.2(e)(15). General Qualifications of the Employee of a Treaty Investor To qualify for E-2 classification, the employee of a treaty investor must:

Be the same nationality of the principal alien employer (who must have the nationality of the treaty country) Meet the definition of employee under relevant law Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty investor status. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors. See 8 CFR 214.2(e)(3)(ii). Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organizations overall operation, or a major component of it. See 8 CFR 214.2(e)(17) for a more complete definition. Special qualifications are skills which make the employees services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to:

The degree of proven expertise in the employees area of operations Whether others possess the employees specific skills The salary that the special qualifications can command Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date. See 8 CFR 214.2(e)(18) for a more complete definition. Period of Stay Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation. Terms and Conditions of E-2 Status A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organizations parent company or one of its subsidiaries as long as the:

Relationship between the organizations is established Subsidiary employment requires executive, supervisory, or essential skills Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details. USCIS must approve any substantive change in the terms or conditions of E2 status. A substantive change is defined as a fundamental change in the employers basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employees previously approved relationship with the organization. The treaty investor or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence to show that the

treaty investor or affected employee continues to qualify for E-2 classification. It is not required to file a new Form I-129 to notify USCIS about nonsubstantive changes. A treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive. To request advice, the treaty investor or organization must file Form I-129 with fee and a complete description of the change. See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status. A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employees ability to obtain E-2 status. See 8 CFR 214.2(e)(22) for details. Family of E-2 Treaty Investors and Employees Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-2 spouse may work. As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E2 status, and apply for an extension of stay before their own validity expires.

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L1 intra company transferee

Ex: Nissan of Japan opens plant in US and transfers Japanese engineers to US o Workers can be from any country as long as coming from outside US Lived abroad for at least 1yr

Key language qualifying corporate relationship o Parent o Branch o Subsidiary

General The L-1 is a non-immigrant classification that allows foreign companies to temporarily transfer executives and managers ("L-1A") and technical personnel having "specialized knowledge" ("L-1B") to affiliates or subsidiaries in the United States. Executives and managers who qualify for L-1A status are also currently in a position to qualify for permanent residence under the employment-based first preference immigrant category. For a specific discussion of permanent residence for multinational executives and managers, clickhere. In order to qualify, the alien must establish that he or she has worked in an executive, managerial or specialized knowledge capacity abroad. The alien must also establish that he or she is entering the United States to work for the same company or a parent, affiliate or subsidiary thereof, in an executive, managerial or specialized knowledge capacity. Executive, Managerial, or Specialized Knowledge Capacity The definition of "executive capacity" requires the executive to primarily direct the management of the organization or a major component or function thereof, establish goals or policies relating thereto; exercise wide latitude in discretionary decision-making; and receive only general supervision from higher level executives, the board of directors or the shareholders of the company. The definition of "managerial capacity" specifically provides that the manager of an essential function need not supervise any other employee in order to be eligible for L-1A classification. However, the manager must primarily perform managerial functions as well as function at a senior level within the organizational hierarchy with respect to the function managed and exercise discretion over the day-to-day operations of the function over which the employee has authority.

A company must establish that it has reached a stage of organizational development and is of such complexity that it can be realistically concluded that the individual seeking transfer is primarily engaged in executive or managerial duties. While staffing levels of the business are not as crucial in determining whether or not an individual is acting in an executive or managerial capacity, they are nevertheless a factor in such a determination. However, theImmigration and Nationality Act ("INA") specifically states that if staffing levels are used as a factor, the reasonable needs of the organization, component or function in light of the overall purpose and stage of development of the organization, component or function must be taken into account. What little case law there is on the subject suggests that the use of independent contractors performing necessary functions for the small company may be considered in making such a determination. For example, information concerning the use of accountants, brokers, commission sales persons and other contractors not performing auxiliary or clerical duties may be relevant. "Specialized knowledge" is defined as special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. There is no need that the knowledge be proprietary. Corporate Relationship In addition to the requirement that the individual seeking transfer be currently employed in a managerial, executive or specialized knowledge capacity, the INA requires that the individual have been employed in a full-time capacity for the foreign parent, branch, affiliate or subsidiary for at least one year within the previous three years. The following definitions are relevant: 1. "Parent" is defined as a firm, corporation, or other legal entity which has subsidiaries. 2. "Branch" is defined as an operating division or office of the same organization housed in a different location. 3. "Subsidiary" is defined as a firm, corporation or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. 4. "Affiliate" is defined as: a. One of two subsidiaries both of which are owned by the same parent or individual, or b. One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or c. Certain international accounting firms. United States Citizenship and Immigration Services ("USCIS") [formerly INS], defines the term "qualifying organization" in part as a U.S. or foreign entity which meets the requirements of a parent, branch, subsidiary, or affiliate and is or will be doing business "as

an employer in the United States and at least one other country for the duration of the alien's stay in the United States as an intracompany transferee directly or through a parent, branch, subsidiary, or affiliate, and [o]therwise meets the [L-1] requirements ." This definition requires that the U.S. employer continue to have a related entity doing business abroad. That entity, however, need not be the alien's former employer. There is nothing in the definition to prevent the dissolution or sale of the former employer so long as another affiliate continues to do business abroad. Required Employment Abroad As stated above, the alien must have been employed by a related entity abroad for at least one year within the three years prior to the transfer. As a result of H.R. 2278 [PL 107-125], signed into law on January 16, 2002, the one-year period of required employment was previously reduced to six months for L-1 beneficiaries filing under blanket petitions (see below). However, the L-1 Reform Act has since rescinded this provision. As a result, all L-1 aliens (including those filing under blanket petitions) must now have been employed abroad for at least one year. Employment, De Facto Employment, and Independent Contractors Working as an independent contractor of the foreign affiliate or subsidiary is generally insufficient for the purposes of satisfying the twelve-month employment requirement. The relationship must be one of employer-employee, although it may be possible to establish this relationship even without formal payroll records. USCIS looks at the degree of control that the company has over the alien to determine if he or she is really a de facto employee or an independent contractor. In determining whether an individual is an employee, the traditional rule under common law is the "control" test. As established in Kelley v. Southern Pac. Co., 419 U.S. 318, 323-24, 42 L. Ed. 498, 95 S. Ct. 472 (1974), this test applies basic agency principles in determining whether an employment relationship exists. USCIS has also adopted the control test for the purposes of determining employment in L-1 cases. In an exchange of correspondence between Yvonne LaFleur, Nonimmigrant Branch, INS Office of Adjudications, and attorney William Reich, File No. HQ 1815-C (Dec 18, 1995), Legacy INS confirmed that the issue of control was the main issue when considering employment for the purposes of L-1 eligibility. In her letter, Ms. LaFleur adopts Matter of Tessel, 17 I. & N. Dec. 631 (BIA 1981) and Matter of Pozzoli, 14 I. & N. Dec. 569 (BIA 1974). In the former case, an unsalaried chairman of a corporation was found to be an employee in a managerial or executive position for Schedule A, Group IV, labor certification purposes. In the latter case, the BIA found that the alien was an employee of the petitioning company notwithstanding the fact that his salary would be paid by the foreign affiliate. Both cases establish that it is the employer's control over the alien, rather than the alien's presence on the employer's payroll, which establishes the existence of the employeremployee relationship. New Offices Even where a foreign company does not have a pre-existing subsidiary or affiliate operating in the United States, it is possible for individuals to be transferred to the United States under L-1 status for the purpose of opening a new office. However, special regulations will apply to persons being transferred as new office L-1's. The most significant of these regulations limit the initial approval period to one year, after which additional evidence will have to be filed to evidence the U.S. office's need for a managerial or executive employee.

Additional Restrictions Imposed by the L-1 Reform Act The L-1 Reform Act now prevents an L-1 alien from being primarily stationed at the worksite of another employer in cases where: a. The L-1 alien will be controlled and supervised by an unaffiliated employer, or b. The placement of the L-1 alien at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer. Port of Entry Submission of L-1 Petitions Permitted for Canadians NAFTA permits Canadian citizens to directly apply for L-1 status at a port of entry along the Canada-U.S. border or pre-flight inspection facility at a Canadian airport, as an alternative to filing their petition in the United States. In virtually all cases, submitting an L-1 petition at the port of entry or pre-flight inspection facility is the preferable route. Blanket Petitions Blanket petitions permit certain large multinational companies to obtain a blanket L-1 approval for its employees. With an approved blanket petition, the alien may simply apply for an L-1 visa at a consulate abroad and does not need to first obtain a individual petition approval from USCIS. Given the fact that Canadian citizens may directly apply for L-1 status at a port of entry or pre-flight inspection facility (where they will receive an immediate adjudication of their case), blanket petitions are of no benefit to them. However, blanket petitions can still benefit nationals of other countries. A petitioner may file a blanket petition on behalf of itself and some or all of its branches, subsidiaries, affiliates, or its parent, if the following conditions are met: a. The petitioner and each of the included entities are engaged in commercial trade or services (non-profit entities are not permitted to file blanket petitions); b. The petitioner has an office in the United States that has been doing business for one year or more; c. The petitioner has three or more domestic and foreign branches, subsidiaries or affiliates; d. The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten "L" managers, executives, or specialized knowledge professionals during the previous twelve months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 Million; or have a work force of at least 1,000 employees. Blanket petitions may be used by managers, executives, or specialized knowledge professionals. Specialized knowledge workers who are not considered professionals are not permitted to apply pursuant to a blanket petition. Fraud Prevention Fee Applicable to L-1 Petitions The L-1 Reform Act imposed a new $500 fraud fee on L-1 petitions. This fee will be in addition to other fees and will apply to employers filing either an initial petition for an L-1 or for a change of status or change of employer petition. A $500 fraud fee will also be charged for an alien filing a visa application abroad for an L blanket petition. The fee will be imposed only on principal aliens, not their dependents. Only petitions that seek to amend or extend

the stay of the beneficiary will be exempt from this fee. The effective date of the fraud fee is March 8, 2005. Duration of L-1 Status L-1A status is granted initially for three years with extensions of two years being permitted, up to a maximum of seven years. L-1B status is granted initially for three years with an extension of two years being permitted, up to a maximum of five years. After a stay of seven years in the case of L-1A and five years in the case of L-1B, the foreign worker must reside and be physically present outside the United States for at least one year before becoming eligible for L status again. Time spent in H-1B status is also counted against these limits. Notwithstanding the above, the limits do not apply for aliens who do not reside continually in the United States and whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the limits do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. Dependents of L-1 Principal Aliens Dependents of L-1 aliens are given L-2 status. Until recently, L-2 aliens were permitted to attend school but were not able to seek employment. However, on January 16, 2002, President Bush signed H.R. 2278 (PL 107-125) into law. It provides work authorization to the spouses of L nonimmigrants. This eligibility is effective as of the date of enactment. In a memorandum to field offices dated February 22, 2002, Legacy INS explained that the spouse must obtain an employment authorization ("EAD") by filing Form I-765 with the required fee and evidence of his or her relationship to the principal alien before being permitted to work.

Period of Stay Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. Family of L-1 Workers The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539. Spouses of L-1 workers may apply for work authorization by filing Form I765 with fee. If approved, there is no specific restriction as to where the L-2 spouse may work.
Dual Intent Recognized The concept of dual intent is statutorily recognized for L nonimmigrants. Please refer to the article on dual intent for additional information.

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NON-IMMIGRANT PROFESSIONAL VISA CATEGORIES

H1-B
4yr degree required for job specialty occupation o Accountants, engineers, etc ER filed LCA and pay prevailing wage o Labor Condition Application (ER attesting to paying prevailing wage) Immigrant intent permitted

H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models
This visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. Eligibility Criteria Visa Category General Requirements Labor Condition Application Required?

H-1B Specialty Occupations

The job must meet one of the following criteria to qualify as a specialty occupation:

Yes. The prospective employer must file an approved Form ETA-9035, Bachelors or higher degree or its equivalent Labor Condition Application is normally the minimum entry requirement for (LCA), with the Form I-129, the position Petition for a Nonimmigrant Worker. See the links to the The degree requirement for the job is Department of Labors (DOL) common to the industry or the job is so complex

or unique that it can be performed only by an individual with a degree

The employer normally requires a degree or its equivalent for the position The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelors or higher degree.*

Office of Foreign Labor Certification and USCIS forms to the right. For more information see the Information for Employers & Employees link to the left.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

Have completed a U.S. bachelors or higher degree required by the specific specialty occupation from an accredited college or university Hold a foreign degree that is the equivalent to a U.S. bachelors or higher degree in the specialty occupation Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.**

Visa Category

General Requirements

Labor Condition Application Required? No.

H-1B2 DOD Researcher and Development Project Worker

The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:

The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense A bachelors or higher degree, or its equivalent is required to perform duties.

To be eligible for this visa category you must meet one of the following criteria:

Have completed a U.S. bachelors or higher degree required by the specific specialty

occupation from an accredited college or university

Hold a foreign degree that is the equivalent to a U.S. bachelors or higher degree in the specialty occupation Hold an unrestricted State license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.**

H-1B3 Fashion Model

The position/services must require a fashion model of Yes. The prospective prominence. employer must file an approved LCA with the Form ITo be eligible for this visa category you must be a 129. See the links to the fashion model of distinguished merit and ability. Department of Labors Office of Foreign Labor Certification and USCIS forms to the right.

*For more information, see 8 CFR 214.2(h)(4)(iii)(A). **For more information see 8 CFR 214.2(h)(4)(iii)(C).

Application Process Step 1: (only required for specialty occupation and fashion model petitions): Employer Submits LCA to DOL for certification. The employer must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and Doll's inert process, see the "Foreign Labor Certification, Department of Labor" link to the right. Step 2: Employer Submits Completed Form I-129 to USCIS. The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 for additional filing requirements. Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

Labor Condition Application (LCA) Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working. The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

Period of Stay As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement. H-1B Cap The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. masters degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. For further information about the numerical cap, see our Fiscal Year (FY) 2012 H-1B Cap Season Web page. Family of H-1B Visa Holders Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

Dual Intent

The doctrine of dual intent is statutorily recognized for the H-1 category.

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H-2B Temporary Non-Agricultural Workers

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective workers behalf. To qualify for H-2B nonimmigrant classification:

The employer must establish that its need for the prospective workers services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employers need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

H-2B Cap There is a statutory numerical limit, or cap, on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year. Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, see the Cap Count for H-2B Nonimmigrants link to the right or go to it directly at www.uscis.gov/h-2b_count.. H-2B Program Process

Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor. Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the "Foreign Labor Certification, Department of Labor" and Foreign Labor Certification, Guam Department of Labor links to the right.

Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129. (See the instructions to the Form I-129 for additional filing requirements.) Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. After an employers Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification. * Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labors temporary labor certification application filing requirement may skip Step 1 in the H-2B process.

H-2B Eligible Countries List H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*. The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication. Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu. * A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.] Period of Stay Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H-2B classification may be extended for qualifying employment in

increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years. An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant. See 8 CFR 214.2(h)(13)(iv) for further details on departure requirements. Family of H-2B Workers Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 nonimmigrant classification. Family members in H-4 nonimmigrant classification may not engage in employment in the United States. Employment-Related Notifications to USCIS Petitioners of H-2B workers must notify USCIS within 2 workdays if an H-2B worker is a:

No show: an alien who fails to report to work within 5 work days of the employment start date on the H2B petition Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or Early Completion: an alien who completes the H-2B labor or services for which he/she was hired more than 30 days early.

No Dual Intent.

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TN
Professional from Mexico/Canada under NAFTA

TN NAFTA Professionals
TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant

classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:

You are a citizen of Canada or Mexico Your profession qualifies under the regulations The position in the United States requires a NAFTA professional You have a prearranged full-time or part-time job with a U.S. employer (but not selfemployment - see documentation required below) You have the qualifications of the profession

Eligibility Criteria for Canadian Citizens If you are a Canadian citizen, then you are not required to apply for a visa with a U.S. consulate or file a petition with U.S. Citizenship and Immigration Services (USCIS). You can request admission as a TN nonimmigrant at a U.S. port of entry, and you must provide the following documentation:

Proof of Canadian citizenship Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, your educational qualifications Credentials evaluation (if applicable)

If you are eligible following inspection by a U.S. Customs and Border Protection (CBP) Officer, then you will be admitted as a TN nonimmigrant. Form I-94, Arrival/ Departure Record, will be evidence of your admission. Eligibility Criteria for Mexican Citizens If you are a Mexican citizen, then you are not required to file a petition with USCIS. However, you are required to obtain a visa to enter the United States as a TN nonimmigrant. You should apply for a TN visa directly at a U.S. embassy or consulate in Mexico. See the Department of State link to the right "Mexican and Canadian NAFTA Professional Worker." Once you are approved for a TN visa you may apply for admission at a United States port-of-entry. If you are eligible following inspection by a CBP Officer, then you will be admitted as a TN nonimmigrant. Form I-94, Arrival/ Departure Record, will be evidence of your admission. Period of Stay/Extension of Stay Initial Period of Stay Up to 3 years

If you wish to stay beyond the time indicated on Form I-94, you must seek an extension of stay. If you are in the United States, your employer may file Form I129, Petition for Nonimmigrant Worker, with USCIS. For more information see the Extend Your Stay link to the right. Note: You may apply at a port of entry using the same application and documentation procedures required at the time of your initial entry. Family of TN Visa Holders Any accompanying or following to join spouse and children under the age of 21 may be eligible for TD nonimmigrant status. They must demonstrate a bona fide spousal or parent-child relationship to you. Dependents do not have to be citizens of Mexico or Canada, but they must contact the American embassy or consulate that serves their area for information on how to apply for a visa. Spouses and children cannot work while in the United States, but they are permitted to study. Canadian Citizens Dependents Any spouse and children of a Canadian citizen do not need visas, but they must provide the following documentation at the port of entry:

Proof of Canadian citizenship Proof of relationship to the TN nonimmigrant, such as a marriage certificate or birth certificate Photocopies of the TN nonimmigrants entry documents

Mexican Citizens Dependents Any spouse and children of a Mexican citizen must apply for the TD nonimmigrant status at an American embassy or consulate. Dependents Following to Join If any spouse and children are following to join the TN nonimmigrant, then they must show a valid Form I-94 as proof that the TN nonimmigrant is maintaining his or her TN nonimmigrant status. Dual intent is not specifically recognized for the TN category. Recognition of "dual intent" essentially means that the alien is permitted to simultaneously have a present intention to work temporarily in the United States and a future intention to become a permanent resident.

TN at a Glance Main procedural step: Initial duration of status: Apply at border only. 3 year maximum/trip. No time cap.

Total time-limit on the category:

Processing time: Major advantage:

Instant approval. Quick.

Major disadvantage: No disadvantages.

E-3 Certain Specialty Occupation Professionals from Australia

The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States.

Eligibility Criteria
To qualify for an E-3 visa, you must demonstrate that you:

Are a national of Australia Have a legitimate offer of employment in the United States Possess the necessary academic or other qualifying credentials Will fill a position that qualifies as a specialty occupation

Applying for an E-3 Visa from Within the United States

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification. Supporting Documents Your Form I-129 must include the following documents:

A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application. Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA Academic or other credentials demonstrating qualifications for the position Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

Applying for a Visa With a U.S. Embassy or Consulate

If your petition Form I-129 is approved, we will forward a Form I-797, Notice of Action/Approval to the employer, who in turn will forward it to you. A Form I-797 approval notice is not a U.S. visa, as the visa must be obtained at a U.S. embassy or consulate abroad. After Form I-129 is approved by USCIS, the

next step is to apply for a U.S. visa at a U.S. embassy or consulate, generally in your country of residence abroad. Please visit the Department of State, Travel.state.gov Temporary Workers webpage for visa information, how-to-apply procedures, and U.S. embassy web contact information to learn more.

Period of Stay/Extension of Stay

Initial Period of Stay Extension of Stay

2 years

Up to 2 years per extension; no maximum number of extensions, with some exceptions.

Change of Employment
Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less. Note: Form I-129 is used to apply for an extension of stay or change of employment.

Family of E-3 Visa Holders

Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse would file a Form I-765, Application for Employment Authorization. For more information on the application procedures, see the Work Authorization link to the right.

No Dual Intent They are not dual intent in the sense of H-1Bs and L-1s, but they do not have a foreign residence requirement.

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PERFORMANCE VISA CATEGORIES

O-1 Extraordinary ability o Arts, sciences P-1 Performers of extraordinary ability o ABBA P-3 Q-1 R-1 Religious workers o Membership in denomination for 2yrs prior to application o Bona fide religious organization (501c3) Cultural exchange Culturally unique performers Immigrant intent permitted Immigrant intent permitted Immigrant intent permitted E.g. Mick Jagger

o STUDENTS AND TRAINEES

F-1 J-1 Full-time student

2yr home residency reqt (must return home or get reqt waived) o Waiver: o No objection from home country Working in medically underserved area Interested govt agency (e.g. NIH wants worker) Fear of persecution

H-3

o FAMILY
K-1 fiancee Must marry within 90 days of entry then apply for adjustment of status Met within 2yrs of entry

o VICTIMS OF CRIME
U-1 Substantial harm from crime such as sexual exploitation, felony assault, kidnapping Police report & assist law enforcement in prosecution

VAWA Victims of domestic violencepermanent residence

How long can non-immigrants stay in the U.S.?

A visa, within its validity period, allows you to travel to the port-of-entry (POE) of the United States. At that point a Customs and Border Protection (CBP) officer will either permit or deny your entry to the U.S. after inspection. If allowed, you will be assigned an authorized stay which is indicated on your I-94 card. You must depart the U.S. before your authorized stay expired.

Your information will also be entered into the US-VISIT system at the POE. You must turn in your I-94 card to the airline when departing the US.

Can I extend my stay?

Yes. You may file Form I- (Application To Extend/Change Nonimmigrant Status) with the USCIS before your authorized stay expires. You are then allowed to remain in the US legally until a decision is made on your I-539 application, or up to 240 days, whichever comes first. If approved, a form I-797, with a new I-94 attached, will be mailed to you showing a new departure date. Note that USCIS must physically receive your I-539 application on or before the last day of your authorized stay. If you are already late, you must prove that the delay of filing your extension was reasonable and also due to extraordinary circumstances beyond your control.

What if my I-539 extension of stay is denied?

If your application for extension is denied, and your previously approved stay has already expired, you will be considered out of status from the date your original authorized stay expired. You must leave the US as soon as possible to stop accumulating your unlawful stay, and to minimize any potential impacts it may have on your future applications. Under such condition, any B visa you may have is also considered void. For these reasons we highly recommend you apply for an extension well before your B1 or B2 authorized stay expires. USCIS suggests two months in advance, but no more than six months.

4. PERMANENT IMMIGRANTS (LPRs)

o Family Immediate relative of US citizen (no quotas assuming pass other rulesadmissibility, etc); visa immediately available (not subject to waitlist Parent

Spouse Child <21

Family Preferences (LPRs) Subject to lengthy waitlist Derivative beneficiaries (spouse/child of immigrant Preference categories: o 1. Unmarried son/daughter of USC) o 2. Spouse/child of LPR o 2B Unmarried son/daughter of LPR o 3. o 4.

Child Protection Act Preserve age of children so dont age out o Based on date I-130 filed

Conditional Residence Married less than 2yrs at time of entry Joint removal if still married o File application within 90 days of 2nd anniversary Waiver if no longer married o Good faith o Physical/emotional abuse o Death of petitioner

4. Employment Based Immigration through Labor Certification (ensure no qualified and available US workers)

o 1. ER test of labor market No qualified US workers

o 2. Job must not be unduly restrictive Live-in Exceed SVP Defined by DOL Max of what ER can require in terms of specialized education/training

Language Cant require accountants to speak Spanish

Combination of job duties business necessity

o 3. ER must pay prevailing wage o 4. Beneficiary must satisfy job requirements Experience gained with soame ER does not count

o 5. Ethical conflict (not on exam) Who is the client? Dual representationfull disclosure

5. Employment Immigration (no labor cert) o 1. Schedule A-Pre Certified Registered nurses Physical therapists

o 2. Priority Workers Extraordinary ability

At least three of criteria

Outstanding professors and researchers At least 3yrs experience, at least 2 of criteria

Multinational executives and managers (similar to O-1) At least 1yr experience abroad as exec/manager at qualifying company, must be coming to US to fill exec/management position

o 3. Workers with Advanced Degrees/Exceptional Ability Must serve the national interest (substantial intrinsic merit, national in scope, beneficial to substantially greater degree than minimally qualified worker Labor Cert = minimally qualified worker

o 4. Religious Ministers & Religious Workers 2yrs experience & membership R1 = 2yrs membership only

o 5. Entrepreneurial Investors $500k to $1mil investment Provide jobs for US workers

6. Other Immigration Options o Diversity Lottery Just ended

o Registry (in US since 1/1/1972) Better to have rolling date/in US for 20yrs

o Special immigrants

This petition is used to classify an alien as: 1. An Amerasian; 2. A Widow or Widower; 3. A Battered or Abused Spouse or Child of a U.S. Citizen or Lawful Permanent Resident; or 4. A special immigrant. A special immigrant is defined as one of the following: A. Religious Worker; B. Panama Canal Company Employee, Canal Zone Government Employee, U.S.

Government in the Canal Zone Employee; C. Physician; D. International Organization Employee or Family Member; E. Juvenile Court Dependent; F. Armed Forces Member; G. Afghanistan or Iraq national who supported the U.S. Armed Forces as a translator; H. Iraq national who worked for or on behalf of the U.S. Government in Iraq or I. an Afghan national who worked for or on behalf of the U.S. Government in Afghanistan.

o VAWA 7. Admission Procedures (non-immigration o H-2B (labor cert) o H-1B (labor cond attest) o Visa Petition o Change of status o Visa application o Reentry (admission o 8. Admission Procedure (immigrants o o o o Visa application Entru

o Labor cert (EB2&3) visa petition (employment, family, special immigrants) o IN US o Apply for adjustment of status in US o ?? o 9. Inadmissible IF (INA 212(a)(9)(A) [ARRIVING ALIENS/ALIENS ORDERED REMOVED] o Arriving aliens ordered removed at border 5yr bar to reentry (inadmissible) in first instance 20yr bar to reentry (inadmissible) in second and subsequent instances Permanent bar to reentry (inadmissible) if convicted of aggravated felony UNLESS AG consents to aliens reapplying for admission o Not in US o Consular Processing at Immigrant Visa Abroad o Entry (admission o

o Ordered removed after admission in US/departed US while removal order pending:

10yr bar to reentry following departure/removal (inadmissible) in first instance 20yr bar to reentry following second or subsequent removal order (inadmissible) Permanent bar to reentry (inadmissible) if convicted of aggravated felony UNLESS AG consents to aliens reapplying for admission

10. INADMISSIBLE IF (INA 212(a)(9)(B)) [UNLAWFUL PRESENCE]

o 3yr bar to reentry (inadmissible) Unlawfully present >180days but <1yr AND Voluntarily departed US prior to removal proceedings and seek reentry

o 10yr bar to reentry (inadmissible) Unlawfully present >1yr AND Voluntarily departed US prior to removal proceedings and seek reentry

o EXCEPTIONS/WAIVERS Minors Asylees Family unity Battered spouse/children Victim of human trafficking Trafficking must be a central reason for unlawful presence

Tolling for good cause

(I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and (III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

AG waiver - spounse, son m daughter of USC/LPR who will experience extreme hardship

11. PERMANENT BAR (INA 212(a)(9)(C) o Unlawful presence>1yr (no subsequent inspection) o Removal followed by EWI o AG Waiver if >10yrs outside US & AG consents to application for readmission

12. DEPORTATION o Conviction (INA 101a48) Formal judgment of guilt by court OR adjudication of guilt withheld and later dismissed Formal adjudication Probationdismissal Expungement Admission Nolo AND judge has entered some form of punishment

o 237(a)(2) Crimes

CIMT (5yrs???) Multipole CIMT Aggravated felons (101a43) Drug crimes Except <30grams pot for personal use

13. CANCELLATION OF REMOVAL (240A&B) o Cancellation A (LPRs) o Cancellation B (non-permanent residents, undocs, violation of status, or LPRs) LPR5yrs

14. VOLUNTARY DEPARTURE o In lieu of proceeding or prior to completion of proceeding. 120 days o OR o At conclusion of proceeding Physically present 1yr at NTA Good moral character

15. ER Compliance o Identity & Authorization to work (I-9 Form) o ER penalties (dont have to know #s) Penalties for employing unauthorized workers Penalties for paperwork violation Criminal sanction for pattern or practice of illegal hiring

16. ASYLUM

o Well-founded fear of persecution based on 5 categories Particular social group o Immutable characteristic o Not resettled in third country o File application within 1yr of entering US 17. Becoming US Citizen o All persons born or naturalized in US o Naturalization LPR& continuous residence 5yrs 3yrs if married to USC

Physical presence _ _if married to USC

English language History & Civics Good moral character Absence affecting citizenship (INA 316b)

o Child Citizenship Act At least 1 parent USC Child entered as LPR (age of child???) Child in custody of USC parent

o Derivative citizenahip Birth in US not requiredCitizenship can be acquired at birth through family lineage

o 14thA Due Process All persons in US Entitled to present a defense