Geneva 22-23 September 2008 World Trade Organization Symposium Mode 4 of the GATS- Taking Stock and...

Geneva 22-23 September 2008

World Trade Organization Symposium

Mode 4 of the GATS-Taking Stock and Moving Forward

Copyright © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP 2

Ellen G. YostPartner

Fragomen, Del Rey, Bernsen & Loewy, LLP

7 Hanover SquareNew York, NY 10004-2756Phone: +1 212 230 2874

Fax: +1 212 446-0371Email: [email protected]

Website: www.fragomen.com


The Fragomen FirmThe Fragomen Firm

• Practices exclusively in the area of business immigration and nationality law

• More than 250 attorneys and almost 1000 professional immigration specialists

• 30 offices in the Americas, Europe and Asia-Pacific regions


Involved Government AgenciesInvolved Government Agencies• Department of Homeland Security:1. United States Citizenship and Immigration Services - USCIS

(formerly the Immigration & Naturalization Service – INS or BCIS)2. Immigration & Customs Enforcement – ICE3. Customs & Border Protection – CBP4. CIS Ombudsman

• Department of Labor – Centralized processing out of Atlanta and Chicago.– State Workforce Agencies (SWAs)

• Department of State (DOS): U.S. Embassies and Consulates


Basic ConceptsBasic Concepts

• Immigrants vs. non-immigrants, not exactly permanent v. temporary

• Dual intent• Petitions, visas, & status• Quotas & chargeability• Preservation of family unity• Priority workers• Preference classification


NonimmigrantsNonimmigrants

• Coming to the U.S. temporarily• Retain residence abroad• Dual intent - only for H’s and L’s• “Alphabet Soup” - A-V


Business and Employment VisasBusiness and Employment Visas

Common business and employment-based visa categories:

• Business visitors (B-1)

• Intracompany transferees (L-1)• Treaty Traders and Investors (E-1 & E-2)

• Professional Visa for Australians (E-3)• New hires (H-1B, TN & O-1)

• Trainees (J-1 & H-3)

• Students on Practical Training (F-1 & J-1)


B-1 Business VisitorsB-1 Business Visitors

• On foreign payroll• Activity in U.S. benefits foreign employer

– Business meetings, training, & joint development projects

- Activity in US must not accrue to the benefit of any US entity

• Visa Waiver Program- 27 participating countries– 90-day maximum stay– Ineligible for Change and Extension of Status– ESTA


L-1 Intracompany TransfereesL-1 Intracompany Transferees• Intracompany Relationship:

– Parent, subsidiary, affiliate, branch or joint venture

• Prior Employment Abroad:– 1 year within 3 years preceding transfer to U.S.

• Qualifying Capacity:– Executive, Managerial (L-1A)– Specialized Knowledge (L-1B)

• Duration:– L-1A = 7 years– L-1B = 5 years


F-1 StudentsF-1 Students• Academic studies: elementary through postdoctoral

– admitted for “duration of status” (D/S)

• Full-time matriculated student at approved school• “Optional Practical Training:” pre- or post-graduation

– total = 12 months (29 months for STEM graduates who work with employers that use E-Verify); part-time during school year, full-time during vacations and after graduation

– need employment authorization document (EAD); – School endorsed I-20 (issued via SEVIS System)– not tied to particular employer

• “Curricular” practical training if part of educational program– Need letter from school– School endorsed I-20 (issued via SEVIS System)


• “Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent

• 3 for 1 rule -- 3 yrs. experience = 1 yr. of college• Labor Condition Application certified prior to filing petition• Six-Year Maximum Stay (can extend under certain

circumstances - AC-21)• 65,000 Annual Ceiling

– 6,800 of 65,000 reserved for citizens of Chile and Singapore– For FY 2008 and 2009, cap reached at the start of filing.

• 20,000 additional visa numbers available to foreign nationals holding Master’s or higher degrees from U.S. universities

• Reasonable costs of return transportation for dismissed employee

H-1B Category: USCIS ProvisionsH-1B Category: USCIS Provisions


Labor Condition ApplicationLabor Condition Application

• Filed with U.S. Department of Labor• Attests to four basic conditions

– Wages– Working conditions– No strike or lockout– Notice

• Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees

• H-1B dependent vs. nondependent employers• Public Access file


E-3 Visa for AustraliansE-3 Visa for Australians

• Similar to H-1B visa– For specialty occupations– Employee must have Bachelor’s degree– Employer must secure LCA from DOL

• Not subject to 65,000 cap– But limited to 10,500 per year

• Spouse eligible for work authorization• No foreign residence requirement• Can be renewed indefinitely


J-1 Trainees and InternsJ-1 Trainees and Interns• Exchange visitor program• Categories include trainees, interns, research scholars,

specialists, students• Emphasis on reciprocity, cross-cultural activities, and

orientation • Some J-Visa holders must return to home country for 2 years

after completion of program or seek waiver of this requirement– skills list– government funding– graduate medical education

• SEVIS (Student Exchange Visitor Information System) web-based system for generation of Forms DS-2019 and tracking


E’s, O’s & P’sE’s, O’s & P’s

E-1 Treaty Trader

E-2 Treaty Investor

O-1 Persons of extraordinary ability

P Internationally recognized athletes or entertainment groups


E-2 TREATY INVESTORSE-2 TREATY INVESTORS

• Employer & employee “nationals” of country with qualifying treaty with U.S.

• Based on substantial investment in the U.S.• Employer > 50% owned by nationals of

treaty country• Visa typically valid for 5 years• 2 year admission; no limit on extensions• E spouses authorized to work (must apply for

EAD)


TN’sTN’s

Canadian and Mexican professionals performing certain occupations (based on then-existing US law, NAFTA categories were original model for the GATS)Must be nationals of either Canada or Mexico

– Coming to U.S. to work in profession listed on NAFTA schedule– Generally require a Bachelor’s degree in field– Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate)– Mexicans apply at Consulate– One year stay, renewable in one-year increments


H-2B Seasonal WorkersH-2B Seasonal Workers

• Since 1990, cap of 66,000 visas annually, has been used up every year since 1994

• Seasonal positions (not agriculture), on one-time projects, during times of exceptionally high workload, or intermittently

• For landscaping, seasonal hospitality, and seasonal construction, or to meet specific needs in manufacturing, food packaging and processing, fisheries, retail and other industries

• Requires employers to advertise through the state and federal labor departments and first to hire U.S. workers who apply

• Must return home at the end of the season


ImmigrantsImmigrants

• “Green card holders” = “permanent residents” = “immigrants”

• Coming to U.S. permanently• Numerically limited

– Visa bulletin– Priority date

• Can become U.S. citizens 3 or 5 years after receiving green card

• Importantly, not all temporary workers become eligible for permanent visa


Family-Based Permanent ResidenceFamily-Based Permanent Residence

• Immediate relatives (spouses, minor children & parents of U.S. citizens)

• Other close family members of citizens or permanent residents, including:– Unmarried sons & daughters of citizens (over age 21)– Married sons & daughters of citizens– Spouses, children & unmarried sons/daughters of

permanent resident aliens– Brothers & sisters of citizens


Employment-Based Permanent Employment-Based Permanent Residence: 2/3-Step ProcessResidence: 2/3-Step Process

• Labor certification (where required)– filed by employer on behalf of foreign national– processed by U.S. Department of Labor

• Immigrant preference petition– filed by employer– processed by USCIS

• Adjustment of status or consular processing– filed by the foreign national & family members


Employment-Based CategoriesEmployment-Based Categories

EB-1: Priority workersEB-2: Advance-degree professionals & aliens of exceptional ability*EB-3: Professional, skilled & unskilled workers*EB-4: Special immigrantsEB-5: Employment creation

(* labor certification required)


EB-1: Priority Workers EB-1: Priority Workers

• Persons of extraordinary ability (similar to the O-1 nonimmigrant category)

• Outstanding professors & researchers • Multinational executives/managers• Labor Certification not required


EB-2: Advanced-Degree Professionals EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability& Persons of Exceptional Ability

• Job requires advanced degree (Master’s & above) or Bachelor’s degree + 5 years of progressive professional experience

• Persons of exceptional ability in science, art or business

• Labor Certification required• Waiver of labor certification requirement if

employment is in the “National Interest” or foreign national is of “Exceptional Ability”


EB-3: Professionals, Skilled Workers, & EB-3: Professionals, Skilled Workers, & Other WorkersOther Workers

• Most commonly used / highest demand• Professionals: position requires Bachelor’s degree

or foreign equivalent degree• Skilled workers: position requires minimum 2

years of experience and/or training• Other workers: limited to 10,000• Labor certification required in all cases


Visit www.fragomen.com for links to key Web sites


THANK YOUTHANK YOU

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Geneva 22-23 September 2008 World Trade Organization Symposium Mode 4 of the GATS- Taking Stock and...

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