Gibney’s Immigration Practice Group provides innovative solutions to meet the challenges of U.S. immigration law. We represent individuals and institutions of all sizes, specializing in business immigration. Gibney advises employers on all types of immigration transactions and compliance issues including those applicable to business visitors, short- term assignees, expatriates and local hires. With immigration professionals in our New York and San Francisco offices, our attorneys are readily accessible to:
A business visit is generally defined as a short trip to conduct permissible business activities in the U.S., provided these activities do not constitute work or employment as defined by U.S. immigration authorities and regulations implemented by United States Citizenship and Immigration Services (USCIS) and the Department of State. Business visitors to the U.S. may participate in limited business activities such as attending conferences, participating in meetings, and investigating business opportunities.
A B-1 business visa may be required for entry to the U.S., depending on the applicant’s nationality, purpose of the visit, and the duration of stay in the U.S. Business visitors must demonstrate nonimmigrant intent to enter the U.S. on a temporary basis. This may include providing evidence of employment and/or ties outside the U.S. and confirmation that they do not intend to live or work in the U.S.
Citizens and nationals of certain countries may be eligible for travel to the U.S. under the Visa Waiver Program to conduct permissible business activities for up to a maximum period of 90 days without having to obtain a B-1 visa. Foreign nationals must pre-register with the Electronic System for Travel Authorization (ESTA) to confirm eligibility for travel to the U.S. without a visa. For a list of countries participating in the Visa Waiver Program and additional information regarding ESTA requirements, please visit: http://travel.state.gov /visa/temp/without/without_1990.html
For additional information or specific legal advice regarding business visitors and visa requirements, please contact a Gibney representative.
Most applicants seeking employment authorization in the U.S. must have a job offer from a sponsoring employer in the U.S., and must obtain the appropriate nonimmigrant visa for entry. Exceptions to the employer sponsorship requirement typically require entrepreneurial investment under international treaties or self-sponsorship as an individual with extraordinary ability. Nonimmigrant visa status refers to the temporary nature of the individual’s stay in the U.S. and visa applicants may be required to establish their intent to return abroad at the end of the authorized temporary period of stay. Each visa category has specific restrictions and requirements governing the terms and conditions of the foreign national’s temporary stay.
For a summary of temporary work visa categories, please see Gibney’s Nonimmigrant Workers – Summary of Common Visa Categories.
The two most common work visa categories are discussed below:
H-1B nonimmigrant visa classification is for qualified foreign nationals entering the U.S. to work in a specialty occupation. H-1B status is company-specific and position- specific, requiring a bona fide job offer from a U.S. employer.
There are a limited number of new H-1B visas available each fiscal year (Oct 1 – Sept 30), and petitions for the next fiscal year may be filed with USCIS on or after April 1, up to six months in advance. Certain H-1B petitions are exempt from the cap, including petitions for extensions or changes in employment for those already in H-1B status.
Requirements for H-1B classification include, but are not limited to:
USCIS processing times for H-1B petitions are typically three to four months, but subject to change. Premium processing to adjudicate the petition within 15 days is available for an additional fee.
H-1B classification may be granted for 3 years, with extensions available up to a six-year maximum. Extensions beyond six years may be available for qualified applicants in limited circumstances, such as where the foreign national is the beneficiary of a long delayed application for permanent residence or is able to document time spent outside the United States during the period of approved H-1B classification. The government recognizes dual intent for H-1B workers, who may continue to work in nonimmigrant H-1B status with the intent to remain in the U.S. for the duration of their temporary authorized stay while applying for permanent residence.
Dependent spouses and children are eligible for H-4 status; however, H-4 dependents are not eligible for U.S. employment.
For specific legal advice or more information regarding H-1B visa classification requirements, please contact your Gibney representative.
L-1 nonimmigrant visa classification is available to qualified foreign nationals who, in the three years preceding the application for admission, have been employed abroad for one continuous year by the U.S. petitioning employer’s parent, branch, subsidiary, or affiliated company. L-1 visas are granted to those employees who have served in a managerial, executive, or specialized knowledge capacity abroad and are entering the U.S. to assume a managerial or executive position (classified as L-1A) or a specialized knowledge role (classified as L-1B). The employee need not be transferred to the U.S. in the same capacity in which he or she was employed abroad.
Requirements for L-1A visa classification include, but are not limited to:
Requirements for L-1B visa classification include, but are not limited to:
In general, an employer may request L-1 classification in two ways:
L-1A visa classification may be granted for an initial period of three years, with two-year extensions available up to a seven-year visa maximum. L-1B visa classification may be granted for an initial period of three years, with a two-year extension available up to a five-year maximum. Extensions beyond the five- or seven-year limits may be available for qualified applicants in limited circumstances, such as where the foreign national is able to document time spent outside the United States during the period of approved L-1 classification. The government recognizes dual intent for L-1 workers, who may continue to work in nonimmigrant L-1 status with the intent to remain for the duration of their temporary authorized stay while applying for permanent residence.
Dependent spouses and children are eligible for L-2 status, and L-2 dependents are eligible for U.S. employment authorization.
For specific legal advice or more information regarding L-1 visa classification requirements, please contact your Gibney representative.
The most common paths to obtaining permanent residence in the U.S. are outlined below. Applicants who demonstrate the intent to immigrate permanently to the U.S. may not be eligible for certain nonimmigrant visas.
An Application for Alien Employment Certification (or “labor certification application”) filed with the U.S. Department of Labor (DOL) is typically the preliminary step in obtaining employment-based permanent resident status.
To obtain an approved labor certification application, the employer must be able to demonstrate that there are no U.S. workers who are qualified, willing and able to perform the job offered to the foreign national. The employer must undertake a formal recruitment effort to test the U.S. labor market prior to filing the labor certification application. If no qualified U.S. workers are found, the application may be filed.
The current labor certification process is governed by the requirements of the Program Electronic Review Management (PERM) system. PERM involves the submission of a labor certification application to the DOL that contains certain employer attestations regarding the job opportunity and the employer’s recruitment activities, which are subject to a post-filing audit. A pre-filing PERM recruitment campaign for a professional position requires two advertisements in a Sunday newspaper, a 30-day job order with the State Workforce Agency, and three additional recruitment steps selected from the following options: the employer’s website, a job search website, a private employment firm, local and ethnic newspapers, the employer’s employee referral program, and on-campus recruitment activities.
Once a labor certification application has been approved by the DOL, the next step is for the employer to file an employment-based immigrant visa petition (Form I-140) to classify the beneficiary in the appropriate immigrant preference category.
There are limited exceptions to the labor certification requirement. For example, individuals who qualify as persons of extraordinary ability, outstanding professors or researchers, or multinational managers or executives are exempt from the labor certification process and may proceed directly to Stage 2.
Employment-based immigrant visa petitions fall into five preference categories:
|Preference Categories||Requirements to Qualify|
|1st Preference||Persons of Extraordinary Ability, Outstanding Professors or Researchers, and Multinational Executives and Managers.
(Labor Certification Exempt)
|2nd Preference||Members of the Professions with Advanced Degrees and Persons of Exceptional Ability|
|3rd Preference||Members of the Professions, Skilled Workers, and Unskilled Workers|
|4th Preference||Members of Certain Religious Organizations
(Labor Certification Exempt)
|5th Preference||Immigrant Investors
(Labor Certification Exempt
The sponsoring employer must file an employment-based immigrant visa petition (Form I- 140) on behalf of the foreign national to request classification in the appropriate employment-based preference category. An approved labor certification application is required for classification in the second and third preference categories, with limited exceptions.
There are a limited number of immigrant visas available in each preference category each year. The U.S. Department of State (DOS) controls the allocation of employment-based immigrant visas under the quota. Each month DOS releases a Visa Bulletin announcing the availability of immigrant visas, according to priority dates for each of the employment- based preference categories. If a labor certification application has been filed, the date of filing the labor certification application with DOL determines the priority date. If labor certification is not required, the date of filing the I-140 preference petition with USCIS determines the priority date.
The final stage in obtaining permanent residence in the U.S. requires the foreign national to either file an Application to Adjust Status (Form I-1485) with USCIS from within the U.S. (“adjustment of status”), or to apply for immigrant visa processing at a U.S. consulate abroad (“consular processing”).
Permanent residence applications can only be filed if an immigrant visa number is available. The availability of immigrant visas is published monthly by DOS in the Department of State Visa Bulletin, which indicates the availability of employment based immigrant visas based on the foreign national’s country of birth, preference category, and priority date (see discussion of preference categories and priority dates above). If the priority date is not current (i.e., immigrant visas are not yet available for that date), the foreign national must wait until it is current to file the application for permanent residence.
If an immigrant visa number is available at the time of filing the employment based immigrant visa petition (Form I-140), eligible applicants lawfully present in the U.S. may concurrently file the Application to Adjust Status (Form I-485). At this stage, the foreign national’s dependent family members in the U.S. may also file for adjustment of status and can obtain travel and employment authorization while their applications are pending.
U.S. citizens may petition the USCIS to classify certain family members as immediate relatives by filing a family-based immigrant visa petition (Form I-130). Immediate relatives are not subject to immigrant visa numerical restrictions (“quotas”) and include:
Certain other relatives of U.S. citizens and permanent resident aliens are subject to the annual quotas on visa issuance. These include:
|Preference Categories||Requirements to Qualify|
|1st Preference||Unmarried sons and daughters of U.S. citizens|
|2nd Preference||Spouses and unmarried children of permanent residents; Unmarried sons and daughters of permanent residents|
|3rd Preference||Married sons and daughters of U.S. citizens|
|4th Preference||Siblings of U.S. citizens|
Like employment-based immigrants, family-based applicants are assigned a priority date at the time the immigrant visa petition is filed with USCIS. The Department of State Visa Bulletin published each month also announces the availability of family based immigrant visas, according to preference category, priority date and country of birth. There are often long waiting lists for family-based applicants from over-subscribed countries such as India, China, Mexico and the Philippines. When the priority date is current, eligible beneficiaries of family-based petitions may apply for permanent residence by filing an Application to Adjust Status (I-485) with USCIS from within the U.S. or by applying for immigrant visa processing at a U.S. consulate in their country of last residence.
DOS makes immigrant visas available to a maximum of 55,000 persons annually through the Diversity Visa Program (Diversity Lottery). Each year DOS announces a registration period during which qualifying foreign nationals from designated countries may submit an application to participate in the Diversity Lottery. Foreign national applicants are selected at random through a computer-generated lottery drawing. If selected, the individual and his/her dependents may apply for an immigrant visa.
To qualify for participation in the Diversity Lottery, an applicant must be a native of a designated qualifying country (one with low rates of immigration to the U.S.) and must possess either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience.
For more information please visit the DOS website at
Certain U.S. lawful permanent residents may be eligible to apply for U.S. citizenship by filing an Application for Naturalization (Form N-400) with the USCIS. Prior to filing, applicants must meet certain qualifying criteria related to residence:
The residence and physical presence requirements are reduced to 3 years and 1 1/2 years respectively for U.S. permanent residents who are married to and have been living with U.S. citizens. Protracted periods abroad may break the qualifying residency period. In addition, all applicants are subject to security and background checks and must meet other qualifying criteria, including good moral character. Children under the age of 18 may qualify for naturalization derivatively through a parent’s application.
Naturalization applications are filed with USCIS regional service centers and then transferred to the local district immigration offices for interview of the applicant and final adjudication of the application. At the naturalization interview, with limited exceptions, the applicant will be tested on his/her ability to read and write English, and his/her knowledge of American history and principles of government. Once approved, the applicant is then sworn in as a U.S. citizen and is required to take an Oath of Allegiance to the United States. For more information about Naturalization, please visit www.uscis.gov or contact your Gibney representative.
White House http://www.whitehouse.gov
U.S. Department of Homeland Security (DHS) www.dhs.gov
U.S. Citizenship and Immigration Services (USCIS) www.uscis.gov
U.S. Customs and Border Protection (CBP) www.cbp.gov
U.S. Immigration and Customs Enforcement (ICE) www.ice.gov
U.S. Department of State (DOS) www.travel.state.gov
U.S. Department of Labor (DOL) www.dol.gov
U.S. Social Security Administration (SSA) www.ssa.gov
Internal Revenue Service (IRS) www.irs.gov
Non-Governmental Organizations with news and information regarding immigrant rights:
American Immigration Council www.americanimmigrationcouncil.org
American Civil Liberties Union www.aclu.org
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