General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

The Immigration and Nationality Act serves as the primary legislation that governs immigration in the United States. It is codified in Title 8 of the US Code. Case law from the federal district courts, appellate courts and the US Supreme Court is often relied upon to correctly interpret and apply immigration law. The US President also has the authority to change immigration laws and restrict the entry of foreign nationals through executive orders and presidential proclamations.

The Foreign Affairs Manual governs the operations of the Department of State (DOS). It outlines the rules and procedures that US consulates and embassies must follow in the visa adjudication process. The USCIS Policy Manual, which will replace the Adjudicator’s Field Manual, is used by the US Citizenship and Immigration Services (USCIS) to guide officers in adjudicating applications for immigration benefits. The Inspector’s Field Manual guides officers of Customs and Border Protection (CBP), the largest federal law enforcement agency of the US Department of Homeland Security.

Restrictions on cross-border movement

What laws, regulations and policies control movement across borders in emergency circumstances such as a pandemic? How have the border restrictions been implemented?

The National Emergencies Act authorises the US President to invoke special powers during a crisis.

In January 2020, former President Trump enacted several proclamations that restricted international travel to control the spread of covid-19 in the United States and increase national security. Over the course of the pandemic, regional travel restrictions were placed on foreign nationals, barring entry of travellers who were physically present in the People’s Republic of China, India, Iran, Brazil, South Africa, the Schengen Area, and the United Kingdom and Ireland during the 14 days prior to their entry into the United States. In October 2021, US President Biden issued a proclamation formally rescinding the covid-19 regional travel restrictions and outlined a new policy requiring full vaccination against covid-19 for non-US citizens and non-immigrants entering the United States by air. The proclamation took effect on 8 November 2021. 

As of 12 June 2022, the US Center for Disease Control and Prevention lifted the requirement for travellers to present a negative covid-19 viral test taken one day prior to air travel into the United States, regardless of citizenship. This ended the negative test requirement prior to departure on a US-bound aircraft that had been in place since January 2021. 

In relation to land border travel, to limit the spread of covid-19, the United States, Mexico and Canada enacted a reciprocal agreement in March 2020 to close their land borders to non-essential travel (ie, tourism and recreation). Individuals travelling for essential work, medical or academic purposes were exempt from the restriction, as well as US citizens and lawful permanent residents. However, beginning in November 2021, the suspension on land travel was lifted and foreign travellers who were fully vaccinated against covid-19 and who were able to show appropriate documentation, were permitted to enter the United States for 'non-essential' activities. As of January 2022, the Department of Homeland Security broadened the vaccination requirement to include foreign nationals crossing via a land border or ferry service for both 'essential' and 'non-essential' travel. 

US citizens and lawful permanent residents remain exempt from the vaccination requirements for entry to the United States via air, land crossing, and ferry. 

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

While the United States has 14 free trade agreements in force with 20 partner countries (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Jordan, Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru and Singapore), only five agreements contain provisions that facilitate the temporary entry of business persons and temporary workers on a reciprocal basis. Specifically, under the agreement with Australia, up to 10,500 Australian citizens may be issued E-3 visas. Also, under the agreement with Chile, up to 1,400 Chilean citizens may be issued H-1B1 visas and, under the agreement with Singapore, up to 5,400 Singaporean nationals may be issued H-1B1 visas.

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The Agreement also created a non-immigrant classification for Canadians and Mexicans known as ‘trade national’ (TN). The TN classification permits qualified Canadian and Mexican citizens to enter the United States to work temporarily in one of 63 professional categories.

On 1 July 2020, NAFTA was replaced by the US–Mexico–Canada Agreement. The new agreement did not alter the TN provisions.

In addition to free trade agreements, the United States maintains a treaty of commerce and navigation with approximately 70 countries. Such treaties permit foreign investors and entrepreneurs to work in the United States under E-1 Treaty Trader or E-2 Treaty Investor status. A full list of participating countries is posted on the DOS website.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

Multiple federal agencies are involved in the application and enforcement of US immigration laws. The DOS is responsible for issuing non-immigrant and immigrant visas to foreign nationals at US consular posts and embassies worldwide. Visa application denials by consular officers cannot be appealed.

The Department of Homeland Security (DHS) is a cabinet agency responsible for public security. There are 22 government agencies with distinct mandates under the DHS umbrella, including USCIS, CBP and Immigrations and Customs Enforcement (ICE). The USCIS is responsible for immigration benefits adjudication. Petitioners and applicants for certain categories of immigration benefits may appeal adverse decisions with the Administrative Appeals Office (AAO). The AAO conducts administrative reviews to ensure consistency and accuracy in the interpretation of immigration law by the USCIS.

The CBP makes the final determination regarding admission into the United States. Decisions made by the CBP may be reviewable in certain circumstances. Deference is usually given to the agency.

ICE conducts investigations and carries out immigration enforcement. ICE officials have the authority to apprehend, detain and remove individuals who violate US immigration laws. ICE also manages the Student and Exchange Visitor Program, which governs the eligibility and admission of foreign students and trainees into the United States. The Executive Office for Immigration Review (EOIR) of the US Department of Justice adjudicates proceedings related to US immigration law, including removal hearings. EOIR decisions can be appealed to the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting and applying immigration laws. BIA decisions are binding unless modified or overruled by the Attorney General or a federal court, and most are subject to judicial review in federal courts.

The Department of Labor (DOL) oversees the employment of foreign workers under the H-1B, H-1B1, H-2, E-3 and Program Electronic Review Management (PERM) labour certification programmes. The DOL’s function is to ensure that US workers are not adversely impacted by the employment of foreign workers. Similarly, through its Wage and Hour Division, the DOL is responsible for administering various provisions of the Immigration and Nationality Act that protect foreign workers while employed in the United States.

Before offering a permanent role to a foreign worker, US employers are generally required to test the labour market in the intended area of employment and attest that no able, willing, qualified and available US workers applied for the position in question. The denial of a PERM application may be appealed to the Board of Alien Labor Certification Appeals.

Government policy

In broad terms what is your government’s policy towards business immigration?

Stating that immigrants are key drivers to economic growth, President Biden has vowed to modernise America's immigration system to attract the best and brightest of the world. The Biden administration suspended and withdrew several Trump-era policies that would have restricted the employment of foreign workers in the United States. 

US consulates and embassies worldwide have gradually resumed routine visa services pursuant to local health and safety conditions since consular services was initially suspended in March 2020 owing to the pandemic. As international travel returns to pre-pandemic volumes, the US consulates and embassies are experiencing increased demand for visa appointments, while travellers and visa applicants are experiencing significant wait times to schedule visa interviews, which in turn has impacted the ability of business travellers and foreign workers to travel to the United States timely for US-based assignments.   

Most Canadian non-immigrant workers are exempt from the need to obtain a visa from a US consulate or embassy before admission. Canadians have been able to continue to seek admission to the United States for employment. They have continued to present their application packages directly to CBP posts at land border crossings and at pre-clearance offices located in Canadian airports.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

Travellers from a visa-exempt country participating in the Visa Waiver Program (VWP) intending to stay in the United States for 90 days or less must file an Electronic System for Travel Authorization (ESTA) in advance. Before boarding, the airline will electronically verify the approved travel authorisation. However, the final decision to admit a traveller into the United States rests with the Customs and Border Protection (CBP) officer at the point of entry. Indeed, the inspecting officer must be satisfied that the admission fits within the scope of the classification under which admission is sought.

A foreign business visitor from a non-participating VWP country is obliged to secure a B-1 visa from a US consulate or embassy before travel. Even with a valid visa, the traveller will still be subject to inspection by the CBP at the point of entry.

Restrictions

What are the main restrictions on a business visitor?

B-1 business visitors may participate in certain commercial or professional activities in the United States including (but not limited to) participating in business meetings, attending conferences, engaging in litigation, providing certain after-sales services pursuant to an international sales agreement and negotiating contracts. B-1 visa holders are generally not permitted to carry out productive work while in the United States or receive payment from a US source. Visitors must have sufficient funds to support themselves for the length of their stay. They must maintain a residence outside the United States that they do not intend to abandon.

B-1 business visitor admission is normally limited to the duration of the activities to be carried out, typically up to a maximum of six months. The CBP officer has discretion to admit the visitor for the period of time that they deem appropriate.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

Employment authorisation is generally not required to receive short-term training in the United States. Several factors must be considered that include the nature and length of the training programme, source of remuneration and purpose of the training. In some cases, an H-3 non-immigrant visa will be required to receive training.

Providing training in the United States is generally considered productive work that necessitates employment authorisation. However, a foreign national may provide training in the United States in the context of an international sales agreement that provides for after-sales services. The agreement must specifically require the foreign seller to provide after-sales services, including training.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

Transit visas (called C visas) are required for citizens of non-visa-exempt countries, even for a brief stopover. Travellers who are visa-exempt under the VWP may use their ESTA to transit through the United States.

An individual holding a valid B-1 or B-2 visa may also use that visa to transit through the United States.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

Travellers from a visa-exempt country participating in the VWP intending to stay in the United States for 90 days or less must file an ESTA in advance. Before boarding, the airline will electronically verify the approved travel authorisation. However, the final decision to admit a traveller into the United States rests with the CBP officer at the point of entry. The inspecting officer must be satisfied that the admission fits within the scope of the visitor category.

Canadian citizens generally do not require a visa or ESTA to enter the United States. Canadians do, however, require visas to enter the United States in E or K status. The general visa exemption allows Canadian citizens to submit their request for admission directly at a US point of entry.

The United States has several trusted traveller programmes, including Global Entry, TSA Pre✓®, SENTRI, NEXUS and FAST. These are risk-based programmes to facilitate entry of pre-approved travellers. All applicants are vetted to ensure that they meet the qualifications for the programme in which they seek to join. Members of a trusted traveller programme must continue to meet these qualifications.

Enrolment in a trusted traveller programme does not guarantee entry to the United States but allows the use of expedited lanes at participating US airports and land borders.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The categories most commonly used by companies to transfer skilled staff are outlined below.

 

L-1A and L-1B classification for intra-company transferees

The L-1A classification allows international companies (with offices in the United States and abroad) to transfer senior managers and executives to the United States. The L-1B classification applies to transferees who will fill a specialised knowledge position in the United States. To be eligible, the foreign employee must have worked abroad with a qualifying business in a senior managerial, executive or specialised knowledge position for at least one continuous year within three years preceding their entry to the United States to work in a senior managerial, executive or specialised knowledge role. The role to be filled in the United States need not be the same as that which was performed abroad.

The L-1 category allows immigrant intent, meaning that an L-1 worker may enter the United States with the intention of remaining in the country permanently.

While limited exceptions exist, the maximum time that may be spent in the United States in L-1A status is normally capped at seven years, whereas admission to the United States in L-1B status is typically restricted to five years.

 H-1B category for speciality occupation workers

US employers may temporarily hire qualified foreign employees to work in a speciality occupation, which is defined as an occupation requiring at least a four-year US bachelor’s degree, or equivalent, for entry. The H-1B visa is subject to an annual limitation. Specifically, 65,000 H-1B visas are allocated each year, of which 6,800 are reserved for citizens of Chile and Singapore. There is a separate quota of 20,000 visas for speciality occupation workers who hold a US master’s degree, or higher.

The H-1B category allows immigrant intent and, with certain exceptions, may only be held for a maximum of six years.

 

Trade national classification for Canadian and Mexican nationals in certain professions

The trade national (TN) classification allows citizens of Canada and Mexico to engage in pre-arranged business activities in the United States. Sixty-three professions qualify for TN classification, including, but not limited to:

  • accountants;
  • architects;
  • computer systems analysts;
  • economists;
  • engineers;
  • graphic designers;
  • attorneys;
  • mathematicians;
  • scientific technicians and technologists; and
  • urban planners.

 

The TN category does not permit immigrant intent and may be extended indefinitely.

 

E-3 classification for Australian speciality occupation workers

E-3 classification is available to Australian professionals seeking to enter the United States to work in a speciality occupation. Applicants must have a four-year bachelor’s degree or equivalent.

The number of E-3 visas issued each year is limited to 10,500.

The E-3 visa classification does not allow immigrant intent and may be extended indefinitely.

 

E-1 classification for treaty traders and E-2 classification for treaty investors

The E-1 classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her behalf. Certain employees of such a person or a qualifying organisation may also be eligible for this classification.

The E-2 non-immigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a US business. Certain employees of such a person or a qualifying organisation may also be eligible for this classification.

The E-1 and E-2 classifications do not permit immigrant intent and may be renewed indefinitely.

 

O-1 classification for aliens of extraordinary ability or achievement

The O-1 category is for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or have a demonstrated record of extraordinary achievement in the film or television industry and have been recognised nationally or internationally for their achievement.

The O-1 classification is not statutorily recognised as permitting immigrant intent, and it may be extended indefinitely, so long as the criteria for extension are satisfied.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

A foreign national may begin their employment duties after entering the United States in a work-authorised status. For most individuals, an employment-based visa must be secured at a US consulate or embassy before seeking entry to the United States to begin employment.

Employers wishing to hire individuals who are already in the United States and require sponsorship may file a petition with the US Citizenship and Immigration Services (USCIS) to secure work authorisation for an employee. In most cases, employment cannot commence until the USCIS has approved the petition. Employers requiring an employee’s services urgently may file a petition for premium processing. This service does not, however, apply to all categories. The fee for premium processing has recently increased to USD$2,500. The USCIS is required to act on a petition filed for premium processing within 15 calendar days from the date of receipt.

Some types of applications for US work authorisation do not involve a US consulate, embassy or USCIS (eg, Canadian nationals may apply for designation as a TN professional or L-1 intra-company transferee at a US port of entry).

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

There is a distinction between the validity period of a visa and the period of stay granted by Customs and Border Protection (CBP) at the point of entry. More specifically, the validity period of a visa will vary depending on the Department of State (DOS) reciprocity table. The period of stay granted to the holder of a visa is guided by its classification and remains subject to the discretion of the CBP officer.

Generally, the L-1, H-1B, TN and O-1 categories allow for an initial admission period of three years. Extensions under L-1 status are usually granted in increments of two years at a time. In addition, E-3 visas are issued with an initial validity period of two years. The E-1 and E-2 visas may be granted with a validity period of up to five years subject to the DOS reciprocity table. However, periods of stay granted under E-1 or E-2 status are generally limited to two years at a time.

Extensions are permitted for most visa categories. The number of extensions permitted and the total amount of time for which a person may remain in the United States in a specific status will vary depending on the classification in question and the availability of certain exceptions.

Processing time

How long does it typically take to process the main categories?

The length of time required to adjudicate a US immigration petition varies considerably depending on the specific category, application procedure and current government processing time.

Canadian citizens seeking status as a TN or intra-company transferee may apply at a US port of entry, which typically results in instant adjudication.

The USCIS typically takes several months to process most petitions, although certain types of petitions may be adjudicated under premium processing for an additional fee of USD$2,500. The USCIS guarantees that action will be taken on a petition filed under premium processing within 15 calendar days of receipt.

Individuals requiring a visa to enter the United States must apply for a visa stamp at a US consulate or embassy. Waiting times vary by consulate and embassy. During busy periods, it may take several weeks to secure a visa appointment. Emergency appointments are available and subject to the discretion of the authorities. Following the appointment, the US consulate or embassy usually takes between five and 10 business days to return the foreign national’s passport containing the newly issued visa.

Some visa applications require administrative processing, which involves the completion of additional checks before approval. Administrative processing is usually completed within 60 days of a visa interview, although in rare instances it may take several months.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

Generally speaking, US employers are not required to provide housing or any relocation assistance to foreign workers, but they must offer benefits on the same basis as those provided to US workers (eg, health insurance, paid annual leave and holidays).

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

USCIS, CBP and DOS officers are required to follow objective criteria when adjudicating applications for immigration benefits, but they have authority to exercise discretion as appropriate. Manuals are provided to officers to help ensure consistency in case of adjudication.

Importantly, certain immigration categories must involve subjective determinations because the criteria themselves are not objective. For instance, the ‘specialised knowledge’ criterion is subjective and approval in the L-1B category will hinge on the adjudicator’s inherent determination that the worker meets the threshold.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

The EB-5 Immigrant Investor Visa Program and E-2 Treaty Investor Visa are aimed at encouraging economic growth and foreign investment into the United States. These two categories are most appropriate for high net worth individuals or investors.

 

EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor Visa Program allows certain foreign investors to become permanent residents. To qualify, applicants who apply for EB-5 must invest at least US$1.8 million to finance a US business employing at least 10 qualifying employees on a full-time basis. Qualifying workers include US citizens, lawful permanent residents or other immigrants authorised to work in the United States, including conditional residents, temporary residents, asylees, refugees and persons residing in the United States under suspension of deportation. Immigrant investors, their spouses, sons or daughters are not qualifying employees in the EB-5 context.

A minimum investment of US$900,000 will suffice if it is made in a rural area or area of high unemployment. Applicants may invest individually or through a third-party intermediary known as a ‘regional centre’.

Immigrant investors must establish that they are the legal owner of the capital invested.

 

E-2 treaty investor

The E-2 non-immigrant visa category allows a citizen of a country with which the United States maintains a treaty of commerce and navigation to enter the United States to develop and direct the operations of an enterprise in which the individual has invested or is in the process of investing. The investment must be substantial, which is interpreted to mean that it is sufficient to ensure the successful operation of the enterprise. Moreover, speculative, passive or idle investments do not qualify. The foreign national must also have control over the funds and the investor must be subject to loss if the enterprise fails.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

There is no fast track to US citizenship. However, the EB-5 category is considered an expeditious option for securing US permanent resident status. To qualify, an individual must invest at least US$1.8 million to finance a US business employing at least 10 qualifying employees on a full-time basis. Qualifying workers include US citizens, lawful permanent residents or other immigrants authorised to work in the United States, including conditional residents, temporary residents, asylees, refugees and persons residing in the country under suspension of deportation. Immigrant investors, their spouses, sons or daughters are not qualifying employees in the EB-5 context.

A minimum investment of US$900,000 will suffice if it is made in a rural area or area of high unemployment. Applicants may invest individually, or through a third-party intermediary known as a ‘regional centre’. Immigrant investors must establish that they are the legal owner of the capital invested.

Highly skilled individuals

Is there a special route for highly skilled individuals?

Individuals with extraordinary ability, outstanding professors or researchers and foreign nationals whose presence in the United States is deemed to be in the national interest may apply for US permanent resident status without first having to go through the labour certification process. In some cases, premium processing may be available to further expedite the process of securing US permanent resident status.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Under the Jay Treaty and corresponding legislation, certain indigenous people born in Canada are entitled to enter the United States to live or work (or both) without restriction. To qualify, an individual must demonstrate that they have at least 50 per cent indigenous ancestry by showing supporting documentation, such as a status card from the Ministry of Indigenous Services.

Also, an individual born outside the United States may qualify for US citizenship through birth if at least one parent was a US citizen at that time. Foreign-born children adopted by a US citizen parent may also acquire US citizenship.

A child may become a US citizen through the process of derivation if at least one parent becomes a US citizen via naturalisation. However, at the time the parent becomes naturalised, the child must be under 18 years of age, a permanent resident and live with the naturalised parent.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

Employers employing a worker in H-1B or E-3 status must pay the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment. The prevailing wage is determined by the Department of Labor (DOL). The actual wage is the salary paid to employees in the same or similar role as the one held by the foreign worker.

Resident labour market test

Is there a quota system or resident labour market test?

Some visa categories, including the H-1B, H-1B1 and E-3 categories, are subject to annual limitations but do not require a labour market test. There is no quota associated with the L, TN, E-1, E-2 and O categories.

Employers seeking to hire temporary workers in the H-1B, H-1B1 and E-3 programmes must file a Labor Condition Application with the DOL and provide advance notice to their employees about the sponsorship of a foreign worker. Likewise, in the permanent residency context, US employers generally need to go through the Program Electronic Review Management labour certification process. This process involves testing the labour market in the intended area of employment. More specifically, the sponsoring employer must post several external advertisements for the position and an internal notice for at least 30 days. Following the active recruitment period, the employer must continue to receive applications for another 30 days. The employer is responsible for screening all applicants against the minimum requirements for the position and identifying if any qualified, willing, able and available US worker candidates exist. It is not possible to obtain labour certification if a qualified, willing, able and available US worker is identified for the job opportunity in question.

Shortage occupations

Is there a special route for shortage occupations?

Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the DOL has determined that there are not sufficient US workers who are able, willing, qualified and available. Employers seeking to permanently employ non-US workers in occupations listed on Schedule A may utilise a highly streamlined process. To date, the occupations listed on Schedule A include:

  • physical therapists;
  • professional nurses;
  • scientists with exceptional ability;
  • artists of exceptional ability; and
  • performing artists of exceptional ability.
Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

Yes, the eligibility requirements depend on the visa category. For instance, the L-1 category requires that the beneficiary has been continuously employed by a qualifying entity outside the United States in a managerial, executive or specialised knowledge role for at least one year within the three years preceding the application for L-1 status.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Under US immigration law, third-party contractors are not typically authorised to obtain work authorisation on behalf of an employer. Petitions filed for aliens with extraordinary ability or achievement in the O-1 category may, however, be filed by an agent as opposed to an employer.

In limited circumstances, an employer may deploy a work-authorised foreign employee to a third-party client site to fulfil a contract; however, a valid employer-employee relationship must be maintained at all times. In other words, only the employer should control when, where and how the worker carries out the job duties. Also, an employer wishing to deploy a foreign employee to a third-party site must generally disclose this to the immigration authorities in advance of deployment.

Also, a foreign employer may send a third-party contractor to the United States to perform after-sales services for a buyer under an international sales agreement. In this case, the buyer would not have control over the contractor’s work and no remuneration would be provided from any US source. The ability for the foreign seller to send third-party contractors to perform these after-sales services should be explicitly indicated within the international sales agreement.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

The H-1B and E-3 visa categories require an expert evaluation of any degrees not obtained in the United States. An equivalency assessment may also be required for certain TN professionals who do not hold a degree from a US, Canadian, or Mexican educational institution.

If a beneficiary does not have a four-year US bachelor’s degree or foreign equivalent, or the individual has a degree that is not in a relevant field, then it may also be necessary to obtain an evaluation of the individual’s professional experience.

Equivalency evaluations may also be required for other foreign credentials if the US-based position to be filled requires professional membership or licensure.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

Tourists or business visitors should not enter the United States to work or to remain in the country on a long-term basis. Nonetheless, certain visitors in the United States can seek to change their status to a work-authorised classification if circumstances change after entering the country. This is normally accomplished by filing a petition with the US Citizenship and Immigration Services (USCIS) before the expiry of the individual’s authorised stay. In some situations, it may be easier and faster for the individual to simply depart the United States and apply for status in a work-authorised visa category from a US consulate or embassy abroad.

Long-term extension

Can long-term immigration permission be extended?

Long-term US immigration permission may typically be extended if the beneficiary continues to meet the eligibility criteria and the statutory time limit for the US immigration classification requested has not yet been reached.

H-1B status is normally granted for an initial period of three years and may be extended for an additional three years. In certain situations, H-1B status may be extended beyond the six-year maximum.

L-1B status is usually granted for an initial period of three years and then extended up to two years. Thus, the maximum time that a person may remain in the United States in L-1B status is five years.

Persons in L-1A status may also be admitted for an initial period of three years and extensions in increments of two years are permitted up to a total of seven years.

O-1 classification is typically granted for an initial period of three years and may be extended in three-year increments.

An individual in E-1, E-2 or E-3 status is generally permitted to extend indefinitely, although admission is normally granted in two-year increments.

Canadians and Mexicans admitted to the United States as trade national (TN) professionals may extend status for three years after their initial period of stay is complete. There is no limit on the number of extension requests that may be filed under the TN professional category.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

All travellers entering the United States by air or sea will receive an admission stamp in their passport that notes the date, class and expiry of admission to the country. An Electronic Arrival and Departure Record (Form I-94) may be downloaded online. Land crossings typically issue paper arrival and departure records. The admitted-until date shown on a foreign national’s Form I-94 is the official record of their authorised length of stay in the country.

When departing the United States, persons with a paper I-94 record must surrender it to the commercial carrier or Customs and Border Protection. However, it would not be necessary to surrender a paper I-94 record when travelling to Canada or Mexico for a duration of less than 30 days.

Individuals requiring a visa for admission to the United States for employment purposes must usually present a valid passport and visa stamp to re-enter the country. Canadian nationals are generally visa-exempt, but they are still required to present a valid passport. Canadians applying in certain work-authorised categories may also be required to present an I-797 approval notice issued by the USCIS.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

A permanent resident is an individual who is granted authorisation to live and work in the United States permanently. Once granted permanent residency, a person is issued a permanent resident card, commonly called a ‘green card’. An individual can become a permanent resident in several different ways, including:

  • sponsorship based on an offer of permanent employment in the United States;
  • the minimum investment in an enterprise that creates US jobs may qualify an individual for permanent resident status;
  • aliens of extraordinary ability and certain individuals granted a national interest waiver may self-petition for permanent residence;
  • family-based sponsorship; and
  • the Diversity Immigrant Visa Program (the DV Program), which makes up to 50,000 immigrant visas available annually, drawn from a random selection among all entries to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by the Department of State.

 

Other individuals may become permanent residents through refugee status or other humanitarian programmes.

 

Naturalisation

Naturalisation is the process by which US citizenship is granted to a foreign national after fulfilling specific statutory requirements established by Congress. To qualify, an applicant must be a permanent resident for at least five years, or file as a spouse of a US citizen and be a permanent resident for at least three years. Applicants must also pass a background check, demonstrate ability in reading, writing and speaking English, and pass a test on US history and civics.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

If a worker is no longer employed by the sponsoring employer and the approved period of employment authorisation has not expired, the employer should notify the appropriate government agency. The employer should also withdraw the Labor Condition Application associated with any H-1B or E-3 worker whose employment is terminated or resigns before the certification expires. Moreover, for terminated employees under H-1B or O-1 status, the employer must offer to pay the reasonable costs of return transportation home.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Holders of employer-specific work authorisation may not change employers without prior authorisation from the government and must continue to work in the capacity described in their initial application. When material changes to the terms and conditions of employment are planned (eg, a relocation or promotion to a different role), then a thorough review must be conducted which may result in the need to file an amendment with USCIS.

Dependants

Eligibility

Who qualifies as a dependant?

Spouses (including same-sex spouses) and unmarried children under the age of 21 qualify as dependents in the United States. While common law partners do not qualify as dependents, they may apply for visitor status in the B-2 visa category.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Dependent children are authorised to attend public or private school until they no longer qualify as dependants at age 21 or get married (whichever occurs first), after which they must apply for their visa to continue studies in the United States. Dependent children are generally not authorised to accept employment in the United States.

Pursuant to a USCIS policy update made in November 2021, dependent spouses of an L-1, E-1, E-2 or E-3 worker may work in the United States 'incident to status' (meaning employment authorisation is granted) and are no longer required to apply for an Employment Authorization Document (EAD) to evidence work permission in the US. Spouses of O-1 and trade-national (TN) visa status holders are not eligible to apply for an EAD. Certain H-4 dependent spouses may apply for an EAD if the primary H-1B visa holder is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) or has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act.

Access to social benefits

What social benefits are dependants entitled to?

Dependent children may attend US public school up until grade 12 at no cost.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

A foreign national with a criminal record may be barred from obtaining a US visa, depending on the type of crime committed, the severity of the conviction and how long ago the crime was committed. As per admissibility rules, a foreign national convicted of two or more offences with a sentence of five years or more is inadmissible to the United States. Also, an individual who committed a crime involving moral turpitude, including murder, manslaughter, rape, theft and fraud, may be deemed inadmissible to the United States. An exception exists if only one crime was committed, the maximum penalty for the crime did not exceed one year and the individual was not sentenced to a term of imprisonment of more than six months.

In some cases, a foreign national inadmissible to the United States owing to criminality may obtain a temporary waiver that would facilitate entry. The waiver would be valid for a limited duration but may be renewed.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

Employers

US employers must uphold the nation’s immigration laws by complying with all terms and conditions associated with the employment of a foreign worker. Employers are also obliged to comply with all labour conditions underlying H-1B and E-3 petitions.

US businesses are required to complete an I-9 record to verify the identity and employment authorisation of each individual hired.

Employers that are found to be non-compliant may be subject to civil fines, criminal penalties or debarment, or both, from government contracts. The sanction depends on the severity of the violation.

Workplaces are subject to audits and inspections by US government agents to ensure compliance with immigration laws and regulations. Reputational harm should also be taken into account, as the impact may be far-reaching.

 Employees

A foreign national who fails to maintain lawful immigration status in the United States by violating the terms and conditions of their visa may be subject to a removal order or may be barred from re-entering the country. A visitor who overstays their visit by 180 days will be barred from re-entering the United States for three years and an individual who overstays for one year or more may be barred from entering the United States for 10 years.

Language requirements

Are there any minimum language requirements for migrants?

While the United States does not have a minimum language requirement, international students must demonstrate English language proficiency by taking a Test of English as a Foreign Language or International English Language Testing System exam. The naturalisation process to become a US citizen also requires an applicant to demonstrate an understanding of the English language, including the ability to read, write and speak.

Medical screening

Is medical screening required to obtain immigration permission?

Immigrant visa applicants are required to undergo a medical examination by a physician designated by the US Citizenship and Immigration Services. A Report of Medical Examination and Vaccination Record (Form I-693) must be presented, completed and signed by the designated physician at the medical appointment. An applicant may be deemed inadmissible to the United States on health-related grounds, including:

  • contraction of a communicable disease of public health significance;
  • failure to show proof of required vaccinations;
  • a physical or mental disorder with associated harmful behaviour;
  • drug abuse; or
  • addiction.
Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

If an employee is expected to perform services at an external client site, this information must generally be disclosed by the employer on the petition or application for status, along with an explanation by the employer that it will retain control of the employee at all times during the requested period of employment.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

As a result of the conflict in Ukraine, in April 2022, US President Biden announced a new programme called 'Uniting for Ukraine' – a streamlined process of humanitarian parole that allows Ukrainian nationals and their immediate family who have been displaced during recent conflicts in their country to enter the United States for a temporary period. President Biden pledged to welcome up to 100,000 Ukrainian nationals as a result of the ongoing Russia-Ukraine crisis. Those approved under the Uniting for Ukraine process will be able to travel to the United States and be considered for parole on a case-by-case basis, for a period of up to two years.  Once paroled into the United States under the programme, Ukrainians will be eligible to apply for work authorisation.

This past year also saw increased benefits attributed to certain spouses of non-immigrant visa holders and their ability to work lawfully in the United States. Pursuant to a US Citizen and Immigration Service (USCIS)) policy update made November 2021, dependent spouses of an L-1, E-1, E-2 or E-3 worker may work in the United States 'incident to status' (meaning employment authorisation is granted) and are no longer required to apply for an Employment Authorization Document (EAD) to evidence work permission in the country. H-4 spouses are also now eligible for automatic extension of their work authorisation for up to 180 days, if they timely filed an EAD renewal application and continue to hold H-4 status beyond their current EAD expiry.

In addition, on 4 May 2022 the USCIS implemented a Temporary Rule qualifying certain employment authorisation renewal applicants who previously qualified for an automatic 180-day extension of their EAD for a longer automatic extension period of up to 540 days while their EAD renewal application is pending. This includes: EAD renewal applicants in multiple categories such as refugees, asylees, and those with an asylum application pending; holders of Temporary Protected Status granted; withholding of deportation or removal granted, applicants with pending adjustment of status; H-4 spouses; and Violence Against Women Act (VAWA) self-petitioners.

President Biden's expansion of immigration benefits for certain qualifying populations demonstrates his goal to modernise America's immigration system. Biden aims to ease restrictive immigration policies while balancing the needs for public safety, economic growth and protecting local labour markets. 

 

Coronavirus

Coronavirus overview

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

Law stated date

Correct on

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