General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

The primary legislation governing US immigration law is the Immigration and Nationality Act, which is codified in the United States Code, Title 8. Secondary regulations are published in the Code of Federal Regulations (CFR). Title 8 of the CFR deals with ‘Aliens and Nationality’. US immigration law is also interpreted by federal district courts, appellate courts and the US Supreme Court. Executive orders from the President of the United States have also been used to implement changes to immigration policy in the US. The US Department of State (DOS) has published the Foreign Affairs Manual and associated handbooks as an authoritative source for DOS’ policies and procedures that govern its operations.

International agreements

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

The United States has entered into the North American Free Trade Agreement (NAFTA), which provides for the admission of Mexican and Canadian citizens who are coming to the US to engage in business activities or work at a professional level as defined by NAFTA. The new United States-Mexico-Canada Agreement (USMCA) is set to replace NAFTA. The USMCA was signed on 30 November 2018 and will come into effect following the completion of Trade Promotion Authority procedures, including a Congressional vote on an implementing bill. The US has also entered into free trade agreements with Chile and Singapore that allow for the entry of speciality occupation professionals into the US under the H-1B1 visa. Chile receives a maximum of 1,400 H-1B1 visas and Singapore a maximum of 5,400 H-1B1 visas per year. The Australia-United States Free Trade Agreement created the E-3 visa category for Australian professionals. Australia receives a maximum of 10,500 E-3 visas each year. In addition, treaty trader (E-1) and treaty investor (E-2) visas are available for citizens of countries with which the United States maintains treaties of commerce and navigation.

Regulatory authorities

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

The Department of Homeland Security (DHS) has three sub-agencies that regulate US immigration: US Citizenship and Immigration Services (USCIS), US Customs and Border Protection (CBP), and US Immigration and Customs Enforcement (ICE).

USCIS adjudicates petitions for non-immigrant (temporary) benefits and immigrant (permanent) benefits. USCIS has several service centres for case adjudications, specialised asylum offices and application support centres throughout the United States. Petitioners and applicants for certain categories of immigration benefits may appeal a negative decision by USCIS to the Administrative Appeals Office (AAO). The AAO conducts administrative reviews of those appeals to ensure consistency and accuracy in the interpretation of immigration law by USCIS. In certain cases, it is also possible to file suit with the Federal Court without having first appealed to the AAO.

CBP facilitates lawful trade and travel at US ports of entry. CBP officers make decisions regarding the eligibility of a foreign national to enter the United States in the requested category and determine the appropriate duration of permitted stay. Individuals wishing to submit a formal complaint pertaining to an encounter with a CBP officer can contact the CBP Info Center.

ICE is the investigative and enforcement arm of DHS. ICE enforces federal laws regarding border control, customs, trade and immigration. ICE officers identify, investigate and apprehend foreign nationals subject to removal from the United States. ICE attorneys prosecute foreign nationals in removal proceedings before an immigration judge. The Executive Office for Immigration Review, part of the US Department of Justice, is responsible for the US immigration court system. Decisions of an immigration judge can be appealed to the Board of Immigration Appeals.

The US Department of Labor (DOL) protects US workers from being displaced by foreign workers and ensures that US wages are not lowered by the use of foreign workers. The DOL adjudicates the permanent labor certification program (PERM), which is required for most employment-based permanent residence (green card) cases. PERM denials can be appealed to the Board of Alien Labor Certification Appeals. The DOL also issues Labor Condition Applications (LCAs) for H-1B petitions, as well as for H-1B1 and E-3 cases. Both the PERM process and the LCA requirement are intended to protect US workers and wage levels. The DOL has enforcement authority permitting investigations of LCA violations and the issuance of related fines and penalties. DOL decisions can be appealed to administrative law judges and further appeals would go to the DOL’s Administrative Review Board (ARB). Depending upon the statute at issue, parties may appeal the ARB’s decisions to federal district or appellate courts and ultimately to the US Supreme Court.

The DOS manages the diplomatic and international relations of the US government. The DOS Bureau of Consular Affairs manages US embassies and consulates overseas. US embassies and consulates are responsible for issuing visas to foreign nationals to permit travel to the United States. Visa denials cannot be appealed; however, applicants or their advocates may seek an advisory opinion on legal issues that they believe were decided in error. The DOS also controls visa numbers in connection with the green card process. The DOS also monitors visa number usage and availability, and issues the monthly Visa Bulletin.

Government policy

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

Current US immigration law permits foreign nationals with certain knowledge, skills and abilities to be admitted to the US on either a temporary (non-immigrant) or permanent (immigrant) basis to meet specific labour market needs. There are numerous categories under which an individual may be granted non-immigrant status to enter the US for business purposes, including the following:

  • business visitor;
  • specialty occupation professional;
  • professional under NAFTA;
  • intra-company transferee;
  • treaty trader;
  • treaty investor; and
  • individual with extraordinary ability or achievement.

There are also several categories under which a foreign national may qualify for an immigrant (permanent residence) visa. These categories are prioritised based on the needs of the US labour market, as determined by Congress. The number of immigrant visas issued in each category is determined by both annual and per-country numerical limits.

Certain business immigration applications require that the petitioning employer demonstrate to the DOL that no US workers are able, willing, qualified or available to take the position to be filled by the foreign national beneficiary. Moreover, an employer may need to attest that hiring the foreign national will not negatively impact the wages and working conditions of similarly situated US workers. Companies are subject to strict penalties for failing to comply with the tightly regulated conditions relating to the employment of foreign workers in the US.

Short-term transfers

Visas

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

A short-term business visitor will require a visa if he or she is not a citizen of either a visa-exempt country or a nation that participates in the Visa Waiver Program (VWP) administered by DHS. The Electronic System for Travel Authorization (ESTA) is an automated system used to assess eligibility to travel to the US under the VWP and to confirm whether such travel poses any risk. Upon completion of an online ESTA application, an applicant is notified of his or her eligibility to temporarily travel to the US without a visa.

A short-term business visitor who requires a visa to enter the US will need to apply for the required visa stamp at a US consulate or embassy. The individual will need to attend an interview as part of the application process.

Restrictions

What are the main restrictions on a business visitor?

Business visitors may enter the US for a period of stay up to six months, although individuals entering under the VWP are only permitted to remain in the US as a business visitor for 90 days. In practice, a foreign national will only be admitted to the US as a visitor for the period of time required to complete his or her business activities.

Permissible activities for a business visitor in the US include the following:

  • consulting business associates;
  • attending business meetings;
  • travelling for a scientific, educational, professional or business convention or a conference on specific dates;
  • conducting independent research; and
  • negotiating a contract.

A business visitor generally may not engage in ‘hands-on’ work in the US or receive remuneration from a US source.

Short-term training

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

Work authorisation is generally not required for individuals providing short-term training on products or technology purchased by a US entity from a supplier abroad. In addition, work authorisation is generally not necessary to provide specific short-term training involving the transfer of information from a foreign entity to a related US organisation.

Persons entering the US to receive short-term training do not typically require work authorisation, so long as the training activities do not constitute productive employment.

Foreign nationals entering the US to give or receive training may not receive any remuneration from a US source.

Transit

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

US transit visas are not required for citizens of visa-exempt countries. Travellers permitted to enter the US under the VWP or who hold a valid business visitor visa generally do not require a transit visa. All other foreign nationals require a transit visa to travel through the US. To obtain a transit visa, travellers must apply at a US consulate or embassy.

An applicant for a transit visa must establish that he or she intends to pass in immediate and continuous transit through the US. Transit aliens must have onward transportation arrangements to a final destination outside the US.

Visa waivers and fast-track entry

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

Citizens of visa-exempt countries or nations that participate in the VWP administered by DHS do not need a visa for certain types or lengths of stay. Certain cases are also eligible for premium processing, which allows for an approval, a denial or a Request for Evidence to be issued within 15 calendar days for an additional US$1,410 government filing fee. In addition, companies eligible for the Blanket L are able to have employees apply for an L-1 visa directly at the US consulate, rather than awaiting prior approval through USCIS.

Long-term transfers

Categories

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

The work permit categories most commonly used by companies to transfer skilled personnel are outlined below.

H-1B - specialty occupation professional

The H-1B category allows US employers to hire certain foreign employees in specialty occupations. US immigration regulations define ‘specialty occupation’ as an occupation that normally requires a minimum of a four-year US bachelor’s degree or equivalent for entry.

There is a limit or quota of 65,000 new H-1B visas that can be issued each year. The US sets aside 6,800 of these H-1B visas for citizens of Chile and Singapore.

A separate quota of 20,000 H-1B visas is reserved for beneficiaries who have attained a US master’s degree or higher. Petitions filed on behalf of beneficiaries who hold a US master’s degree or higher will be counted against the regular H-1B quota once the USCIS receives sufficient petitions to reach the advanced degree cap.

E-3 - Australian specialty occupation professional

E-3 visas are available for Australian citizens who meet the criteria for an H-1B visa, as stated above. The number of E-3 visas issued is limited to 10,500 per fiscal year.

Professional under NAFTA

NAFTA establishes the rules of trade and investment between Canada, the US and Mexico. The non-immigrant NAFTA professional (TN) category allows citizens of Canada and Mexico to engage in prearranged business activities in the US as NAFTA professionals. NAFTA provides that a citizen of either Canada or Mexico may work in a professional occupation in the US provided that the following criteria are met:

  • the applicant’s profession is among the 63 occupations listed in NAFTA Appendix 1603.D.1;
  • the applicant meets the specific criteria for the occupation; and
  • the applicant will engage in business activities at a professional level in the occupation.
L-1A or L-1B - intra-company transferee

L-1 status is used to transfer employees from a company abroad to a related entity in the US. L-1A classification applies to aliens seeking admission to the US to assume an executive or managerial role, while L-1B classification is reserved for foreign nationals entering the US to perform work in a ‘specialised knowledge’ capacity. To qualify for L-1 status, an individual must have been employed full-time with a qualifying organisation outside the US for at least one continuous year in the past three years in a position that was either managerial or executive in nature or required the application of specialised knowledge. A qualifying organisation is a US or foreign firm that is or will be doing business on a regular, systematic and continuous basis providing goods or services, or both. Branches, affiliates, joint ventures and subsidiaries are all considered qualifying organisations in the L-1 context.

E-1/E-2 - treaty trader/treaty investor

E-1 or E-2 non-immigrant visa status may be granted based on either substantial trade or investment undertaken by a foreign national or company with the same nationality as a country that has entered into a treaty of commerce and navigation with the US. An applicant for E-1 or E-2 status must be required in the US to provide either managerial direction or highly specialised skills essential to the successful operation of the enterprise.

O-1 - alien with extraordinary ability or achievement

The O-1 non-immigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industries and have been recognised nationally or internationally for those achievements.

Procedures

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

The procedure for obtaining US work authorisation is determined by the category under which an individual applies and his or her country of citizenship.

In most cases, the process begins by filing a petition with USCIS. Once the petition is approved, the beneficiary will apply for a visa stamp (if required) at a US consulate or embassy abroad and then enter the US to begin work.

Some applications for US work authorisation do not involve USCIS. For example, Canadian nationals may apply for admission as a NAFTA professional or L-1 intra-company transferee at a US port of entry, and Mexican citizens are permitted to apply for NAFTA professional status at a US consulate or embassy. In addition, E visa applicants may submit their application directly to a US consulate or embassy. Finally, employers with an approved L-1 blanket petition may direct foreign national employees to apply for L-1 status at a US consulate or embassy abroad without first obtaining an individual approval from USCIS.

A US employer who intends to submit an H-1B or E-3 petition on behalf of a non-immigrant worker must file a labour condition application (LCA) with the DOL. Each H-1B and E-3 petition must include an LCA approved by the DOL.

To prevent an adverse impact on the US workforce, the employer applying to temporarily hire a non-immigrant worker in H-1B or E-3 status must make the following attestations:

  • employment of the foreign worker will not adversely affect the wages and working conditions of US workers similarly employed in the area of intended employment;
  • the employer will pay the foreign national the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment;
  • the employer will notify employees that an LCA is being filed; and
  • at the time the application is signed, there is no strike, lockout or work stoppage related to a labour dispute in the occupation.

In most situations, employment cannot commence until the individual has been admitted to the US in work-authorised status.

Period of stay

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

Classification in the H-1B, TN, L-1 and O-1 categories is normally granted for an initial period of three years. In most instances, E-3 visas are issued with an initial validity period of two years. E-1, E-2 and L-1 visas may be issued for up to five years, but individuals are often only admitted to the US for two or three years at a time.

Extensions are permitted for most visa categories. The number of extensions permitted and the total amount of time that a person may remain in the US depends on his or her category. See question 27.

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 times relating to the filing in question.

Canadian citizens seeking status as a NAFTA professional or intracompany transferee may apply at a US port of entry, which typically results in an on-the-spot decision. However, there is currently a pilot programme at the Blaine port of entry that may affect this in the future.

Most applications filed with USCIS take several months to be processed, although certain types of cases may be submitted for premium processing service for an additional fee of US$1,410. USCIS guarantees 15-calendar day processing of applications filed for premium processing, which is typically prolonged if there is a Request for Evidence.

Individuals who require a visa to enter the US must apply for a visa stamp at a US consulate or embassy. Wait times vary by visa post and fluctuate depending on the volume of applications received. During busy periods, it may take several weeks to secure a visa appointment. Following the appointment, the US consulate or embassy will usually take five to seven business days to provide the actual visa stamp.

Some visa applications require ‘administrative processing’, which involves completion of additional checks before a visa stamp will be issued to an applicant. Administrative processing is usually complete within 60 days of a visa interview, although it may take several months to conclude.

Staff benefits

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

An employer who intends to file either an H-1B or E-3 application on behalf of a foreign worker must attest that the individual will be offered benefits and eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to US workers.

Assessment criteria

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

US immigration authorities generally follow objective criteria, but they are also permitted to exercise discretion based on subjective factors. For example, the adjudication of an L-1B petition requires careful consideration of certain objective criteria; however, the final determination as to whether the beneficiary is a ‘specialised knowledge’ worker will often turn on the officer’s subjective reasoning. In October 2017, a USCIS policy memo was issued requesting adjudicators to no longer give deference to prior case approvals.

High net worth individuals and investors

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

There are two visa categories that may be considered a special route for high net worth individuals or investors.

EB-5 - Immigrant Investor Program

USCIS administers the Immigrant Investor Program, also known as EB-5, created by Congress to grant US permanent residence to foreign investors who stimulate the US economy through job creation and capital investment. EB-5 visa holders must generally invest a minimum of US$1 million in the US, although a minimum investment of US$500,000 may suffice if the foreign national invests in either a rural area or an area with high unemployment. On 24 July 2019, a final rule was published that makes significant changes to the EB-5 programme, including increasing the standard minimum investment amount from US$1 million to US$1.8 million, and the minimum investment amount for a targeted employment area from US$500,000 to US$900,000, effective from 21 November 2019.

E-2 - treaty investor

The E-2 non-immigrant visa category allows a citizen of a country with which the US maintains a treaty of commerce and navigation to enter the US 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, the investment must be operational; speculative, passive or idle investments do not qualify. The foreign national must also have control over the funds and the investment 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?

See question 16 regarding the EB-5 programme.

Highly skilled individuals

Is there a special route for highly skilled individuals?

The US provides H-1B visas for specialty occupation workers, L-1B visas for specialised knowledge workers and O-1 visas for extraordinary ability workers. There are also permanent residence routes for those with extraordinary ability and exceptional ability, as well as for outstanding researchers and professors.

Ancestry and descent

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

Certain additional non-immigrant visa categories are available to foreign nationals based on their nationality (ie, E-1, E-2, E-3, TN and H-1B1). There are also special provisions for certain First Nations and Native Americans. Specifically, under the Jay Treaty, Native Indians born in Canada are entitled to freely enter the US for employment, study, retirement, investing or immigration. Also, certain people may find themselves to be US citizens by virtue of their birth to a US citizen parent.

Minimum salary

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

Employers who file either an H-1B or E-3 application on behalf of a foreign national must attest that the individual will be paid 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 DOL based on wage survey results. The actual wage is the salary paid to employees in the same or similar role as the one to be assumed by the foreign worker.

Resident labour market test

Is there a quota system or resident labour market test?

The US issues an annual quota of 65,000 H-1B visas for specialty occupation workers and 10,500 E-3 visas for Australian citizens who meet the criteria for an H-1B visa.

In recent years, the H-1B cap has been met within the first week of the date on which the US government began accepting applications for the next fiscal year.

Although the E-3 visa category is also subject to an annual quota, it has never been met.

There is no labour market test for the main categories.

Shortage occupations

Is there a special route for shortage occupations?

No. Although occupations in which there is a notable shortage of labour may be taken into account in the design of US immigration law, the focus of the regulations is the requirement to obtain certain immigration benefits, rather than on specific occupations.

Other eligibility requirements

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

No.

Third-party contractors

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

It is typically necessary for an employer to establish that it has a valid employer-employee relationship with the sponsored foreign worker, meaning that the employer has authority to hire, fire and pay the individual. In addition, the employer should exercise the right to control the means and manner in which the beneficiary performs the job. No single factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the required employer-employee relationship exists.

An exception to the above is that petitions filed for aliens with extraordinary ability or achievement in the O-1 category may be filed by an agent as opposed to an employer.

It is generally permissible for an employer to enter into a contract with another party to provide services to be performed by a US visa holder, so long as a bona fide employer-employee relationship exists between the sponsoring US employer and the foreign worker at all times. In the event that the contract requires the visa holder to provide services at an end-client or third-party location, this information must be disclosed in any H-1B, E-3 or L-1 petition filed by the employer, along with documentation that establishes the existence of the required relationship even while the beneficiary works off-site.

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 US. 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.

An academic equivalency assessment may also be required for certain NAFTA professionals who do not hold a degree from a US, Canadian or Mexican educational institution.

If the position that the foreign national will assume in the US requires membership in professional associations or guilds, completion of tests relating to medical knowledge, etc, then evidence that the foreign national meets these requirements should be filed with the application.

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 US with the intention to work or to remain in the country on a long-term basis. Nonetheless, it is possible for certain non-VWP visitors in the US to secure classification in a work-authorised visa category in the event that circumstances change subsequent to their initial entry. This is normally achieved by filing a change of status petition with USCIS prior to the expiry of the individual’s authorised stay in the US. In some situations, it may be easier and quicker for the individual to simply depart the US and apply for status in a work-authorised visa category from outside the country.

Long-term extension

Can long-term immigration permission be extended?

Long-term US immigration permission may be extended so long as the beneficiary continues to meet the eligibility criteria and the statutory time limit for their particular US immigration classification is not yet met:

  • 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 for up to two years. Thus, the maximum time that a person may remain in the US 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;
  • an individual in E-1 or E-2 status is permitted to extend status indefinitely in two-year increments, although the individual must maintain an unequivocal intent to return to his or her home country. An individual in E-3 status is also permitted to extend status indefinitely in two-year increments, but must not exhibit immigrant intent, which can be implied after lengthy stays in the US; and
  • Canadians and Mexicans admitted to the US as NAFTA 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; however, the individual may not exhibit immigrant intent, which can be implied after lengthy stays in the US.

Exit and re-entry

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

Exit requirements

All travellers who enter the US by air or sea will receive an admission stamp in their passport, which notes the date, class and expiry of admission to the country. An electronic arrival or departure record (Form I-94) may be downloaded online. CBP officers at land crossings may issue travellers with paper arrival or departure records. The expiry date shown on a foreign national’s Form I-94 governs how long he or she may stay in the US.

When departing the US, persons with a paper I-94 record must surrender it to the commercial carrier or CBP. Paper I-94 records do not, however, need to be surrendered by individuals travelling from the US to Canada or Mexico for fewer than 30 days.

Re-entry requirements

Individuals who require a visa for admission to the US generally require a valid passport and visa stamp to re-enter the country.

Canadian nationals are visa-exempt, but they may be required to provide other evidence of US work authorisation upon re-entry. Acceptable evidence includes a Form I-797, Approval Notice issued by USCIS.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Permanent residence

A permanent resident is an individual who is authorised to live and work in the US on a permanent basis. A person granted permanent residence is issued a permanent resident card, commonly called a green card. A foreign national may qualify for US permanent residence in several different ways.

Permanent residence through an offer of employment

A foreign national may be eligible for permanent residence based on an offer of permanent employment in the US. Most categories require an employer to obtain an approved labour certification application, also known as PERM. The process requires an employer to first conduct a rigorous test of the labour market to establish that there are no able, willing, qualified and available US workers to accept the job opportunity. PERM also requires an employer to attest that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers. Once the employer obtains an approved PERM, then an I-140, immigrant visa petition for alien worker, may be submitted to USCIS. The third and final stage of the process for obtaining permanent residence involves adjusting status from within the US or applying for an immigrant visa at a US consulate or embassy abroad.

Permanent residence through investment

Permanent residency may be available to investors or entrepreneurs who make an investment in an enterprise that creates new US jobs. See question 16 for more information regarding the EB-5 programme.

Permanent residence through self-petition

Certain ‘aliens of extraordinary ability’ and individuals who have been granted a US national interest waiver may self-petition for US permanent residence.

Permanent residence eligibility

The basic criteria for securing permanent resident status either while in the US through adjustment of status or outside the US by way of consular processing are as follows:

  • qualification in one of the established US immigrant categories, as proven by an approved immigrant visa petition (there are a few exceptions to this general requirement);
  • immediate availability of an immigrant visa; and
  • admissibility to the US.
Immigrant visa availability

The number of immigrant visas that may be issued to individuals seeking permanent residency status each year is subject to an annual quota.

Immigrant visas for immediate relatives of US citizens are unlimited and, therefore, always available. Immediate relatives include spouses, parents and unmarried children under the age of 21.

Immigrant visa numbers for individuals in the various employment-based categories are limited.

The US Department of State is responsible for allocating visa numbers. Since immigrant visa demand exceeds the available supply in many categories, it may take several years for some foreign nationals to secure US permanent resident status.

The length of time that a person must wait before adjusting status or receiving an immigrant visa from a US consulate or embassy depends on the following factors:

  • the demand for and supply of immigrant visa numbers in the individual’s particular category;
  • the per-country visa quota applicable to the foreign national’s country of birth; and
  • the person’s priority date, which is the date on which an approved PERM was filed. If no PERM was filed on behalf of the foreign national, the priority date is determined based on the date when his or her approved immigrant visa petition was properly filed with USCIS.
Citizenship through naturalisation

Naturalisation is the process by which US citizenship is granted to a foreign national after fulfilling specific statutory requirements established by Congress. A person may naturalise in any one of the following situations:

  • he or she has been a US permanent resident for at least five years and meets all other eligibility requirements;
  • he or she has been a permanent resident for three years or more and meets all eligibility requirements to file as a spouse of a US citizen; or
  • he or she has qualifying service in the US armed forces and meets all other eligibility requirements.
End of employment

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

In the event that a foreign national in H-1B, O-1 or E-3 status has his or her employment terminated by the US employer or resigns prior to the expiry of his or her authorised period of stay, the employer must notify the appropriate government agency. Moreover, the employer is obliged to cover the reasonable cost of return transportation for terminated employees in H-1B or O-1 status. The employer should also withdraw the LCA or LCAs associated with any H-1B or E-3 visa holder whose employment is terminated or resigns.

Employee restrictions

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

A foreign national in the US may not change employers or engage in other employment without the necessary approval. Some visa categories require that an amended petition be filed whenever a foreign worker changes work location or position. As such, it is important to obtain legal counsel to determine whether a change in employment requires an amended filing.

Individuals who have US work authorisation may attend school or engage in volunteer work that does not involve compensation and would not otherwise be performed by a paid employee.

Dependants

Eligibility

Who qualifies as a dependant?

Spouses (including same-sex spouses) and unmarried children under 21 years of age qualify as dependants. Common law partners or persons in a civil union are not regarded as dependants for US immigration purposes, but these individuals may apply to enter the US in B-2 visitor status.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Dependants are not automatically permitted to work in the US. Spouses of principal visa holders in the E and L categories may file an application for an employment authorisation document (EAD) with USCIS after being granted dependant status. With effect from 26 May 2015, H-4 spouses of certain H-1B non-immigrants who are in the process of seeking employment-based lawful permanent resident status are eligible to apply for an EAD, although this programme is currently under review and is expected to be cancelled. Dependent children are not eligible for an EAD. Processing of EAD applications can take several months.

Dependent spouses and children are generally permitted to attend school in the US. Once a child reaches the age of 21 or gets married (whichever occurs earlier), he or she ceases to qualify as a dependant and would then require his or her own visa to continue studying in the US.

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 history may be inadmissible to the US. If the individual is already in the US, then he or she may be prevented from adjusting status to lawful permanent resident on the basis of criminality.

The primary criminal grounds for inadmissibility are as follows:

  • crimes of moral turpitude, including murder, rape, arson, theft, forgery, fraud and misrepresentation;
  • violations of controlled substance laws;
  • multiple criminal convictions;
  • drug trafficking;
  • human trafficking; and
  • prostitution.

There are exceptions to criminal inadmissibility. Most notably, the petty offence exception may be invoked if the offender only committed one crime of moral turpitude, the maximum possible imprisonment sentence for the offence did not exceed one year under statute and the offender was not sentenced to prison for more than 180 days. An exception also applies to offences committed when the individual was under 18 years of age. Certain political offences, such as convictions for attending opposition rallies or demonstrations, may also be exempt.

In some situations, a foreign national may be eligible for a waiver of criminal inadmissibility.

Penalties for non-compliance

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

US employers have certain responsibilities under immigration law during the hiring process. More specifically, all companies must confirm the identity and work authorisation of each person hired. In addition, employers are required to complete an I-9 record for every employee. During the entire employment period, companies must comply with any applicable LCA requirements.

Employers that violate US immigration laws may be subject to the following penalties:

  • debarment from various immigration programmes;
  • civil fines;
  • criminal penalties (when there is a pattern or practice of violations);
  • debarment from government contracts;
  • a court order awarding back pay to any individual discriminated against by the employer; and
  • a court order requiring that a certain individual be hired by the employer.

Non-compliance by employers is typically discovered in the course of audits or worksite inspections conducted by US immigration authorities.

Foreign nationals who fail to maintain lawful status in the US may be subject to removal. Individuals who remain in the country well beyond their period of authorised stay may be barred from re-entering the US. Persons who overstay in the US for more than 180 days may be subject to a three-year bar, while aliens who overstay for one year or more may be barred from re-entering the US for a period of 10 years.

Language requirements

Are there any minimum language requirements for migrants?

The US does not impose any minimum language requirements for migrants. However, there is an English language examination, which must be passed, for most naturalisation applications.

Medical screening

Is medical screening required to obtain immigration permission?

The medical grounds of inadmissibility as defined by US immigration law can be divided into four categories:

  • communicable diseases of public health significance;
  • lack of required vaccinations;
  • physical or mental disorders involving harmful behaviour; and
  • drug abuse or addiction.

Medical screening is mandatory for applicants for US permanent residence. As part of the examination process, a physician obtains a blood sample, chest X-ray and vaccination records from the foreign national to establish that he or she is not inadmissible to the US on public health grounds.

Medical examination is generally not necessary for a foreign national seeking temporary admission to the US for employment purposes; however, a consular or CBP officer may require medical screening if deemed necessary. If an individual is diagnosed with a communicable disease, he or she may be medically inadmissible to the US. As of January 2010, HIV is no longer on the list of communicable diseases of public health significance. Therefore, individuals infected with HIV are not inadmissible to the US on this basis.

Secondment

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

If a foreign worker will provide services at an end-client or third-party location, this information must be disclosed in any H-1B, E-3 or L-1 petition filed by the employer. The petitioning employer must also provide evidence that it will have the right to control when, where and how the beneficiary performs work even while the beneficiary is off-site, and a full itinerary is required for H-1B workers. It is advisable for the employer to also submit a copy of a client contract or correspondence confirming the duration of the assignment and the fact that the employer will maintain control of the foreign national at all times. An L-1B petition filed for a beneficiary who will be seconded to a client site should explain how the services provided require application of specialised knowledge.

Update and trends

Key developments of the past year

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

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Since President Trump signed the Buy American and Hire American Executive Order in April 2017, USCIS has implemented the Executive Order through new rules, policy memoranda and programmes designed to protect US workers’ jobs and wages, prevent fraud and increase transparency in employment-based immigration programmes.

In January 2019, DHS announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. This change is intended to increase the chances that more H-1B visas will be granted to those with an advanced degree from a US institution of higher education. The final rule also introduced an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. USCIS expects that the electronic registration system, once implemented, will reduce costs and create a more efficient H-1B cap process for petitioners. Further, in April 2019, USCIS launched the H-1B Employer Data Hub that allows the general public to explore basic information on H-1B petitions that are adjudicated by USCIS within a given fiscal year. USCIS will provide cumulative quarterly updates and annual releases of data to provide more transparency to the public on employers petitioning for H-1B workers.

In June 2018, USCIS issued a new Notice to Appear (NTA) policy memorandum. An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. The memorandum clarified the role of USCIS officers in the issuance of NTAs. Specifically, it prioritised the initiation of removal proceedings against individuals who are subject to a final order of removal but have not departed the US, or those individuals involved with any criminal activity, fraud or wilful misrepresentation, the abuse of public benefits, or any threat to national security or public safety. USCIS later issued an alert clarifying that the issuance of an NTA will not be applied to employment-based petitions or to humanitarian applications or petitions. However, it will be applied to Form I-485, Application to Register Permanent Residence or Adjust Status, and to Form I-539, Application To Extend/Change Nonimmigrant Status. This means that individuals whose Form I-485 or I-539 is denied and who do not have valid underlying non-immigrant status, may receive an NTA from USCIS. The NTA will require the individual to present themselves in front of an immigration judge on a set date.

In April 2018, USCIS and CBP implemented a joint pilot programme whereby Canadian L-1 applications made at the Blaine port of entry are no longer to be adjudicated directly by CBP. Instead, petitions are sent to USCIS, and the applicants must wait for approval of their L-1 petitions before heading to the border to apply for admission into the US. The pilot programme was developed to increase efficiencies in L-1 processing, enhance consistency within adjudications, and allow for CBP to focus on its inspection work. In practice, many petitioners and applicants are now avoiding L-1 applications at the Blaine port of entry due to the delay and increased scrutiny of USCIS adjudicating each case. The joint pilot programme at the Blaine port of entry has been extended until 30 April 2020. USCIS has stated that, if the programme is successful, it will be expanded to additional ports of entry and may also be extended to other classifications, such as TN.

In September 2018, it was announced that NAFTA will be replaced by the USMCA. The USMCA’s immigration-related provisions largely mirror those currently under NAFTA. NAFTA will likely remain in force until the USMCA is ratified and implemented by each country.

As of June 2019, applicants for most immigrant and non-immigrant visas at US consulates must now disclose the username or handle for certain social media platforms that they have used over the past five years when submitting an online visa application form with the Department of State.

CBP began issuing alphanumeric I-94s in May 2019 due to the depletion of numeric-only I-94 numbers.

As of 1 May 2019, nationals of Israel are eligible for E-2 investor visas pursuant to a treaty investor agreement between the US and Israel. In addition, as of 10 June 2019, citizens of New Zealand are eligible for E-1 treaty trader and E-2 treaty investor visas.

Finally, in December 2017, DHS announced that it planned to terminate the H-4 EAD programme, and would be issuing a rescission notice of proposed rulemaking in February 2018. The H-4 EAD programme allows for eligible H-4 dependent spouses to apply for an EAD if their spouses are in a certain part of the green card process. On 28 February 2018, through a DHS filing in a pending US Court of Appeals case, DHS announced that it anticipated the publication of the proposed rule in June 2018. On 20 February 2019, the proposed rule was received by the Office of Management and Budget. Because the proposed rule has been marked as economically significant, there will likely be a presidential-level review before the final rule is published in the Federal Register. Once the final rule is published, it will contain an effective date and it will begin to be processed for codification into the CFR.

The authors would like to thank Scott Matkin for his contribution to this chapter.