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Regulatory framework and trends

Trends

Have there been any notable recent trends or developments regarding business-related immigration in your jurisdiction, including any government policy initiatives?

The Trump administration has made several changes to regulations, policies and practices that have affected business immigration. Specifically, President Trump’s executive order “Buy American, Hire American” directs multiple federal agencies, including the US Department of State (DOS), the US Department of Labour (DOL) and the US Department of Homeland Security (DHS) to propose new rules and issue new guidance to “protect the interest of US workers in the administration of our immigration system, including through the prevention of fraud and abuse”.

The following initiatives have been implemented:

  • US Citizenship and Immigration Services (USCIS) has increased scrutiny of H-1B petitions for entry-level positions and announced plans to target certain H-1B employers for site visits.
  • The DOL has announced that it will conduct more investigations in order to enforce labour protections among non-immigrant visa programmes, including (but not limited to) the H-1B, H-1B1 and E-3 programmes.
  • USCIS has announced that employment-based green card applicants will be subject to in-person interviews from October 1 2017. Under existing policies, such interviews are generally waived.
  • The DOS has introduced additional questions for visa applicants who are subject to additional screening, including the applicants’ social media handles for the past five years and personal information for the past 15 years.
  • In March 2017 Trump signed an updated executive order to suspend the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen into the United States for 90 days. The order was enjoined in the courts, however, the Supreme Court partially reinstated the ban in June 2017.
  • On September 24 2017 Trump signed a new proclamation creating travel restrictions for nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia, which is effective from October 18 2017.

Domestic law

What legislation and regulations govern immigration in your jurisdiction?

US immigration laws and regulations are codified under the Immigration and Nationality Act. The federal departments and agencies involved in overseeing immigration programmes issue regulations in Titles 6, 8, 19, 20, 22, 28, 29, 42 and 45 of the Code of Federal Regulations.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (e.g. free trade agreements or free movement accords)?

Hundreds of thousands of professionals seeking to work in the United States rely on the immigration provisions for highly skilled professionals contained in the North American Free Trade Agreement. The treaty was implemented in 1994 by the United States, Canada and Mexico.

Chapter 16 of the North American Free Trade Agreement delineates the following categories of business persons:

  • business visitors engaged in international business activities;
  • traders and investors who carry on substantial trade in goods or services between their own country and the country that they wish to enter;
  • intra-company transferees employed by a company in a managerial or executive capacity or a capacity that involves specialised knowledge and are transferred within that company to the territory of another party; and
  • certain categories of professionals who meet minimum educational requirements or possess equivalent credentials and who seek to engage in business activities at a professional level.

The United States, Canada, and Mexico are undertaking formal renegotiations of the North American Free Trade Agreement. Trump is considering withdrawing the United States from the agreement, which would have significant consequences for multinational companies and highly-skilled foreign workers in the United States.

The United States also maintains other treaty visas for:

  • Australian citizens (E-3 visas for certain specialty occupation professionals from Australia); and
  • Chilean and Singaporean citizens (H-1B1 professional work visas).

Further, nationals of countries that maintain a treaty of commerce and navigation with the United States are eligible for treaty trader (E-1) or treaty investor (E-2) visas. The list of treaty countries for each visa category is available on the DOS website. Applicants must fulfil the criteria for the applicable category and must be coming to the United States to:

  • engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country; or
  • develop and direct the operations of an enterprise in which the applicant has invested a substantial amount of capital.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers?

The DHS, through USCIS, provides immigration oversight to people who apply to stay in the United States on a temporary or permanent basis. USCIS is responsible for:

  • granting US citizenship;
  • approving all immigrant and non-immigrant petitions;
  • authorising permission to work in the United States;
  • issuing extensions of stay; and
  • changing or adjusting individuals’ status while in the United States.

US Customs and Border Protection (CBP) and US Customs Enforcement (ICE) are also both under the purview of the DHS. CBP:

  • oversees all US ports of entry;
  • determines the authorised period of stay for individuals coming to the United States;
  • conducts immigration inspections; and
  • patrols US borders.

ICE enforces federal laws governing border control, including with regard to removal processes, customs, trade and immigration.

The DOS oversees all US diplomatic missions, consulates and embassies abroad. These consulates and embassies have the authority to issue US passports and grant non-immigrant visas and immigrant visas. In early 2017, the Trump administration was considering moving the issuance of visas, passports and other travel documents from the DOS to the DHS.

In general, the DOL works to ensure that the admission of foreign workers to work in the United States will not adversely affect the job opportunities, wages and working conditions of US workers. The DOL:

  • manages job order postings with the state workforce agencies;
  • issues prevailing wage determinations; and
  • certifies labour condition applications (LCAs) required for H-1B, H-1B1 and E-3 visa petitions.

It is also responsible for overseeing the Programme Electronic Review Management (PERM) labour certification programme so that employers may hire foreign workers to work permanently in the United States.

Can the decisions of these authorities be appealed?

The Immigration and Nationality Act allows visa applicants who have been denied a visa for a particular ineligibility to apply for a waiver of that ineligibility. The DHS adjudicates all waivers of ineligibility. However, waivers are discretionary, meaning that there are no guarantees that the DHS will approve a waiver. If the waiver is approved, then the visa will be issued.

Petitioners and applicants for certain categories of immigration benefits, such as most employment-based immigrant and non-immigrant visa petitions (Forms I-129 and I-140), may appeal a negative decision to the USCIS Administrative Appeals Office (AAO).

Under the Interim Final Rule2015, an employer may use the general appeal procedures (under 20 CFR 655.61) to appeal an adverse PERM labour certification decision made by the DOL.

Recent case law

Has there been any notable recent case law regarding immigration?

A USCIS AAO decision imposes new requirements on employers of H-1B workers who change worksites. In Matter of Simeio Solutions (26 I&N Dec, 542 AAO 2015), the court decided that employers must file an amended H-1B petition before an H-1B worker may begin working at a new worksite outside of the metropolitan area indicated on the initial petition. Previously, employers were required to file a new application only in the event of a change in position. In July 2015 USCIS adopted the decision as binding and issued final guidance on how the ruling applies in various circumstances.

In the April 2017 Matter of I-Corp, another USCIS AAO decision, the court addressed wage standards for foreign workers. The court upheld the denial of an L-1B visa on the basis that:

  • the proffered wage was below the minimum wage in the state where the employee was to work; and
  • the employment agreement thus violated the Fair Labour Standards Act.

Business visitors

Visa requirements

In what circumstances is a visa required for business visitors?

Visitors who wish to enter the United States for a temporary stay to engage in business activities of a commercial nature must apply for a B-1 visa.

Restrictions

What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?

Business visitors must show proof of residency abroad and their intention not to abandon their residence. In addition, they cannot participate in gainful or productive employment and must remain on their foreign payroll.

Business visitors may generally:

  • attend business meetings;
  • take orders for goods manufactured outside the United States;
  • tour a company facility;
  • attend a trade show, conference or seminar; and
  • negotiate contracts or litigation.

Business visitors may visit the United States for up to six months. A visit extension for an additional six months is possible at the discretion of the immigration authorities. Requests for an extension must be made to the US Citizenship and Immigration Services before the visitor’s existing Form I-94 expires.

Application and entry

How are business visitor visas obtained and what is the typical turnaround time?

A B-1 visa application must be submitted at a US consulate or embassy. Processing time may vary from one consulate to another, however, B-1 visas are typically issued within one to two weeks from the time of submitting the application.

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

Under the visa waiver programme, citizens of 38 countries are eligible to travel to the United States visa free, for up to 90 days per entry. They must remain on their foreign payroll and cannot engage in productive work activities during their stay.

Visa-waivered nationals must register with the Electronic System for Travel Authorisation (ESTA) and obtain approval from ESTA before travel. Visa waiver admission is granted on arrival in the United States. Extensions of stay beyond 90 days per entry are generally not possible under the programme. US border officials may become suspicious of frequent or repeated long-term visits to the country.

Short-term training

What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?

Foreign nationals may be eligible to receive or conduct training with a B-1 visa or visa-waiver status, depending on:

  • the duration of their stay;
  • the number of trips required; and
  • the actual activities performed.

B-1 visa holders and visa-waived nationals may generally receive training, observe or shadow other employees and provide short-term product knowledge transfer or new product introduction – where it does not lead to a product being sold – as long as it is not their primary job function (ie, the individual is employed as a trainer).

In addition, foreign nationals may be eligible to conduct training with a B-1 visa where an after-sales agreement is in place and conducting training is included as part of the contract of sale for commercial or industrial equipment. A copy of the contract must be provided in support of the B-1 visa application.

Anything beyond these activities may require a work-authorised visa.

Transit

In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?

There are no transit facilities in the United States. All foreign nationals must comply with the controlling regulation for their country of origin in order to enter the United States.

Sponsored immigration

New hires

What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Common long-term work options for new hires

 

Eligibility requirements

Payroll/salary requirements

Maximum authorised stay

Processing times

E-3

  • Applicants must:
  • be an Australian national;
  • have a legitimate offer of employment in the United States;
  • possess the necessary academic or other qualifying credentials; and
  • be filing for a position that qualifies as a specialty occupation.
  • Documentation from the employer establishing that the employee will be engaged in a specialty occupation and will be paid the higher of the actual or prevailing wage.
  • Two years initially, which can be extended for a further two years an indefinite number of times, with some exceptions.
  • One week for labour condition applications (LCAs) to be certified. Approximately six months for processing.
  • If the employee is outside the Unites States, he or she must apply for a visa to enter the country.
  • May apply directly at a US embassy without having to first file with US Citizenship and Immigration Services (USCIS).

H-1B

  • Applicants must have at least a bachelor’s degree in a relevant field or equivalent experience and be filing for a position that requires a degree.
  • At least the prevailing wage for occupation in the area of intended employment.
  • Six years.
  • One week for LCAs to be certified. Approximately six months or more for processing. Premium processing is available (15 days).
  • If the employee is outside the United States, he or she must apply for a visa to enter the country.

H-1B1

  • Applicants must:
  • be a Chilean or Singaporean citizen; and
  • have at least a bachelor’s degree in a relevant field or equivalent experience and be filing for a position that requires a degree.
  • At least the prevailing wage for occupation in the area of intended employment.
  • One year, but this can be extended annually.
  • One week for LCA to be certified. Approximately six months for processing.
  • If the employee is outside the United States, he or she must apply for a visa to enter the country.
  • May apply directly at a US embassy without have to file with USCIS first.

TN

  • Applicants must:
  • be a Canadian or Mexican citizen; and
  • be engaged in professional activities and in a position on the TN Visa Eligible Professions List.
  • N/A
  • Three years, which is extendable by three year increments.
  • Approximately six months for processing. Premium processing is available (15 days).
  • May be filed directly at a US embassy or at the Canadian border (for Canadian citizens) without having to file with USCIS first.

Intra-company transfers

What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Intra-company transfers may be eligible for one of two L-1 visa classifications.

 Intra-company transferee

Eligibility requirements

Payroll/salary requirements

Maximum authorised stay

Processing times

L1-A intra-company transferee, executive or manager capacity

  • Applicants must:
  • be employed by a company with a qualifying corporate relationship between the United States and a foreign office;
  • have been working for the qualifying organisation abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • be seeking to enter the country to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organisations.
  • Sufficient to show managerial position.
  • Initial stay of three years. Requests for an extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
  • Approximately six months for processing. Premium processing is available (15 days).
  • Once approved, individuals must apply for a visa abroad at a US embassy.
  • If the employer has an approved L-1 blanket, the employee can apply directly at a US embassy without having to file with USCIS first.

L1-B intra-company transferee, specialised knowledge professional

 

  • Same as above, but employee must be seeking to enter the United States to provide services in a specialised knowledge capacity to a branch of the same employer or one of its qualifying organisations.
  • Sufficient to show specialised knowledge.
  • Initial stay of three years. Requests for an extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.
  • Same as above.

Do any special rules govern secondments?

All foreign workers must follow the same US immigration rules and obtain work-authorised non-immigrant status. US employers must ensure they are not employing, referring or contracting illegal workers.

Sponsor requirements and considerations

What are the eligibility and procedural requirements for employers to sponsor foreign employees?

Sponsoring employers must have a Federal Employer Identification Number in order to sponsor foreign nationals. In some cases, evidence of doing business may be required.

What ongoing reporting and record-keeping requirements apply to sponsors?

All employers must verify the identity and employment authorisation of each person hired through the completion of a Form I-9. Section 1 of the Form I-9 must be completed by the employee on or before the first day of employment and the employee must present valid employment authorisation documents to the employer within three days for completion of the form.

Employers sponsoring H-1B, H-1B1 and E-3 workers should also promptly withdraw an employee’s petition and LCA when that employee ceases employment with the employer. Employers must maintain an LCA and related public access file for every H-1B, H-1B1 and E-3 worker. The public access file must be retained for at least one year after the LCA expires or is withdrawn.

Employers are encouraged to conduct internal compliance checks to ensure that employees’ employment and compensation remains consistent with statements made on visa petitions, as government officials have increased scrutiny and inspections of worksites for potential violations of labour and immigration regulations covering H-1B, L-1 and other non-immigrant categories. At present, there are no employer obligations to report foreign national employees to the government.

In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?

Labour market testing is required for immigrant work visas under employment-based preference categories (EB-2 and EB3) where a Programme Electronic Review Management (PERM) labour certification application is required. Those who qualify under the EB-1 category (multinational executives and managers, outstanding researchers and individuals with an extraordinary ability) do not require a PERM application.

A PERM application is the first step in the permanent residence process. The PERM process requires proving to the US Department of Labour (DOL) that no qualified, willing or available US workers can fill the position through a recruitment campaign that tests the local labour market. The employer must be able to pay the prevailing wage for the position offered.

Employers who are H-1B dependent must make good faith effort to recruit US workers before sponsoring new H-1B workers. H-1B dependency is determined based on the percentage of H-1B workers in the employer’s workforce. Companies with more than 50 full-time employees of whom 15% or more are H-1B workers are considered H-1B dependent. Some exemptions to the good faith recruitment apply, for example for those H-1B workers with a master’s degree or higher or those who are offered a salary of $60,000 or higher.

Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?

Each year, there is a maximum number of H-1B visas can be issued. The existing annual cap in the H-1B category is 65,000. An additional 20,000 visas are available to applicants holding a US advanced degree. Not all H-1B non-immigrant visas are subject to this annual cap. Annual caps also apply for E-3 and H-1B1 visas; however, these caps are rarely met.

Further, immigrant visas for permanent residence status (green cards) are subject to annual quotas based on the preference category (EB-1, EB-2 or EB-3) and the foreign national’s country of birth. Citizens of any one country may not utilise more than 7% of the available visas in a preference category on an annual basis. As a result of this policy, there are substantial backlogs for permanent resident visas for individuals born in India and China.

Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?

There are limited exemptions, but they are not relevant to most applicants. In general, all foreign nationals must possess work authorisation if working in the United States.

The DOL has identified shortage occupations eligible for exemption of the PERM labour certification process, including nurses and physical therapists. Individuals working in one of these occupations may file immigrant petitions with USCIS without completing a labour market test and receiving a PERM labour certification.

How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?

The processing time can be around six months depending on the visa application.

Premium processing is available for faster processing of non-immigrant petitions, including E-1, E-2, H-3, H-1B, L-1, O-1 and TN petitions. USCIS will adjudicate these petitions within 15 calendar days. There is an additional fee of $1,225. Expedited processing is not available for E-3 petitions.

For immigrant petitions, premium processing is available for most petition categories in EB-1, EB-2 and EB-3. Exceptions include EB-1 multinational manager/executive petitions and EB-2 petitions for individuals who are members of professions with advanced degrees or an exceptional ability seeking a national interest waiver.

USCIS reserves the right to suspend or expand the premium processing programme. USCIS has temporarily suspended premium processing for temporary petitions twice in the last five years – most recently in April 2017 for all H-1B petitions. As of September 18 2017 USCIS resumed premium processing for all pending H-1B cap-subject petitions.

What rules govern the hiring of foreign third-party contractors?

For most visa categories, work on third-party client sites is generally permitted, but the worksites must be disclosed in the employer’s petition. These applications generally receive higher scrutiny and the sponsoring employer must clearly establish the employer-employee relationship and how it is maintained while the employee works offsite.

There must be a valid contract in place for services between the third-party employer and the work-site company to document who the actual employer is for the foreign national worker. Compliance with US immigration law should be included in the contract for services before placement of third-party contractors. The sponsoring employer (usually a contracting agency) must ensure that individuals placed at a third-party site have an inherent right to work or hold the appropriate work visa category before allowing a contractor or third-party worker to begin employment at any worksite. For H-1B, H-1B1 and E-3 employees, an LCA must be posted at the third-party worksite to ensure that individuals at the worksite are notified of the placement of foreign workers at the site. Petitioners of the contractors will need a complete itinerary of services or engagements if employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Further, they must comply with the DOL regulations requiring that they file an LCA specific to each work location for the beneficiary.

What are the penalties for sponsoring non-compliance with the relevant immigration laws and regulations?

US employers are subject to random, unannounced inspections by USCIS officials to verify job details of non-immigrant employees in specialty occupations. Employers who violate immigration law, may be subject to civil fines, criminal penalties and debarment from government contracts, among other penalties.

Are there any other special considerations for sponsors in your jurisdiction?

Some visa applications may require further administrative processing (ie, security clearance performed in Washington DC) after the consular officer interviews the applicant. Security clearance is usually required when the employee’s name or fingerprint scan reveals a potential match with another individual listed in a government database. Even a close name, birthdate or birthplace match with someone who has a record can trigger administrative processing. In addition, if the employee or any accompanying family member has been arrested in any country, even if the arrest did not result in conviction, he or she will likely be subject to additional administrative processing and should be prepared to produce any court documents related to the incident.

Males between the ages of 15 and 45 who were born in or are a citizen of one of the following countries are likely to face additional administrative processing:

  • Afghanistan;
  • Algeria;
  • Bahrain;
  • China;
  • Cuba;
  • Djibouti;
  • Egypt;
  • Eritrea;
  • India;
  • Indonesia;
  • Iran;
  • Iraq;
  • Jordan;
  • Kuwait;
  • Lebanon;
  • Libya;
  • Malaysia;
  • Morocco;
  • North Korea;
  • Oman;
  • Pakistan;
  • Qatar;
  • Saudi Arabia;
  • Somalia;
  • Sudan;
  • Syria;
  • Tunisia;
  • the United Arab Emirates; and
  • Yemen.

In late June 2017 the Supreme Court ruled that part of the Trump administration’s revised travel ban affecting six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – may take effect, but carved out an important exemption for anyone with “a credible claim of a bona fide relationship” to a US person or entity.

The Trump administration recently issued a presidential proclamation imposing travel restrictions on certain foreigners from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The new proclamation adds new countries (North Korea, Venezuela and Chad) to the previous travel ban and tailors travel restrictions to each country. For most companies, the new proclamation is not expected to dramatically expand the number of foreign employees subject to travel restrictions.

General employee requirements

Must sponsored employees meet any language requirements?

At present, no.

Are sponsored employees subject to any medical checks?

Medical clearance certificates are not required for temporary US work visas.

Must sponsored employees meet any medical or other insurance requirements?

Medical care and insurance may be provided through the employer or private insurance may be purchased separately.

Are sponsored employees subject to any security or background checks?

Applicants for US visas must undergo a fingerprint background check as part of the visa application process.

Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?

Employment of Students

Foreign students may apply for a F-1 visa (academic student) to enter the United States as a full-time student at an accredited academic institution or in a language training programme. They must be enrolled in a programme or course of study that culminates in a degree, diploma or certificate and the school must be authorised by the US government to accept international students.

F-1 students may not work off-campus during their first academic year, but may accept on-campus employment subject to certain conditions and restrictions. After the first academic year, F-1 students may engage in the following three types of off-campus employment:

  • curricular practical training;
  • pre or post-completion optional practical training (OPT); or
  • post-completion science, technology, engineering and mathematics OPT extension.

Once the foreign student completes a degree programme in the United States, he or she may be eligible for one year of OPT. The participating university must annotate the Form I-20, authorising the OPT. The student may then file for a Form I-765 application for employment authorisation with USCIS.

Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?

Different rules and standards apply depending on the visa classification. For H-1B visa issuance, regulations allow consideration of three years of progressive work experience to equal one year of college or university study towards an equivalency to a US bachelor’s degree.  For immigrant visa processing, a four-year course at a foreign institution is required to document equivalence to a US bachelor’s degree. In addition, for immigrant visa processing, a bachelor’s degree and five years of progressively responsible work experience is considered equivalent to an advanced degree for purposes of eligibility in the EB-2 classification for individuals with advanced degrees.

What are the penalties for employee non-compliance with the relevant immigration laws and regulations?

If found to be non-compliant with immigration regulations, employees can face:

  • legal action;
  • civil penalties;
  • payment of back wages and taxes; and
  • suspension from the H-1B programme.

Unsponsored immigration

Highly skilled individuals

What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Non-immigrant temporary worker visa

Eligibility

Maximum duration of stay

O-1

  • Applicants must be a foreign national with an extraordinary ability or achievements in sciences, the arts, education or business, among other fields.
  • The applicant’s extraordinary ability or achievement must be demonstrated by sustained national or international acclaim.
  • Applicants must be described as “those who have risen to the very top of their field”.
  • The applicant must file an application with US Citizenship and Immigration Services (USCIS).
  • The applicant may not self-petition, but may use a US agent to file in cases traditionally involving self-employment.

 

  • Issued for three years initially, which can be extended in increments of up to one year indefinitely, as long as there is a temporary intent.

Permanent worker visa preference categories

 

 

EB-1

  • US labour market testing (Programme Electronic Review Management (PERM) labour certification) not required. There are three subcategories:
    • extraordinary ability;
    • outstanding professor/researcher; and
    • multinational executive/manager.
  • Only extraordinary ability petitions may be unsponsored.

 

  • N/A.

EB-1 Extraordinary ability

 

  • Applicants must be at the very top of their field and have objective evidence to demonstrate that they have received sustained national or international acclaim through achievements in science, the arts, business, education or athletics.
  • The criteria is similar to the O-1 requirements.
  • The applicants must be described as “those who have risen to the very top of their field of endeavour”.
  • Applicants can self-petition with USCIS (ie, no employer sponsor is needed).

 

  • N/A.

EB-2

  • There are two subcategories:
    • professionals holding an advanced degree or its equivalent; and
    • foreign nationals who have exceptional ability.
  • EB-2 subcategories generally require labour market testing (PERM labour certification) with the exception of National Interest Waiver applications which waive the labour test.

 

  • N/A.

EB-2 Advanced degree

 

  • Applicants must hold:
  • a US master’s or PhD degree or foreign equivalent; or
  • a bachelor’s degree plus five years of post-bachelor progressive experience, which is equivalent to a master’s degree.
  • The minimum requirements for the job must meet one of these two tests and the employee must possess these credentials.

 

  • N/A.

EB-2 Exceptional ability

 

  • Applicants must be able to show exceptional ability in the sciences, the arts or business.

‘Exceptional ability’ means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business”.

  • N/A.

National interest waiver

  • Applicants must:
  • prove their intent to work in the United States in an area of substantial intrinsic merit;
  • prove that the proposed impact of their work is of a national scope; and
  • show that the benefit of their work to the national interest is greater than that of the labour market testing process (PERM labour certification).

Applicants may self-petition (ie, they do not need an employer to sponsor them) and may file their labour certification directly with USCIS, along with their Form I-140, petition for alien worker.

  • N/A.

Entrepreneurs

What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

E-1 treaty trader and E-2 treaty investor non-immigrant visas are available to nationals of countries with which the United States maintains a treaty of commerce and navigation. Certain employees of the treaty trader or investor may also be eligible.

If the treaty trader or investor is in the United States (with a lawful non-immigrant status), he or she may file Form I-129 to request a change of status to an E-1 or E-2 classification. If the applicant is outside the United States, he or she may apply for the visa from abroad and, once approved, may then apply at a US port of entry for admission as an E-1 or E-2 non-immigrant.  

 

Non-immigrant visa

 

Eligibility

Maximum duration of stay

E-1 treaty trader

  • Applicants must carry on:
    • substantial trade (ie, a continuous flow of sizeable international trade involving numerous transactions over time). Examples of trade include the international exchange of goods, services, international banking, insurance, transportation, tourism and technology; or
    • principal trade (ie, over 50% of the total volume of international trade) between the United States and the treaty trader’s country.

 

 

  • Initially two years, which can be extended in increments of up to two years indefinitely, as long as there is a temporary intent.

E-2 treaty investor

  • Applicants must:
    • have invested or be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States (8 CFR 214.2(e)(12)); and
    • be seeking to enter the United States solely to develop and direct the investment enterprise (ie, showing at least 50% ownership).

 

  • Same as above.

International Entrepreneurs Rule

The Obama administration published a regulation that would have allowed foreign entrepreneurs to stay in the United States temporarily to grow their start-up company if they:

  • had minimum capital investment of $250,000 or a government grant of $100,000; and
  • could demonstrate that the start-up would provide a significant public benefit through rapid growth and job creation.

The rule was set to take effect in July 2017, but it is unlikely that the regulation will take effect under the Trump administration.

Investors

What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each? 

Business investors who invest between $500,000 and $1 million in a new commercial enterprise that employs at least 10 full-time US workers may be eligible for the EB-5 employment-based visa programme.

Under the EB-5 programme, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:

  • make the necessary investment in a commercial enterprise in the United States (if the investment is made in a targeted employment area); and
  • plan to create or preserve 10 permanent full-time jobs for qualified US workers.

Permanent residence is conditional for two years after which an application is submitted to document that the required jobs were created or will be created.

Ancestry

Are any immigration routes open to foreign nationals based on ancestry or descent?

No.

Other routes

Are there any other unsponsored immigration routes?

The Diversity Visa rogramme allots 50,000 immigrant visas to nationals of historically low immigration rates to the United States through a random selection process. Individuals who wish to enter the pool must register online through the State Department’s Diversity Visa website. The lottery is conducted every year and selects 50,000 entrants who become eligible to apply for lawful permanent residence.

Extensions, permanent residence and citizenship

Extensions and status changes

Can short-term visa or work permit holders switch to long-term visas? If so, what conditions and procedures apply?

Non-immigrant status may be changed to another status – for example, tourist to student status, if:

  • the applicant was lawfully admitted to the United States with a non-immigrant visa;
  • the applicant’s non-immigrant status is still valid;
  • the applicant has not violated the conditions of his or her status; and
  • the applicant has not committed any crimes that would render him or her ineligible.

A foreign employee may change from one work authorised visa status to another, if eligible. An individual may also change from a work authorised to a dependent status, if eligible (eg, from L-1B to H-4 if the spouse is employed in H-1B status).

An H-1B employee may also change employers; however, the new employer must first sponsor the employee’s new work authorisation by filing a petition with US Citizenship and Immigration Services (USCIS) before the employee begins working for the new employer.

Under what conditions can long-term visas be extended?

Conditions of extension depend on the visa type or category. H-1B visas may be issued for up to three years and can be extended for up to a total of six years. In addition, an amended H-1B petition is required if the employee’s place of employment changes to a new geographical location that requires a new labour condition application. Ordinarily, after six years of H-1B status, foreign nationals must reside outside the United States for a full year before becoming eligible to apply for an H-1B visa again. However, H-1B employees who have started the process for permanent residence may be eligible to extend their status beyond six years.

Initial L-1 visa status may be approved for up to three years and can be extended for up to a total of seven years for an L-1A (manager or executive) or five years for an L-1B (specialised knowledge). Extensions are granted in two-year increments. At the end of the maximum L-1 period of stay in the United States, the foreign national must reside outside the United States for a full year before becoming eligible to apply for the L-1 visa again.

Some visas such as TN, E-1, E-2, E-3 and O-1 visas may be extended indefinitely. However, the visa applicant is required to maintain ties to his or her home country.

Permanent residence

Can long-term visa holders apply for permanent residence? If so, what conditions and procedures apply?

Depending on the immigration category, a long-term visa holder may apply for adjustment of status to lawful permanent resident status (also known as applying for a green card).

For employment-based applicants, if they qualify for one of the EB-1 subcategories (multinational manager, outstanding researcher or extraordinary ability), their employer may immediately file an I-140 immigrant petition for an alien worker in the relevant category. Similarly, foreign nationals that qualify under the EB-2 category national interest waiver will have the labour certification requirement waived.

If the employee does not qualify for any of the above options, the employer must first conduct a labour market test in order to prove that no qualified, willing and able US workers are available for the position. After conducting the labour market test, the employer must file for permanent labour certification with the US Department of  Labour (DOL). When the application is approved, the employer may then file the Form I-140 on behalf of the employee.

There are annual limits on the total number of green cards that can be issued and the number that can be issued to nationals of a specific country, but preference is first granted to people in the EB-1 category, followed by EB-2 and EB-3. This can lead to significant green card backlogs for individuals who come from countries where there is high green card demand – in particular, China and India. Nationals of those countries, particularly if they fall under the EB-2 or EB-3 categories, may have to wait several years after I-140 approval before being permitted to file the I-485 adjustment of status, which is the final step in the green card application and achieving legal permanent residency.

Alternatively, family-based adjustment of status may be the quickest and easiest means of obtaining permanent residency. A US citizen’s parents, spouse or unmarried children under the age of 21 are given the highest priority.

While an I-485 application is pending, the employee should not leave the United States unless he or she has obtained permission in the form of advanced parole, as the application may be deemed to have been abandoned and the employee may not be allowed to re-enter the United States. I-485 applicants with H-1B, H-4, L-1 or L-2 status may travel if they have a valid visa to return to the United States.

On issuance of a green card, the employee will obtain lawful permanent resident (LPR) status and may freely leave and return to the United States. Although there is no single rule for the duration that a LPR may remain outside the United States, problems usually arise if an LPR is absent for longer than one year. USCIS officials may question the LPR as to whether he or she:

  • maintains family and community ties in the United States;
  • files income taxes as a resident;
  • has a valid driver’s licence and mailing address; and
  • has filed for US citizenship.  

Citizenship

Can long-term visa holders or permanent residents apply for citizenship? If so, what conditions and procedures apply?

US citizenship can be granted through naturalisation for qualifying applicants who meet the general requirements as established under the Immigration and Nationality Act. The individual must:

  • be aged 18 years old or older at the time of applying;
  • have held permanent residency for:
    • at least five years; or
    • at least three years, during which time the applicant has been, and continues to be, married to and living in a marriage relationship with a US citizen;
  • be a person of good moral character;
  • have a basic knowledge of the US government (individuals may be exempt from this requirement if they have a permanent physical or mental impairment);
  • have had a period of continuous residence and physical presence in the United States; and
  • be able to read, write, and speak basic English. Exceptions apply for someone who at filing:
    • is aged 55 years old or older and has been a permanent resident for at least 15 years;
    • is aged 50 years old or older and has been a permanent resident for at least 20 years; or
    • has a permanent physical or mental impairment that makes the individual unable to fulfill these requirements.

Dependants

Eligibility

Who qualifies as a dependant for immigration purposes?

For immigration purposes, ‘dependents’ are defined as married spouses (opposite or same-sex) and children younger than 21 years of age. To accompany an employee, domestic partners (opposite or same-sex) may obtain only a B-2 visa. Spouses and unmarried children (under the age of 21) of H-1B employees are eligible for dependent visas under the H-4 classification. Spouses and children of L-1 employees are eligible for dependent visas under the L-2 classification for L-1 holders.

Conditions and restrictions

What conditions and restrictions apply to bringing dependants to your jurisdiction (including with respect to access to labour markets, education and public benefits)?

L-2 spouses can apply for employment authorisation once they enter the United States under L-2 status. H-4 spouses are permitted to apply for work authorisation (ie, file a Form I-765 application for employment authorisation) once the principal H-1B holder has received an approved I-140 petition or been granted extension of H-1B status beyond the normal six-year period under the American Competitiveness in the 21st Century Act of 2000. L-2 children and H-4 children are not eligible for employment authorisation and may not work. Dependent children under the age of 21 may attend school in the United States.

Certain immigration status allows for access to government benefits, depending on the individual’s length of time in the United States, income and other factors.