M Possible hat You need to Kn o W to P i l s 101 book day 1.pdfNew York County Lawyers’...

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 1 Ethics; 1 PP; 1 Skill.

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Mission Possible: What You need to KnoW to

Practice iMMigration laW successfullY

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for March 5, 2012.

P r o g r A m C o - s P o N s o r :

NYCLA’s Immigration and Nationality Law Committee

P r o g r A m C h A I r s :

Eugene J. Glicksman and Gilbert C. Ferrer, Co-chairs, NYCLA Committee on Immigration and Nationality Law

F A C u L t Y :

Gilbert C. Ferrer, Co-chair, NYCLA Committee on Immigration and Nationality LawDavid Grunblatt, Proskauer Rose LLP

Stuart Reich, Law Offices of Stuart J. Reich

3 TRANSITIoNAL AND NoN-TRANSITIoNAL MCLE CREDITS:

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3hours of total CLE credit. Of these, 1 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

Information Regarding CLE Credits and Certification Mission Possible: What You Need to Know to Practice Immigration Law

Successfully (Day One) March 6, 2012, 6:00PM to 9:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iv. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Mission Possible: What You Need to Know to Practice Immigration Law

Successfully (Day One) March 5, 2012 6:00 PM-9:00 PM

AGENDA 5:30PM – 6:00PM Registration 6:00PM – 6:05PM Introduction and Opening Remarks Bari Chase, NYCLA CLE Director

Eugene Glicksman, Co-Chair, NYCLA Committee on Immigration & Nationality Law

6:05PM - 6:55PM Introduction and Overview of Nonimmigrant Categories David M. Grunblatt, Proskauer Rose LLP

6:55PM – 7:05PM BREAK 7:05PM - 7:55PM Introduction to Three of the Most Utilized Nonimmigrant Work

Authorized Visa Categories and Labor Certification Gilbert C. Ferrer, Co-Chair, NYCLA Committee on Immigration &

Nationality Law 7:55PM - 8:05PM BREAK 8:05PM - 8:55PM Employment-Based Immigration Stuart J. Reich, Law Offices of Stuart J. Reich

New York County Lawyers Association

IMMIGRATION 101INTRODUCTION AND NON IMMIGRANT

VISASMarch 6, 2012

David Grunblatt, Esq.Proskauer Rose LLPOne Newark Center

Newark, New Jersey [email protected]

The Visa Process

The Two Principal Categories - Immigrants & Non- ImmigrantsThe best way to understand U.S. immigration law is to know that the world of non U.S. nationals is divided into two principal categories: Immigrants & Non-Immigrants. Immigrants are foreign nationals who are permitted to live and work in the U.S. on a permanent basis. Other names for immigrants are lawful permanent residents, or “green card” holders. In general, persons may qualify for immigrant (i.e., resident alien) status either by having a very close family relationship with a U.S. citizen or permanent resident, or by having special job skills which are deemed to be in short supply.

The Visa Tree - Sample Categories

Other Family Employment

• Labor Certification• Extraordinary Ability• Outstanding Researcher• National Interest Waiver• Multinational Executive

• Immediate Relative

• Non-Immediate Relative

• DV Lottery

• Asylum

Immigrant

Employment Family Other

• Tourist (B-2)• Student (F-1)

• K• V

• B-1• H-1B• TN• O-1• J-1 (2 yr.

home)• L-1• E-1/2/3

Non-Immigrant

3© 2006 PROSKAUER ROSE LLP®

#11589

The Visa Process The Two Principal Categories - Immigrants & Non-Immigrants

Unlike immigrants who may remain in the U.S. permanently, nonimmigrants are persons who are coming to the U.S. for a temporary period only. Some of the categories of non-immigrants include:

B-1 Visitor for Business

B-2 Visitor for Pleasure

F-1 Student

H1-B Professional

H-3 Trainee (Needs a Program)

L-1 Inter-company Transferee

E-2 Treaty Investor

J-1 Exchange Visitor - Students

The ability of a foreign national to qualify for a work-authorized, non-immigrant status will depend upon the specific requirements of the position, the particular qualifications of the individual, and the legal requirements to qualify for a particular status.

The Visa Process Presumption of Immigrant IntentBy law, all persons applying for visas or for admission at the border are presumed to have the intention of residing here permanently as immigrants. Accordingly, all intending nonimmigrants have the burden of proving that they are eligible for such non-immigrant status. For example, they must generally prove the existence of an unrelinquished foreign domicile to which they intend to return to upon the conclusion of their temporary purpose in the United States. The same burden applies when applications are filed for extensions of non-immigrant status & revalidation of nonimmigrant visas.

The Visa Process The Visa StampNon-immigrant visas are issued by Foreign Service Officers of the U.S. Department of the State at U.S. Embassies and Consulates abroad.

Visas are stamped into a valid travel document, usually a passport. The visa bears the date of its issuance as well as the date of its expiration. It also designates the number of applications for admission at the U.S. border for which it is valid.

The Visa Process The Visa Stamp

The Visa Process The Form I-94At the border, a different agency of government, the U.S. Customs and Border Protection (CBP), part of the Department of Homeland Security, has jurisdiction to admit the alien in the status for which the visa has been granted, and does so by endorsing the admission slip (Form I-94) which is attached to the alien’s passport, recording the date of entry, the status in which the alien is admitted, and the duration of his/her authorized stay.

Commonly, with regard to L & H visa holders, the officer will admit the individual for the same amount of time for which his/her visa stamp, or Notice of Action (Form I-797) is valid.

The Visa Process The Form I-94The I-94 form is surrendered each time the individual departs the United States (except if he/she is traveling to Canada or Mexico for less than 30 days) and a new one is issued upon re-entry to the U.S.

The Visa Process Form I-797

Form I-797 (Notice of Action) is evidence that the Immigration Service has reviewed the qualifications of the principal applicant and determined that he/she may be authorized legally to come to the U.S. within a specified visa category and period of time. It is typically referred to as the approval notice.

When the I-797 is issued by the USCIS while the applicant is outside of the U.S. waiting approval, the applicant applies at the American Embassy or Consulate overseas to arrange for the visa stamp to be placed in his/her passport.

An applicant already in the United States, will have a I-94 Form printed at the bottom of the Notice of Action, confirming the grant of an extension or change of status.

The Visa Process Form I-797

Common Non-Immigrant Visa Classifications

B1 Business Visitor admitted up to a period of one year. May not engage in local employment.

B2 Pleasure Visitor admitted up to 6 months. May not engage in local employment or receive any U.S. sourced income.

F-1 Student admitted to pursue a full course of study and authorized practical training. Students must obtain permission to accept employment. This classification does not have unrestricted permission to work in the U.S.; only practical training in the field of study.


H1-B Specialty Occupation (professional) admitted for up to 3 years with an extension available for an additional 3 years; total of 6 years. Requires a bachelor’s degree from a university in the field related to the position offered. The current annual quota limitation for H1s is at 65,000.

H1- Portability: Hiring Upon Filing Should you wish to hire a foreign national professional on local status, who holds a valid H1-B status from another company, the new American Competitiveness in the 21st Century Act (AC21) permits new employment upon the filing of a new H-1B petition, rather than waiting for approval, as was previously the policy. Please note, however that the H1 must be in status (not expired) in order to transfer it.

Recruiters should ensure that I-9s are completed for such employees & request the employee to provide a valid passport as proof of identity. Once INS issues the official filing receipt, (usually 10 days to several weeks after filing), the receipt should be copied & added to the I-9 file.


TN Status is a creature of the North American Free Trade Agreement (NAFTA), TN status is available to Canadian and to a lesser extent Mexican nationals. A U.S. job offer is generally required. Only those specific professions listed in NAFTA are amenable for TN treatment which includes graphic designers, economists, computer analysts, lawyers, management consultant, university teachers, engineers, etc.

Specific educational requirements vary with each profession listed, but typically require a bachelor’s degree.

Canadians may have TN papers adjudicated at the border or with an INS Service Center.

H-1B Numerical Cap• 65,000 annual cap• Exceptions:

– Individuals who previously held H-1B status without departing the U.S. for more than 1 year

– Individuals who possess U.S. master’s degree or PhD. (20,000) available– Individuals from Chile and Singapore (6,800)– E-3 Specialty Occupation Category for Australian nationals (10,500)– Individuals who are employed by an institute of higher education or

nonprofit organization or entity related to an institute of higher education– Individuals who are employed by a nonprofit research institution or

governmental research institution

SEVIS

Student & Exchange Visitor Information System (SEVIS) is designed to monitor nonimmigrant exchange visitors in the United States

• Must report within 30 days of last entry into the United States in order to avoid being automatically invalidated on SEVIS

Recruiting Guidelines for Hiring of Non-Immigrants

Acceptable questions that may be asked during the interview process follow:

• Are you legally authorized to work in the U.S. on a full-time basis?• Will you now, or in the future, require sponsorship for employment visa

status (e.g. H-1B visa status)?• If answer to first question is “no” or to second question “yes”,

might follow up with:• Have you been in H or L visa status within the past seven years?• In regard to F-1 visa holders: Is your legal authorization to work in the

U.S. limited to “practical training” or to a specific employer? (Please note that practical training is not unrestricted permission to work in the U.S.)

Recruiting Guidelines for Hiring of Non-Immigrants

The employer cannot in the I-9 process request specific documentation, but if a candidate indicates that she is in a status with limited employment authorization, further inquiry permitted.

It is important to note that the key element in recruitment & interviewing is consistency with regard to all applicants.

RESOURCES

• AILA INFONET Link to Government Agency and Other Key Web Resources

• Law Services (WEST and LexisNexis) and Private Attorney Websites

• Treatises and Published Materials: Bender, WEST, LexisNexis

• Interpreter Releases

I-9 PROCESS – WHAT’S NEW

• New Form I-9:– Instructions– Side 1 – Essentially same as before– Side 2 – Changes to List of Acceptable

Documents• Many documents eliminated• One document added

• New Form M-274 (I-9 Handbook)

I-9 PROCESS – KEY PROBLEMS

• Intake procedures• Document evaluation• Re-verification• Quality Control – Staffing

I-9 PROCESS -- RECOMMENDATIONS

• Develop manual/specific guidelines for intake process

• Link I-9 process to early and key component of intake– e.g., issuance of ID badge

• Develop specific protocol for form and document questions– E-mail address or helpline for I-9 questions– Weekly I-9 conference call to outside counsel

I-9 PROCESS – RECOMMENDATIONS

(cont’d)• Periodic training sessions for designated

staff– (use their own executed I-9s as teaching tool)

• Tickler system to schedule re-verification and to purge forms and documents when record keeping requirement time limit is reached

E-VERIFY

E-VERIFY, GET WITH THE PROGRAM?

• The Government Accountability Office (GAO), relying on independent studies, estimated “that a mandatory dial-up version of the pilot program for all employers would cost the Federal government, employers, and employees about $11.7 billion total per year, with employers bearing most of the costs.”

• Criticism of DHS comes from a “broad coalition of people who don’t want real

E-VERIFY: REGISTRATION

• Register online: https://www.vis- vhs.com/employer registration– Sign a Memorandum of Understanding with

the DHS and SSA.– Read the User Manual– Complete an online tutorial before performing

queries.

https://www.vis-vhs.com/employer

https://www.vis-vhs.com/employer

E-VERIFY: HOW IT WORKS

• Employer first completes Form I-9;• Employer electronically submits

information which queries:– The Social Security Administration– The Department of Homeland Security

POSSIBLE RESPONSES

• Employment authorized;• SSA tentative non-confirmation;• DHS verification in process;• DHS tentative non-confirmation.

POSSIBLE RESPONSES (cont’d)

• If tentative non-confirmation, employee can contest the finding.

• Tentative non-confirmation instructions provided to employee.– The employee has 8 federal government

workdays to contact the appropriate agency to resolve the discrepancy.

– Employee continues to work while the case is being resolved.

E-VERIFY: DISADVANTAGES

• Employer must establish and maintain process and system: Maintain records, follow up and monitor resolution of “tentative non-confirmations.”

• Must be willing to permit DHS and SSA to make visits on-site to review E-Verify records.

• Everything is on record.

E-VERIFY: ADVANTAGES

• May effectively screen out undocumented workers at time of hire.

• May result in better treatment if company is subject to investigation.

• Some states have already made E-Verify mandatory.

• E-Verify now mandatory for contractors with U.S. Government.

MANDATORY E-VERIFY FOR FEDERAL CONTRACTORS:

• Regulation mandates contractor use of E- Verify

• Impact – Over 168,000 contractors and subcontractors in the first year. 3.8 million employees.

• How much will it cost in the first year? $111.2 million? A billion?

A New York Limited Liability Partnership Lawrence R. Sandak, Managing Resident Partner

Proskauer Rose LLP One Newark Center Newark, NJ 07102-5211

7501/99999-518 current/25033687v1 09/08/2011 12:54 pm Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, D.C.

David Grunblatt Member of the Firm d 973.274.6021 f 973.274.3299 [email protected] www.proskauer.com

An Outline of The U.S. Non-Immigrant Visa Classifications And Methods of Qualifying for

Lawful Permanent Status in the United States

This listing of visa classifications is intended to furnish you with an overview of the U.S. visa process and a general description of the various types of visas issued by the U.S. government.

NON-IMMIGRANT VISA CATEGORIES

THE NON-IMMIGRANT VISA PROCESS Non-immigrant visas with alphabetical designations from A through V are issued by Foreign Service Offices of the U.S. Department of State at U.S. Embassies and Consulates abroad. Visas are stamped into a valid travel document, usually a passport. The visa bears the date of its issuance as well as the date of its expiration. It also designates the number of applications for admission at the U.S. border for which it is valid.

At the border, a different agency of government, the Department of Homeland Security; Customs & Border Patrol (CBP) division has jurisdiction to admit the alien in the status for which the visa has been granted, and does so by endorsing the admission slip (Form I-94) which is attached to the alien's passport, recording the date of entry, the status in which the alien is admitted, and the duration of his or her authorized stay. Future extensions of this stay are endorsed on the admission document, or noted on a newly-issued Immigration Service Form I-797.

Citizens of Canada may, under certain circumstances, present themselves at the border with appropriate documentation to request admission under the various non-immigrant visa categories without first obtaining visa stamps at a U.S. Embassy or Consulate. In addition, under a special program (the "Visa Waiver Pilot Program") nationals of a number of countries have been allowed to enter the United States as visitors without first obtaining a visa stamp.

CHANGE FROM ONE NON-IMMIGRANT VISA CLASSIFICATION TO ANOTHER

An alien who enters in one non-immigrant classification may, with limited exceptions, apply to change to another non-immigrant status while in the United States. The application must be

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made while the alien is in lawful status, that is, during the authorized period of stay and with no violation of status such as unauthorized employment.

CHANGE TO IMMIGRANT CLASSIFICATION

An alien who enters in a non-immigrant classification may, under certain conditions and usually after the filing and approval of a petition classifying the alien in a preference category, apply to change status to that of a lawful permanent resident (evidenced by a "green card") through a process called "adjustment of status." In cases where the alien otherwise qualifies for immigrant status, but has engaged in unauthorized employment while here temporarily, or has violated the terms of a nonimmigrant visa, and would therefore, in most instances be ineligible for adjustment of status, may, under certain circumstances, nevertheless obtain residence through the issuance of an immigrant visa at an American Consular Post abroad.

PRESUMPTION OF IMMIGRANT INTENT

By law, all persons applying for visas or for admission at the border as nonimmigrants, are presumed to have the intention of residing here permanently as immigrants. (An exception to this rule applies to certain "H" and "L" visa holders.) Accordingly, all intending non-immigrants have the burden of proving that their intent is non-immigrant in nature. For example, they must generally prove the existence of an unrelinquished foreign domicile to which they intend to return upon the conclusion of their temporary purpose in the United States. The same burden applies when applications are filed for extensions of non-immigrant status, revalidation of non-immigrant visas or other benefits which presuppose an intention to depart.

CHANGES IN APPLICATION PROCEDURES RESULTING FROM THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996

("IIRAIRA")

Several changes made in the immigration laws as a result of legislation passed in 1996 affect both the manner of applying and the alien's eligibility for nonimmigrant and immigrant visas. One such change provides that overstaying even for one day, will have the effect of invalidating the alien's nonimmigrant visa, which may not then be used for return to the United States. Moreover, with certain exceptions, an individual who has overstayed may only apply for a new visa in the country of his or her nationality, eliminating "third country processing" at American Consulates at more convenient locations (such as Canada or Mexico).


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An additional provision of IIRAIRA (more fully discussed below under Permanent Resident Categories) renders certain long-term overstays excludable from the United States. In view of these changes, it has become increasingly important to carefully monitor the status of individual nonimmigrants to ensure that no overstay occurs.

NON-IMMIGRANT CLASSIFICATIONS

B-1, Visitor for Business

A visitor for business is an alien who intends to conduct business in the United States which benefits a foreign employer, not in the nature of employment. He or she may generally not engage in local employment, nor displace a resident American worker, nor receive any direct remuneration for services from a United States source. The B-1 visitor may be initially admitted to the United States for a maximum period of one year until the purpose of the trip has been completed, and may apply for extensions of stay which are necessary to complete that purpose.

B-2, Visitor for Pleasure

A visitor for pleasure is an alien admitted for a personal visit to friends or relatives, on holiday or for tourism. The initial period of admission is typically six months. Extensions of stay are permitted in appropriate circumstances. Persons coming primarily for the purpose of performing skilled or unskilled labor, university study, or representing information media are not properly classifiable as B-2 visitors. Visitors may not engage in employment in the United States.

Visitors - Visa Waiver Program

Pursuant to the Visa Waiver Program, nationals from a list of thirty-six countries, so designated based upon a historically low rate of non-immigrant visa refusals, have been permitted to enter the United States as visitors for business or pleasure without first obtaining visas. Individuals entering under this program are permitted to remain in the United States for a maximum period of 90 days, and are generally barred from extending their stay or changing status while in the United States.


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“Visa Waiver” countries include:

Andorra Estonia Ireland Malta

Singapore United Kingdom

Austria Finland Italy Monaco Slovakia Australia France Japan Netherlands Slovenia Belgium Germany Latvia New Zealand Spain Brunei Greece Lichtenstein Norway South Korea Czech Republic

Hungary Lithuania Portugal Sweden

Denmark Iceland Luxembourg San Marino Switzerland In order to participate in the Visa Waiver Program, one must register online with the Electronic System for Travel Authorization (ESTA) operated by Customs and Border Patrol (CBP) part of the Department of Homeland Security. C-1, Transit Alien

A transit alien is an alien in immediate and continuous transit through the United States. A maximum period of twenty-nine days is authorized, not subject to extension.

D, Alien Crewmen

Alien crewmen, serving in such capacity while in port, are generally admitted for a maximum of twenty-nine days, not subject to extension.

E-1, Treaty Trader

A treaty trader is an alien who enters the United States in pursuance of the provisions of a Treaty of Commerce and Navigation between the United States and the foreign country of which the alien (and the alien's employer) is a national. A person is a national of a country whose passport he carries, regardless of place of birth. The E-1 visa holder must be coming solely to carry on substantial trade principally between the United States and the foreign country of which he/she is a national. The initial period of admission is for two years, and extensions of stay are possible. While there is no requirement for an overseas unrelinquished domicile, the alien must intend to return to a home abroad once the purpose of admission has been accomplished. Spouses may apply for employment authorization.


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E-2, Treaty Investor

An alien who enters pursuant to the provisions of a Treaty of Commerce and Navigation between the United States and the foreign country of which he/she is a national, coming solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing a substantial amount of capital, qualifies for E-2 status. The initial period of admission is two years, with extensions available in appropriate circumstances. Certain employees of firms which have made a substantial investment also may qualify. Spouses may apply for employment authorization.

E-3, Australian Specialty Workers

Australian citizens/nationals who are seeking employment in a specialty occupation requiring possession of a Bachelor’s Degree or higher (or its equivalent) qualify for E-3 status.

F-1, Student (see also M-1 status for nonacademic students)

Bona fide students qualified to pursue a full course of study in an educational program, who seek to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning which has been approved by the Department of Homeland Security for attendance by foreign students qualify for F-1 status. The 1996 Immigration Act ("IIRAIRA) prohibits according F-1 status to an alien for the purpose of attending public elementary schools or publicly-funded adult education programs. F-1 visas may be issued for attendance at public secondary schools only when the alien reimburses the educational agency administering the school for the expense of providing such education and the period of stay does not exceed 12 months. The alien spouse and minor children of such aliens are classified in F-2 category.

Schools and students are carefully monitored through an interactive web-based system known as SEVIS that tracks all schools who sponsor non-immigrant students in the United States and on an ongoing basis the current status of all non-immigrant students registered.

Students are generally admitted for "duration of status." Duration of status is defined to include the program of study, any period of practical training authorized, plus an additional sixty days. Students must obtain permission to accept employment. Authorization for part-time employment is issued in very limited circumstances (although not in the first year of the program), either based upon unforeseen financial hardship or for practical training. A limited period of practical training authorization may also be obtained at the conclusion of a bona fide


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educational program and during the student's course of study, particularly where such training is unavailable in the student's home country.

H-1A/Nurses

A temporary program has allowed for aliens with appropriate qualifications to be employed temporarily in the United States performing services as registered nurses. Special rules apply to institutions seeking eligibility to petition for foreign nurses.

H-1B, Specialty Occupation Workers

An alien coming temporarily to the United States to perform services in a "specialty occupation" qualifies for this status upon approval of a petition filed by a sponsoring employer. By statute and precedent decision, this includes all qualified professionals. H-1B status can also appropriately be used for visiting faculty, highly skilled specialists and consultants. While it must be shown that the alien will be coming temporarily to perform services, the position itself can be of an ongoing nature. H-1B aliens are admitted for the period of time approved by USCIS in a petition to classify the alien in H-1B status, not to exceed an initial period of three years, and extensions of stay may be obtained in appropriate circumstances. The statute places a limit of six years on a single uninterrupted stay in H-1B status.

There is a numerical limitation on how many new H-1 approvals can be issued in any fiscal year (October through September) which results in such visas being unavailable for significant parts of the year. In addition, filing fees for this visa category are very substantial

Labor Condition Attestation Application

As a prerequisite to filing a petition for an H-1B specialty occupation worker, a labor condition attestation application must be filed with the Department of Labor. Included in this attestation, which provides the title and salary for the position and the location where the non immigrant will work, is an assertion that the actual wage level paid to other employees or the prevailing wage (whichever is higher) is being paid, that the employment will not adversely affect the working conditions of workers similarly employed, that there is not a strike, lockout or work stoppage involved in this employment, and that notice of the filing has been either provided to the bargaining representative or, if there is no bargaining representative, that such notice has been properly posted.

H-2, Temporary Worker

This category is applicable to aliens coming temporarily to perform temporary services or labor, provided that unemployed persons capable of performing such services cannot be found in the United States. Prearranged employment must exist, and the petitioner/employer must demonstrate to the USCIS that unemployed Americans capable of performing these services cannot be located and that the alien is coming temporarily to perform services which are themselves temporary in nature. An application must be made for a certification to the U.S.


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Department of Labor to show that American workers are unavailable. The initial period of admission is, as authorized by the U.S. Department of Labor and by USCIS, not to exceed one year. Extensions may be obtained in limited circumstances. This visa status may not be held for longer than three years by regulation.

There is a numerical limitation on how many new H-2 approvals can be issued in any fiscal year (October through September) which result in such visas being unavailable for significant parts of the year.

H-3, Trainee

A trainee is an alien coming temporarily to the United States for training together with the spouse and minor children of such alien at the invitation of an individual, organization, firm or other trainer in any field of endeavor, including agriculture, commerce, communications, finance, government, transportation and the professions as well as in a purely industrial establishment. The petitioner must describe the type of training to be given, the source of remuneration of the trainee and whether or not any benefit will accrue to the petitioner, and must demonstrate why it is necessary for the alien to be trained in the United States. The trainee is not permitted to engage in productive employment unless it is incidental and necessary to the training and may not take up employment which will displace a U.S. resident worker. The period of initial admission is that approved by the USCIS in a petition filed by the sponsoring employer-trainer, generally the full period required for training. Extensions are available in limited circumstances, up to a total limit of two and a half years.

I - Journalist

An alien is admitted in I status, upon a reciprocity basis, as a bona fide representative of a foreign press, radio, film or other foreign information media, who seeks to enter the United States solely to engage in such vocation, and the spouse and children of such representative. The initial period of admission is one year.

J - Exchange Alien

An alien who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, coming temporarily as a participant in a program designated by the United States Information Agency for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, practical training, etc. in an approved exchange program, and the alien's spouse and minor children of such participant, are admissible in J-1 and J-2 visa categories. Certain J aliens are by law required to return to their own country for a period of two years to impart the knowledge they have gained in this country before they may apply for status as immigrants or obtain certain other non-immigrant statuses, unless a waiver of such two year period is granted. The initial period of admission is as specified in program Form DS2019 (formerly IAP-66).


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The exchange visitor program is carefully monitored through the Department of Homeland Security’s interactive website known as SEVIS much in the same manner as is applicable to F-1 students.

K-1 Status - Fiancé or Fiancée of U.S. Citizens

Those engaged to be married to U.S. citizens who seek to enter the United States solely to conclude a valid marriage with the U.S. citizen petitioner within 90 days after entry, and the minor children of such persons. The period of admission is 90 days, and is not subject to extension.

K-3 Status – Spouse of United States Citizen

This visa classification is available to individuals for whom a United States citizen spouse has filed an immigrant visa petition which remains pending. This visa classification facilitates entry into the United States to such a spouse of a United States citizen (and his or her minor child) while awaiting processing and adjudication of the immigrant visa petition.

L-1, Intra-company Transferee

An L-1 intra-company transferee is an alien who, during the three year period immediately preceding the time of his or her application for admission into the United States, has been employed for one year by a firm or corporation or other legal entity (or an affiliate or subsidiary thereof) and who seeks to enter the United States temporarily in order to continue to render his services to the same employer (or an affiliate or subsidiary thereof) in a capacity which is managerial, executive or involves specialized knowledge. The L-1 petition filed with USCIS may be granted with an initial validity of up to three years. Extensions may be available thereafter if such need is sufficiently documented. The statute limits the total stay in L-1 status (or L-1 and H-1 status combined) to five consecutive years for "specialized knowledge" L-1's and seven years for "executive" or "managerial" L-1's. The spouse and minor children (L-2) of such aliens are generally granted periods of admission and extension to match those of the primary applicant spouses, and may apply for employment authorization.

M-1, Non-academic Student

Bona fide students seeking to enter the United States to pursue a full course of study at an established vocational or other recognized non-academic institution, other than in a language training program, qualify for M-1 visas. The alien spouse and minor children of such aliens are classified in the M-2 category. Non-academic students are admitted for the period of their school program plus thirty days. Employment authorization will not be granted, but a limited period of "practical training" may be authorized at the end of the program.


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N, Relatives of Employees of Certain International Organizations

Certain relatives of long-term employees of the United Nations and other international organizations are eligible to remain in the United States under this provision.

O-1, Aliens of Extraordinary Ability

O-1 visas are issued to aliens of "extraordinary ability" in the sciences, arts, education, business and athletics, as demonstrated by "sustained national or international acclaim", whose entry the Attorney General believes will "substantially benefit prospectively" the United States. Formerly, this class of aliens was included in the H-1B designation. Consultation with unions, management groups and other outside sources is required to determine status as "extraordinary".

O-2, Assistants to Aliens of Extraordinary Ability

O-2 visas are issued to aliens entering for the purpose of assisting the performance of an alien of extraordinary ability must establish that they are an integral part of the performance because of critical skills or long standing relationship with the principal performing alien.

P-1, Athletes and Entertainers

Athletes and entertainers, in the case of athletes performing as individuals or groups and entertainers performing as a group recognized at an international level are issued P-1 visas (requires consultation with appropriate unions.) Formerly included in H 1B visa category.

P-2, Athletes and Entertainers (Exchange)

Athletes and entertainers entering the United States to perform under reciprocal exchange programs are issued P-2 visas. Formerly part of H-1 visa category.

P-3, Athletes and Entertainers (Cultural)

Athletes and entertainers entering to perform in a culturally unique program, requiring consultation with the union, are issued P-3 visas. Formerly part of H-1 visa category.

Q, Cultural Exchange

Aliens entering the United States to participate in designated international cultural exchange programs that provide practical training, employment and sharing of culture may obtain Q visas. The maximum period permitted under this visa category is fifteen months.


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R, Religious Occupations

Certain religious workers entering the United States to perform religious work or work for a religious organization, who have bona fide membership in a religious denomination for at least two years preceding the application, and their spouses and children, qualify for R visas.

S, Witnesses and Informants

Certain aliens who will be serving as witnesses in federal or state court with respect to criminal enterprises, when such alien is determined by the Attorney General to possess critical and reliable information; certain aliens who will provide critical and reliable information, as determined by the Secretary of State and Attorney General jointly, respecting terrorist organizations or operations, to Federal law enforcement authorities or a federal court, and where appropriate the spouse, married or unmarried sons and daughters and parents of such alien, may be accorded S visas.

T, Certain Victims of Trafficking in Persons

Certain aliens who have been victims of severe forms of trafficking in persons who are physically present in the United States and have assisted in the investigation of the prosecution of acts of trafficking and the spouse, children and parents of such victim maybe eligible for this classification.

U, Victims of Severe Criminal Activity/Materials Witnesses

Aliens who have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity involving one or more of the violation of certain federal, state or local criminal statutes relating to rape, torture, trafficking, incest, domestic violence and other such similar crimes and individuals having knowledge of such crimes may under appropriate circumstances be eligible for this visa classification.

V, Special Limited Provision for Spouses and Children of Permanent Residents

An alien may be classified in the V non-immigrant category if the beneficiary of a petition according preference status was filed with the Attorney General on or before December 21, 2000 and such petition has been pending for three years or more. Children of the principal alien are eligible to receive this benefit as well.


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PERMANENT RESIDENT (IMMIGRANT) ALIEN STATUS CATEGORIES

The status of a lawful permanent resident of the United States may be obtained by applicants who meet both the qualitative and quantitative requirements of the law. Qualitatively, they must prove themselves not to be ineligible for immigrant status under any of the general categories of inadmissible aliens specified in the law (8 U.S.C. 1182(a)), including criminality, mental defect, Communist party affiliation, drug trafficking, terrorism, etc. Quantitatively, they must either obtain preference classification based upon the petition of specified close relatives who are permanent residents or citizens of the United States; or upon the petition of a sponsoring employer or prospective employer for occupational preference; or based on a major investment in the United States; or through selection through the Diversity (lottery) Visa program. The effect of the law's national and worldwide quota limitations often results in extended waiting periods before permanent resident status may be finally obtained. Such status may be sought either through an immigrant visa application before a U.S. Consular Officer abroad or, in certain circumstances, in adjustment of status proceedings within the United States.

THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 ("IIRAIRA")

EXCLUSION GROUNDS With respect to possible bases of ineligibility for admission, there has been an expansion of the grounds for exclusion. One important category of excludable aliens includes those who, after April 1, 1997, overstay for 180 days or longer. Aliens who have overstayed for more than 180 days but less than one year are inadmissible for three years from the date of their departure; those who overstay for one year or more are inadmissible for ten years.

Also excludable for a period of five years are students who have violated the new restrictions on student status (see description of F-1 status, above). Health care workers (other than physicians) who are entering the United States to render health care services are excludable unless they receive certification (such as CGFNS) for their field and speak sufficient English for their type of work.

Non-immigrant and immigrant visa applicants alike, can be permanently excluded from the United States if they were formerly United States citizens who renounced their citizenship for tax avoidance reasons.


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EMPLOYMENT-BASED IMMIGRANTS

The Immigration Act of 1990 presented Congress' most recent revision of the visa allocation formula. The great majority of these visas are allocated for the various categories of family reunification. 140,000 visas are provided for employment-based immigration.

The Immigration Act now defines five categories or preferences (of which three have additional subcategories of their own) for immigration based on employment or employment-creation:

PREFERENCE I "PRIORITY WORKERS"

(40,000 VISA NUMBERS AVAILABLE PLUS SPILL DOWN FROM PREFERENCES IV AND V)

Employment I - Sub-category I (E11)

Aliens with "extraordinary ability" in arts, sciences, education, business or athletics.

To qualify in this sub-category, the applicant must show sustained national or international acclaim, achievements recognized through extensive public documentation and be able to demonstrate that his or her contribution would "substantially benefit" the United States prospectively.

Employment I - Sub-category II (E12)

Outstanding Professors and Researchers.

To qualify in this category, the applicant must establish international recognition or acclaim, at least three years' experience in teaching or research in the field and have available an offer of employment for a tenured or tenure-track teaching position or comparable research position in private industry.

Employment I - Sub-category III (E13)

Certain Multi-national Executives and Managers.

An intra-company transferee who can show at least one year's employment overseas with a sponsoring employer within the three-year period immediately prior to transfer into the United States, who was employed as an executive or manager and is transferred to the United States to perform similar executive or managerial duties (whether or not he or she has a university degree).


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PREFERENCE II PROFESSIONALS AND ALIENS OF "EXCEPTIONAL ABILITY"

(40,000 VISA NUMBERS AVAILABLE PLUS SPILL DOWN FROM PREFERENCE I)

Immigrant status is available to qualified immigrants who are members of the professions holding advanced degrees or their equivalent, or who because of their exceptional ability (which must be demonstrated by more than just a degree or license) in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.

A certification must be obtained from the Department of Labor that there are not American workers ready, willing and available for the position, in most cases. Such certification and a specific job offer may not be necessary for applicants in this category if the work is established to be in the national interest.

An employer must register online with the Department of Labor in order to submit an application for labor certification which can only be submitted once the employer has obtained the prevailing wage determination, conducted appropriate recruitment under specific regulatory guidelines, and posted a specific notice as to the availability of the position.

PREFERENCE III SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS

(40,000 VISAS PER YEAR PLUS ANY UNUSED VISAS UNDER PREFERENCES I AND II)

Employment III - Sub-category I (E31)

Skilled Workers - An alien qualifies as a skilled worker if at the time of petitioning for classification, the alien qualifies to perform skilled labor requiring at least two years' training or experience and is being sponsored for a position which is not temporary or seasonal in nature, for which qualified workers are not available in the United States.

Employment III - Sub-category II (E32)

Professionals - This category is reserved for professionals, defined as aliens holding baccalaureate degrees and members of the professions employed in positions for which United States workers are not available.


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Employment III - Sub-category III (EW)

"Other Workers" - This sub-category is reserved for aliens capable of performing unskilled labor not of a temporary or seasonal nature for which qualified workers are not available in the United States. Since a cap of 10,000 visas (within this overall 40,000 limit) is set for applicants seeking to qualify as "other workers," there is a substantial waiting period under this sub-category.

Labor Certification Process

For the Employment III Sub-Category, a certification must be obtained from the Department of Labor that there are not American workers ready, willing and available for the position, in most cases.

An employer must register online with the Department of Labor in order to submit an application for labor certification which can only be submitted once the employer has obtained the prevailing wage determination, conducted appropriate recruitment under specific regulatory guidelines, and posted a specific notice as to the availability of the position.

PREFERENCE IV

SPECIAL IMMIGRANTS (10,000 VISAS AVAILABLE PER YEAR)

This category is reserved for certain qualified special immigrants such as religious workers, certain former United Nations employees, etc. The religious worker category generally requires two years' prior experience in a religious occupation, profession or the ministry.

PREFERENCE V EMPLOYMENT-CREATION IMMIGRANTS

(10,000 VISAS AVAILABLE PER YEAR)

This "investor" provision provides visas to applicants who invest a minimum of a million dollars in a new enterprise in the United States which will result in the creation of employment for at least ten "qualified workers" (United States citizens, permanent residents, and certain other individuals who are authorized to work) other than immediate family members of the investor. In certain exceptional circumstances, including where the investment is made in an area of high unemployment or a rural area, the amount may be reduced to $500,000 and under other circumstances increased to as much as $3 million.


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FAMILY-SPONSORED PREFERENCES AND DIVERSITY IMMIGRANTS

(a) Family Sponsored Immigrants

Immediate relatives of U.S. citizens (including the spouse, minor children and parents of adult U.S. citizens) remain an unrestricted category, not subject to numerical limitation and therefore not subject to long waiting periods. However, the number of immediate relative applicants admitted is tabulated and can impact on and reduce the number of visas available in the family-sponsored preference categories.

Family relationships which are also eligible for preference consideration are the following:

First Preference Unmarried Sons and Daughters of United States Citizens

Second Preference Divided into two Sub-Categories;

Sub-Category One – Spouses and Unmarried Children of Permanent Resident Aliens Sub-Category Two - Unmarried Adult Sons and Daughters of Permanent Resident Aliens

Third Preference Married Sons and Daughters of United States Citizens

Fourth Preference Brothers and Sisters of United States Citizens

(b) Diversity Immigrants

"Diversity immigration" is another of the euphemisms found in the Immigration Act of 1990. In fact, this term refers to certain "lottery" programs where citizens of a number of designated countries which have been statistically unrepresented in immigration to the United States in recent years, may file an online application with the State Department for possible random selection for immigrant visas without any reference to the applicant's relationship to United States citizens, permanent residents, or U.S. employers. Under present regulations, a lottery


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applicant must have at least a high school education or two years' experience in a position which requires such experience.

TAX NOTES

Who is a resident for tax purposes?

The Deficit Reduction Act of 1984 creates a statutory definition of the term "resident alien" for tax purposes. Included are two tests, one based upon visa status and the other based upon "substantial presence" in the United States.

Pursuant to I.R.C. Section 7701(b)(1)(A)(i), an alien who has been granted the immigration status of U.S. permanent residence is a resident for U.S. tax purposes, without exception. Absence from the United States for the entire year does not prevent the absolute determination that the person is a resident for tax purposes unless the status of permanent residence has been terminated under the immigration laws. I.R.C. Sec. 7701(b)(5). Permanent residence status can be relinquished in appropriate cases.

Under the "substantial presence" test, an individual is a resident for tax purposes if he has been physically present in the United States for 183 days or more within the calendar year. I.R.C. Sec. 7701(b)(3)(A)(ii). Alternatively, one is deemed "substantially present" in the United States if he has been "cumulatively present" in the United States over the last three years for a sufficient number of days. Cumulative presence is calculated by means of a complex formula, set forth in the statute. An exception to the cumulative presence rules is provided for an individual alien who is able to show that his "tax home" and family connections remain in a foreign country. Teachers, students and certain employees of foreign government agencies may be exempt from the resident alien rules, under certain circumstances.

A Word about Estate Taxes and Immigration Status

Pursuant to IRC Section 2056(d), as amended in November 1988, in cases of transfers made by a U.S. citizen or resident decedent to a surviving spouse who is not a citizen of the United States, the marital deduction is not available unless there is a disposition by means of a qualified domestic trust. Accordingly, it may be important for spouses to consider applying for naturalization as U.S. citizens to avoid excessive estate taxes.

Further Advice

This memo is not intended to be all-inclusive or to furnish advice in a particular case. Please feel free to contact our office for further information and advice.

New York County LawyersNew York County Lawyers’’ AssociationAssociation

March 6, 2012March 6, 2012

An Introduction to Three of the Most Utilized Non-Immigrant Work Authorized Visa Categories:

HH--1B, L1B, L--1, TN1, TN

Law Offices of Gilbert C. Ferrer, PLLC

HH--1B Process1B Process•• Temporary workers in a specialty occupation. Temporary workers in a specialty occupation.

–– Eligibility:Eligibility:•• Theoretical and practical application of a body of highly Theoretical and practical application of a body of highly

specialized knowledge, andspecialized knowledge, and•• Attainment of a bachelor's or higher degree in the specific Attainment of a bachelor's or higher degree in the specific

specialty (or its equivalent) as a minimum for entry into the specialty (or its equivalent) as a minimum for entry into the occupation in the United States. occupation in the United States.

•• Petition supported by a Labor Condition Application (LCA) Petition supported by a Labor Condition Application (LCA) certified by the U.S. Department of Labor (certified by the U.S. Department of Labor (““USDOL.USDOL.””) )


HH--1B 1B –– Basic IssuesBasic Issues

•• Does the person have the necessary Does the person have the necessary credentials.credentials.

•• Does the position qualify as a Does the position qualify as a ““specialty specialty occupationoccupation””

•• Has the petitioner made appropriate Has the petitioner made appropriate attestations through a certified LCA.attestations through a certified LCA.

•• Is the petitioner the Is the petitioner the ““employeremployer”” of the of the beneficiary.beneficiary.

Employer/Employee Employer/Employee RelationshipRelationship

•• Petitioner must be U.S. entity and be the Petitioner must be U.S. entity and be the employer of the beneficiary.employer of the beneficiary.–– Contract with an end user is no longer enough Contract with an end user is no longer enough

in many cases.in many cases.•• Neufeld Memo Neufeld Memo –– Who is in control?Who is in control?

–– Does petitioner control the details of Does petitioner control the details of employment employment –– hours, details of duties, hours, details of duties, assignment of assistants, does the assignment of assistants, does the assignment involve petitionerassignment involve petitioner’’s regular s regular products or services?products or services?

USCIS PETITIONUSCIS PETITION•• Form IForm I--129 (with I129 (with I--129H and I129H and I--129 HDC supplements 129 HDC supplements

and certified Labor Condition Application) filed with either and certified Labor Condition Application) filed with either Vermont or California Service Centers of USCIS.Vermont or California Service Centers of USCIS.

•• Filed with supporting evidence showing beneficiary has Filed with supporting evidence showing beneficiary has required credentials and that the job being offered required credentials and that the job being offered qualifies as specialty occupation employment with a US qualifies as specialty occupation employment with a US employer.employer.

•• Subject to annual quota of 65,000 (additional 20,000 Subject to annual quota of 65,000 (additional 20,000 quota for holders of Masterquota for holders of Master’’s degrees from US s degrees from US universities.)universities.)

USCIS PETITIONUSCIS PETITION•• Filing fees:Filing fees:

–– Basic feeBasic fee $325.00$325.00–– ““Training FeeTraining Fee”” $750.00 or $1500.00 if $750.00 or $1500.00 if

more than 25 employees.more than 25 employees.–– Fraud Prevention and Detection FeeFraud Prevention and Detection Fee

$500.00$500.00–– SixSix--year period (three years initially, renewable for an year period (three years initially, renewable for an

additional three years.) additional three years.) Period of stay in LPeriod of stay in L--1 status in US applies against the six 1 status in US applies against the six

year maximumyear maximum

USCIS PetitionUSCIS Petition

•• New employment may commence upon New employment may commence upon the filing of the Ithe filing of the I--129 if seeking an 129 if seeking an extension of current Hextension of current H--1B status.1B status.

•• Dependents are eligible for HDependents are eligible for H--4 status can 4 status can be applied for simultaneously on form Ibe applied for simultaneously on form I-- 539.539.

•• Premium processing is available. Form IPremium processing is available. Form I-- 907 is filed with additional $1225 fee.907 is filed with additional $1225 fee.

Labor Condition ApplicationLabor Condition Application

•• Filled in online at USDOL ETA Filled in online at USDOL ETA iCertiCert Portal Portal http://http://icert.doleta.govicert.doleta.gov//

•• Requires basic information about the Requires basic information about the employer and employment and employer employer and employment and employer attestations.attestations.

•• Approval now takes 7 days if form Approval now takes 7 days if form correctly filled in and no other glitches correctly filled in and no other glitches slow things down.slow things down.


LCA AttestationsLCA Attestations•• The LCA requires the employer to attest:The LCA requires the employer to attest:

–– The foreign worker will be paid the greater of either the The foreign worker will be paid the greater of either the prevailing wage for the occupation in the area of employment prevailing wage for the occupation in the area of employment or the actual wage paid by the employer for workers or the actual wage paid by the employer for workers performing similar duties with similar experience, education, performing similar duties with similar experience, education, etc.etc.

–– That hiring the foreign worker will not adversely affect the That hiring the foreign worker will not adversely affect the working conditions of U.S. workers employed at the work site.working conditions of U.S. workers employed at the work site.

–– There are no strikes or lockouts underway at the worksite.There are no strikes or lockouts underway at the worksite.–– Notice of the filing of an LCA, reflecting an offer of employmenNotice of the filing of an LCA, reflecting an offer of employment t

to an Hto an H--1B foreign worker, has been made at the worksite, 1B foreign worker, has been made at the worksite, either by posting notice of the filing of the LCA in two either by posting notice of the filing of the LCA in two prominent locations or, if governed by a collective bargaining prominent locations or, if governed by a collective bargaining agreement, by giving notice to the bargaining unitagreement, by giving notice to the bargaining unit’’s s representative.representative.


Determining the Prevailing WageDetermining the Prevailing Wage

–– Requesting a determination by the DOL on Requesting a determination by the DOL on form ETA 9141 via the form ETA 9141 via the iCertiCert PortalPortalhttp://http://icert.doleta.govicert.doleta.gov/./.

–– Preparing your own employer survey of wage Preparing your own employer survey of wage rates for the area of employment.rates for the area of employment.

–– Accessing the Online Wage Library at the Accessing the Online Wage Library at the DOL DOL iCertiCert PortalPortal

–– Collective Bargaining Agreement.Collective Bargaining Agreement.–– Requesting a PWD from a SWA is no longer Requesting a PWD from a SWA is no longer

an option.an option.


Determining the Appropriate Wage Determining the Appropriate Wage LevelLevel

•• The Online Wage Library lists four levels The Online Wage Library lists four levels of wages. of wages. –– Appropriate wage requires estimation of the Appropriate wage requires estimation of the

education and experience required for the education and experience required for the position position

–– Based on the standards set up within the Job Based on the standards set up within the Job Zone assigned to the occupation by the Zone assigned to the occupation by the O*Net.O*Net.


LCA Posting RequirementsLCA Posting Requirements•• Attestations Require Posting the LCA for a 10 day period Attestations Require Posting the LCA for a 10 day period

in two conspicuous locations.in two conspicuous locations.•• The notice shall indicate:The notice shall indicate:

–– that Hthat H--1B non1B non--immigrants are sought; immigrants are sought; –– the number of such nonthe number of such non--immigrants the employer is seeking;immigrants the employer is seeking;–– the occupational classification; the occupational classification; –– wages offered to the Hwages offered to the H--1B worker; 1B worker; –– period of employment; period of employment; –– location(slocation(s) at which the H) at which the H--1B non1B non--immigrants will be employed; immigrants will be employed; –– and that the LCA is available for public inspection at the Hand that the LCA is available for public inspection at the H--1B 1B

employer's principal place of business in the U.S. or at the employer's principal place of business in the U.S. or at the worksite. worksite.


The Public Access FileThe Public Access File

•• The employer must make the LCA and The employer must make the LCA and necessary supporting documentation necessary supporting documentation available for public examinationavailable for public examination–– at the employer's principal place of business at the employer's principal place of business

in the U.S. or in the U.S. or –– at the place of employment at the place of employment –– within one working day after the date on within one working day after the date on

which the LCA is filed with DOL. which the LCA is filed with DOL.


The Public Access File 2The Public Access File 2•• The following documentation should be made available:The following documentation should be made available:

•• A signed copy of the certified labor condition application. A signed copy of the certified labor condition application. •• Documentation which provides the wage rate to be paid the HDocumentation which provides the wage rate to be paid the H--1B 1B

nonimmigrant;nonimmigrant;•• A full, clear explanation of the system that the employer used tA full, clear explanation of the system that the employer used to set o set

the "actual wage" the employer has paid or will pay workers in tthe "actual wage" the employer has paid or will pay workers in the he occupation for which the Hoccupation for which the H--1B nonimmigrant is sought.1B nonimmigrant is sought.

•• A copy of the documentation the employer used to establish the A copy of the documentation the employer used to establish the "prevailing wage", and"prevailing wage", and

•• A copy of the workplace posting under A copy of the workplace posting under §§655.734.655.734.Additional documents if the employer is Additional documents if the employer is ““HH--1B Dependent.1B Dependent.””


HH--1B Dependent Employers1B Dependent Employers•• Means an employer that meets one of the three following Means an employer that meets one of the three following

standards:standards:–– The employer has 25 or fewer fullThe employer has 25 or fewer full--time equivalent employees time equivalent employees

who are employed in the U.S.; and who are employed in the U.S.; and •• Employs more than seven HEmploys more than seven H--1B non1B non--immigrants; immigrants;

–– The employer has at least 26 but not more than 50 fullThe employer has at least 26 but not more than 50 full--time time equivalent employees who are employed in the U.S.; and equivalent employees who are employed in the U.S.; and

•• Employs more than 12 HEmploys more than 12 H--1B nonimmigrant; or 1B nonimmigrant; or

–– The employer has at least 51 fullThe employer has at least 51 full--time equivalent employees who time equivalent employees who are employed in the U.S.; andare employed in the U.S.; and

•• Employs HEmploys H--1B non1B non--immigrants in a number that is equal to at least immigrants in a number that is equal to at least 15 percent of the number of such full15 percent of the number of such full--time equivalent employees.time equivalent employees.


Attestations for HAttestations for H--1B Dependent 1B Dependent EmployersEmployers

1. That it has not displaced U.S. workers to hire H1. That it has not displaced U.S. workers to hire H--1B workers within 90 1B workers within 90 days before or after the filing of the LCA.days before or after the filing of the LCA.

2. That if it is placing the H2. That if it is placing the H--1B worker with another employer, the H1B worker with another employer, the H-- 1B employer has inquired of the other/secondary employer as to 1B employer has inquired of the other/secondary employer as to whether, and has no knowledge that, the other/secondary employerwhether, and has no knowledge that, the other/secondary employer has displaced or intends to displace a similarlyhas displaced or intends to displace a similarly--employed U.S. employed U.S. worker.worker.

3. That prior to filing the LCA or any petition or request for e3. That prior to filing the LCA or any petition or request for extension xtension of status supported by the LCAof status supported by the LCA——to take good faith steps to recruit to take good faith steps to recruit U. S. workers in the United States for the U. S. workers in the United States for the job(sjob(s) in the United States ) in the United States for which the Hfor which the H--1B non1B non--immigrant(simmigrant(s) is/are sought.) is/are sought.


Public Access File Public Access File ReduxRedux•• If HIf H--1B Dependent:1B Dependent:

–– Evidence of recruitment of US workersEvidence of recruitment of US workers–– List of exempt employees, if anyList of exempt employees, if any

•• In other cases:In other cases:–– If employer is combining entities to determine If employer is combining entities to determine

lack of Hlack of H--1B dependency, a list of entities1B dependency, a list of entities–– If employer has changed legal structure, and If employer has changed legal structure, and

is not filing amended petitions is not filing amended petitions –– sworn sworn statement that it accepts LCA obligations and statement that it accepts LCA obligations and list the affected list the affected LCALCA’’ss..


Movable EmployeesMovable Employees•• Is an HIs an H--1B employee moving to a 1B employee moving to a ““new place of new place of

employment? employment? –– If the worker is peripatetic (always on the move, but If the worker is peripatetic (always on the move, but

not more than 5 days in a particular place,) ornot more than 5 days in a particular place,) or–– Travels occasionally (not more then 10 days in a Travels occasionally (not more then 10 days in a

place, then no.place, then no.•• If yes:If yes:

–– ReRe--post (if the new worksite is within the area of post (if the new worksite is within the area of intended employment)intended employment)

–– Use short term placement rules, orUse short term placement rules, or–– File a new LCA for the new worksite (and amended File a new LCA for the new worksite (and amended

petition, maybe.)petition, maybe.)


LL--1 1 IntracompanyIntracompany TransferTransfer

–– LL--1A Executive or Manager: Served in that 1A Executive or Manager: Served in that capacity in a capacity in a ““Qualifying OrganizationQualifying Organization”” for one for one year out of the last three. Maximum 7 years year out of the last three. Maximum 7 years validity.validity.

–– LL--1B Specialized Knowledge Employee: Has 1B Specialized Knowledge Employee: Has a knowledge of the a knowledge of the QOQO’’ss systems, products, systems, products, process, etc., over and above that which process, etc., over and above that which could be found in the U.S. 5 year validity.could be found in the U.S. 5 year validity.

Law Offices of Gilbert C. Ferrer, PLLCLaw Offices of Gilbert C. Ferrer, PLLC

Qualifying OrganizationQualifying Organization•• A qualifying organization means a United States or A qualifying organization means a United States or

foreign firm, corporation, or other legal entity which:foreign firm, corporation, or other legal entity which:•• Meets exactly one of the qualifying relationships Meets exactly one of the qualifying relationships

specified in the definitions; andspecified in the definitions; and•• Is or will be doing business (engaging in international Is or will be doing business (engaging in international

trade is not required) as an employer in the United trade is not required) as an employer in the United States and in at least one other country directly or States and in at least one other country directly or through a related qualifying entity for the duration of the through a related qualifying entity for the duration of the alien's stay in the United States as an alien's stay in the United States as an intracompanyintracompany transferee;transferee;


Qualifying Organizations 2Qualifying Organizations 2•• ParentParent means a firm, corporation, or other legal means a firm, corporation, or other legal

entity which has subsidiaries. entity which has subsidiaries. •• BranchBranch means an operating division or office of means an operating division or office of

the same organization housed in a different the same organization housed in a different location. location.

•• SubsidiarySubsidiary means a firm, corporation, or other means a firm, corporation, or other legal entity of which a parent owns, directly or legal entity of which a parent owns, directly or indirectly, more than half of the entity and/or indirectly, more than half of the entity and/or controls the entity; controls the entity;

•• AffiliateAffiliate means one of two subsidiaries both of means one of two subsidiaries both of which are owned and controlled by the same which are owned and controlled by the same parent or individual.parent or individual.


LL--1 Petitioning Process1 Petitioning Process•• An individual LAn individual L--1 petition is filed on Form I1 petition is filed on Form I--129, along with the I129, along with the I--

129L supplement and must be accompanied by:129L supplement and must be accompanied by:

–– Evidence that the petitioner and the organization which employedEvidence that the petitioner and the organization which employed or will or will employ the alien are qualifying organizations.employ the alien are qualifying organizations.

–– Evidence that the alien will be employed in an executive, manageEvidence that the alien will be employed in an executive, managerial, or rial, or specialized knowledge capacity, including a detailed descriptionspecialized knowledge capacity, including a detailed description of the of the services to be performed.services to be performed.

–– Evidence that the alien has at least one continuous year of fullEvidence that the alien has at least one continuous year of full--time time employment abroad with a qualifying organization within the threemployment abroad with a qualifying organization within the three years e years preceding application for admission and that the alien's prior preceding application for admission and that the alien's prior year of year of employment abroad was in a position that was managerial, executiemployment abroad was in a position that was managerial, executive, or ve, or involved specialized knowledge.involved specialized knowledge.


LL--1 Visas 1 Visas –– IntracompanyIntracompany TransfersTransfers

•• LL--1 Visa Reform Act of 20041 Visa Reform Act of 2004 –– Forbids LForbids L--1 1 workers from working at job sites other than with workers from working at job sites other than with their petitioning employer if:their petitioning employer if:

–– 1. The work is controlled and supervised by a 1. The work is controlled and supervised by a different employer, ordifferent employer, or

–– 2. If the offsite arrangement is essentially to provide 2. If the offsite arrangement is essentially to provide local labor to a non petitioning party, rather than as local labor to a non petitioning party, rather than as relating to the specialized knowledge of the relating to the specialized knowledge of the employee.employee.


LL--1 Blanket Petitions1 Blanket Petitions•• A petitioner may file a blanket petition seeking continuing apprA petitioner may file a blanket petition seeking continuing approval of itself oval of itself

and some or all of its parent, branches, subsidiaries, and affiland some or all of its parent, branches, subsidiaries, and affiliates as iates as qualifying organizations ifqualifying organizations if: :

–– The petitioner and each of those entities are engaged in commercThe petitioner and each of those entities are engaged in commercial trade or ial trade or services; services;

–– The petitioner has an office in the United States that has been The petitioner has an office in the United States that has been doing business for doing business for one year or more; one year or more;

–– The petitioner has three or more domestic and foreign branches, The petitioner has three or more domestic and foreign branches, subsidiaries, or subsidiaries, or affiliates; and affiliates; and

–– The petitioner and the other qualifying organizations have obtaiThe petitioner and the other qualifying organizations have obtained approval of ned approval of petitions for at least ten "L" managers, executives, or specialipetitions for at least ten "L" managers, executives, or specialized knowledge zed knowledge professionals during the previous 12 months; or have U.S. subsidprofessionals during the previous 12 months; or have U.S. subsidiaries or iaries or affiliates with combined annual sales of at least $25 million; oaffiliates with combined annual sales of at least $25 million; or have a United r have a United States work force of at least 1,000 employees.States work force of at least 1,000 employees.


The New Office ScenarioThe New Office Scenario•• In addition to the basic requirements, the petitioner who In addition to the basic requirements, the petitioner who

seeks to open a new office in the United States must seeks to open a new office in the United States must supply additional evidence:supply additional evidence:–– (A) Sufficient physical premises to house the new office have be(A) Sufficient physical premises to house the new office have been en

secured;secured;–– (B) That the beneficiary has been employed for one continuous ye(B) That the beneficiary has been employed for one continuous year in ar in

the three year period preceding the filing of the petition in anthe three year period preceding the filing of the petition in an executive executive or managerial capacity, and also that the proposed employment inor managerial capacity, and also that the proposed employment involve volve executive or managerial authority as well over the new office anexecutive or managerial authority as well over the new office andd

–– (C) The intended United States operation, within one year of the(C) The intended United States operation, within one year of the approval of the petition, will support an executive or manageriaapproval of the petition, will support an executive or managerial position l position supported by information regarding nature of the office, its supported by information regarding nature of the office, its organizational structure, and financial goals; the size of the Uorganizational structure, and financial goals; the size of the United nited States investment and the financial ability of the foreign entitStates investment and the financial ability of the foreign entity to y to commence doing business in the United States. commence doing business in the United States.

Law Offices of Gilbert C Ferrer, PLLC

Other LOther L--1 Characteristics1 Characteristics•• Time Spent in HTime Spent in H--1B Status1B Status –– Time spent by the beneficiary in the Time spent by the beneficiary in the

United States in either HUnited States in either H--1B or L1B or L--1 Status accrues against the seven 1 Status accrues against the seven year limitation for Lyear limitation for L--1A or the five year limitation for L1A or the five year limitation for L--1B, unless the 1B, unless the beneficiary has been outside the United States for one year.beneficiary has been outside the United States for one year.

•• DependentsDependents –– Spouses of LSpouses of L--1 visa holders can receive L1 visa holders can receive L--2 status 2 status and are eligible to apply for Employment Authorization Documentsand are eligible to apply for Employment Authorization Documents on form Ion form I--765. This can be filed simultaneously with a I765. This can be filed simultaneously with a I--539 539 application to change nonapplication to change non--immigrant status to Limmigrant status to L--2.2.

•• QuotasQuotas –– There are presently no annual quotas imposed on LThere are presently no annual quotas imposed on L--1 1 nonnon--immigrant visa issuance.immigrant visa issuance.

•• Filing FeesFiling Fees –– The basic IThe basic I--129 filing fee of $325 and the $500.00 129 filing fee of $325 and the $500.00 fraud prevention fee. Premium processing is available.fraud prevention fee. Premium processing is available.


Trade NAFTA Professionals (Trade NAFTA Professionals (TNsTNs))

•• The TN classification was established by the North The TN classification was established by the North American Free Trade Agreement and establishes an American Free Trade Agreement and establishes an expedited format to Canadians and applies to Canadian expedited format to Canadians and applies to Canadian and Mexican nationals. and Mexican nationals.

•• In certain cases, it provides a useful alternative to the HIn certain cases, it provides a useful alternative to the H-- 1B category for NAFTA professionals who seek entry to 1B category for NAFTA professionals who seek entry to perform temporary services for U.S. employers. perform temporary services for U.S. employers.

•• Unlike the HUnlike the H--1B, there are no Labor Condition 1B, there are no Labor Condition Application (LCA) or prevailing wage requirements for Application (LCA) or prevailing wage requirements for the TN category.the TN category.


Qualifying Professions Qualifying Professions •• –– The NAFTA designates 63 categories of professionals The NAFTA designates 63 categories of professionals

eligible for TN status and the educational requirements eligible for TN status and the educational requirements and alternative credentials required for each step. and alternative credentials required for each step.

•• The list of professions covered is contained at Appendix The list of professions covered is contained at Appendix 1603.D.1 to Annex 1603 of the NAFTA and is reprinted 1603.D.1 to Annex 1603 of the NAFTA and is reprinted at 8 CFR 214.6(c) at 8 CFR 214.6(c)

•• The occupations include, but are not limited to, computer The occupations include, but are not limited to, computer systems analysts, scientists, architects, engineers, systems analysts, scientists, architects, engineers, economists, lawyers, librarians, and management economists, lawyers, librarians, and management consultants. consultants.


Trade NAFTA Professionals (Trade NAFTA Professionals (TNsTNs))•• Qualifying Employer Qualifying Employer –– Citizens of both Canada and Mexico may Citizens of both Canada and Mexico may

qualify for TN status to engage in business activities on behalfqualify for TN status to engage in business activities on behalf of a of a U.S. employer. U.S. employer. –– Citizens of Canada may, in addition, qualify for TN status if thCitizens of Canada may, in addition, qualify for TN status if they are ey are

employed by a Canadian employer and seek to enter the United Staemployed by a Canadian employer and seek to enter the United States tes to provide preto provide pre--arranged services on an employerarranged services on an employer--employee relationship employee relationship with a U.S. entity or it may be a contractual relationship, eithwith a U.S. entity or it may be a contractual relationship, either between er between a selfa self--employed professional or between the professionalemployed professional or between the professional’’s employer s employer and a U.S. entity.and a U.S. entity.

–– SelfSelf--Employment RestrictionEmployment Restriction -- A qualified professional may enter the A qualified professional may enter the United States on a TN to work only for a U.S. business owned or United States on a TN to work only for a U.S. business owned or controlled by other than the prospective employee. controlled by other than the prospective employee.

–– Procedure for AdmissionProcedure for Admission -- A citizen of Canada shall make application A citizen of Canada shall make application for admission at the United States Class A portfor admission at the United States Class A port--ofof--entry, at a United entry, at a United States airport handling international traffic, or at a United StStates airport handling international traffic, or at a United States preates pre-- clearance/preclearance/pre--flight station.flight station.

•• Mexican citizens outside of the United States must apply for a TMexican citizens outside of the United States must apply for a TN visa at a N visa at a United States consulate. United States consulate.


TN CharacteristicsTN Characteristics•• Non Immigrant IntentNon Immigrant Intent –– An applicant for TN status must satisfy the An applicant for TN status must satisfy the

inspecting immigration officer that the proposed stay is temporainspecting immigration officer that the proposed stay is temporary. ry. Temporary entry, as defined in the NAFTA, means entry without thTemporary entry, as defined in the NAFTA, means entry without the e intent to establish permanent residence. intent to establish permanent residence.

•• Change of Status to TNChange of Status to TN –– Can be filed on Form ICan be filed on Form I--129 with the TN 129 with the TN (Free Trade) supplement.(Free Trade) supplement.

•• Dependents Dependents –– Spouses and unmarried minor children of a TN may Spouses and unmarried minor children of a TN may be admitted to the United States on Trade Dependent (TD) status.be admitted to the United States on Trade Dependent (TD) status. TD status does not provide work authorization. Dependents who arTD status does not provide work authorization. Dependents who are e nationals of countries other than Canada are required to obtain nationals of countries other than Canada are required to obtain a TD a TD visa at a U.S. consulate abroad prior to seeking entry to the Unvisa at a U.S. consulate abroad prior to seeking entry to the United ited States, or may change their status within the United States. States, or may change their status within the United States.


New York County LawyersNew York County Lawyers’’ AssociationAssociation

March 6, 2012March 6, 2012

An Introduction to Three of the Most Utilized Non-Immigrant Work Authorized Visa Categories:

HH--1B, L1B, L--1, TN1, TN


L A W O F F I C E S O F

G I L B E R T C. F E R R E R , P L L C ONE LIBERTY PLAZA, 23RD FLOOR

NEW YORK, NEW YORK 10006 TEL. (646) 327-9760 FAX (646) 619-4097

GILBERT C. FERRER [email protected]

An Introduction to Three of the Most Utilized Non-Immigrant

Work Authorized Visa Categories H-1B Process Individuals who are not U.S. citizens or lawful permanent residents need specific authorization in order to work in the United States. Generally, in order to obtain work authorization, an individual who is in the United States temporarily, a “non-immigrant,” must be petitioned by a sponsoring employer in an appropriate non-immigrant visa category. The H-1B visa category is by far the most commonly used for technically oriented workers.

H-1B status is for temporary workers in a specialty occupation. It allows for employment of a foreign worker by a petitioning employer for a six-year period (three years initially, renewable for an additional three years.) Annual Quota – The H-1B is currently subject to an annual quota of 65,000, with an additional 20,000 available for holders of Master’s degrees from U.S. universities. Out of the 65,000 numbers, 6,800 numbers are set aside for H-1B1 visas issued pursuant to the Singapore and Chile Free Trade Agreements.

Basic Requirements

Specialty Occupation - the term "specialty occupation" means an occupation that requires—

214(i)(1)(A) theoretical and practical application of a body

of highly specialized knowledge, and

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214(i)(1)(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

INA Sec 214(i)(1).

Therefore, the primary requirement governing eligibility for this visa process is that the position being offered to the worker requires sufficient specific technical knowledge so that a bachelor’s degree in the specialty or related field is normally required to be considered for employment and that that the foreign worker have at least a bachelor’s degree in that specialized area or the equivalent.

Criteria For “Specialty Occupation” - To qualify as a specialty occupation, the position must meet one of the following criteria:

8 CFR 214.2(h)(4)(iii)(A)(1) A baccalaureate or higher

degree or its equivalent is normally the minimum requirement for entry into the particular position;

214.2(h)(4)(iii)(A)(2) The degree requirement is common

to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

214.2(h)(4)(iii)(A)(3) The employer normally requires a

degree or its equivalent for the position; or 214.2(h)(4)(iii)(A)(4) The nature of the specific duties are

so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Beneficiary Qualifies for the “Specialty Occupation” - To qualify to perform services in a specialty occupation, the beneficiary of the petition must meet one of the following criteria:

8 CFR 214.2(h)(4)(iii)(C)(1) Hold a United States

baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

214.2(h)(4)(iii)(C)(2) Hold a foreign degree determined to

be equivalent to a United States baccalaureate or higher degree

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required by the specialty occupation from an accredited college or university;

214.2(h)(4)(iii)(C)(3) Hold an unrestricted state license,

registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

214.2(h)(4)(iii)(C)(4) Have education, specialized training,

and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Experiential Equivalent of a Baccalaureate Degree – 8 CFR 214.2(h)(4)(iii)(5). For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks.

Steps to Follow Prior to Filing the Petition for H-1B status – The H-1B petition must be supported by a Labor Condition Application certified by the U.S. Department of Labor (“USDOL.”) Regulations of the U.S. Department of Labor require that certain postings, representations and filings be made before it will certify a Labor Condition Application for H-1B employment. Fashion Models — H-1B classification may be granted to an alien who is of distinguished merit and ability in the field of fashion modeling, that is, one who is prominent in the field of fashion modeling. The alien must also be coming to the United States to perform services which require a fashion model of prominence.

214.2(h)(4)(ii) Prominence means a high level of

achievement in the field of fashion modeling evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of fashion modeling.

H-1B1 Visas for Nationals of Singapore and Chile - The H-1B1 visa permits the temporary entry and employment in the United States of professionals in specialty occupations from countries with which the

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United States has entered into agreements identified in section 214(g)(8)(A) of the Immigration and Nationality Act (INA). Congress created the new visa category as part of its approval of the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement. By statute, the H-1B1 visa is available only to nationals of Chile and Singapore. The process is similar to the normal processing for specialty occupation H-1B workers. H-1B1 visas will be valid and renewable for 1-year periods, with visa renewals beyond 3 years requiring the filing of a new labor attestation with the Department of Labor. Labor Condition Application

The process for filing a Labor Condition Application (“LCA”) with the Department of Labor is online. It is prepared and filed online and is adjudicated in approximately one week. In certain cases an employer may be allowed to submit a paper ETA 9035 by mail. 20 CFR 655.720(b).

For the last several months both the preparation and filing of the

labor certification application and the determination of the prevailing wage is at the Department of Labor’s iCert portal. The practitioner or employer goes online at

http://icert.doleta.gov/

and fills out a form with information about the employer and the position. Prior registration is required. An attorney or employer must set up an account and receive an ID and password, similar to the process in the permanent labor certification process. This actually speeds the process for subsequent LCA preparation. Attestations Required – The employer attests that:

1. The foreign worker will be paid the greater of either the

prevailing wage for the occupation in the area of employment or the actual wage paid by the employer for workers performing similar duties with similar experience, education, etc.

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2. That hiring the foreign worker will not adversely affect the working conditions of U.S. workers employed at the work site.

3. There are no strikes or lockouts underway at the worksite.

4. Notice of the filing of an LCA, reflecting an offer of employment to an H-1B foreign worker, has been made at the worksite, either by posting notice of the filing of the LCA in two prominent locations or, if governed by a collective bargaining agreement, by giving notice to the bargaining unit’s representative.

H-1B Dependent Employers - means an employer that meets one of the three following standards 20 CFR 655.736(a)(1)

(i)(A) The employer has 25 or fewer full-time equivalent employees who are employed in the U.S.; and (i)(B) Employs more than seven H-1B nonimmigrants; (ii)(A) The employer has at least 26 but not more than 50 full-time equivalent employees who are employed in the U.S.; and (ii)(B) Employs more than 12 H-1B nonimmigrant; or (iii)(A) The employer has at least 51 full-time equivalent employees who are employed in the U.S.; and (iii)(B) Employs H-1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.

Additional Attestations - An H-1B dependent employer (as well as “willful violators”) need to also make additional attestations 20 CFR 655.738: That it has not displaced U.S. workers to hire H-1B workers within 90 days before or after the filing of the LCA. That if it is placing the H-1B worker with another employer, the H-1B employer has inquired of the other/secondary employer as to whether, and has no knowledge that, within the period beginning 90

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days before and ending 90 days after the date of such placement, the other/secondary employer has displaced or intends to displace a similarly-employed U.S. worker.

655.739 - That prior to filing the LCA or any petition or request for extension of status supported by the LCA—to take good faith steps to recruit U. S. workers in the United States for the job(s) in the United States for which the H-1B nonimmigrant(s) is/are sought.

Exempt H-1B Workers – The additional attestations are not required if the H-1B worker being hired either:

1. Is being paid at the annual rate of $60,000 or more, or 2. has a Master’s degree in the specialty related to the employment.

Preparing the Labor Condition Application Before the LCA can be completed and filed with USDOL, certain preliminary steps must be taken. Determining the Prevailing Wage – There are a few different ways to do this. Perhaps the safest way is to request a prevailing wage determination from the Department of Labor by filing an ETA 9141 from the iCert Portal. If the information in the ETA 9141 is representative of the actual details of the employment, then obtaining the PWD in this manner saves the practitioner from making his/her own evaluation of the conditions of employment and provides a “safe harbor” in the event there is an issue as to whether the correct prevailing was used for this worker in a later DOL audit. Otherwise, the practitioner can access the Online Wage Library on the DOL iCert portal at http://icert.doleta.gov The practitioner can look up the appropriate job category using key words and the location (state/county) of the worksite. Unlike the case in the PERM filings, it is still permissible to use the online database to determine the appropriate prevailing wage.

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http://icert.doleta.gov/

The iCert Portal now allows the practitioner to research the prevailing wage right on the iCert home page. In the PERM situation, obtaining a prevailing wage determination from DOL through the filing of Form 9141 is mandatory. This can be done in the iCert Portal. Determining the Occupational Category – Sometimes which category the particular position comes under is obvious. Other times it might fall into a number of categories or perhaps none appear to fit. Determining the appropriate category for LCA purposes can be helped by reference to the O*Net Online database at http://online.onetcenter.org/ Determining the Appropriate Wage Level – The Online Wage Library lists four levels of wages. For H-1B purposes the practitioner can estimate the level appropriate for the education and experience required for the position, when based on the standards set up within the Job Zone assigned to the occupation by the O*Net. A detailed summary of the steps that USDOL takes to make prevailing wage determinations for H-1B and, more importantly for PERM filings is on the USDOL Website at http://www.flcdatacenter.com/skill.aspx LCA Posting Requirements - 20 CFR 655.734(a)(1). The employer shall, on or within 30 days before the date the LCA is filed with ETA, provide a notice of the filing of the LCA. The notice shall indicate:

that H-1B nonimmigrants are sought; the number of such nonimmigrants the employer is seeking; the occupational classification; wages offered to the H-1B worker; period of employment; location(s) at which the H-1B nonimmigrants will be employed;

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http://online.onetcenter.org/

http://www.flcdatacenter.com/skill.aspx

and that the LCA is available for public inspection at the H-1B employer's principal place of business in the U.S. or at the worksite.

The notice shall also include the statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

The notice will be posted in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity) on or within 30 days before the labor condition application is filed and shall remain posted for a total of 10 days. 655.734(a)(1)(ii)(A)(3).

The Public Inspection File – The employer must make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with DOL. The following documentation should be made available:

655.760(a)(1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form ETA 9035E is submitted electronically, a printout of the certified application shall be signed by the employer and maintained in its files and included in the public examination file.

655.760(a)(2) Documentation which provides the wage rate to be paid the H-1B nonimmigrant;

655.760(a)(3) A full, clear explanation of the system that

the employer used to set the "actual wage" the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought.

655.760(a)(4) A copy of the documentation the employer

used to establish the "prevailing wage" for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required), and

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655.760(a)(5) A copy of the workplace posting under §655.734.

There are additional requirements where there has been a corporate restructuring or if the employer is H-1B dependent or a willful violator. USCIS Petition Once the Labor Condition Application is certified, the next step is filing a petition for H-1B status with U.S. Citizenship and Immigration Services. The petition is filed on form I-129 with either the USCIS Vermont or California Service Center’s depending on the location of the employment. The petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary's services or training. 8 CFR 214.2(h)(9). Normally, the following forms are filed:

I-129 Petition for Non-Immigrant Worker (The current I-129 is a comprehensive packet covering a number of visa categories in different supplements. Only the principal I-129 form and the supplements listed below need to be filed. I-129H Supplement - Only the first two pages need be submitted for an H-1B worker. (H-1B1 petitioners need to file the Free Trade Classification Supplement similar to TN process.) I-129 H-1B Data Collection and Filing Fee Exemption Supplement – How this form is filled out will determine whether the petition is subject to the current quota and the fee that will need to be submitted.

Certified Labor Condition Application – As described above.

Supporting Evidence – An H-1B petition should be accompanied by documentation sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation and that the services the beneficiary is to perform are in a specialty occupation. This includes:

214.2(h)(4)(iv)(A)(1) School records, diplomas, degrees, affidavits, declarations, contracts, and similar documentation submitted must reflect periods of attendance, courses of study, and similar pertinent data, be executed by the person in

9

charge of the records of the educational or other institution, firm, or establishment where education or training was acquired.

214.2(h)(4)(iv)(A)(2) Affidavits or declarations made

under penalty of perjury submitted by present or former employers or recognized authorities certifying as to the recognition and expertise of the beneficiary shall specifically describe the beneficiary's recognition and ability in factual terms and must set forth the expertise of the affiant and the manner in which the affiant acquired such information.

214.2(h)(4)(iv)(B) Copies of any written contracts between

the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.

If the beneficiary is going to work at the premises of a

client of the petitioner pursuant to contract, the contract with the end user along with a statement of the worksite, duties of the worker, name of direct manager and identification of project by the end user and each vendor, if any, in the contract chain, should also be provided.

Employer/Employee Relationship. In the situation where

the beneficiary will be working at the premises of a client third party, it will be particularly important to show that the petitioner retains sufficient control of the employment of the beneficiary to continue as his “employer.” Evidence would include documentation showing control over the beneficiary’s pay, hours of work, specific supervision and control of the beneficiary’s specific duties, the power to assign more duties and hire and assign assistants, as well as showing that the scope of the specific assignment of the beneficiary is within the regular course of business of the petitioner.

Filing/Legal Fees

The H-1B requires a filing fee that is comprised, at the time of this writing, of the following:

Basic I-129 fee $ 325.00

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Special “Training Fee (so called because it supports various efforts to train U.S. workers and enhance educational opportunities, See INA Sec 286(s)). This fee is not applicable to certain educational institutions and non-profit organizations. It is also not applicable to amended petitions that do not seek extension of status and also to the second extension request filed by an employer for the same beneficiary.

Companies with 25 or fewer employees $ 750.00 Companies with more than 25 employees $1500.00

Fraud Prevention and Detection Fee, payable by employers seeking initial approval of a petition for H-1B or L-1 status

$ 500.00

PL 111-230 fee applies to companies which have at least 50 employees of which 50% or more are in either H-1B or L-1 status. This fee applies to petition for initial H-1B status or employment with petitioner.

$2000.00 Premium Processing is available for an additional fee, if the petitioner seeks to have the petition adjudicated within a 14 day period. Regular processing can take four months at the present time. The request for premium processing is made on form I-907. $1225.00 Maximum Period of Stay – The maximum period of stay in H-1B status is six years. When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. Exception to the Maximum Period of Stay 1 – The six year limitation shall not apply to H-1B workers who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to those workers

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who reside abroad and regularly commute to the United States to engage in part-time employment. 8 CFR 214.2(h)(13)(v). Exception to the Maximum Period of Stay 2 – An H-1B worker may extend his or her status beyond the six year limitation if a labor certification or an I-140 Immigrant Petition has been filed where 365 days or more have elapsed since the filing of the labor certification or the filing of the I-140 petition or if an I-140 petition has been approved regardless of how long it has been on file. AC21, PL 106-313 §106(a). Time Spent in L-1 Status – Time spent by the beneficiary in the United States in either H-1B or L-1 Status accrues against the six year limitation unless the beneficiary has been outside the United States for one year. Cases where Employment is Authorized Upon Filing Petition – 8 CFR 214.2(h)(2)(i)(D)(3) A worker in H-1B status may commence new employment upon the filing of a petition by the prospective employer if:

(1) the H-1B worker was lawfully admitted; (2) the new petition is "non-frivolous"; (3) the new petition was filed before the date of expiration of the period of stay previously authorized and (4) the H-1B worker has not been employed without authorization prior to the filing of the new petition.

Liability for transportation costs - If the beneficiary is dismissed from employment by the employer before the end of the period of authorized admission, the employer will be liable for the reasonable costs of return transportation of the alien abroad. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" refers to the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.

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Dependents – Spouses and unmarried minor children of an H-1B holder may be admitted to the United States in or change status to H-4 status. H-4 status does not provide work authorization. L-1 Intra-company Transfers

Section 1(b) of Public Law 91-225 of April 7, 1970, created a nonimmigrant visa classification at INA 101(a)(15)(L) for intra-company transferees. An individual or blanket petition, approved by U.S. Citizenship and Immigration Services (USCIS), is a prerequisite for L visa issuance. The L nonimmigrant classification was created “to permit international companies to temporarily transfer qualified employees to the United States for the purpose of improving management effectiveness, expanding U. S. exports, and enhancing competitiveness in overseas markets.” Prior to the enactment of Pub. L. 91-225, no nonimmigrant classification existed which fully met the needs of intracompany transferees. Those who did not qualify as E non-immigrants were forced to apply for immigrant visas (IV) to the United States, even if there was no intent to reside permanently. For the purposes of the L classification, a petitioner is a qualifying organization desiring to bring an alien to the United States as an L-1 nonimmigrant. It must be a parent, branch, affiliate, or subsidiary of the same employer for whom the alien has been employed abroad for at least one year out of the last three prior to entry. The petitioner may be either a U.S. or foreign organization. FAM §41.54 N7. Qualifying Organization – A qualifying organization means a United States or foreign firm, corporation, or other legal entity which:

214.2(l)(1)(ii)(G)(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified below; and 214.2(l)(1)(ii)(G)(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an intracompany transferee;

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Parent means a firm, corporation, or other legal entity which has subsidiaries. 214.2(l)(1)(ii)(I) Branch means an operating division or office of the same organization housed in a different location. 214.2(l)(1)(ii)(J) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. 214.2(l)(1)(ii)(K) Affiliate means one of two subsidiaries both of which are owned and controlled by the same parent or individual, 214.2(l)(1)(ii)(L)(1), or One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. 214.2(l)(1)(ii)(L)(2)

A qualifying organization (“QO”) may petition for L-1 status for an eligible employee who works for the foreign QO, to allow that employee to work for the U.S. part of the QO team. Eligible employees are executives or managers (L-1A) or specialized knowledge employees (L-1B), who have worked for the foreign qualifying organization for at least one continuous year out of the last three years preceding the filing of the petition (214.2(l)(3)(iii) or, within 3 years preceding the time of his application for admission into the United States INA §101(a(15)(L). As long as this test is met, there is no requirement that the transferee be presently affiliated with a qualifying foreign entity. FAM §41.54 N10.3. Managerial capacity means an assignment within an organization in which the employee primarily:

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1. Manages the organization, or a department or function of the organization; 2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function of the organization; 3. Has the authority to hire and fire personnel he supervises or functions at a senior level within the organization; and 4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

A first-line supervisor is not considered to be acting in a managerial capacity unless the employees supervised are professional. Executive capacity means an assignment within an organization in which the employee primarily:

1. Directs the management of the organization or a major part of the organization;

2. Establishes its goals and policies; 3. Exercises wide latitude in discretionary decision-making; and 4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders.

Specialized Knowledge Employees – Alternatively, for purposes of meeting L-1 requirements, a transferee is considered to have “specialized knowledge” if the individual has a particular knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. if they have a special knowledge of company product and its application in international markets or has an advanced level of knowledge of the processes and procedures of the company. INA 214.2(l)(1)(2)(D). L-1 Visa Reform Act of 2004 – Forbids L-1 workers from working at job sites other than with their petitioning employer if:

1. The work is controlled and supervised by a different employer, or

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2. If the offsite arrangement is essentially to provide local labor to a non petitioning party, rather than as relating to the specialized knowledge of the employee.

Petitioning Process – An individual L-1 petition is filed on Form I-129, along with the I-129L supplement and must be accompanied by:

214.2(l)(3)(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations. 214.2(l)(3)(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed. 214.2(l)(3)(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition. 214.2(l)(3)(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive, or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

A citizen of Canada seeking entry to the United States as an L-1 intracompany transfer may make application for admission, without first filing the petition with USCIS, at a United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station. The L-1 petition must be filed in triplicate. Filing Fees – The filing fee for the L-1 is the basic I-129 fee of $325.00 plus the anti fraud fee of $500.00 (if the petition is for initial grant of L-1 status.) The additional fee pursuant to PL 111-230 applies if the US company has 50 or more employees of whom 50% or more are either H-1B or L-1. L-1 Blanket Petitions – Certain large international companies and volume users of the L-1 visa can take advantage of the Blanket L-1 process. This requires that the company file a petition with the USCIS

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to obtain pre-approval of its related entities as “qualifying organizations.” If the blanket petition is approved, an I-129 beneficiary who is a manager, executive or specialized knowledge professional, may apply directly at a U.S. consulate, on form I-129S for L-1 status, without prior approval of an I-129 petition by USCIS. Under 8 CFR 214.2(l)(4)(i) A petitioner which meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

214.2(l)(4)(i)(A) The petitioner and each of those entities are engaged in commercial trade or services; 214.2(l)(4)(i)(B) The petitioner has an office in the United States that has been doing business for one year or more; 214.2(l)(4)(i)(C) The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and 214.2(l)(4)(i)(D) The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten "L" managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.

The New Office Scenario In addition to the basic requirements set up above, the petitioner who seeks to open a new office in the United States must supply additional evidence that,

(A) Sufficient physical premises to house the new office have been secured; (B) Not only that the beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity, but also that the proposed employment involve executive or managerial authority as well over the new operation (In the standard L-1 case, the proposed employment does not have to be in the same capacity as was the foreign employment); and

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(C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position supported by information regarding:

(1)The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;

(2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

(3) The organizational structure of the foreign entity. 8 C.F.R. §214.2(l)(3)(v) In the case of a manager or executive, the petitioner must be able to show that the intended U.S. operation will support an executive or managerial position within one year of approval of the petition. The Foreign Affairs Manual notes that while it is expected that a manager or executive in a new office will be more than normally involved in day-to-day operations during the initial phases of the business, he or she must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization. FAM 41.54 N12.3. Under the regulations at 8 CFR §214.2(l)(1)(ii), a new office is one that has been in business for less than one year. It provides no minimum time during which it must have been open prior to the filing of the petition. The regulations further provide that for a new office, sufficient evidence should be provided that “sufficient physical premises to house the new office have been secured.” 8 CFR §214.2(l)(3)(v)(A)

Since the regulations explicitly allow L-1 status for a manager or executive who is opening a new office (see 8 CFR §214.2(l)(3)(v) “If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States… .” Emphasis added.), clearly the law envisions a period of start up activities. Therefore, the requisite physical premises deemed to be sufficient for a new office should be

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given a flexible interpretation, as USCIS has generally done in the past.

Time Spent in H-1B Status – Time spent by the beneficiary in the United States in either H-1B or L-1 Status accrues against the seven year limitation for L-1A or the five year limitation for L-1B, unless the beneficiary has been outside the United States for one year.

Dependents – Spouses of L-1 visa holders can receive L-2 status and are eligible to apply for Employment Authorization Documents on form I-765. This can be filed simultaneously with a I-539 application to change non-immigrant status to L-2. Quotas – There are presently no annual quotas imposed on L-1 non-immigrant visa issuance. Trade NAFTA Professionals (TNs) The TN classification was established by the North American Free Trade Agreement and establishes an expedited format to Canadians and applies to Canadian and Mexican nationals. In certain cases, it provides a useful alternative to the H-1B category for NAFTA professionals who seek entry to perform temporary services for U.S. employers. Unlike the H-1B, there are no Labor Condition Application (LCA) or prevailing wage requirements for the TN category. Qualifying Professions – The NAFTA designates 63 categories of professionals eligible for TN status and the educational requirements and alternative credentials required for each step. The list of professions covered is contained at Appendix 1603.D.1 to Annex 1603 of the NAFTA and is reprinted at 8 CFR 214.6(c) TN status is available only to persons engaged in the listed occupations who possess the necessary credentials. The occupations include, but are not limited to, computer systems analysts, scientists, architects, engineers, economists, lawyers, librarians, and management consultants. Of these professions, the most controversial categories include management consultant, computer systems analyst, or scientific technician technologist. These categories are among the limited

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number of occupations that do not require a four-year degree for admission under NAFTA. For most listed occupations, a Baccalaureate, Licenciatura degree, or other specified credential demonstrated professional status is required. In lieu of a degree, management consultants can qualify for TN status based on five years of experience either as a management consultant or in a field of specialty related to the consulting agreement. Computer systems analysts can qualify based on a post-secondary diploma and three years of experience. Scientific technicians can qualify based on (a) theoretical knowledge of a scientific discipline, and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research. On top of these basic requirements, Free Trade Officers will often require additional requirements, for example: Management Consultant – Proof of a consulting contract for the term requested (unless the employee is specifically working for a management consulting company) as well as evidence that the position is “supernumerary” for the company. Scientific Technicians – Proof that the technician will be working under the direct supervision of at least two engineering professionals. Moreover in 2002, legacy INS issued a memorandum instructing border officers to only admit scientific technicians who can demonstrate successful completion of at least two years of training in a relevant educational program. Licensing Requirements – If a listed profession requires a license, a TN applicant must possess the necessary license and must submit evidence of it with the application. Qualifying Employer – Citizens of both Canada and Mexico may qualify for TN status to engage in business activities on behalf of a U.S. employer. Citizens of Canada may, in addition, qualify for TN status if they are employed by a Canadian employer and seek to enter the United States to provide pre-arranged services on an employer-employee relationship with a U.S. entity or it may be a contractual relationship, either between a self-employed professional or between the professional’s employer and a U.S. entity.

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Self-Employment Restriction - A qualified professional may enter the United States on a TN to work only for a U.S. business owned or controlled by other than the prospective employee. Procedure for Admission - A citizen of Canada seeking temporary entry as a business person to engage in business activities at a professional level shall make application for admission with a Department officer at the United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station. Mexican citizens outside of the United States must apply for a TN visa at a United States consulate. Non Immigrant Intent – An applicant for TN status must satisfy the inspecting immigration officer that the proposed stay is temporary. Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment. 8 CFR 214.6(b) Required Documentation. Upon application for a visa at a United States consular office, or, in the case of a citizen of Canada making application for admission at a port-of-entry, an applicant under this section shall present the following:

214.6(d)(3)(i) Proof of citizenship. Canadian or Mexican citizens applying for admission as a TN nonimmigrant must establish such citizenship by presenting a valid passport. 214.6(d)(3)(ii) Documentation demonstrating engagement in business activities at a professional level and demonstrating professional qualifications. The documentation shall fully affirm: 214.6(d)(3)(ii)(A) The Appendix 1603.D.1 profession of the applicant; 214.6(d)(3)(ii)(B) A description of the professional activities, including a brief summary of daily job duties, if appropriate, in

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which the applicant will engage in for the United States employer/entity; 214.6(d)(3)(ii)(C) The anticipated length of stay; 214.6(d)(3)(ii)(D) The educational qualifications or appropriate credentials which demonstrate that the Canadian or Mexican citizen has professional level status; and 214.6(d)(3)(ii)(E) The arrangements for remuneration for services to be rendered.

Change of Status to TN – Can be filed with the Vermont Service Center on Form I-129 with the TN (Free Trade ) supplement. Dependents – Spouses and unmarried minor children of a TN may be admitted to the United States on Trade Dependent (TD) status. TD status does not provide work authorization. Dependents are eligible for TD status even if they are citizens of countries other than Mexico or Canada. Citizens of Canada do not require visas and may apply at the same time as, or after, the principal applicant, at any Class A port of entry, at a U.S. airport handling international traffic, or at a U.S. pre-flight inspection station. Dependents who are nationals of countries other than Canada are required to obtain a TD visa at a U.S. consulate abroad prior to seeking entry to the Untied States, or may change their status within the United States.

OMB Approval: 1205-0310 Expiration Date: 01/31/2012

Labor Condition Application for Nonimmigrant Workers ETA Form 9035 & 9035E

U.S. Department of Labor

ETA Form 9035/9035E Attestation FOR DEPARTMENT OF LABOR USE ONLY Page 1 of 1 Case Number:_______________________ Case Status: __________________ Period of Employment: ______________ to _______________

Electronic Filing of Labor Condition Applications For The H-1B Nonimmigrant Visa Program

This Department of Labor, Employment and Training Administration (ETA), electronic filing system enables an employer to file a Labor Condition Application (LCA) and obtain certification of the LCA. This Form must be submitted by the employer or by someone authorized to act on behalf of the employer. A) I understand and agree that, upon my receipt of ETA's certification of the LCA by electronic response to my submission, I must take the following actions at the specified times and circumstances: print and sign a hardcopy of the electronically filed and certified LCA; maintain a signed hardcopy of this LCA in my public access files; submit a signed hardcopy of the LCA to the United States Citizenship and Immigration Services (USCIS) in support of the I-129, on the

date of submission of the I-129; provide a signed hardcopy of this LCA to each H-1B nonimmigrant who is employed pursuant to the LCA.

Yes No

B) I understand and agree that, by filing the LCA electronically, I attest that all of the statements in the LCA are true and accurate and that I am undertaking all the obligations that are set out in the LCA (Form ETA 9035E) and the accompanying instructions (Form ETA 9035CP).

Yes No C) I hereby choose one of the following options, with regard to the accompanying instructions:

I choose to have the Form ETA 9035CP electronically attached to the certified LCA, and to be bound by the LCA obligations as explained in this form

I choose not to have the Form ETA 9035CP electronically attached to the certified LCA, but I have read the instructions and I understand that I am bound by the LCA obligations as explained in this form




ETA Form 9035/9035E FOR DEPARTMENT OF LABOR USE ONLY Page 1 of 5 Case Number:_______________________ Case Status: __________________ Period of Employment: ______________ to _______________

Please read and review the filing instructions carefully before completing the ETA Form 9035 or 9035E. A copy of the instructions can be found at http://www.foreignlaborcert.doleta.gov/. In accordance with Federal Regulations at 20 CFR 655.730(b), incomplete or obviously inaccurate Labor Condition Applications (LCAs) will not be certified by the Department of Labor. If the employer has received permission from the Administrator of the Office of Foreign Labor Certification to submit this form non-electronically, ALL required fields/items containing an asterisk ( * ) must be completed as well as any fields/items where a response is conditional as indicated by the section ( § ) symbol.

A. Employment-Based Nonimmigrant Visa Information

1. Indicate the type of visa classification supported by this application (Write classification symbol): *

B. Temporary Need Information

1. Job Title * 2. SOC (ONET/OES) code *

3. SOC (ONET/OES) occupation title *

Period of Intended Employment 4. Is this a full-time position? *

Yes No 5. Begin Date * (mm/dd/yyyy)

6. End Date * (mm/dd/yyyy)

7. Worker positions needed/basis for the visa classification supported by this application Total Worker Positions Being Requested for Certification *

Basis for the visa classification supported by this application (indicate the total workers in each applicable category based on the total workers identified above)

a. New employment * d. New concurrent employment *

b. Continuation of previously approved employment * e. Change in employer * without change with the same employer

c. Change in previously approved employment * f. Amended petition *

C. Employer Information

1. Legal business name * 2. Trade name/Doing Business As (DBA), if applicable 3. Address 1 * 4. Address 2 5. City *

6. State *

7. Postal code *

8. Country *

9. Province

10. Telephone number *

11. Extension

12. Federal Employer Identification Number (FEIN from IRS) *

13. NAICS code (must be at least 4-digits) *




ETA Form 9035/9035E FOR DEPARTMENT OF LABOR USE ONLY Page 2 of 5

Case Number:_______________________ Case Status: __________________ Period of Employment: ______________ to _______________

D. Employer Point of Contact Information

Important Note: The information contained in this Section must be that of an employee of the employer who is authorized to act on behalf of the employer in labor certification matters. The information in this Section must be different from the agent or attorney information listed in Section E, unless the attorney is an employee of the employer.

1. Contact’s last (family) name * 2. First (given) name * 3. Middle name(s) *

4. Contact’s job title * 5. Address 1 * 6. Address 2 7. City * 8. State *

9. Postal code *

10. Country * 11. Province

12. Telephone number * 13. Extension

14. E-Mail address

E. Attorney or Agent Information (If applicable)

1. Is the employer represented by an attorney or agent in the filing of this application? * If “Yes”, complete the remainder of Section E below. Yes No

2. Attorney or Agent’s last (family) name § 3. First (given) name § 4. Middle name(s) §

5. Address 1 § 6. Address 2 7. City § 8. State §

9. Postal code §

10. Country § 11. Province

12. Telephone number § 13. Extension

14. E-Mail address

15. Law firm/Business name § 16. Law firm/Business FEIN §

17. State Bar number (only if attorney) §

18. State of highest court where attorney is in good standing (only if attorney) §

19. Name of the highest court where attorney is in good standing (only if attorney) §






F. Rate of Pay

1. Wage Rate (Required) From: To:

2. Per: (Choose only one) * Hour Week Bi-Weekly Month Year

G. Employment and Prevailing Wage Information

Important Note: It is important for the employer to define the place of intended employment with as much geographic specificity as possible The place of employment address listed below must be a physical location and cannot be a P.O. Box. The employer may use this section to identify up to three (3) physical locations and corresponding prevailing wages covering each location where work will be performed and the electronic system will accept up to 3 physical locations and prevailing wage information. If the employer has received approval from the Department of Labor to submit this form non-electronically and the work is expected to be performed in more than one location, an attachment must be submitted in order to complete this section.

a. Place of Employment 1

1. Address 1 * 2. Address 2 3. City * 4. County *

5. State/District/Territory *

6. Postal code *

Prevailing Wage Information (corresponding to the place of employment location listed above) 7. Agency which issued prevailing wage § 7a. Prevailing wage tracking number (if applicable) §

8. Wage level * I II III IV N/A 9. Prevailing wage *

10. Per: (Choose only one) * Hour Week Bi-Weekly Month Year

11. Prevailing wage source (Choose only one) *

11a. Year source published * 11b. If “OES”, and SWA/NPC did not issue prevailing wage OR “Other” in question 11, specify source §

H. Employer Labor Condition Statements

! Important Note: In order for your application to be processed, you MUST read Section H of the Labor Condition Application – General Instructions Form ETA 9035CP under the heading “Employer Labor Condition Statements” and agree to all four (4) labor condition statements summarized below:

(1) Wages: Pay nonimmigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. Offer nonimmigrants benefits on the same basis as offered to U.S. workers.

(2) Working Conditions: Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.

(3) Strike, Lockout, or Work Stoppage: There is no strike, lockout, or work stoppage in the named occupation at the place of employment.

(4) Notice: Notice to union or to workers has been or will be provided in the named occupation at the place of employment. A copy of this form will be provided to each nonimmigrant worker employed pursuant to the application.

1. I have read and agree to Labor Condition Statements 1, 2, 3, and 4 above and as fully explained in Section H of the Labor Condition Application – General Instructions – Form ETA 9035CP. * Yes No

$ __________ . ____

$ __________ . ____ *

$ __________ . ____

SCA DBA OES CBA Other






I. Additional Employer Labor Condition Statements – H-1B Employers ONLY

! Important Note: In order for your H-1B application to be processed, you MUST read Section I – Subsection 1 of the Labor Condition Application – General Instructions Form ETA 9035CP under the heading “Additional Employer Labor Condition Statements” and answer the questions below.

a. Subsection 1

1. Is the employer H-1B dependent? § Yes No

2. Is the employer a willful violator? § Yes No 3. If “Yes” is marked in questions I.1 and/or I.2, you must answer “Yes” or “No” regarding whether the employer will use this application ONLY to support H-1B petitions or extensions of status for exempt H-1B nonimmigrants? §

Yes No N/A

If you marked “Yes” to questions I.1 and/or I.2 and “No” to question I.3, you MUST read Section I – Subsection 2 of the Labor Condition Application – General Instructions Form ETA 9035CP under the heading “Additional Employer Labor Condition Statements” and indicate your agreement to all three (3) additional statements summarized below.

b. Subsection 2

A. Displacement: Non-displacement of the U.S. workers in the employer’s workforce B. Secondary Displacement: Non-displacement of U.S. workers in another employer’s workforce; and C. Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified

than the H-1B nonimmigrant(s).

4. I have read and agree to Additional Employer Labor Condition Statements A, B, and C above and as fully explained in Section I – Subsections 1 and 2 of the Labor Condition Application – General Instructions Form ETA 9035CP. §

Yes No

J. Public Disclosure Information

! Important Note: You must select from the options listed in this Section.

1. Public disclosure information will be kept at: * Employer’s principal place of business Place of employment

K. Declaration of Employer

By signing this form, I, on behalf of the employer, attest that the information and labor condition statements provided are true and accurate; that I have read sections H and I of the Labor Condition Application – General Instructions Form ETA 9035CP, and that I agree to comply with the Labor Condition Statements as set forth in the Labor Condition Application – General Instructions Form ETA 9035CP and with the Department of Labor regulations (20 CFR part 655, Subparts H and I). I agree to make this application, supporting documentation, and other records available to officials of the Department of Labor upon request during any investigation under the Immigration and Nationality Act. Making fraudulent representations on this Form can lead to civil or criminal action under 18 U.S.C. 1001, 18 U.S.C. 1546, or other provisions of law.

1. Last (family) name of hiring or designated official *

2. First (given) name of hiring or designated official *

3. Middle initial *

4. Hiring or designated official title *

5. Signature *

6. Date signed *






L. LCA Preparer

Important Note: Complete this section if the preparer of this LCA is a person other than the one identified in either Section D (employer point of contact) or E (attorney or agent) of this application.

1. Last (family) name §

2. First (given) name §

3. Middle initial §

4. Firm/Business name §

5. E-Mail address §

M. U.S. Government Agency Use (ONLY)

By virtue of the signature below, the Department of Labor hereby acknowledges the following:

This certification is valid from _______________________ to _______________________.

______________________________________________ ______________________________ Department of Labor, Office of Foreign Labor Certification Determination Date (date signed)

______________________________________________ ______________________________ Case number Case Status

The Department of Labor is not the guarantor of the accuracy, truthfulness, or adequacy of a certified LCA.

N. Signature Notification and Complaints

The signatures and dates signed on this form will not be filled out when electronically submitting to the Department of Labor for processing, but MUST be complete when submitting non-electronically. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from the Department of Labor before it can be submitted to USCIS for further processing.

Complaints alleging misrepresentation of material facts in the LCA and/or failure to comply with the terms of the LCA may be filed using the WH-4 Form with any office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. A listing of the Wage and Hour Division offices can be obtained at http://www.dol.gov/esa. Complaints alleging failure to offer employment to an equally or better qualified U.S. worker, or an employer’s misrepresentation regarding such offer(s) of employment, may be filed with the U.S. Department of Justice, Office of the Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW, Washington, DC, 20530. Please note that complaints should be filed with the Office of Special Counsel at the Department of Justice only if the violation is by an employer who is H-1B dependent or a willful violator as defined in 20 CFR 655.710(b) and 655.734(a)(1)(ii).

O. OMB Paperwork Reduction Act (1205-0310)

These reporting instructions have been approved under the Paperwork Reduction Act of 1995. Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Obligations to reply are mandatory (Immigration and Nationality Act, Section 212(n) and (t) and 214(c). Public reporting burden for this collection of information, which is to assist with program management and to meet Congressional and statutory requirements is estimated to average 1 hour per response, including the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, Room C-4312, 200 Constitution Ave. NW, Washington, DC 20210. (Paperwork Reduction Project OMB 1205-0310.) Do NOT send the completed application to this address.

Employment-Based Immigration

The First Three Immigrant Categories: An Overview

NYCLA Committee on Immigration and Nationality Law

Mission: Possible -- The Basics of Immigration LawMarch 6, 2012

• Employment-Based First Preference:– Extraordinary Ability - INA §203(b)(1)(A) – Outstanding Professor/Researcher - INA

§203(b)(1)(B)– Multinational Executive/Manager - INA

§203(b)(1)(C)• Employment-Based Second Preference:

– Exceptional Ability/National Interest Waiver - INA §203(b)(2)(A-C)

– Members of the Professions with Advanced Degrees - INA §203(b)(2)(A)

• Employment-Based Third Preference:– Professionals, Skilled Workers, and Other Workers

- INA §203(b)(2)

But first, some tangents….

Things you’ll need to know for everything else to make sense.

The Numbers (First, Second, Third)Do they mean anything?

• Yes! The preference classification determines how quickly the last part of the process can begin.

• Every green card process has two parts:– There IS a reason to give this person permanent

residence – for employment-based, the preference petition.

– There is no reason NOT to give this person permanent residence (this process can’t begin until an immigrant visa is immediately available).

How is Immigrant Visa availability determined?• Statutory allotments by preference class.

– Within preference classes, by country of birth.

• Foreign nationals queue for immigrant visas based on preference class/CoB and when case filed (PD).

• Like going to the DMV, and equally painful!– Take a number – Date PR case first filed becomes place on line

(look-back for labor certifications).– Dept. of State publishes Visa Bulletin (“Now Serving” sign) every

month (see exhibit).– Final stage of PR processing can start once date listed for a foreign

national’s preference class and country of birth reach his/her PD.

Labor Certification

• Certification from the U.S. Department of Labor that no U.S. workers are qualified, willing and available to perform the job offered by the employer – no U.S. workers will be harmed.

• Necessary prerequisite to filing some Second Preference and all Third Preference employment-based cases with USCIS

• Sounds similar to “Labor Condition Application” portion of the H-1B nonimmigrant visa filing:– LCA involves notification that the employer wishes to hire a

worker in H-1B status.– Labor Certification – more than notification, an actual test of the

labor market.

Labor Certification – Continued

• PERM – Program Electronic Review Management – the Process by which Labor Certification is accomplished through U.S. Department of Labor:– Job description and requirements drafted in consultation with

employer (requirements will determine preference class)– Recruitment period:

• Advertisements placed (at least two print ads, one an be a Journal for professional positions, three additional methods for professional jobs);

• Applicants interviewed by manager/hiring official;• If none qualify, recruitment report drafted and documentation

assembled;• Case filed electronically with U.S. Department of Labor (timeframes).

– Note on attorney involvement…

Extraordinary Ability (First Preference)• Extraordinary Ability:

– In the sciences, arts, education, business, or athletics.– Achievements have been demonstrated by sustained

national or international acclaim.– Recognized through extensive documentation.

• Two ways to show Extraordinary Ability:– Receipt of a major internationally recognized award

(Nobel).– The other way…

“Normal” way of obtaining Extraordinary Ability classification

• Must meet at least three of ten “tests”:– Receipt of lesser nationally or internationally recognized prizes or awards;– Evidence of original scientific, scholastic, artistic, athletic or business-

related contributions of major significance; – Performance in a lead or critical role for organizations of major

significance; – Membership in field-related organizations which require outstanding

achievements of their members;– Published material about the person in major media or professional/trade

publications;– Published scholarly material authored by the foreign national; – Participation as a judge of the work of others; – Participation in artistic exhibitions or showcases; – High salary or other remuneration for service rendered; – Commercial success in the performing arts.

“Normal” way of obtaining Extraordinary Ability classification - Continued

• Also: letters from six to ten other experts in the field– Not just co-workers, former bosses or friends from home country.– Other recognized experts, preferably geographically diverse &

employer-diverse.– Attesting to What?-Kazarian v. USCIS, 596 F3rd 1115 (9th Cir

2010)– Changed Adjudication Procedure – two parts now– First, go through the statutory criteria– Second: “Final Merits Determination”

– Beneficiary (Applicant) one of the very few who have risen to the top of their field of endeavor; AND

– Sustained national/international acclaim, achievements have been recognized in their field of ti

“Normal” way of obtaining Extraordinary Ability classification - Continued

• Other important points:– No Labor Certification Required – as with all First Preference

cases.– Can be SELF-petitioned – employment based, but no employer-

sponsor required.– Like the O-1 nonimmigrant visa?

Outstanding Professor/Researcher (First Preference)

• DOES Require a job offer.• What kind of job?

– Tenure-track teaching position.– Similar research position at a University or institution of

higher education ("similar” = tenured, tenure-track, or offer of unlimited duration).

– Similar research position with a private employer, IF the employer has an established research department, division or institution which has already achieved documented success in the academic field.

Outstanding Professor/Researcher (First Preference)Continued

How does a foreign national meet the requirements?• At least three years of experience in teaching or

research in the academic area (can include research or teaching while working on an academic degree, if recognized as outstanding).

• Internationally recognized as outstanding.• No specific degree requirement, but very difficult

to meet the requirements for this category without an advanced degree.

• What else?

Outstanding Professor/Researcher (First Preference)Continued

• Again with the “tests” – here two of six:– Receipt of major prizes or awards for outstanding achievement;– Membership in associations which require outstanding achievements

as a prerequisite to membership;– Published material in professional publications about the foreign

national's work;– Published books or articles by the foreign national about his or her

work in the academic field;– Evidence of original scientific research; or– Evidence of the foreign national's participation as a judge of the work

of others (such as peer review for journals or academic competitions).

• Letters from other recognized experts in the academic field*.

Multinational Executive or Manager(First Preference)

• Foreign national will work in an executive or managerial capacity for a U.S. entity.

• Has worked in an executive or managerial capacity for a related overseas entity (parent, subsidiary, affiliate, joint venture) for at least one year.

• Work overseas was within three years before coming to U.S. to work for the related U.S. company.

• That’s it – no tests, no letters etc. Just have to prove these three things.

• Somewhat like the L-1A, but not the L-1B.

Exceptional Ability/National Interest Waiver(Second Preference)

• What is “Exceptional Ability?”– A degree of expertise significantly above what would be considered

typical.– Something less than “Extraordinary Ability”

• Must be in the Arts, Sciences or Business.• How do we prove it?

Exceptional Ability/National Interest Waiver(Second Preference) - Continued

• Yet more “tests” (three out of six required):– The foreign national has a degree relating to the area of exceptional ability; – Letters from current and former employers confirming that the foreign

national has at least ten years of work experience in the field;– The foreign national has a license to practice his or her profession; – The foreign national has commanded a high salary for services rendered; – The foreign national is a member of a professional association in his or her

field; or– The foreign national has received recognition for achievements and

contributions of significance to the field by peers, government entities, or professional or business organizations.

• Again, letters from recognized experts – and again, Kazarian two-part analysis (one of few at top of field, sustained national/international acclaim).


• What is the National Interest Waiver?– Waiver of the Labor Certification requirement.– Remember, First Preference cases never require Labor

Certification – Second Preference cases do, but can be waived with a National Interest Waiver.

• How do we prove that granting this foreign national permanent residence is in the national interest?


• Substantial Prospective Benefit to the U.S.• Matter of New York State Department of Transportation, 22 I&N

Dec. 215 (Acting Assoc. Comm. 1998):– Employment sought in an area of substantial intrinsic merit (the

field of endeavor itself is beneficial, and the foreign national will continue in the field in the U.S. if the waiver is granted);

– Benefit will be national in scope, and will not merely benefit a locality or region; and

– National interests of the U.S. would be adversely affected if a labor certification were required.

Exceptional Ability/National Interest Waiver(Second Preference) – Continued

• Other important points:– Details of Substantial Intrinsic Merit: can be benefit to the U.S.

economy, wages/working conditions, education, health care, housing, environment/resources, benefit to U.S. government agency.

– Only employer-specific if employer-petitioned AND based on work being performed for that specific employer.

– No directly analogous nonimmigrant visa – will often be on H-1B, but not necessarily.

Members of the Professions with Advanced Degrees (Second Preference)

• Job offer & Labor Certification required absent National Interest Waiver, must be for “professional” job.

• Advanced Degree: Master’s level or above.• Job must require Master’s – not enough that foreign

national has a Master’s.• Equivalence is acceptable – Bachelor’s degree plus five

years’ progressively more responsible work experience.• Again, will often be on H-1B (maybe one of the 20,000

reserved for foreign nationals with U.S. Master’s degrees), but could be on many types of nonimmigrant visa.

Professionals, Skilled and Other Workers (Third Preference)

• Job Offer and Labor Certification always required.• Professionals: Bachelor’s-level degree required

and job must be professional in nature.• Skilled Workers: Job requires at least two years of

experience.• Other Workers: Less than Bachelor’s, two years of

training/work experience required – rarely used in practice.

• Normally on H-1B or L-1B, although theoretically may be on several types of nonimmigrant visa.

Stuart J. ReichLaw Offices of Stuart J. Reich

11 Broadway, Suite 615New York, NY 10004

(212) 430-6582 phone(212) 430-6583 facsimile

[email protected]://www.ReichImmigration.com

Faculty Biographies

Gilbert C. Ferrer, Esq. Law Offices of Gilbert C. Ferrer, PLLC

Gil Ferrer is principal member of Law Offices of Gilbert C. Ferrer, PLLC in New York City. He is originally from California and graduated from Immaculate Heart College, Los Angeles, (B.A.) He received his J.D. from Harvard Law School in 1979.

He has practiced immigration law for approximately 18 years. For five years he was senior immigration law counsel both in-house and outside for Dell, Inc., Round Rock, Texas. He currently has a diverse group of clients ranging from software development groups to petroleum exploration companies and a wildlife zoo/safari park.

Eugene J. Glicksman Partner The Law Offices of Glicksman & Cardoso Eugene J. Glicksman has been a full-time husband since 1984, and took on the added responsibilities of fatherhood in 1989. When not engaged in these pursuits, he is an attorney who has devoted the major portion of his practice to the field of immigration and nationality law for over twenty years. His partner in the firm of Glicksman & Cardoso is Patricia Cardoso, a former General Attorney with the “Legacy” Immigration & Naturalization Service. Mr. Glicksman has lectured on immigration and nationality law at seminars conducted by the American Immigration Lawyers Association, the New York County Lawyers’ Association and the World Trade Institute. He has been a guest lecturer to students of immigration and nationality law at Fordham University School of Law and New York City College (C.U.N.Y.), and has appeared before industry trade groups and on radio. Mr. Glicksman received his B.A. from Brooklyn College (C.U.N.Y.) and his J.D. from Brooklyn Law School. He is admitted to the bars of the State of New York, the United States District Courts for the Eastern and Southern Districts of New York, and the United States Supreme Court. In 2002, he returned as Chair of the Committee on Immigration and Nationality Law, NYCLA, a position he previously held from 1994 through 1997. An active member of the New York Chapter of the American Immigration Lawyers Association, he is the former Chapter Treasurer (1993-1994) and former Co-Chair of the INS Vermont Service Center Liaison Committee (1995-1996), among other positions held. He is also a member of the New York State Bar Association. Mr. Glicksman is cited in Marquis’ Who’s Who in American Law, Who’s Who in America, and Who’s Who in the World. Prior to becoming an attorney, Mr. Glicksman worked as an Immigration Inspector for the “Legacy” Immigration & Naturalization Service at John F. Kennedy International Airport from 1976 to 1980.

7501/42728-002 Current/21720373v1 01/05/2011 12:08 pm

BIOGRAPHY

DAVID GRUNBLATT is a Partner at Proskauer Rose LLP, heading its Immigration Practice

Group. He served as Chair of the New York Chapter of the American Immigration Lawyers

Association, was formerly Chair of the Association’s National Committee on Ethics and

Professional Responsibility and its Vermont Service Center Liaison Committee. He was

formerly Chair of the New York State Bar Association’s Committee on Immigration and

Nationality Law and was Chair of the Committee on Immigration and Nationality Law at the

New York County Lawyers Association, directing its Continuing Legal Education Program on

Immigration and Nationality Law and its Pro Bono Immigration Defense Project. He lectures

and writes extensively on the subject of Immigration and Nationality Law. Mr. Grunblatt

received his Undergraduate Degree from Brooklyn College, and his Law Degree and LL.M. in

Taxation from New York University School of Law.

Stuart J. Reich Mr. Reich is a frequent speaker on immigration topics to legal professional associations, civic groups, and private concerns. He has guest lectured on immigration issues at New York Law School and Benjamin Cardozo Law School as well as at various immigration conferences, and he is actively involved in various immigration organizations and causes. Mr. Reich serves currently as the Co-Chair of the Advocacy Committee for the New York Chapter of the American Immigration Lawyers' Association and as Chair of the Department of Labor Subcommittee of the New York County Law Association's Immigration Committee. Mr. Reich is a 1991 graduate of Allegheny College in Meadville, Pennsylvania and a 1994 graduate of the Cleveland-Marshall College of Law in Cleveland, Ohio. Admitted in the states of New York, Ohio and Pennsylvania and Federally to the U.S. District Court for the Northern District of Ohio, Mr. Reich is a member of the American Bar Association and the American Immigration Lawyers Association. He has been practicing since 1995, having learned under the guidance of some of the most respected names in the field. Mr. Reich has assisted individuals from virtually all fields and in a wide array of situations, with an emphasis on technologists and those working in the sciences and health fields. Mr. Reich was raised to be aware of the privilege of living in the U.S. and the hard work that is often required to win that privilege. He brings this understanding to the practice of immigration law.

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