Nonimmigration Visa Update

What's New (And Not So New) With Temporary Work Visas

Since the September 11^th terrorist attacks, there have been many changes in immigration laws and procedures. However, these changes have not yet seriously impacted any of the temporary work visa categories that are typically utilized by companies to employ foreign national employees. Although this article will discuss some nonimmigrant visa issues that have been impacted by the September 11th terrorist attacks, this article will mainly provide an update of laws, regulations, and INS policies and procedures that have impacted temporary work visas over the past year and highlight what can be expected for 2002.

Brief Overview of Nonimmigrant Visa Options for Companies

As outlined above, this article is intended to provide an update on the temporary nonimmigrant visas that most companies utilize and will continue to utilize to transfer foreign national employees into the United States over the next year. Therefore, the following is only a short description of some of the nonimmigrant visas available to foreign nationals. For a more in-depth review and analysis of these nonimmigrant visa options, please see the article titled "Visa Options: Navigating New Developments In Immigration Law To Select The Best Work Authorization Categories."

• B-1 Temporary Visitor for Business: Permits foreign nationals to enter the United States to engage in legitimate business activities on behalf of a foreign employer. Typical activities can include conventions, consultations, negotiating contracts, attending meeting of the board of directors, or other legitimate activities of a commercial or professional nature. Under the B-1 visa category, the business visitor must not engage in employment in the U.S., must be paid by an entity abroad and remain on the foreign payroll, and must maintain a permanent residence abroad that the visitor has no intention of abandoning.

• H-1B Specialty/Professional Workers: Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree or its equivalent as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty in order to qualify for H-1B status. The H-1B visa is the most popular visa category for employers to quickly obtain work authorization for key foreign national employees and is available for a wide variety of professional positions, including engineering, biology, medicine, computer science, accounting, teaching, sales/marketing, and many other professional occupations. In most situations, an individual can only remain in H-1B status for 6 years. In addition to satisfying INS requirements for this visa category, employers must make several attestations and obtain a certified labor condition application from the Department of Labor before filing for an H-1B visa.

• TN Professionals: Canadian and Mexican professionals have the option to apply for TN classification under NAFTA. NAFTA lists 63 professional categories of professionals who may enter the United States and be employed as TN professionals in one-year increments. Typically, a bachelor's degree is required and applicants must be entering the United States to work temporarily for a U.S. company in the profession for which their qualifications are held. Canadians are eligible to present their documents for TN status to an immigration officer at a U.S. port of entry or INS pre-flight inspection office in Canada. Filing requirements for Mexicans are similar to those required to obtain an H-1B visa, including filing a labor condition application with the Department of Labor and obtaining a visa from a U.S. consulate in Mexico.

• H-3 Trainees: Foreign nationals may be eligible for up to two years of training in the U.S. in H-3 status. To qualify for H-3 status, an employer must file a petition with the INS that demonstrates that the training program will meet the following requirements: the proposed training is not available in the foreign national's own country; the foreign national will not be placed in a position in which U.S. workers are normally employed; the foreign national will not engage in productive employment unless the employment is incidental and necessary to the training; and the training will benefit the foreign national in pursuing a career outside the U.S.

• L-1 Intracompany Transferees: L-1 status is available to persons who have worked abroad typically for one full year (within the past three years) in an executive, managerial, or specialized knowledge capacity for a qualifying related business entity, and who are being transferred temporarily to the United States to work in an executive, managerial or specialized knowledge capacity for the related U.S. company. The L-1 visa category is frequently utilized by multinational companies to transfer key employees to positions in the U.S. L-1A managers/executives are entitled to remain in the U.S. for 7 years. L-1B specialized knowledge workers may remain in the U.S. for 5 years.

• O-1 Extraordinary Ability: Foreign nationals who have demonstrated extraordinary ability in the arts, athletics, entertainment, business, and other fields may qualify for O-1 status. The person must prove the achievement of national or international acclaim by providing extensive documentation of past accomplishments (e.g. awards, recognition, publications, etc.). The INS will initially grant 3 years of O-1 status, with year-to-year extensions available.

• E Treaty Traders/Investors: The E-1 and E-2 treaty visa categories allow foreign nationals to enter the U.S. to oversee or work in enterprises which are engaged in trade between the U.S. and certain foreign countries (E-1 traders) or entail a major investment in the U.S. (E-2 investors). These visas are available to the actual investors and certain employees who will work in executive, managerial, supervisory, or "essential skill" capacities. The three basic requirements for E-1 or E-2 status are: (1) the foreign country must have a trade or bilateral investment treaty with the U.S.; (2) a majority of the owners/investors of the enterprise must be citizens of the treaty country; and (3) the beneficiary of the E-1 or E-2 petition must be a citizen of the same treaty country as the business enterprise. There is no limit on the duration of stay in the U.S. The foreign national will be granted a two-year period of E-1 or E-2 status, which will be renewed for another two years each time the person enters the U.S.

• J-1 Exchange Visitors: J-1 visas are available to certain students, scholars, trainees, teachers, professors, researchers, medical school graduates, and other various exchange visitors who wish to come to the U.S. to participate in a cultural or educational exchange program. An exchange visitor may be authorized to teach, observe, research, consult or receive training. The exchange visitor must be sponsored by a government agency or appropriate private agency, and must be able to show that he or she has sufficient funds to pay for the stay in the U.S. or that the sponsoring agency will provide a scholarship or stipend. The period of stay for the J-1 visa category is different depending on the type of field involved. For example, the period of admission for a business or industrial trainee cannot exceed 18 months.

• H-2B Temporary Workers: These visas are available to temporary nonagricultural workers who are coming to the United States to perform temporary services or labor. Visas in this category are only available if qualified U.S. workers capable of performing such services are not available. Federal regulations are designed so that the employment of foreign nationals in the H-2B category will not adversely affect the wages or working conditions of similarly employed U.S. workers. Before filing an H-2B visa petition with the Immigration and Naturalization Service (‘INS"), the company must obtain a temporary labor certification from the U.S. Department of Labor ("DOL"). The company must demonstrate that the jobs offered to foreign nationals meet DOL guidelines for jobs that are "temporary." As a general rule, the period of the employer's need must be one year or less. To meet the government standards, the employer's need for services or labor must meet one of four definitional standards: (1) a one-time occurrence; (2) a seasonal need; (3) a peak load need; or (4) an intermittent need.

General Update on Nonimmigrant Visa Processing Procedures

Premium Processing

In June 2001, INS implemented its new Premium Processing Program for certain employment-based petitions and applications. Pursuant to the Premium Processing Program, the INS guarantees that certain applications will be processed within 15 calendar days for an additional $1,000 filing fee. More specifically, INS guarantees that within 15 calendar days the agency will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. If the INS does not meet the 15 day deadline, it will refund the $1,000 Premium Processing Fee and the INS will continue to process the matter under the expedited service. As of June 1, 20001, the following nonimmigrant visa categories were eligible for Premium Processing Service from the INS: E-1, E-2, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3 and Q-1. On July 30, 2001, the INS also made this service available to employers for the following nonimmigrant visa categories: H-1B, TN and R. The Nebraska Service recently announced that Premium Processing will be expanded in the near future for I-140 immigrant visa petitions.

Since June 1, 2001, Premium Processing has been used for several types of visa applications. Premium Processing works extremely well in "clean" cases where the applicant clearly qualifies for the visa option being requested from the INS. In these types of cases, we are seeing approvals within 5 days or less. However, in cases where a question or issue could be raised by the INS (for example, whether the applicant satisfies the definition of specialized knowledge for the L-1B visa category or whether the occupation can be classified as a specialty occupation for the H-1B category), the employer and the attorney must analyze whether Premium Processing is appropriate in that particular situation. It is arguable that with the limited number of petitions that are filed with Premium Processing, such petitions may be more highly scrutinized by the INS.

Therefore, Premium Processing should be utilized in time-sensitive cases, but needs to be analyzed by the employer and the attorney on a case-by-case basis. Finally, it must be remembered that Premium Processing is only a service provided by the INS. It does not apply to the processing of visas in passports at U.S. consulates overseas. Unless an expedite request can be made and is approved by a U.S. consulate abroad, normal processing times for the consulate will apply to INS Premium Processing cases. Therefore, even with Premium Processing, employers and their foreign national employees must continue to plan in advance for intracompany and other foreign transfers to the United States.

Increase in INS Fees on February 19, 2002

In December 2001, INS announced an increase in fees for certain immigration benefits and services. These fee increases took effect on February 19, 2002. Federal guidelines require INS to review its fees every two years to ensure that it is recovering the costs of providing immigration services, rather than supporting those services with tax revenue. The average fee increase is approximately $20 per application. According to the INS, the fee increase provides the agency with the funding needed to process new immigration petitions and applications in a timely manner. Some examples of the fee increases include: Form I-129 Petitions for Nonimmigrant Workers will increase from $110 to $130 per petition; Form I-140 Immigrant Petition for Alien Worker will increase from $115 to $135 per petition; and Form I-485 Application to Register Permanent Residence or Adjust Status will increase from $220 to $255 per application. A complete listing of the fee increases that went into effect on February 19, 2002 is attached to this article as Attachment 1.

New DS-156 Nonimmigrant Visa Application

The Department of State is now requiring all nonimmigrant visa applicants to complete the DS-156 Nonimmigrant Visa Application. This form is similar to and replaces the former OF-156 Nonimmigrant Visa Application. A blank copy of the new DS-156 form is attached to this article as Attachment 2.

New DS-157 Supplemental Nonimmigrant Visa Application

On or about January 11, 2002, the Department of State has also started to require certain nonimmigrant visa applicants to submit the new DS-157 Supplemental Nonimmigrant Visa Application in addition to the DS-156 Nonimmigrant Visa Application. Specifically, all males between the ages of 16 and 45 are now required to submit DS-157. The requirement of completion of this form is in response to the September 11^th terrorist attacks. Please see Pam Santer's article titled "Prepare to be Scrutinized: An Update for Noncitizens and Their Employers in the Post-9/11 World" for more information on this new form, as well as for a copy of this new form.

H-1B Visa Update

Although the H-1B visa category has seen recent changes in the past year, they are due to the H-1B laws and regulations introduced in late 2000 and are not directly tied to the September 11^th terrorist attacks.

In late 2000, the H-1B visa category saw many changes with the passage of the American Competitiveness in the 21^st Century Act of 2000 (AC21) and the issuance of interim final regulations implementing provisions of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In 2001, the provisions of AC21 and the interim H-1B regulations have made numerous changes in an employer's use of the H-1B category. On the one hand, AC21 has enabled employers to more quickly and easily transfer the employment of H-1B nonimmigrants already working in the United States. However, on the other hand, the interim regulations issued by the Department of Labor have placed even more restrictions on H-1B employers. Although implemented, at this time, the interim regulations introduced on December 20, 2000 have not yet been finalized. Additionally, INS has not yet issued any regulations implementing the provisions of AC21. We must wait and see whether 2002 will provide clearer guidance to H-1B employers on these important issues. For more information regarding AC21 and the issuance of the ACWIA H-1B regulations, please see the article titled "New Pro-Business Immigration Laws: Understanding How Your Company Can Benefit From Recent Legislative Changes" and the article titled "New H-1B Regulations: Keeping Pace With INS And DOL Rule Changes."

INS Provides Initial Guidance for Processing H-1B Petitions Under AC21

On June 19, 2001, INS issued a policy memorandum (hereafter "June 19^th Memorandum") for INS Service Centers with respect to the proper procedures for handling cases under AC21 and related laws. This memorandum was issued intending to provide initial guidance on the handling of H-1B petitions and other matters until the INS issues regulations implementing the provisions of AC21. A review of the June 19^th Memorandum shows that it actually provides little guidance and tends to merely restate the statutory requirements of the AC21 provisions. However, because the provisions of AC21 were actually put into practice in 2001, it is important to review these provisions and their practical implications on foreign national employees and their employers.

H-1B Portability

H-1B portability was put to the test in 2001 with the record number of layoffs in the IT industry (see below for more information on H-1B employees and layoffs). Pursuant to H-1B portability, an H-1B nonimmigrant may begin working for a new H-1B employer as soon as the new employer files a nonfrivolous H-1B petition on the H-1B nonimmigrant's behalf if: (1) the nonimmigrant was lawfully admitted to the U.S.; (2) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (3) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

It is important to note that the June 19^th Memorandum does not state that a candidate for H-1B portability must be maintaining lawful nonimmigrant status. Numerous commentators state that an H-1B nonimmigrant may be eligible for portability even if they have left the employment of another H-1B employer but have remained in the United States. Bender's Immigration Bulletin, August 1, 2001.

Practical Implications of H-1B Portability

Many employers and employees are utilizing the H-1B portability rules to transfer employment since INS is still taking 2-3 months to process H-1B visa petitions. With portability, the safest approach is for the H-1B nonimmigrant to not start work pursuant to H-1B portability until the Receipt Notice has been received by the INS. This ensures that there has been a proper filing of the H-1B petition with the appropriate Service Center. It is also a good idea for employers to advise the H-1B nonimmigrant that there are risks to portability and that if the INS were to deny the H-1B petition, the H-1B nonimmigrant would need to be able to return to their former H-1B employer or they would be failing to maintain their nonimmigrant status. Failure to maintain nonimmigrant status can lead to severe consequences, including the inability to file an I-485 adjustment of status application, unlawful presence, removal and other issues. Employers are also requesting that H-1B portability applicants sign a document that assures the employer that the nonimmigrant was lawfully admitted to the U.S., has not been employed without authorization since the lawful admission to the United States and before the filing of the nonfrivolous petition, and understands the risks involved with H-1B portability. Finally, employers must also continue to satisfy I-9 requirements with H-1B employees utilizing portability. INS has indicated that employers are able to comply with I-9 requirements for H-1B transferring employees by following the documentation procedures the company would use when a request for extension of H-1B status is filed. As such, the company should attach a copy of the INS Receipt Notice for the newly filed H-1B petition along with a copy of the foreign national's Form I-94 card to the I-9 form which must be fully completed by the H-1B transferring employee on the first day of employment with the company. Employers must keep in mind that the I-9 form must be completed in its entirety, as simply attaching the aforementioned documents (i.e. INS Receipt Notice and Form I-94 card) would not satisfy the I-9 requirements.

DOL reverses its prior position regarding H-1B portability and LCAs

In a recent rule, DOL announced that employment can commence in the H-1B portability situation when the new employer files a nonfrivolous H-1B petition in accordance with H-1B requirements (i.e without having a certified LCA). Before this reversal, DOL had taken the position that a foreign national could not commence employment pursuant to H-1B portability until the LCA had been certified. Immigration Business News & Comment, January 1, 2002.

60 Day Grace Period – H-1B Portability

In the June 19^th Memorandum, INS announced that it "expects to propose a rule that would afford H-1B beneficiaries, who are no longer working for the initial H-1B employer, some reasonable period of time such as 60 days after leaving the initial H-1B employer to begin working for a new H-1B petitioning employer under the portability provisions." June 19^th Memorandum. However, INS then couched this announcement by stating that this information was only prospective and that such a rule would not take effect until a final rule was published. As of the date of this seminar, no such rule has been finalized or published. Moreover, the Nebraska Service Center recently stated that it has no firm rule with respect to its view on how long an H-1B worker can be laid off and still use H-1B portability.

H-1B Portability and Travel

In response to the H-1B portability provisions outlined in AC21, the INS issued guidance regarding readmission procedures for H-1B beneficiaries and their dependents if the H-1B beneficiary is no longer working for the original petitioner and has switched to new employment based on the H-1B portability provisions. According to this guidance, "pursuant to the portability provisions, the H-1B beneficiary is admissible at a port of entry upon presentation of the following evidence: (1) that the applicant is otherwise admissible; (2) that the applicant, unless visa exempt, is in possession of a valid unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner); (3) that the applicant was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued Form I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates; and (4) that an H-1B petition was timely filed on behalf of the applicant, before expiration of the validity dates of the applicant's previously authorized period of stay (i.e. copy of Receipt Notice that a new petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query)." June 19, 2001 Memorandum. Similar evidence must be presented by an H-4 dependent of an H-1B nonimmigrant working pursuant to portability in order to be readmitted. If the validity dates of the applicant's previously approved nonimmigrant petition have expired, and the applicant does not present evidence that the new H-1B petition has been approved, the H-1B nonimmigrant will not be admitted into the U.S.

Extension of H-1B Status Beyond 6-Year Time Limitation

AC21 included two provisions which would allow H-1B nonimmigrants to extend their H-1B status beyond the 6-year period of authorized stay for H-1B nonimmigrants. These exceptions to the 6-year time limitation are extremely important because of the lengthy backlog in adjudications with some Service Centers, state employment agencies, and Regional Offices of the Department of Labor, as well as the persistent problem with per-country limits for individuals from India and China. Although there are currently no backlogs in the issuance of immigrant visas for foreign nationals from India and China, it is likely that at some point in the future there could be backlogs once again. H-1B extensions for individuals in these situations would provide great assistance by allowing these individuals and their families to remain together in the United States during the pendency of the permanent residency process.

These extensions are also important since current INS policy and practice at most Service Centers is to only allow an individual to have a total of 6 years in H status. This includes a combination of H-1B and H-4 status. For example, if a spouse of an H-1B beneficiary first entered in H-4 status, but then changed to H-1B status, under current INS practice that individual would only be allowed a total of 6 years of a combination of H-1B and H-4 status. An extension of H-1B status beyond the 6-year time limitation would help to ameliorate this harsh rule under current INS policy.

Per Country Limitations Exception

Section 104(c) of AC21 allows H-1B nonimmigrants with approved I-140 immigrant visa petitions who are unable to adjust status because of per-country limits to be eligible to extend their H-1B status until the I-485 adjustment of status application has been adjudicated.

If the statutory requirements are satisfied, in order to obtain an extension of H-1B status under this exception, Form I-129 and related documents, along with the applicable filing fees, must be filed with the appropriate INS Service Center. The June 19th Memorandum outlines that the adjudicating officer shall not deny a petition because the nonimmigrant has exhausted the 6-year limit for H-1B status. INS shall approve extensions of stay under this exception in increments of three (3) years. This INS Memorandum clearly states that H-4 dependents are also entitled to this extension since their status is derivative of and linked to the status of the principal H-1B nonimmigrant. H-4 dependents are eligible for the extension upon the filing of the H-1B petition on behalf of the principal alien and the filing of Form I-539 with supporting documents and appropriate filing fees.

Lengthy Adjudications Exception

Under section 106 of AC21, H-1B nonimmigrants for whom a company-sponsored immigrant visa petition has been filed and whose labor certification application or immigrant visa petition has been pending for at least 365 days may obtain further extensions of their H-1B status beyond the six year maximum.

Like the per country limitations exceptions, if the applicant satisfies the statutory requirements, an extension petition is filed with the INS and the petitioner may be the H-1B beneficiary's current employer or a new employer. The INS may approve the H-1B extension petition for a one-year period of time. One-year extensions of the beneficiary's H-1B status may continue until a final decision is made on the foreign national's permanent residence application. As outlined above, the status of H-4 dependents can also be extended to be concurrent with the status of the H-1B beneficiary.

With respect to the ability to file an extension petition with a new employer, the June 19^th Memorandum does not address whether the filing of an H-1B petition by an employer other than the one that filed the immigrant visa petition casts doubt or suspicion on whether the beneficiary intends to work with the employer who filed the immigrant visa petition. Hopefully, INS regulations will address this important issue.

INS Service Centers began to process these lengthy adjudication 7^th year H-1B extension cases in July 2001.

Corporate Restructuring - Amended H-1B Petitions No Longer Required

Amended H-1B petitions are no longer required when the petitioning employer is involved in a corporate restructuring where: "(1) the new corporate entity succeeds to the interests and obligations of the original petitioning employer; and (2) the terms and conditions of employment remain the same, except for the identity of the petitioner." June 19, 2001 Memorandum.

Impact of Layoffs and the Current Economy on H-1B Employees and Employers

One of the biggest issues to face H-1B employers in 2001 was the effect of layoffs of H-1B workers in the IT and other industries. With the slowing economy in 2001, newspapers were filled with articles about layoffs in industries from IT to electronics to manufacturing. H-1B employers and workers have been plagued with the impact of such layoffs. When dealing with a layoff or termination, an employer should keep in mind the following:

• Return Transportation Costs: Under immigration laws and regulations, an H-1B employer is liable for reasonable costs of return transportation. This means a one-way airplane ticket to the H-1B employee's last place of foreign residence. Return transportation costs do not include dependents of the H-1B employee, nor other relocation costs to the foreign residence. Typically, an employer will include this amount in a severance package with a laid off H-1B worker.

• Notification to INS and DOL of Termination of Employment: INS regulations require that employers notify the INS of any changes in the terms and conditions of employment with respect to an H-1B employee. Moreover, to limit any liability for the employer under the DOL's H-1B regulations, it is also important to notify the DOL and withdraw the certified labor condition application that is on file for that employee.

• Maintenance of Public Access File: Under DOL regulations for the H-1B visa category, an employer must maintain the public access file for one year past the termination date of the employee.

• Immigration Status of Laid Off H-1B Worker: Under current INS policy, INS takes the position that H-1B status is terminated with the end of the H-1B employment. Under current INS policy, there is no "grace period" for an H-1B worker even if they are terminated or are laid off by the employer. "When H-1B Workers Lose Their Jobs," Stanley Mailman and Stephen Yale-Loehr, Bender's Immigration Bulletin, September 1, 2001. As outlined above, in the June 19, 2001 Memorandum issued by the INS, INS anticipates that it will be implementing a 60 day grace period for this situation. However, as outlined above, such a proposed or final regulation has not yet been introduced or implemented.

• H-1B Portability and I-485 Portability under AC21: If applicable, a foreign national employee who has been laid off may be able to use either H-1B portability or I-485 portability to obtain employment with a new H-1B or other employer. Since regulations have not yet been implemented for these provisions, it remains unclear how long an H-1B worker (or I-485 portability applicant) can remain unemployed before being allowed to start new employment under these provisions. Although the INS has indicated that it may implement a 60-day grace period in the near future, nothing on this issue has been clarified. "When H-1B Workers Lose Their Jobs," Stanley Mailman and Stephen Yale-Loehr, Bender's Immigration Bulletin, September 1, 2001. The INS has also not clarified the failure to maintain status issues that are at issue with these portability provisions.

  Electronic Filing for Labor Condition Applications

In a final rule published on December 5, 2001, the DOL announced that it would begin accepting the electronic filing of labor condition applications starting January 14, 2001. The agency is adding this new electronic filing procedure as a simpler, more efficient and faster way to process and certify labor condition applications. DOL expects that most employers and attorneys will want to proceed with the electronic filing method because of all of the problems there have been with the fax-back method. Although the DOL does not yet have the technology installed for acceptance of electronic signatures, it has presently resolved this issue by requiring the employer to sign the electronically-generated LCA for its file, sign a copy of the certified LCA for the public access file, and sign another copy of the certified LCA to be submitted to the INS with the rest of the H-1B petition. Immigration Business News & Comment, January 1, 2002. The electronic version of the labor condition application (Form 9035E) is available at www.lca.doleta.gov. Once the form is completed, it can be sent electronically to the DOL which anticipates that most LCAs can be reviewed and certified electronically and returned almost immediately via e-mail. Immigration Business News & Comment, January 1, 2002. Our office recently received a certified LCA within about an hour of the application being submitted pursuant to the new electronic filing procedure.

L-1 Visa Update

As outlined below, there have been several changes to the L-1 category which will substantially benefit multinational companies and their employees. However, since September 11^th, INS has also begun to more strictly scrutinize L-1 nonimmigrant visa petitions. Therefore, it is extremely important for employers to document and provide evidence to the INS that supports the argument for the intracompany transfer of a multinational manager/executive or specialized knowledge employee. Additionally, executives who regularly travel to the United States should seriously consider obtaining L-1A intermittent visas to avoid hassles and undue questions or scrutiny by INS with the heightened scrutiny in admission procedures since the September 11^th terrorist attacks.

Work Authorization for Spouses of L-1 and E-1/E-2 Beneficiaries

On January 16, 2002, President Bush signed into law two bills (H.R. 2277 and H.R. 2278) allowing spouses of L-1 intra-company transferees, E-1 treaty traders and E-2 treaty investors to work in the United States. The law states that these spouses should be provided with an "employment authorized" endorsement or other appropriate work permit. This law will provide a great benefit to both companies and its foreign national employees. For years, foreign national intracompany employees have been discouraged to find out that their spouses cannot work when they have been transferred to the United States. Additionally, many foreign national intracompany employees have decided against a transfer to the U.S. when they have found out that their spouse could not work and continue their career here. This is now changed with these new laws.

At present, this law is only for spouses of L-1 and E-1/E-2 employees. It does not permit work authorization for children of L-1 and E-1/E-2 employees or H-4 spouses.

Additionally, the law as signed by President Bush does not outline how these spouses will actually obtain this work authorization (i.e. filing an application with the appropriate Service Center, applying at the local INS office, obtaining at U.S. consulate abroad, etc.). Therefore, we expect that the INS will be introducing regulations or operating guidelines on such procedures in the near future.

L-1 Intermittent Status Recommended for Foreign National Employees Regularly Traveling to the United States

With the tightening of the borders since September 11^th, all individuals entering the United States are being scrutinized more carefully by INS Inspectors. Because of this scrutiny, multinational companies and their foreign national employees, especially those who hold managerial/executive positions with the foreign subsidiary or parent company, should seriously consider obtaining L-1A visas if they are regularly traveling into the United States even if such regular travel qualifies under a B-1 visitor visa or the visa waiver program. By obtaining the L-1 visa, these foreign national executives run less of a risk of having a problem with immigration and/or being more strictly scrutinized for their travels to the U.S.

Such foreign national employees would be considered in L-1 intermittent status. L-1 employees who do not reside continually in the United States and whose employment is seasonal, intermittent, or consists of an aggregate of six months or less per year are not subject to the 5 year time limitation of the L-1B category nor the 7 year time limitation of the L-1A category. In order to obtain extensions beyond the 5 and 7 year time limitations for L-1 intermittent employees, these foreign nationals should keep a travel log and any records/receipts of travels into the United States to submit as proof to the INS at the appropriate time.

Stricter Scrutiny by INS of L-1 Petitions

INS treatment of the L-1 intracompany transferee visa category since September 11^th typifies the stricter scrutiny and tightening of immigration requirements for nonimmigrant visas. In the past, neither the L-1A managerial/executive nor the L-1B specialized knowledge options were problematic visa categories with the INS. Article by Angelo Paparelli posted on AILA InfoNet (www.aila.org), December 20, 2001. However, in recent months, the INS, including the Nebraska Service Center, has been more strictly scrutinizing these applications, including L-1A functional manager applications, L-1B specialized knowledge petitions, and L-1 "new office" petitions and extensions. Recent requests from the INS for additional evidence reflect this stricter scrutiny, as well as the inappropriate reading of the L-1 regulations by newer INS examiners. In the past few months, the Nebraska Service Center has had quite a few difficulties with some of its examiners and is currently trying to resolve these issues with the L-1 visa category. However, until INS resolves these difficulties, it is important to analyze and evaluate whether the L-1 visa category is the appropriate and recommended visa option. For example, the recommended visa option for a computer professional may be an H-1B visa even though that individual could the satisfy requirements under the L-1B specialized knowledge category. Recently, INS has been taking the position that multinational companies are resorting to the L-1 category instead of the H-1B category to avoid the attestation and other restrictions imposed by the H-1B visa category. Article by Angelo Paparelli posted on AILA InfoNet (www.aila.org), December 20, 2001. Recent requests for evidence also indicate that the INS is taking into account the current state of the economy and the recent layoffs of computer workers when reviewing and issuing decisions regarding whether a computer professional satisfies the requirements of the L-1B specialized knowledge visa category.

With the stricter scrutiny that is being imposed on L-1 intracompany transferee visa petitions by INS, the requirements for the L-1A and L-1B categories should be clearly documented so as to avoid unnecessary complications and review by the INS. For L-1A petitions, the INS should be provided with organizational charts or other documents which outline the managerial/executive nature of the position and be provided with specific job titles and individuals that the L-1A employee currently supervises and will supervise in the prospective position in the U.S. For L-1B specialized knowledge petitions, the INS should be provided with documentation about the employee's specialized and advanced knowledge, including information about any proprietary products, procedures, equipment or technology and how the employee's specialized knowledge will assist the company's competitiveness in the U.S. and abroad.

Benefits of L-1 Blanket Petition Approvals

Multinational companies that meet certain requirements and have obtained approvals of at least 10 "L-1" managers, executives, or specialized knowledge professionals during the previous 12 months, have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, OR have a U.S. workforce of at least 1,000 employees, can obtain approval of an L-1 Blanket Approval by the INS. An L-1 Blanket Approval for a multinational company has several advantages.

Faster Processing Times

After the L-1 Blanket Petition is approved by the INS Service Center and the multinational company has the L-1 Blanket Approval in place, eligible foreign national employees no longer need to first submit a visa petition to the INS Service Center in the United States. These employees may submit the L-1 petition directly with the U.S. consulate in their home country or country of residence. This saves a significant amount of time in the process because the employee will be able to receive an L-1 visa in as little time as it takes the particular U.S. consulate to issue the visa. In some countries, this may be in a matter of hours. For Canadian citizens, they can submit the L-1 blanket petitions directly at the port of entry or preflight inspection.

Reduction of One Year Period of Continuous Employment Requirement to Six Months

Another benefit of an L-1 Blanket Approval is the reduction of the one year period of continuous employment requirement to six months. This was recently outlined in the new law signed by President Bush on January 16, 2002. Under this new law, the one year continuous employment requirement of the L-1 category is reduced to six months only if the company has a blanket petition approval in place.

Heightened Scrutiny of B-1/B-2 and TN Applications Since September 11th

As outlined in Pam Santer's article titled "Prepare to be Scrutinized: An Update for Noncitizens and Their Employers in the Post-9/11 World," the INS is more strictly scrutinizing foreign national applicants and their applications upon admission into the United States since the September 11^th terrorist attacks. Two types of applications that are being more highly scrutinized at the border and at the airport are B-1/B-2 and TN applications.

B-1/B-2 Visa Applications

Since September 11^th, the B-1/B-2 visa and the Visa Waiver Program have started to come under attack. Because of this scrutiny and the continued scrutiny that is expected for this visa category, B-1 business visitors must have the appropriate documents and be prepared to truthfully answer questions when asked by U.S. immigration officials at the airport. B-1 business visitors must be appropriately using this category and should have documentation with them (i.e. company support letter, round trip tickets, etc.) regarding their temporary stay in the U.S. and the services being provided to the foreign company abroad. Because of this scrutiny and the continued scrutiny of this visa category expected in the coming months, it is our recommendation that managers and executives of multinational companies obtain appropriate work-authorized visas (L-1, E-2, etc.) if they travel to the U.S. frequently. This will avoid unnecessary difficulties and complications with the B-1/B-2 visa category.

TN Applications

Since September 11^th, there have been reports of delays at the Canadian border. In some situations, this has led to stricter scrutiny of TN applications that are being filed by Canadian citizens to obtain TN status for work authorization in the United States. Therefore, it is crucial that Canadian citizens applying for TN status in one of the 63 professional categories outlined in NAFTA have the appropriate documentation and information for the INS Inspector and follow the proper procedures so that their application can be quickly reviewed without undue delays or complications. TN applicants should also have original documents, such as diplomas, transcripts, etc. to show the INS officials at the port of entry. In most circumstances, copies of documents will no longer be accepted.

There have been discussions regarding the addition of more professional categories eligible for TN status. Last year, a regulation to add the occupations of plant pathologist and actuary was proposed, but has not yet been implemented. Over the years, there have also been discussions to add other professions; however, there has been no recent movement on adding other professions to NAFTA.

Prior to the September 11^th attacks, INS clarified certain procedures regarding the denial of TN applications. INS Headquarters instructed its field offices that a Canadian TN applicant should be placed into expedited removal proceedings if the applicant does not wish to withdraw the application for admission. Under immigration regulations, the TN applicant's decision to withdraw his or her admission must be made voluntarily. Pearson Memorandum dated May 25, 2001, Bender's Immigration Bulletin, July 15, 2001.

With these new procedures regarding expedited removal and the stricter scrutiny that foreign nationals (even Canadian citizens) are being subjected to, it is extremely important that Canadian TN applicants have the proper documentation. It is also our recommendation that if for some reason a Canadian TN applicant is unnecessarily questioned by INS or believes that the application will be denied, the applicant should withdraw the TN application with the INS Inspector so as to avoid other consequences, including expedited removal proceedings.

Update on Temporary Non-Professional Workers

Under current immigration laws and regulations, there are limited options available for employers who need and want to employ foreign nationals for non-professional occupations. At the present time, employers can use the complex H-2A category to hire agricultural workers or the similarly complex and time-consuming H-2B category to hire temporary non-professional non-agricultural temporary workers.

Prior to the September 11^th terrorist attacks, there was much talk and discussion regarding changes to the H-2A and H-2B categories, including passage of new guestworker legislation and the regularization of undocumented workers in the U.S. As outlined below, although these issues are clearly important to both the U.S. and Mexico, they have been put aside by the Bush Administration and other groups for the near future.

Description of H-2B Category

As outlined above, H-2B visas are available to temporary nonagricultural workers who are coming to the United States to perform temporary services or labor and are only available if qualified U.S. workers capable of performing such services are not available. As a general rule, the period of the employer's need must be one year or less. The Department of Labor and INS routinely deny H-2B visa applications that request workers for more than a 9 month period of time and/or do not meet the strict definition of "temporary" as outlined by these government agencies. Because of the tight restrictions that have been placed on the H-2B category and the necessity to conduct supervised recruitment through the state employment agency and obtain approvals from the DOL, INS and Department of State, this category is extremely limited and in most situations is not viable for an employer. This is especially true in light of the length of time it takes to secure an H-2B approval from the various government agencies involved versus the limited length of time that the H-2B workers can be in the U.S. working for the company. Within the past year, the following are some examples of occupations which have received H-2B approvals: respiratory therapist, musician, camp counselor, amusement park entertainer, sports instructor, hotel clerk, fast foods workers, cook, waiter/waitress, dude wrangler, janitor, groundskeeper, electrician, bricklayer, circus laborer and comedian. These are just a handful - over 400 different job occupations were included within the approximately 75,000 H-2B visa applications that were approved last year. Accordingly, the H-2B category can be an option if the non-professional temporary job can satisfy the strict requirements of this category and if the employer is willing to spend the time and money it takes to secure a visa in this category. The H-2B visa category works extremely well for employers who need multiple workers in a shortage occupation and who need the employees during a "peakload" time of the year.

Guestworker Program and Amnesty Proposals

Because of the restrictions with the H-2B category, with the continued need by employers for foreign nationals to work in non-professional jobs, several proposals for a new guest worker program and/or an amnesty regarding undocumented workers were discussed by the Bush Administration and other organizations within the past year.

Prior to September 11^th

In February 2001, President Bush and President Fox of Mexico first began to discuss issues concerning workforce shortages and the increasing number of unlawfully employed foreign nationals (particularly Mexicans) in the United States in industries such as agriculture, construction, hospitality and healthcare. Soon thereafter, a Working Group of Secretary of State Powell and Attorney General Ashcroft, and their Mexican counterparts, was established to review and analyze these issues. In July 2001, proposals were submitted to President Bush which included enhanced guestworker programs which would permit the regular movement back and forth of Mexican workers, as well as other provisions regarding permanent residence and the legalization of undocumented workers currently in the U.S. Immigration Business News & Comment, August 1, 2001; Interpreter Releases, September 10, 2001.

Other organizations have also rallied around the essential worker issue. Various business and other interests have formed the Essential Worker Immigration Coalition (EWIC) to address issues and formulate proposals with respect to skilled and lesser skilled workforce issues. The EWIC has proposed many changes including the reform of the H-2A and H-2B programs, the creation of a new visa category for lesser skilled category that includes various attestations similar to the H-1B visa category, regularization or legalization of foreign nationals currently working in unlawful status, and a repeal of the I-9 system. Immigration Business News & Comment, August 1, 2001.

Although an "amnesty" of all undocumented workers is a divisive issue and such a law would likely not have passed Congress or signed by President Bush, because of the broad coalition behind some type of guestworker program and regularization of undocumented workers currently in the U.S., there was a great likelihood that some type of ameliorative legislation on this issue would have been enacted by the end of 2001/early 2002. This all changed with the terrorist attacks on September 11^th.

Post-September 11^th

After September 11^th, the emphasis on immigration clearly changed from discussing guestworker programs and a proposed amnesty for undocumented foreign nationals to increased enforcement on the Canadian border and a closer tracking of nonimmigrants in the United States. Although efforts and proposed legislation regarding guestworker programs, regularization and amnesty have been put on hold by the Bush administration and other groups, in a conversation with President Fox after the September 11^th terrorist attacks, President Bush indicated to President Fox that the U.S. needed to continue to work towards regularizing the situation of immigrants. New York Times, September 19, 2001.

Although legislation is not likely to be passed in the very near future since immigration priorities have shifted, with the continued shortage of workers in non-professional occupations and the emphasis on regularization by President Fox of Mexico, it is anticipated that over the next few years, these issues will remain in the spotlight.

Conclusion

As outlined above, the September 11^th terrorist attacks and the subsequent changes in immigration policy and procedures, have not yet seriously impacted any of the temporary work visa categories that are typically utilized by companies and their foreign national employees. Although the discussion of legislation for a guestworker visa category and the regularization of undocumented workers has been put on hold for the near future, the mainstay work visa categories for employers -- H-1B and L-1 -- have not been seriously affected. Although this could change in the coming months, it is much more likely that Congress will place greater restrictions and regulations on other nonimmigrant visa categories such as the F-1 student visa category and the B-1/B-2 temporary visitor category which have not been as highly scrutinized in the past as other visa categories, such as the H-1B visa category. Only time will tell what the continued impact of the September 11^th terrorist attacks will be on temporary work visa categories.