IMMIGRATION AND VISA APPLICATIONS

Table of Contents:

  1. Visa Waiver (ESTA) Program
  2. Global Entry Program
  3. B-1 (U.S. Business Visitor) Visa Applications
  4. H-1B Specialty Occupation
  5. L-1 Intracompany Transfer Petitions
  6. TN - Trade NAFTA Professional Applications
  7. O-1 - Extraordinary Ability and Achievement Petitions
  8. Consular Visa Applications based on Approved Nonimmigrant Status (H-1B, L-1, TN, O-1, etc.)
  9. Completing the DS-160
  10. U.S. Permanent Residence
  11. Expedited Admissions and Travel to the U.S. (Trusted Traveler Program)

 

A. VISA WAIVER (ESTA) PROGRAM

 1. What is the Visa Waiver (ESTA) Program?
  • Under the Visa Waiver program, citizens of eligible countries may enter the U.S. in visitor status for a period of 90 days or less without a visa.
2. Which countries’ citizens are eligible for visa waiver?

 

  • Andorra
  • Australia
  • Austria
  • Belgium
  • Brunei
  • Chile
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Iceland
  • Ireland
  • Italy
  • Japan
  • Latvia
  • Liechtenstein
  • Lithuania
  • Luxembourg
  • Monaco
  • Netherlands
  • New Zealand
  • Norway
  • Portugal
  • Republic of Malta
  • San Marino
  • Singapore
  • Slovakia
  • Slovenia
  • South Korea
  • Spain
  • Sweden
  • Switzerland
  • Taiwan
  • United Kingdom

 

Note: this list is subject to change. The most up to date list is found here.

3. My country isn’t listed as participating in the visa waiver program, how will I enter the U.S.?
  • You will need to apply for a B-1 visa instead to enter the U.S.
4. What can I do in the U.S. on visa waiver?
  • You may participate in any of the activities for which a B-1 (business visitor) or B-2 (visitor for pleasure) visa would be appropriate.
  • USCIS gives the following examples as appropriate business visitor activities:
    • Consulting with business associates;
    • Travelling for a scientific, educational, professional, or business convention;
    • Selling an estate;
    • Negotiating a contract;
    • Participating in short-term training; and
    • Transiting through the U.S.
  • You may not fill a U.S. labor need, be on U.S. payroll, or conduct work that primarily benefits a U.S. employer.
5. How do I apply for the visa waiver program?
6. Who cannot participate in the visa waiver program?
  • Those who have previously had a visa denial, been previously refused entry to the U.S., or have been previously removed from the U.S. cannot participate in the visa waiver program.
    • A denial of a visa means that a U.S. Consulate denied a visa application.
      • You must still disclose a visa denial on your ESTA application, even if you have changed your citizenship since the time of your denial.
      • A visa denial can include a previous withdrawal of a consular visa application or even a request to return with additional documentation after a consular appointment.
      • A visa denial does not include a denied petition or application to USCIS for nonimmigrant status on your behalf.
    • You must disclose any refused entries or removals on the ESTA application.
    • Failure to disclose denials, refusals, or removals will be considered fraud and may render you inadmissible to the United States.
  • Individuals who are dual nationals of Iran, Sudan, Iraq, and Syria are ineligible for the visa waiver program.
  • Individuals who have travelled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen since March 1, 2011 (with limited exceptions for diplomatic or military travel) are ineligible for the visa waiver program.
    • These restrictions can be waived on a very limited, case-by-case basis.  Those who will be considered for the waiver include:
      • Individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty;
      • Individuals who traveled to these countries on behalf of a humanitarian NGO on official duty;
      • Individuals who traveled to the countries as a journalist for reporting purposes;
      • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
      • Individuals who have traveled to Iraq for legitimate business-related purposes.

7. If my ESTA application is approved, am I guaranteed admission when I arrive at the U.S. border?

  • No. The border officer will still make a determination about whether you may be admitted to the United States.
8. What happens if my ESTA application is denied?
  • You will need to apply for a B-1 visa to enter the U.S.
9. Do I give up any rights by participating in the visa waiver program?
  • Yes. Under the visa waiver program:
    • You may not extend your stay in the U.S.
    • You may not change your non-immigrant status (i.e. change your status to H-1B, L-1, etc.).
    • If your admission is denied, you have no right to appeal a determination of inadmissibility.
    • If you are found to have violated the terms of your admission, you have no right to review or appeal, other than on the basis of an application for asylum, any removal action arising from an application for admission under the visa waiver program.
10. How long is an approved ESTA application valid?
  • An approved ESTA application is valid for two years.
11. How far in advance should I apply for visa waiver?
  • CBP recommends that you apply for visa waiver as soon as possible, and at least 72 hours before travel.
  • The ESTA program will accept applications from last minute and emergency travelers – those Visa Waiver Program travelers that arrive at the airport without an approved ESTA.
12. If I do not have specific travel plans, can I apply for visa waiver?
  • Yes. If a travel date or destination address in the United States is unknown when a traveler completes the ESTA application, the traveler should enter the estimated departure date and name of the hotel or approximate location he or she intends to visit. Travelers may update this information when their plans are finalized, but they will not be required to update their destination addresses or itineraries should they change after their travel authorization has been approved. CBP recommends that applications for travel authorization be submitted in ESTA as early as possible, as soon as, or even before travel is planned.

 

 B. GLOBAL ENTRY PROGRAM

1. What is Global Entry?
  • Global Entry is a voluntary international trusted traveler program that provides for the expedited movement of pre-screened, low-risk travelers into the United States.
  • Global Entry participants bypass Customs Control when entering the United States by using an electronic kiosk to make a customs declaration.
2. Who is eligible to participate in Global Entry?
  • U.S. citizens, lawful permanent residents, Dutch citizens, South Korean citizens, and Mexican nationals who are members of their countries’ respective trusted traveler programs.
  • Canadian citizens and residents may use Global Entry kiosks if they are enrolled in the NEXUS program.  Information regarding the Nexus program is available at http://www.cbp.gov/travel/trusted-traveler-programs/nexus.
  • India was recently accepted into Global Entry. While the program is not yet open to Indian citizens, the Indian government is working toward meeting program eligibility requirements.
3. What are the benefits of Global Entry?
  • Global Entry allows participants to bypass U.S. Customs Control by making a customs declaration electronically at a kiosk.
  • At airports where Global Entry kiosks are in place but out of service, participants may go to the front of the line at Customs Control.
  • In addition, being approved for Global Entry is a prerequisite for entry into reciprocal Trusted Traveler programs, such as FLUX (The Netherlands), Smart Entry Service (South Korea), Smart Gate (Australia), and Viajero Confiable (Mexico). Information regarding enrollment in these programs is available at  http://www.cbp.gov/global-entry/other-programs.
  • Global Entry participants also enjoy expedited border processing in New Zealand without application to another trusted traveler program.
  • TSA Pre-: Global Entry Participants are automatically eligible to participate in TSA Pre-✓, which expedites screening through U.S. airport security, by allowing participants to use a designated screening lane. Participants do not need to remove belts, shoes, or light jackets, and may leave laptops and clear bags of liquids (so-called 3-1-1 compliant bags) in their carry-on luggage. To use TSA Pre-✓, Global Entry participants enter their Global Entry member number (PASS ID) in the Known Traveler Number (KTN) field when booking air travel, and the designation will appear on the boarding pass.
4. What are Global Entry’s eligibility requirements?
  • To qualify, an applicant must:
    • Be in possession of a machine readable passport or U.S. permanent resident card;
    • Not provide false or incomplete information on the application;
    • Not have been convicted of any criminal offense nor have pending charges/outstanding warrants;
    • Not have violated any customs, immigration, or agricultural regulations or laws in any country;
    • Not be subject to an ongoing investigation by any federal, state, or local law enforcement agency;
    • Be admissible for entry to the United States;
    • Be able to satisfy CBP that he or she is a low risk traveler; or
    • Be over the age of 18, unless the applicant obtains parental consent.
5. How do I enroll in the Global Entry Program?
  • Complete the application:
  • Pay a non-refundable $100 application fee.
  • Schedule an interview at a Global Entry enrollment centers. Interviews can be scheduled on the application website. A list of enrollment centers is available at http://www.cbp.gov/global-entry/enrollment-centers
  • Attend the interview: 
    • The applicant must bring:
      • A valid passport with one other form of identification.
      • For a U.S. Permanent resident, the applicant must bring his or her permanent resident card.
      • At the interview, the applicant will be photographed and have his or her fingerprints taken.
6. If approved, how long am I eligible to participate in the Global Entry Program?
  • Once enrolled, participants are eligible to use Global Entry for 5 years. Applications to renew Global Entry membership may be processed online, and a secondary interview may or may not be required
7. What if my application is denied?
  • If your application is denied, you will be provided information in writing regarding the reason for your denial. Applicants may contest a denial by providing additional information to the CBP Trusted Traveler Ombudsman. This information should be mailed to:  U.S. Customs and Border Protection, P.O. Box 946, Williston, VT 05495, Attention: CBP Ombudsman.
8. Once enrolled, how do I use the Global Entry kiosks?
  • At airports, Global Entry participants proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration.  The kiosk issues the traveler a transaction receipt, and directs the traveler to baggage claim and the exit.
9. For what reasons can I be removed from the Global Entry Program?
  • Global Entry participants may be removed from the program if CBP, at its sole discretion, determines that the participant:
    • Engaged in any disqualifying activities, meaning that the participant was found in violation of any customs, immigration, or agriculture regulations, procedures, or laws in any country;
    • Provided false information in the application;
    • Failed to follow the terms, conditions, and requirements of the program; or
    • Has been arrested or convicted of a crime.
  • A participant may also be removed from the program if CBP determines that such action is otherwise necessary.
10. How can I redress my removal from the Global Entry Program?
  • There are three ways a removed participant can attempt to redress a removal decision:
    • Enrollment Center: The participant may contest the removal by writing a letter to the enrollment center where the participant’s enrollment interview was completed (assuming the participant was interviewed as part of enrollment). CBP must receive the letter within 30 days of removal, and the letter must explain why the participant believes the removal was invalid. The envelope must be labeled “Redress Request RE: Global Entry.” CBP will notify the individual of its redress decision.
    • DHS Traveler Redress Injury Program (DHS TRIP): The participant may apply for redress from removal online through DHS’s centralized redress inquiry program. The necessary forms and information are available at http://www.dhs.gov/trip.
    • Ombudsman: Participants may appeal their removal  in writing to the CBP Trusted Traveler Ombudsman, by writing to: U.S. Customs and Border Protection, P.O. Box 946, Williston, VT 05495, Attention: CBP Ombudsman.

 

 C. B-1 (U.S. BUSINESS VISITOR) VISA APPLICATIONS

1. What can I do in the U.S. on a B-1 visa?
  • You may perform business tasks related to your foreign business.  You may not fill a U.S. labor need, be on U.S. payroll, or conduct work that primarily benefits a U.S. employer.
  • The following are examples from USCIS of activities permissible on a B-1 visa:
    • Consulting with business associates;
    • Travelling for a scientific, educational, professional, or business convention;
    • Selling an estate;
    • Negotiating a contract;
    • Receive short-term training; or
    • Transiting through the U.S.
2. What do I need to show to be eligible for a B-1 visa?
  • Demonstrate a legitimate business purpose to enter the U.S.
  • Demonstrate that you intend to remain in the U.S. for a specific limited period of time.
  • Demonstrate that you have the funds to cover the expenses of the trip, and your stay in the U.S., and that these funds are not coming from a U.S. employer.
  • Demonstrate that you have a residence outside the U.S., in which you have no intention of abandoning, as well as other binding ties to your home country to ensure that you will not remain in the U.S.
3. How do I apply for the B-1 visa?
  • The procedures vary at each U.S. consulate abroad.  However, the steps generally follow this pattern:
    1. Request supporting letters from your employer.  You will need to provide your employer with the following:
      • Your current job title, start date, and salary.
      • Dates of your visit.
      • Purpose of the visit.
      • CV or Resume.
      • Schedule/Itinerary of Events in U.S.
      • Description of the purpose of the U.S. travel.
      • Intended Arrival and Departure Dates.
      • A complete copy of your passport including any U.S. visa stamps (including U.S. visa stamps from prior passports).

2. Determine the consulate at which you will file.  You can locate your nearest consulate here: http://www.usembassy.gov/.

3. Complete the DS-160, found here: https://ceac.state.gov/Genniv/. (More detailed instructions regarding the DS-160 are found in the next section).

4. Pay the visa fee.

5. Attend the consular appointment(s) with the documentation requested on the consulate’s webpage.

6. Pay any applicable reciprocity fee.

4. What is the processing time for B-1 supporting letters?
  • Processing time of B-1 support letters once your employer has received all of the requested information: 2 weeks.
5. Do I have to apply in person?
  • For initial applications, yes.  Some consulates will accept mailed visa extension applications, without requiring an in person interview.
6. Where is the consulate closest to me?

A list of U.S. Consulates is found here: http://www.usembassy.gov/.

7. How long does it take to schedule an interview at a consulate?
  • Appointment wait times fluctuate; see current processing times here.
8. What should I bring to the interview?
  • It varies by consulate, but generally you will want to bring:
    1. An invitation letter from your employer.
    2. A letter confirming your employment and salary abroad.
    3. Proof of your ties to your home country (bank accounts, real estate leases or mortgages, photos of your workspace, etc.).
    4. Current passport.
    5. Any former passport containing a U.S. visa.
    6. DS-160 confirmation page.
    7. Proof that you have paid the visa fee (if your consulate requires you to pay in advance).
9. What should I not bring to the interview?
  • Prohibited items vary by consulate, however, most consulates prohibit the following:
    1. Weapons
    2. Explosives
    3. Sharp Items
    4. Bags
    5. Cell Phones
    6. Cameras
    7. Recording Devices
    8. Animals other than Service Animals
    9. Computers
10. What will I be asked at the interview?
  • You will be asked about the purpose of your trip, your background, and the materials you provide at the interview.  Please review the materials you present carefully.
11. What should I say at the interview?
  • Above all, you must tell the truth.
  • Your employer does not provide a specific script to follow.
  • Please review the contents of your application, and be prepared to speak about the purpose of your trip.
12. How long will the interview last?
  • Approximately 3-10 minutes.  However, fingerprint processing and waiting for your appointment may take several hours.  As such, you should expect to be at the consulate for several hours.
13. What happens if my application is rejected?
  • You will not be able to immediately enter the U.S., but may have the opportunity to reapply.
  • Please send your employer any documentation you received from the consulate, and provide your employer with your best recollection of the questions asked and answers given at the appointment.
14. If my application is approved, will I get the visa before I leave the consulate?
  • If approved, the consulate will retain your passport, and mail it back to you with the passport stamp.
  • It will take at least three working days to receive your passport after your visa is approved.

 

D. H-1B SPECIALTY OCCUPATION

1.  What is H-1B visa status?
  • Your employer will file an I-129 on your behalf, and submit evidence that:
    1. You will be employed in a “specialty occupation” requiring at least a bachelor’s degree or its equivalent;
    2. You meet the requirements for the position; and,
    3. The employer meets prevailing wage standards set forth by the Department of Labor.
2. What is the H-1B cap and the H-1B lottery?
  • The U.S. government allows only 65,000 new H-1B visas each fiscal year, with an additional 20,000 visas for foreign nationals holding master’s degrees from U.S. institutions.
  • These visas become available on October 1 of each year.  Because you can apply for visa status six months in advance, the earliest an employer may petition for an H-1B is April 1.
  • When more petitions than available visas arrive at USCIS during the first week of April, USCIS conducts a lottery to determine which cases will be adjudicated.
  • First, USCIS conducts a lottery for the 20,000 additional spots for those holding U.S. master’s degrees.  Those not selected are put into a second pool with those not holding U.S. master’s degrees for the remaining 65,000 spots.
  • During April and May, USCIS will notify petitioners whether their petitions have been accepted for adjudication.  If not selected, a petition, with the filing fees will be returned.
  • USCIS will then adjudicate the H-1B petition.  Being selected in the lottery does not guaranty that your petition will be approved.
  • If your case is approved, you will enter H-1B status on October 1.
  • If you are in F-1/OPT and your Employment Authorization Document expires after April 1, but before October 1, your work authorization will be extended until October 1.  Your work authorization will end on October 1 if your H-1B petition has not yet been approved.
3. What is a Labor Condition Application (“LCA”)?
  • As part of the H-1B petition, your employer will file a Labor Conditions Application (“LCA”) with the Department of Labor, verifying that it will meet prevailing wage requirements.
  • The LCA requires two postings at your workspaces.  These postings will list a wage range in which your salary falls.  These postings will remain up for just under two weeks.
  • You are entitled to a copy of the LCA once your H-1B petition is approved.  Legal counsel will send this to you.
4. Can my spouse and children join me in the U.S. if I am in H-1B status?
  • Your spouse may enter the U.S. in H-4 status.
  • Your children may enter H-4 status until they are married or turn 21, whichever occurs sooner.
5. Can my spouse or children work while I am in H-1B status?
  • If your spouse is in H-4 status, he or she will not be able to work until you have made significant progress towards permanent residence.
  • Your children in H-4 status may not work.
6. Can my children attend school while I am in H-1B status?
  • If your children are in H-4 status, they can go to school.
7. What happens if my spouse or I give birth to a child in the U.S.?
  • Children born in the U.S. automatically become U.S. citizens.
8. Can I change employers while in H-1B status?
  • H-1B status is employer specific.  Changing employers will require a new petition.
  • If you are already in H-1B status you may start with a new employer as soon as your employer receives a receipt notice for your new H-1B petition.  However, if you start working when the receipt notice arrives, you would have to stop working in the event that the new H-1B petition was denied.
9. My job duties are changing, do we need to file a new petition?
  • You should alert your employer’s immigration team whenever changes to your position are being contemplated.  Your employer’s immigration team will discuss the changes with immigration counsel to determine if a new petition is required prior to the changes to your position taking effect.
  • If you perform duties that are not authorized by your H-1B petition, you will violate your status, and will need to exit and reenter the U.S. to resume H-1B status.
10. Can I change job locations?
  • H-1B petitions are location specific.  You should alert your employer’s immigration team whenever changes to your location are being contemplated.
  • If you will remain in the same metropolitan area, your employer’s immigration team will put a new LCA posting notice at your new worksite.
  • If you are going to work in a new metropolitan area, your employer will need to file an amended petition.
  • Note that if you have never been counted against the H-1B cap, you can only move to a cap-exempt employer without being counted against the cap.
11. What documents will I need to provide to immigration counsel for purposes of the H-1B?
  • Please provide the following:
    1. Passport biographic page.
    2. All current and former U.S. visa stamps.
    3. Last three paystubs.
    4. Any documentation, approval notices, or forms ever received from U.S. Citizenship and Immigration Services, U.S. Immigration and Naturalization Service, U.S. Customs and Border Protection, or U.S. Department of State.
    5. Your education documentation (diplomas and degrees).
    6. Any current U.S. driver’s license.
    7. Your resume.
    8. If your spouse will accompany you, a copy of your long form marriage certificate.
    9. If any children accompany you, a copy of the birth certificate for each child, listing you as a parent.
12. How do you apply for H-1B status?
  • Generally, for an initial entry in H-1B status:
    1. Your employer will file an LCA with the Department of Labor.  This will take a week to be approved.
    2. Once the LCA has been approved, your employer will file an I-129 with supporting documentation.
    3. The petition with process with USCIS for two weeks (if premium processed) to four months, though processing times may fluctuate.
    4. If USCIS requires additional information, it will issue either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).  Your employer will be given a timeline to respond to the government’s requests.
    5. If USCIS requires no additional information, it will issue an approval notice.
    6. If you are Canadian, you can take this approval notice to the border and enter in H-1B status.
    7. If you are not Canadian, you will need to apply for a visa stamp, following the instructions found in the section titled “Consular Visa Applications based on Approved Nonimmigrant Status (H-1B, L-1, TN, O-1, ETC.).”
    8. You will take your approval notice and visa stamp to the border to enter H-1B status.
13. Can the H-1B petition be expedited?
  • Yes, for a fee of $1,225, the USCIS will issue a determination or request for evidence within two weeks of receiving the submission.
14. Can I offer to pay for the H-1B petition?
  • No, the employee cannot pay for the legal fees or government fees for the H-1B petition.  However, the employee can pay to expedite the case.

 

E. L-1 INTRACOMPANY TRANSFER PETITIONS

1. What is L-1 visa status?
  • Your employer will file an I-129 on your behalf, and submit evidence that:

1. For one year within the last three years prior to entering the U.S., you:

a. worked for an affiliate/branch/parent of your employer in the U.S.,

b. in an executive or managerial capacity, or in a position requiring specialized knowledge, and

2. You currently work (or are going to work) in the U.S. in an executive or managerial capacity, or in a position requiring specialized knowledge

2. What does it mean to be an executive?
  • For purposes of immigration, an executive is someone who:
    1. Directs management or a major component or function of the organization;
    2. Establishes goals and policies for the organization, component, or function;
    3. Exercises wide discretion; and
    4. Receives limited supervision from higher level executives, the board of directors, or from stock holders.
  • Those who will be working in executive capacity in the U.S. will be classified as L‑1A.
3. What does it mean to be a manager?
  • For purposes of immigration, a manager is someone who:
    1. Manages the organization or a department, subdivision, function, or component of the organization;
    2. Supervises the work of other supervisors or professionals (positions requiring a bachelor’s degree), or manages an essential function of the organization;
    3. Can hire and fire subordinates, or if person has no subordinates, functions at a senior level in the organization’s hierarchy; and
    4. Directs day-to-day operations of the activity or function over which the employee has authority.
  • Those who will be working in managerial capacity in the U.S. will be classified in as L-1A.
4. What does it mean to have specialized knowledge?
  • Specialized knowledge is defined as special knowledge possessed by an individual 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.
  • USCIS tends to look for the following factors when it comes to specialized knowledge:
    1. Whether the knowledge is advanced and unique or whether it is known throughout the industry.
    2. Whether the knowledge is only known by a small number of individuals.
    3. Whether the individual possessing the knowledge is senior within the company.
  • Those who will be working in the U.S. in a position requiring specialized knowledge will be classified as L-1B.
5. How long can I stay in the U.S. in L-1?
  • You will be granted 3 years of initial L-1 status.
  • Individuals in L-1B status can extend in two year increments up to a maximum of 5 years total in L status.
  • Individuals in L-1A status can extend in two year increments up to a maximum of 7 years total in L status.
6. Can I switch from L-1B to L-1A?
  • Yes, but the amended petition must be submitted at least six months prior to your five year maximum of L-1B time.
7. Can my spouse and children join me in the U.S. if I am in L-1 status?
  • Your spouse may enter the U.S. in L-2 status.
  • Your children may enter L-2 status until they are married or turn 21, whichever occurs sooner.
8. Can my spouse work if I am in L-1 status?
  • If your spouse joins you in L-2 status, he or she may apply for and Employment Authorization Document (“EAD”) via the I-765, and use the EAD to work at any employer in the U.S.
9.  Can my spouse get a social security number?
  • If your spouse joins you in L-2 status, he or she may apply for a social security number via form SS-5.
10. Can my child work if I am in L-1 status?
  • No.
11. Can my child attend school if I am in L-1 status?
  • Yes, a child may attend school in L-2 status.
12. What happens if my spouse or I give birth to a child in the U.S.?
  • Any children born in the U.S. will automatically be U.S. citizens.
13. Can I change employers while in L-1 status?
  • L-1 status is employer specific.  Changing employers will generally require a new petition.
  • If you are in L-1 status pursuant to a blanket petition, you may transfer to any of the employers covered by the blanket without a new petition, so long as you continue to work in the same capacity (i.e. as an executive, manager, or in a position requiring specialized knowledge).
14. My job duties are changing, do we need to file a new petition?
  • You should alert your employer’s immigration team whenever changes to your position are being contemplated.  Your employer’s immigration team will discuss the changes with immigration counsel to determine if a new petition is required prior to the changes to your position taking effect.
  • Generally, so long as you continue to work in the same capacity (i.e. as an executive, manager, or in a position requiring specialized knowledge), a new petition will not be required.
 15. What documents will I need to provide to immigration counsel for purposes of the L-1?
  • All applicants should provide the following:
    1. Passport biographic page.
    2. All current and former U.S. visa stamps.
    3. Paystubs or tax documents proving employment with an affiliate/branch/subsidiary/parent of the U.S. employer for at least one year within the last three years.
    4. A list of all travel to the U.S. during the last three years.
    5. Any documentation, approval notices, or forms ever received from U.S. Citizenship and Immigration Services, U.S. Immigration and Naturalization Service, U.S. Customs and Border Protection, or U.S. Department of State.
    6. Your education documentation (diplomas and degrees).
    7. Any current U.S. driver’s license.
    8. Your resume.
    9. If your spouse will accompany you, a copy of your long form marriage certificate.
    10. If any children accompany you, a copy of the birth certificate for each child, listing you as a parent.
  • If you are applying as a manager or executive, you may also be asked to provide:
    1. An organizational chart for your department abroad.
    2. An organizational chart for your position in the U.S.
    3. Job descriptions for your subordinates abroad and in the U.S.
    4. A job description for your position abroad, with the percent time you will spend on each duty.
    5. A job description for your position in the U.S., with the percent time spent on each duty.
    6. Your budget and budgeting authority abroad and in the U.S.
    7. A list of employees over whom you have indirect or specific subject matter authority.
    8. An explanation of the importance of your area of authority.
  • If you are applying as an employee requiring specialized knowledge, you may also be asked to provide:
    1. Copies or screenshots of company-specific programs, procedures, software, metrics, techniques, etc., that you have developed or that are required for your position.
    2. An explanation of how long it would take to train someone to fill your role at the company.
    3. Proof of your awards.
    4. A list of your three greatest accomplishments at the company.
    5. A list of the company specific programs, procedures, software, metrics, techniques, etc., that are required for each of your job duties both abroad and in the U.S.
    6. An explanation of how many other employees possess the same company-specific knowledge that is required for your position.
16. How do you apply for L-1 status?
  • Generally, for an initial entry in L-1 status:
    1. Your employer will file an I-129 with supporting documentation.
    2. The petition with process with USCIS for two weeks (if premium processed) to four months, though processing times may fluctuate.
    3. If USCIS requires additional information, it will issue either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).  Your employer will be given a timeline to respond to the government’s requests.
    4. If USCIS requires no additional information, it will issue an approval notice.
    5. If you are Canadian, you can take this approval notice to the border and enter in L-1 status.
    6. If you are not Canadian, you will need to apply for a visa stamp, following the instructions found in the section titled “Consular Visa Applications based on Approved Nonimmigrant Status (H-1B, L-1, TN, O-1, ETC.).”
    7. You will take your approval notice and visa stamp to the border to enter L-1 status.
  • If you are Canadian you may alternatively:
    1. Take I-129 with its supporting documentation to the U.S.-Canada border, or to pre-flight inspection at Canadian airports, where the petition will be adjudicated on the spot.
    2. Note that you will be required to wait at least two hours (or more) before your petition is adjudicated.  Please factor this into your travel time.
    3. When you apply, you must be coming to the U.S. to begin work.
    4. If you are approved, you will be issued an I-94 and granted entry to the U.S.  USCIS will issue a formal approval notice to you several weeks later.
    5. If you are denied, you will be given an explanation for the denial, and will be allowed to apply again.
  • If you are applying pursuant to a blanket petition and are not Canadian:
    1. You will apply for a consular visa appointment, following the instructions found in the section titled “Consular Visa Applications based on Approved Nonimmigrant Status (H-1B, L-1, TN, O-1, ETC.)”
    2. You will bring Form I-129S along with its supporting documents, and apply for an L-1 blanket visa stamp.
    3. If approved, you will take your L-1 blanket visa stamp, your annotated I‑129S, and a copy of your employer’s blanket approval notice to the border, and be admitted in L-1 status.
    4. You should be granted three years of L-1 status upon each entry to the U.S.
  • If you are applying pursuant to a blanket petition and you are Canadian:
    1. You will take Form I-129S and its supporting documents to the U.S.-Canada border or to pre-flight inspection at Canadian airports, where the petition will be adjudicated on the spot.
    2. Note that you will be required to wait at least two hours (or more) before your petition is adjudicated.  Please factor this into your travel time.
    3. When you apply, you must be coming to the U.S. to begin work.
    4. If you are approved, you will be issued an I-94 and granted entry to the U.S.  USCIS will issue a formal approval notice to you several weeks later.
    5. If you are denied, you will be given an explanation for the denial, and will be allowed to apply again.
17. What is the difference between a blanket L petition and a standard L petition?
  • For a blanket petition, your employer has prequalified certain affiliates, subsidiaries, and parent companies to transfer employees via the L-1 visa category.
  • For blanket petitions, non-Canadians will have their petitions adjudicated at a U.S. Consulate abroad, rather than needing to wait for USCIS to adjudicate the L-1 petition prior to going to the consulate.
  • As with standard L-1 petitions, Canadians may have Blanket L petitions adjudicated at pre-flight inspection locations in Canada, or along the U.S.-Canada border.
18. Can the L-1 petition be expedited?
  • Yes, for a fee of $1,225, the USCIS will issue a determination or request for evidence within two weeks of receiving the submission.

 

F. TN - TRADE NAFTA PROFESSIONAL APPLICATIONS

1. What is TN visa status?
  • Under the North Atlantic Free Trade Agreement, professionals from Mexico and Canada can come to the U.S. to work in certain professions.
2. What professions are authorized under TN status?
  • Accountant
  • Agriculturist
  • Animal Scientist
  • Apiculturist
  • Architect
  • Astronomer
  • Biochemist
  • Chemist
  • College Teacher
  • Computer Systems Analyst
  • Dentist
  • Dietician
  • Disaster Relief Insurance Claims Adjuster
  • Dairy Scientist
  • Economist
  • Engineer
  • Entomologist
  • Epidemiologist
  • Forester
  • Geneticist
  • Geochemist
  • Geologist
 
  • Geophysicist
  • Graphic Designer
  • Horticulturist
  • Hotel Manager
  • Industrial Designer
  • Interior Designer
  • Land Surveyor
  • Landscape Architect
  • Lawyer
  • Librarian
  • Management Consultant
  • Mathematician
  • Range Manager/Range Conservationist
  • Medical Laboratory Technologist
  • Meteorologist
  • Nutritionist
  • Occupational Therapist
  • Pharmacist
  • Pharmacologist
 
  • Physician (teaching or research only)
  • Physicist
  • Physiotherapist/ Physical
  • Poultry Scientist
  • Psychologist
  • Recreational Therapist
  • Registered Nurse
  • Research Assistant
  • Scientific Technician/ Technologist
  • Seminary Teacher
  • Social Worker
  • Soil Scientist
  • Sylviculturalist
  • Technical Publications Writer
  • University Teacher
  • Urban Planner
  • Veterinarian
  • Vocational Counselor
  • Zoologist

 

3. What documents do I need to provide for TN status?
  • All applicants should provide the following:
    1. Passport biographic page.
    2. All current and former U.S. visa stamps.
    3. Any documentation, approval notices, or forms ever received from U.S. Citizenship and Immigration Services, U.S. Immigration and Naturalization Service, U.S. Customs and Border Protection, or U.S. Department of State.
    4. Your education documentation (diplomas and degrees).
    5. Any current U.S. driver’s license.
    6. Your resume.
    7. If your spouse will accompany you, a copy of your long form marriage certificate.
    8. If any children accompany you, a copy of the birth certificate for each child, listing you as a parent.
4. Can my spouse and children join me in the U.S. if I am in TN status?
  • Your spouse may enter the U.S. in TD status.
  • Your children may enter TD status until they are married or turn 21, whichever occurs sooner.
5. Can my spouse or children work if I am in TN status?
  • If your spouse and children are in TD status, they will generally not be able to work.
6. Can my child attend school if I am in TN status?
  • Yes, a child may attend school in TD status.
7. Can I change my employer in TN status?
  • The TN is employer specific - you would have to apply for a new TN.
8. Can I change job locations while in TN status?
  • As long as you remain with the same employer, you may change job locations.
9. Can I change job duties while in TN status?
  • Before any changes are made to your job duties, you must contact your company’s immigration team, who will discuss with immigration counsel whether such changes are permissible.
10. How do I apply for TN status?
  • Your company’s immigration team will work with immigration counsel to draft a letter explaining:
    1. The profession your position falls under.
    2. Your compensation.
    3. Your job duties.
    4. Your qualifications.
    5. Your company’s intent to employ (or sometimes retain) you in the U.S. for a period of up to 3 years.
  • If you are Mexican:
    1. You will make an appointment at a U.S. Consulate using the instructions in the section “Consular Visa Applications based on Approved Nonimmigrant Status (H-1B, L-1, TN, O-1, etc.)
    2. You will bring your TN supporting letter and any required documents to your appointment.
    3. You will pay the visa fee of $160.
    4. You will receive a visa in your passport from the consulate.
    5. Using the visa, you will enter the U.S. in TN status, and receive an I-94.
  • If you are Canadian:
    1. You will take your supporting letter and documents to a port of entry along the U.S.-Canada border, or at preflight inspection in Canada.
    2. You will pay $50 for the application, and $6 for a new I-94.
    3. You will be admitted into the U.S. in TN Status.
  • Alternate Pre-Adjudication for Canadians:
    1. Your employer will submit the TN supporting letter with form I-129 to USCIS, with a filing fee of $325.
    2. Once approved, USCIS will issue an approval notice.
    3. You will take the approval notice to the border and be admitted to the U.S. in TN status.
11. Will I need a bachelor’s degree to obtain TN status?
  •  Generally yes, with the exception of the following categories:
    1. Accountant - bachelor’s degree not required if you are a C.P.A., C.A., C.G.A., or C.M.A.
    2. Management Consultant - bachelor’s degree not required if you can document 5 years of experience in the field.
    3. Scientific Technician/Technologist - must possess:

a. Theoretical knowledge of any of the following disciplines:

i. Agricultural Sciences

ii. Astronomy

iii. Biology

iv. Chemistry

v. Engineering

vi. Forestry

vii. Geology

viii. Geophysics

ix. Meteorology

x. Physics

b. The ability to solve practical problems in any of those disciples or the ability to apply principles of any of those disciplines to basic applied research.

4.  Computer Systems Analyst - a two year post-secondary certificate or diploma with three years of experience is acceptable.

5.  Graphic Designer - a two year post-secondary certificate or diploma with three years of experience is acceptable.

6.  Hotel Manager - a two year post-secondary certificate or diploma in hotel/restaurant management with three years of experience in hotel restaurant management is acceptable.

7.  Industrial Designer - a two year post-secondary certificate or diploma with three years of experience is acceptable.

8.  Lawyer - may qualify based on membership in a state/provincial bar.

9.  Technical Publications Writer - a two year post-secondary certificate or diploma with three years of experience is acceptable.

10. Medical Laboratory Technologist - a two year post-secondary certificate or diploma with three years of experience is acceptable.

12. How do I meet the knowledge/ability requirements of the Scientific Technician/Technologist category?
  • To meet the requirements of this category the applicant must:
    1. Provide direct support to a professional in the fields listed in question 11 above.
    2. Provide services that are inter-related with the work of the supervisory professional.  The work of Scientific Technician/Technologist must be managed, coordinated, and reviewed by the professional supervisor, and the Scientific Technician/Technologist must also provide input to the supervisory professional’s own work.
    3. Have two years of training in a relevant educational program.
    4. Have job duties consistent with those found in the Department of Labor’s Occupational Outlook Handbook.
    5. Not be working in the construction trades (welders, boiler makers, carpenters, electricians, etc.) even where these trades are specialized to a particular industry.
13. Can I show that my work experience is the equivalent of a bachelor’s degree to meet the education requirements?
  • No - where a bachelor’s degree is required, experience will not substitute the degree for purposes of the TN.
14. Can my bachelor’s degree be from any country?
  • The government will accept bachelor’s degrees from the U.S., Canada, and Mexico.
  • If you have a bachelor’s degree from a country other than the U.S., Canada, or Mexico, you must get an equivalency assessment showing that your degree is equivalent to a U.S. bachelor’s degree.
15. How many times can a TN be extended?
  • In most cases indefinitely.
  • For the management consultant, the government will be skeptical of more than one extension.

 

G. O-1 - EXTRAORDINARY ABILITY AND ACHIEVEMENT PETITIONS

1. What is O-1 visa status?
  • O-1 status is available to an individual who has extraordinary ability in the sciences, arts, education, business, or athletics, which can be demonstrated by sustained national or international acclaim.
2. How do I demonstrate sustained national or international acclaim?
  • For the fields of science, education, business, or athletics, you must provide evidence of:
    1. Receipt of a major, internationally recognized award, such as the Nobel Prize, OR
    2. At least 3 of the following:
      1. Receipt of nationally or internationally recognized prizes and awards in your field.
      2. Membership in associations in your field, which require outstanding achievements of their members.
      3. Published material in professional or major trade publication or major media about you, relating to your work in your field.
      4. Participation as a judge of the work of others in your field or a closely related field.
      5. Your original scientific, scholarly, or business-related contributions of major significance to your field.
      6. Your authorship of scholarly articles in the field, in professional journals or other major media.
      7. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
      8. Proof that you command a high salary, or will command a high salary.
  • In the field of arts, you must provide evidence of the following:
    1. Receipt of significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, OR
    2. At least 3 of the following:

a.  Critical reviews, advertisements, publicity releases, publication contracts, or endorsements demonstrating your role as a leading or starring participant in a production or event.

b.  Evidence of national or international recognition such as critical reviews or other published materials in major newspapers, trade journals, magazines, etc.

c.  Evidence of your prior or upcoming leading, starring, or critical role for organizations and establishments that have a distinguished reputation.

d.  You have a record of major commercial or critically acclaimed successes.

e.  You received recognition for achievements from organizations, critics, government agencies, or other recognized experts in your field.

f.  Proof that you command or will command a high salary.

3. How long can I remain in O-1 status?
  • You will receive an initial term of 3 years, which can be extended in 1-3 year increments so long as you continue to meet the standards for the classification.
4. Can my spouse and children join me in the U.S. if I am in O-1 status?
  • Your spouse may enter the U.S. in O-3 status.
  • Your children may enter O-3 status until they are married or turn 21, whichever occurs sooner.
5. Can my spouse or children work if I am in O-1 status?
  • If your spouse and children are in O-3 status, they will generally not be able to work.
6. Can my child attend school if I am in O-1 status?
  • Yes, a child may attend school in O-3 status.
7. Can I change my employer in O-1 status?
  • Unless you applied for the O-1 through an agent, the O-1 is employer specific - you would have to apply for a new O-1.
8. Can I change job locations while in O-1 status?
  • Yes, you may change job locations.
9. Can I change job duties while in O-1 status?
  • When in nonimmigrant status, before any changes are made to your job duties, you must contact your company’s immigration team, who will discuss with immigration counsel whether such changes are permissible.
10. Will I need to get expert opinion letters?
  • Yes.  Immigration counsel will provide you with a template to provide to those writing your letters.
11. Should I write the letters for the experts to sign?
  • We suggest not writing the letters yourself as it will diminish the persuasiveness of the letter.
12. What other documents should I provide for the O-1?
  • Immigration counsel will provide you with an extensive list of documents to provide.
13. How do I apply for O-1 visa status?
  • Your employer or agent will apply for O-1 status on your behalf by submitting an I-129 (with a $325 filing fee), supporting letter, and extensive supporting documentation.
14. Can a petition for O-1 visa status be expedited?
  • Yes.  By paying a premium processing fee of $1,225, USCIS will issue a determination within two weeks of the date they receive the application.

 

H. CONSULAR VISA APPLICATIONS BASED ON APPROVED NONIMMIGRANT STATUS (H-1B, L-1, TN, O-1, etc.)

1. What is a visa stamp?
  • The visa stamp is put in your passport by a U.S. Consulate, and allows you to enter the U.S. in a particular non-immigrant status, until the expiration of the visa stamp.
2. Do I need a visa stamp to enter the U.S.?
  • Canadians generally do not need visa stamps to enter the U.S.  Canadians do require visa stamps when seeking admission to the U.S. in one of the following statuses:
    • Foreign government officials (A);
    • Officials and employees of international organizations (G);
    • NATO officials, representatives, and employees assigned to the United States (NATO);
    • Treaty traders (E-1);
    • Treaty investors (E-2);
    • Fiancé(e)s (K-1);
    • Children of fiancé(e)s (K-2);
    • Spouse of a U.S. citizen traveling to the United States to complete the immigration process (K-3);
    • Children of a foreign citizen spouse (K-4) described above;
    • Informant supplying critical information relating to a criminal organization (S-5);
    • Informant supplying critical information relating to terrorism (S-6);
    • Qualified family member (S-7) of an S-5 or S-6 visa holder described above.
  • Non-Canadians entering the U.S. in nonimmigrant status (H, L, TN, O, etc.) need visas to enter the U.S.
  • Foreign nationals with Permanent Resident Cards do not need visas to enter the U.S.
  • U.S. Passport holders do not need visas to enter the U.S.
3. How do I apply for a visa stamp?
  • The procedures vary at each U.S. consulate abroad.  However, the steps generally follow this pattern:
    1. Determine the consulate at which you will file.  You can locate your nearest consulate here: http://www.usembassy.gov/.
    2. Complete the DS-160, found here: https://ceac.state.gov/Genniv/.  (More detailed instructions regarding the DS-160 are found in the next section).
    3. Pay the visa fee.
    4. Attend the consular appointment(s) with the documentation requested on the consulate’s webpage.
    5. Pay any applicable reciprocity fee.
4. Do I have to apply in person?
  • For initial applications, yes.  Some consulates will accept mailed visa extension applications, without requiring an in person interview.
5. Where is the consulate closest to me?

A list of U.S. Consulates is found here: http://www.usembassy.gov/

6. How long does it take to schedule an interview at a consulate?
  • Appointment wait times fluctuate; see current processing times here.
7. What should I bring to the interview?
  • It varies by consulate, but generally you will want to bring:
    1. Your I-797 approval notice (some consulates only require copies).
    2. A copy of the petition filed with USCIS (not required at all consulates).
    3. Current passport.
    4. Any former passport containing a U.S. visa.
    5. DS-160 confirmation page.
    6. Proof that you have paid the visa fee (if your consulate requires you to pay in advance).
8. What should I not bring to the interview?
  • Prohibited items vary by consulate, however, most consulates prohibit the following:
    1. Weapons
    2. Explosives
    3. Sharp Items
    4. Bags
    5. Cell Phones
    6. Cameras
    7. Recording Devices
    8. Animals other than Service Animals
    9. Computers
9. What will I be asked at the interview?
  • You will be asked about the purpose of your trip, your background, and the materials you provide at the interview.  Please review the materials you present carefully.
10. What should I say at the interview?
  • Above all, you must tell the truth.
  • Your employer does not provide a specific script to follow.
  • Please review the contents of your application, and be prepared to speak about the purpose of your time in the U.S.
11. How long will the interview last?
  • Approximately 3-10 minutes.  However, fingerprint processing and waiting for your appointment may take several hours.  As such, you should expect to be at the consulate for several hours.
12. What happens if my application is rejected?
  • You will not be able to immediately enter the U.S., but may have the opportunity to reapply.
  • Please send your employer any documentation you received from the consulate, and provide your employer with your best recollection of the questions asked and answers given at the appointment.
13. If my application is approved, will I get the visa before I leave the consulate?
  • If approved, the consulate will retain your passport, and mail it back to you with the passport stamp.
  • It will take at least three working days to receive your passport after your visa is approved.

 

I. COMPLETING THE DS-160

The questions below are organized to correspond to the sections in the online DS-160 form found at https://ceac.state.gov/Genniv/.  Please consult this document as you complete each section.  Note that not every section of the DS-160 is discussed below.

Prior to beginning the DS-160, gather the following:

  • Your passport.
  • Any passports containing U.S. visa stamps.
  • History of any U.S. travel.
  • U.S. Driver’s Licenses (if applicable).
  • Dates and places of birth of your parents.
  • Travel history for the last five years.
  • Your CV/resume or a list of your former employers and post-secondary education, with addresses.
  • List of any professional, social, or charitable organizations which you have belonged to, contributed to, or worked for (if applicable).
  • Military service record (if applicable).

Note that the form is lengthy, and will require a significant block of time.

Personal Information

1. There is a discrepancy as to how my name is spelled on various documents, how should I enter it on the DS-160?

    • The information entered in the DS-160 should match your passport.

2. If I only have one name listed on my passport, how should I enter it on the DS-160?

    • Enter your name under “Surnames”.

3. My passport does not list a “given name,” how should I enter my name on the DS-160?

    • List all names as “Surnames” and enter “FNU” under “Given Names”.

4. What is a maiden name?

    • It is the family name a person was born with, prior to taking on a spouse’s family name.
Passport Information

1. I have multiple passports, which passport should I enter on the DS-160?

    • Enter the information from the passport you will use to enter the United States.

2. Can I use an expired passport for purposes of the DS-160?

    • You must use a valid passport on the DS-160.
Travel Information

1. What is my “Purpose of Trip to the U.S.?”

    • Select the visa status in which you will enter the U.S.

2. I don’t know my intended date of arrival in the U.S., what should I put?

    • This can be an estimate.

3. What is my intended length of stay?

    • Put sufficient time to cover the full program, as well as any extra time needed to enter and leave the country.

4. I haven’t booked a hotel or found an apartment in the U.S., what should I put as the address where I will stay in the U.S.?

    • Street Address (Line 1): “To Be Determined”
    • City: [Enter the U.S. City where you will stay]
    • State: [Enter the U.S. State where you will stay]
    • Zip Code: [Leave Blank]

5. Who is the “Person/Entity Paying for Your Trip?”

    • It is generally preferable that this be your employer abroad.
Travel Companions Information

 1. Do I have travel companions?

    • Select no, unless your family is joining you on this trip.  You do not need to list any co-workers attending the same training or program.
Previous U.S. Travel Information

1. I have been to the U.S., but don’t have the exact dates, what should I do?

 

 

    • Provide your best estimate.

2. Which number on the visa is the visa number?

    • The visa number is the red 8-digit number in the lower right.

3. What does it mean to be ten-printed?

    • This means that you have previously had all ten fingerprints taken at a U.S. Consulate or Embassy.

4. What should I do if I have had a U.S. visa cancelled or revoked?

    • Please contact your employer with the details of the cancellation or revocation, and your employer will discuss the details with immigration counsel.

5. What should I do if I have been refused a U.S. visa, or been refused admission to theUnited States, or withdrawn my application at the port of entry?

    • Please provide your employer with the details of the incident in question, and your employer will discuss it with immigration counsel.

6. I have previously had visa status in the U.S., how should I answer the question about whether an immigrant petition has been filed on my behalf to USCIS?

    • Only answer yes if you or someone else has filed an I-130, I-140, or I-360 on your behalf.  If you intend to answer yes, please provide your employer with the details of that permanent residence application.  Your employer will discuss it with immigration counsel.
U.S. Point of Contact Information      

1. Who is the “Contact Person?”

    • You should use a U.S.-based employee of your employer.  Your employer can guide you in determining the correct person to serve as the contact person.
Family Information: Relatives

 1. What does immediate relative mean?

    • For purposes of the DS-160, immediate relative means fiancé(e), spouse, child, or sibling.
Security and Background

If you answer “yes” to any of these questions, please contact your employer before submitting the DS-160. 


 

J. U.S. PERMANENT RESIDENCE

1. What are the steps to obtaining permanent residence?

  • Please click here for chart outlining the Green Card Process based on Labor Certification/"PERM".

2. Can I travel during the permanent residence process?

  • Please see the chart above for more details.
  • Once you reach the I-485 stage, you must inform your employer legal counsel of all upcoming international travel for you and your family.  It may not be possible to travel.

3. Can I change positions during the permanent residence process?

  • If you change positions, under most circumstances, you will have to re-start the permanent residence process.
  • Any changes to your position MUST be discussed with your employer legal counsel as early as possible, and certainly before the change occurs.
  • Please see the “Green Card Process” chart for more details.

4. What is I-140 portability?

  • New employees with an approved labor certification and a pending I-485 application (see below for further details regarding the I-485), which has been pending for 180 days, can leave the position for which the labor certification was filed without having to restart the permanent residence process.  To do this, the new job must be in the same or similar occupation as the approved labor certification.  The new employer must submit a letter to USCIS verifying that the new job is in the same or similar occupation.  The I-485 application will continue to process, and can be approved, even though the employment listed in the I-485 application has changed.

5. Can I change locations during the permanent residence process?

  • A labor certification normally allows location changes within normal commuting distance.  Please contact your employer legal counsel before making a job move.
  • A multinational manager petition is not location-specific.  Please contact your employer legal counsel before making a move.

6. How long will the permanent residence process take?

  • Please see the “Green Card Process” chart for details.

7. What is a priority date?

  • It is the date that your labor certification was filed.  If we filed an I-140 on your behalf without needing a labor certification, it is the date that your I-140 was filed.  This date governs when you can file an I-485 application to adjust your status from nonimmigrant to permanent resident.  The Department of State determines which priority dates are current to adjust status to permanent residence in its monthly visa bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html.
  • You will likely be filing under the “Employment-Based Preferences.”
  • To determine where your application fits, you go to the row with your preference (1st, 2nd, or 3rd, also known as EB-1, EB-2, and EB-3 - see the discussion of these preferences in the I-140 section below) and find where the row meets your country of birth.  Note, if you were born in one country, and later became a citizen of another country, you would still look at the country of birth priority date.  However, you can use the country of birth of your spouse if it would allow you to more quickly file your adjustment of status.
  • The date listed where your preference and your country of birth meet is the latest priority date for which USCIS will adjudicate an adjustment of status application for applicants with your preference category and country of birth.  If you have a priority date that is later than the date listed, your date is considered “backlogged” and you will not be able to immediately file your adjustment of status application.  If you see a “C,” that means that the date is current, meaning all individuals with your preference category and country of birth are welcome to apply.

8. Can my spouse and children get permanent residence at the same time?

  • Yes, your spouse and unmarried children under the age of 21 (as of the time of filing the I-485) may apply for permanent residence as part of your permanent residence application.  Complex legal provisions apply when determining your child’s legal age for purposes of immigration.
Labor Certification

1.  What is a labor certification?

  • A labor certification is the method by which the U.S. Department of Labor certifies that there are no U.S. workers available to fill your position.  In most cases, this certification is required before USCIS will adjust your status to permanent residence.
  • In order to successfully obtain a certified labor certification application, your employer will:

i. Determine the minimum requirements for your position.

ii. Have you complete an experience chart to determine whether you had the minimum requirements when hired into the labor certification job.

iii. Have you obtain experience letters to confirm you have the experience set out in the experience chart.

iv. Submit a prevailing wage application to the Department of Labor to determine what wage the Department of Labor associates with your position.

v. Conduct recruitment for your position, as required by regulation, to ensure that no U.S. worker meets the minimum requirements, and is available for your position.

vi. File the labor certification application with the Department of Labor.

vii. Respond to a Department of Labor audit, should one arise. 

2. Your employer is filing a multinational manager petition on my behalf, will a labor certification be part of that process?

  • No.  Petitions on behalf of multinational managers are exempt from testing the labor market through the labor certification process.  See the section on multinational managers below for more details.
  • 3.  I believe the labor certification process began for me a few weeks ago, why haven’t I heard anything yet?
    • The permanent residence process requires extensive analysis of your position and its minimum requirements.  It also requires regulatorily mandated recruitment and a wage determination.  These steps may take many months.

    4. Why do I need to obtain an experience letter?

    • In order to show that you meet the minimum requirements for your position, as detailed in the labor certification application, you will need to obtain letters from your former employers proving that you have the experience required for the position.

    5. I have an old experience letter, can I re-use it for purposes of the labor certification?

    • Probably not.  Experience letters are carefully drafted specifically for each case.  This ensures that we will be able to show that you meet each requirement.

    6. I am being asked to obtain an experience letter from my former employer, but the former employer no longer exists.  What do I do?

    • You must provide secondary evidence of your experience, such as a notarized letter written by a former supervisor.  Your employer, with the assistance of immigration counsel, will guide you through this.

    7. The experience letter provided to me has an error, should I just change the letter?

    • No.  Please inform your employer of the needed change.  After consulting with immigration counsel, your employer may provide a new letter.

    8. I noticed a posting for my position lists a salary range.  Why is this?

    • According to the regulations, certain postings require that the employer list a wage range.  Where possible, the posting lists a broad wage range to maintain the employee’s privacy.

    9. What recruitment is done for my position?

    • Recruitment is governed by regulation, and will include two newspaper ads, as well as a listing with the state workforce agency, and a posting on your employer’s premises.  In addition, your employer may advertise your position through job fairs, the company website, an external job search website, on-campus recruiting, trade or professional organizations, private employment firms, an employee referral program, campus placement offices, local or ethnic newspapers, or on the radio and television.
    • The recruitment usually takes 2-4 months.
    • If you are a remote employee and can work anywhere in the country, the recruitment will be conducted in the geographic area of your employer’s headquarters.
    • If your position is stationed by the company at a specific location, the recruitment will take place in the geographic area of your job site.

    10. What if the recruitment finds a viable U.S. worker for my position?

    • We will not be able to proceed with the labor certification based on the position advertised.  However, this does not necessarily mean that you will not be able to obtain permanent residence.  We will work with legal counsel to determine what options are available for you.

    11. Is there any way to expedite the labor certification process?

    • No.  Unfortunately, we cannot expedite the labor certification process.
    I-140 Immigrant Petition based upon a Labor Certification

    1. What is an I-140 Immigrant Petition?

    • Form I-140 is used to petition USCIS for an immigrant visa based on employment.  In essence, it is the means by which your employer proves to USCIS that you are eligible for permanent residence.

    2. Can my I-140 be premium processed (adjudicated in 15 days)?

    • If applying based on a labor certification, legally, yes.  However, this requires an additional fee.  Your employer and immigration counsel will determine whether your case will be premium processed.

    3. Can we file my I-140 Immigrant Petition and my I-485 Application to Adjust status at the same time?

    • If you have a current priority date, we can file both at the same time.

    4. Will we be filing the I-140 as EB-2 or EB-3?

    • If the position for which the labor certification was sought required a master’s degree or a bachelor’s degree and five years of progressively responsible post-bachelor’s degree experience, we will seek EB-2.  For any lower requirements we will seek EB-3.
    I-140 Immigrant Petition for Multinational Managers

    1. What is a Multinational Manager petition?

    • Your employer will file an I-140 on your behalf, and submit evidence that:
      1. For one year within the last three years prior to entering the U.S., you:
      2. worked for an affiliate/branch/parent of your employer in the U.S.,
      3. in an executive or managerial capacity, and
        1. You currently work (or are going to work) in the U.S.:
      4. in an executive or managerial capacity,
      5. for an employer that has been in existence for at least a year.

    2. What does it mean to work in an executive capacity?

    • For purposes of immigration, an executive is someone who:
      1. Directs management or a major component or function of the organization;
      2. Establishes goals and policies for the organization, component, or function;
      3. Exercises wide discretion; and
      4. Receives limited supervision from higher level executives, the board of directors, or from stock holders.

    3. What does it mean to work in a managerial capacity?

    • For purposes of immigration, a manager is someone who:
      1. Manages the organization, or a department, subdivision, function, or component of the organization;
      2. Supervises the work of other supervisors or professionals (positions requiring a bachelor’s degree), or manages an essential function of the organization;
      3. Can hire and fire subordinates, or if person has no subordinates, functions at a senior level in the organization’s hierarchy; and
      4. Directs day-to-day operations of the activity or function over which the employee has authority.

    4. My job title does not indicate that I am a manager/director/executive, can I still be a multinational manager?

    • Yes.  The job title is not controlling as to whether you can be classified as a multinational manager.

    5. What is the advantage of filing a Multinational Manager petition?

    • You can skip the labor certification process.  A labor certification is not required for multinational managers, so you would be starting at step 2.0 of the flow chart above, eliminating several months (or even years) from the process.
    • You would be classified as EB-1.  EB-1 has historically been current across all nationalities.  This would very likely mean that you would be able to immediately apply to adjust status.

    6. The employer I worked for abroad has since closed, can I still qualify as a multinational manager?

    • No.  The company you worked for abroad must still be in existence, and still be a parent, branch, or affiliate of your employer in the U.S.

    7.  I don’t have a bachelor’s degree, can I be a multinational manager?

    • Yes.  There is no degree requirement for a multinational manager petition.

    8.  I have an approved or pending labor certification, or a backlogged I-140, can we still file a multinational manager petition?

    • Yes.

    9. Can we expedite the multinational manager petition?

    • No.  Premium processing is currently unavailable for multinational manager petitions.
    I-485 Application to Register Permanent Residence or Adjust Status

    1. What is the I-485 Application to Register Permanent Residence or Adjust Status?

    • It is the means by which you apply to adjust your status from nonimmigrant status to permanent resident.  During this process, the government reviews your criminal history, immigration history, and medical circumstances.  If approved, you will become a permanent resident and receive a permanent resident card (Form I-551), also known as a green card.

    2. When will my priority date be current so that we can file the I-485?

    3. Can we submit an I-485 for my children?

    • An I-485 may be submitted for your children who are:

    i. Physically in the U.S.

    ii. Under the age of 21

    iii. Unmarried

    • If your children are outside the U.S., they may process through a U.S. consulate with Form DS-260.

    4. Should I get the I-693 Report of Medical Examination and Vaccination Record completed early?

    • The I-693 is time sensitive.  Your employer and immigration counsel will advise you when to get the medicals.

    5. What vaccines do I need to get the required medical documents for my I-693?

    • Mumps
    • Measles
    • Rubella
    • Polio
    • Tetanus and Diphtheria Toxoids
    • Pertussis
    • Haemophilus influenzae type B
    • Hepatitis B
    • Any other vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices

    6. Can my primary care physician conduct the medical exam and complete the I-693?

    • The exam and I-693 must be completed by a designated Civil Surgeon.

    7. What is a civil surgeon?

    • A civil surgeon is a physician designated by USCIS to conduct immigration medical examinations for individuals seeking an immigration benefit in the United States.
    • You can find a local civil surgeon using this website: https://my.uscis.gov/findadoctor

    8. Should I wait for my appointment with the civil surgeon to get the vaccines?

    • It is generally less expensive to obtain vaccines from your own primary care physician rather than from a civil surgeon.

    9. Will insurance cover my medical exam with the civil surgeon?

    • Many insurance companies do not cover the cost of your visit to a civil surgeon.  You should check with your insurance company prior to your appointment. 

    10. What is an I-765 Application for Work Authorization?

    • While your adjustment of status application is pending, you, your spouse, and your children may be eligible for work authorization.  The I-765 is the means of obtaining that work authorization.
    • The I-765 is filed concurrently with the adjustment of status.
    • There is no additional filing fee associated with the I-765.
    • If approved, you and your family will receive an Employment Authorization Document or “EAD.”
    • The EAD allows employment with any employer and also self-employment.
    • The EAD is normally valid for one or two years and may be renewed as long as the I-485 is pending.
    • The EAD facilitates an application for a U.S. Social Security Number.

    11. What is an I-131 Application for Advance Parole/Travel Authorization?

    • While your adjustment of status application is pending, you, your spouse, and your children are eligible for advance parole/travel authorization.  With advance parole, you and your family may be able to travel internationally without interfering with your adjustment of status application.  However, prior to international travel you will still need to give advance notice to Your employer, which will consult with legal counsel to determine if the travel is advisable.  Even with advance parole, travel may be limited.
    • The I-131 is filed concurrently with the adjustment of status.
    • There is no additional filing fee associated with the I-131.
    • If the I-131 was filed with an I-765, upon approval you will receive a “Combo Card,” which is an EAD with an annotation stating that the card serves as proof of advance parole.
    • If the I-131 was filed alone, upon approval you will receive paper approval notices that you will need to carry with you while travelling.
    • The advance parole is normally valid for one year and may be renewed as long as the I-485 is pending.

    12. Will we file an I-765 and I-131 for me and my family with my I-485?

    • Yes.

    13. With an EAD, can my family obtain Social Security Numbers?

    • Yes.

    14. My priority date was current when we filed the I-485, but is no longer current.  I have not yet been approved for permanent residence.  Will USCIS continue to adjudicate my case?

    • When a priority date becomes “backlogged” during the pendency of an I-485 adjudication, USCIS will put the application on hold.  USCIS will not continue adjudicating your case until your priority date again becomes current.
    • If this occurs, and you are in H status, we will be able to continue to extend your status.
    • Also, a backlogged I-485 allows us to extend your advance parole, and I-765 work authorization.
    Approved Permanent Residence

    1. My permanent residence was approved, but I have not yet received my green card and I need to travel internationally.  Can I use my non-immigrant visa, or advance parole to travel?

    • No.  Once you are a permanent resident, you can no longer use non-immigrant visas (H-1B, L-1, E-3, etc.) or advance parole.
    • Instead, you should request an I-551 stamp be placed in your passport.  You may do this by scheduling an appointment at your local USCIS office through the InfoPass system: https://infopass.uscis.gov/.  The I-551 stamp will provide temporary evidence of your permanent residence status.

    2. I was out of the country when my permanent residence was approved.  What happens to my application?

    • Please immediately inform your employer and immigration counsel.
    • When you re-enter the U.S., inform the U.S. Customs and Border Protection officer that your permanent residence has been approved, and request that the officer admit you to the U.S. as a permanent resident.

    3. Once my permanent residence is approved, can I vote in U.S. elections?

    • No.  Permanent residents must not vote in U.S. elections.  Only U.S. citizens may vote in U.S. elections.  Attempting to vote, or registering to vote, as a permanent resident may prevent you from becoming a U.S. citizen in the future, and may result in criminal penalties.

     

    K. EXPEDITED ADMISSIONS AND TRAVEL TO THE U.S. (TRUSTED TRAVELER PROGRAMS)

    Below are several trusted traveler programs. We note that these programs periodically expand coverage to include foreign nationals from additional countries. Please visit the link provided for current program information.

     1. Global Entry
    • Available to U.S. citizens, U.S. permanent residents, and citizens of the following countries: Colombia, United Kingdom, Germany, the Netherlands, Panama, Singapore, South Korea, and Mexico. Canadian citizens are eligible for the benefits of Global Entry through membership in the NEXUS program. Provides expedited clearance of pre-screened, low-risk travelers into the United States at designated airports. See https://www.cbp.gov/travel/trusted-traveler-programs/global-entry for more information and application requirements.
     2. NEXUS
    • Available to U.S. citizens, U.S. lawful permanent residents, Canadian citizens and Canadian lawful permanent residents. Expedites processing at designated NEXUS air, land and marine ports of entry for travel between the U.S. and Canada. See https://www.cbp.gov/travel/trusted-traveler-programs/nexus for more information and application requirements.
     3. SENTRI
    • There are no citizenship requirements for membership. Expedites processing for pre-approved, low-risk travelers entering the U.S. via dedicated SENTRI lanes at southern land border ports and via NEXUS land border ports when entering the U.S. from Canada by land. See https://www.cbp.gov/travel/trusted-traveler-programs/sentri for more information and application requirements.
     4. TSA Pre
    • Available for U.S. citizens, U.S. permanent residents and foreign citizens enrolled in Global Entry. Expedites security screenings for passengers traveling domestically within the U.S. and when departing from a U.S. airport to a location outside the country. See https://www.tsa.gov/precheck for more information and application requirements.
     5. Warning
    • Keep in mind that it is your responsibility to update your enrollment information as needed with a trusted traveler program. Below are examples of when your information may need to be updated.
      • New passport - If you receive a new passport you will likely need to update your enrollment
      • New nonimmigrant or immigration status - If your status changes (for example, from B-1 to L-1), you will likely need to update your enrollment

    Disclaimer

    This website presents only general information not intended as legal advice. Although we encourage calls, letters and emails from prospective clients, please keep in mind that merely contacting Harter Secrest & Emery LLP (HSE) does not establish an attorney-client relationship between us. Confidential information should not be sent to HSE until you have been notified in writing by HSE that a formal attorney-client relationship has been established. Information sent to us before then may not be treated as confidential by HSE or the court.

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