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					IMMIGRATION LAW
   Prof. Victor D. Nieblas P.
 NONIMMIGRANT CATEGORIES
INA sec. 101(a)(15)

US Immigration Laws have recognized nonimmigrants since 1921. The
  admission criteria for nonimmigrants are generally less demanding
  than those for immigrants.

A nonimmigrant who seeks admission must overcome two separate
   hurdles: (1) establishing qualifications under one of the specific
   statutory categories (2) avoiding the various affirmative grounds of
   inadmissibility.

The usual process for entering the US as a nonimmigrant comprises of at
   least two steps:
(1) applying for a visa at the appropriate United States consulate abroad
(2) presenting the visa to the CIS/CBP inspector at the port of entry.

Labor Certification is required in certain cases, employer attestations in
  other.
             BUSINESS VISITORS (B-1)
See INA sec. 101(a)(15)(B)

The B-1 business visitor visa allows businesspersons to enter the US on
  relatively short notice to engage in business, but not for the purpose of
  being employed.

The noncitizen is admissible as a B-1 if:

   a.   Engaging in commercial transactions not involving gainful
        employment. Activities of a commercial or professional nature that
        are not employment are permitted. Such activities include, but are
        not limited to: attending conventions, conferences, negotiating
        contracts, litigation, consulting with clients or business associates,
        undertake independent research.
          BUSINESS VISITORS (B-1)
b. Activities that constitute employment in violation of
   B-1 status are much harder to define. Such
   activities include whether business person’s
   activities are directed by a foreign employer;
   whether profits from the business activity will
   accrue abroad; whether services rendered in the
   US are incidental to international trade or
   contracts.
1.   EXCEPTIONS:
2.   a. Ministers on evangelical tour, ministers of religion;
     b. Members of Board of Directors of a US Corp. may
     enter US to attend a meeting or perform other
     functions derivative of board membership;
   BUSINESS VISITORS (B-1)
c. Personal or domestic servants of US
citizens residing abroad or temporarily
assigned to the US;
d. Personal or domestic servants of certain
aliens in nonimmigrant status;
e. Certain yacht crewman and coasting
officers;
f. Certain professional athletes;
g. Investors seeking an investment in the US,
so long as they do not perform productive
labor or actively participate in the management
of the business.
       BUSINESS VISITORS (B-1)
BASIC REQUIREMENTS
To establish threshold eligibility for a B-1 visa
  the applicant must:

  1. Maintain a residence in a foreign country
  which he does not intend to abandon;
  2. Intend to enter the US for a period of
  specifically limited duration;
  3. Seek admission solely to engage in
  legitimate activities relating to    business.
                          B-1
CRITIERIA TO CONSIDER:
  In order to present testimony or evidence upon the
  basic requirement for the B-1 visa, the applicant
  should:

  1. Have adequate funds available in his bank
  account to avoid his or her unlawful employment in
  the US;
  2. If presenting assurances of financial support from
  sponsoring relatives or friends in the US, show
  compelling ties that would lend credence to the
  sponsor’s undertaking;
        BUSINESS VISITORS (B-1)
3.   Present specific and realistic plans for the entire period of the
     contemplated visit;
4.   Establish with reasonable certainty the departure from the US will
     take place upon completion of the temporary visit. The period of
     time projected for the visit must be consistent with its stated
     purpose.
5.   Not express the proposed period of stay in terms or remaining for
     the maximum period allowable by US authorities;
6.   Demonstrate sufficient ties to his or her home country, such as
     permanent employment, meaningful business or financial
     connections, close family ties, or other commitments that indicate
     a strong inducement to return abroad;
7.   Show adequate provision for support of any dependents while the
     applicant is in the US, if applicant is principal wage earner.
         BUSINESS VISITORS (B-1)
B-1 APPLICANTS UNDER NAFTA

Citizens of Canada and Mexico seeking temporary entry, who
   meet the requirements of Sec. 101(a)(15)(B), will be
   admitted as business visitors under NAFTA. This entry
   gives visitors more leniency. Ex. After sales service to
   install, repair, maintenance personnel, supervisor’s
   possessing specialized knowledge essential to the seller’s
   contractual obligations; general service professionals,
   management, financial services, public relations.
    B-2 VISITORS FOR PLEASURE
See INA sec. 101(a)(15)(B)

Applicants are admissible if they seek admission for:
a. Tourists;
b. Social visits to friends/relatives;
c. Health purposes;
d. Participants in conventions of social gatherings;
e. Participants in amateur musical, sports or similar
   events with no pay;
    B-2 VISITORS FOR PLEASURE
f. Dependents of US Armed Forces personnel;
g. If coming to marry a USC, but will depart;
h. Language students in course of short duration
  when the course of study is under 18 hours per
  week;

Pleasure is defined as “Legitimate of a recreational
  character, including tourism, amusement, visits
  with friends or relatives, rest, medical treatment
  and activities of a fraternal social or service
  nature.”
              STUDENT VISAS (F-1)
See INA §101(a)(15)(F)

F-1 student status is based on full time attendance at the
  BCIS authorized school and continued progress towards
  an educational goal. New measures (PATRIOT Act)
  introduced in recent legislation have forced F students to
  maintain status or suffer severe, potentially life-long
  consequences of violating immigration laws. SEVIS-
  computer systems that tracks F students and others
  nonimmigrant visas holders.
            STUDENT VISAS (F-1)
CRITIERIA
 a. Applicant has foreign residence with no
     intention of abandoning it.
 b. Applicant is BONA FIDE student qualified
     to pursue a full course of study;
 c. Applicant seeks to enter the US as a
     student “temporarily and solely for the
     purpose of pursuing such a course of
     study at an established institution of
     learning or other recognized place of study
     in the US”;
       STUDENT VISAS (F-1)
d. Applicant will study only at an institution
   particularly designated by him and
   approved by the Attorney General. To
   maintain their status as an approved
   school, the school must meet certain
   reporting and other requirements;
e. Will not attend a public elementary school
   or publicly funded adult education
   program;
  EXCHANGE VISITORS (J-1 VISAS)
See INA §101(a)(15)(J)
  Applicant who has not intention of abandoning
  foreign residence who:

  1. Is a BONA FIDE trainee, student, professor
     or research scholar, short term scholar, non-
     academic specialist, foreign physician,
     governmental visitor, camp counselor,
     summer student travel/work program.
  2. Is entering US to participate in an exchange
     visitor program that has been designated
     by the DOS;
EXCHANGE VISITORS (J-1 VISAS)

3. participation includes such purposes as
   teaching, studying, observing, conducting
   research, consulting, receiving training;
4. Has sufficient funds and fluency in English;
5. maintains sufficient medical insurance for
   accident and illness for participant and J family
   members in a minimum amount of $50,000 per
   accident or illness;
      EXCHANGE VISITORS (J-1 VISAS)
Period of stay differs for different fields:
  1. Post secondary student – time needed to
  complete degree, plus 18 months practical academic
  training.
  2. Post doctoral degree – degree plus up to 36
  months academic training, granted increments of up
  to 18 months at a time;
  3. Business/Industrial trainees – 18 months;
  4. professor and scholars – limit of 3 years with an
  extension of 3 years given in “exceptional or unusual
  circumstances”.
  5. Short Term Scholars – 6 months;
  6. Flight School trainees – 24 months;
  7. summer work/travel – 4 months;
EXCHANGE VISITORS (J-1 VISAS
Certain J holders are subject to a 2 year
 requirement that they must return to their
 home country or country of last residence
 upon completion of their training in the US
 before they are eligible to adjust status,
 apply for an immigrant visa, or change to H
 or L nonimmigrant status.

 1. Waivers authorized in certain cases.
           AU PAIR PROGRAM
The program permits 22,720 youth from abroad to be
  placed with American host families seeking child care.
  Au pair must be over 18, a secondary school graduate,
  and proficient in English, must pass a background check.
  While in the US must attend a postsecondary educational
  institution for at least 6 hours per week and is limited to
  45 hours per week of child care. The duration of stay is
  one year. “EduCare” program is designed for
  households with only school-age children, applicant
  attends 12 hours school, and may not perform more than
  30 hours per week of childcare services.
        SPECIALTY OCCUPATIONS (H-1B)
See INA sec. 101(1)(15)(H)(i)(b); 8 CFR sec. 214.2(h)

H-1B is a mechanism for employers to gain authorization for temporary
   employment for professional workers. Processing has become more
   complicated in recent years due to procedures intended to protect US
   workers.

H-1B visa requires experience in a specialty occupation. A specialty
   occupation” is (a) one that requires theoretical and practical application
   of a body of highly specialized knowledge” and (b) that in the US,
   requires at least a bachelor’s degree in the particular specialty or its
   equivalent.

An applicant’s initial admission may be for a maximum of three years, with
  extensions of up to three years.
        SPECIALTY OCCUPATIONS (H-1B)
CRITERIA
To establish that the job qualifies as a specialty occupation, one or more
   of the criteria must be met:

   1.    A bachelor’s or higher degree or its equivalent is normally the
         minimum entry requirement for the position. The required degree
         must be in the specialty field.
   2.    The degree requirement is common to the industry or, in the
         alternative, the position is so complex or unique that it can be
         performed only by an individual with a degree;
   3.    The employer normally requires a degree or its equivalent for the
         position;
   4.    The nature of the specific duties is so specialized and complex
         that the knowledge required to perform the duties is usually
         associated with the attainment of a bachelor’s or higher.
        SPECIALTY OCCUPATIONS (H-1B)
To meet the requirements of performing in a specialty
  occupation, the applicant will need:

  1.   Full state licensure, if that is required for practice in the
       state;
  2.   Completion of a US bachelor’s degree (or its foreign
       equivalent) in the specific specialty or a related field; or
  3.   Education, training, or experience in the specialty
       equivalent to the completion of such degree.
    SPECIALTY OCCUPATIONS (H-1B)
LABOR CONDITION APPLICATION REQUIRED

 The Labor Condition Application (LCA) is a prerequisite to
 the H-1B approval. The LCA, Form ETA-9035, contains
 basic information about the proposed H-1B employment
 such as rate of pay, period of employment, and work
 location. It also contains four standard attestations or
 promises that the employer must make. The LCA must be
 certified by the DOL before the H-1B can be approved.
   SPECIALTY OCCUPATIONS (H-1B)
By signing and filing the LCA, an employer
 makes four attestations or promises:
 1. It is paying (and will continue to pay) the
 H-1B employee wages that are at least:
     a. The actual wages paid to others with
     similar experience and qualifications for
     the specific job; or
     b. The prevailing wage for the
     occupational classification in the area
     (whichever is greater, based on the best
     information at the time of filing).
 SPECIALTY OCCUPATIONS (H-1B)
2. It will provide working conditions for the H-1B
   employee that will not adversely affect the working
   conditions of workers similarly employed in the area;
3. There is no strike or labor dispute at the place of
   employment;
4. It has:
        a. provided notice of this filing to the bargaining
        representative (if any); or
        b. if no representative, it has posted notice of
        filing in at least two conspicuous locations at the
        place of employment for a period of 10 business
        days.
 SPECIALTY OCCUPATIONS (H-1B)
PORTABILITY
Congress added a portability provision that made it easier for
  H-1Bs to change jobs after their arrival.

Employer must pay $1000 user fee, higher education
  institutions, nonprofit research organizations or
  government research organizations are exempt.

File Form I-129, I-129W, I-539 (if dependents); file at CSC.

Number limitation: Numbers are currently at 65,000 per fiscal
  year. Congress has in the past raised the limitation to
  195,000.
                  NURSES
See INA §101(a)(15)(H)(i)(c) and 212(m).

Congress has enacted modest programs to
 address the periodic shortages of nurses. In
 1999, Congress enacted a program authorized
 for 4 years to admit 500 nurses per year for
 durations of three years each.
     H-2 TEMPORARY WORKERS VISAS
See INA §101(a)(15)(H)(ii)(a) and (b); 8 CFR §214.2(h)(5) and
  (6)

An H-2 nonimmigrant comes to the US:
(a) to perform agricultural labor or services of a temporary or
   seasonal nature;
(b) to perform other temporary service or labor if unemployed
   persons capable of performing such service or labor cannot
   be found in this country [except for foreign medical school
   graduates coming to perform professional medical
   services].

H-2 Visas require a residence in a foreign country which he
  had not intention of abandoning and that s/he be coming to
  temporarily to the US.
 H-2A TEMPORARY WORKERS VISAS
a.      H-2A VISA- Created in 1986 by Congress.
     Employer must obtain a Labor certification that
     sufficient American workers cannot be found and
     that the nonimmigrant’s employment will not
     depress the wages or working conditions of
     American workers. The minimum hourly rates that
     employers must pay H-2A farm workers depend
     on adverse effect wage rates (AEWR) published
     by the DOL and vary from state to state.

     Agricultural guest workers are controversial.
     Dangers include exploitation of guest workers
     through low wages, oppressive working
     conditions, slavery.
         H-2B TEMPORARY VISAS
a. H-2B VISAS-
Applicant must seek admission to perform temporary
service or labor if unemployed persons capable of
performing such service or labor cannot be found in this
country [except for foreign medical school graduates
coming to perform professional medical services].

H-2B’s are initially admitted for up to a year and may
receive 1 year extensions up to a total stay of 3 years.
There is a 66,000 H-2B per year limit. Limit is rarely
reached.
          H-2B TEMPORARY VISAS
   In the case of a professional H-2B athlete who is traded
    from one organization or another organization,
    employment authorization for the player will
    automatically continue for a period of 30 days after the
    player's acquisition by the new organization, within
    which time the new organization is expected to file a
    new form I -129 for H-2B nonimmigrant classification. If
    a new Form I-129 is not filed within 30 days,
    employment authorization will be cease. If a new form I
    -129 is filed within 30 days, the professional athlete
    shall be deemed to be in valid H-2B status, and
    employment shall continue to be authorized, until the
    petition is adjudicated. If the new petition is denied,
    employment authorization will cease. ( Added 4/16/97;
    62 FR 18508)
               H-2B TEMPORARY VISAS
Employer must first get temporary labor certification. The DOL’s
  temporary labor certification for H-2B’s are merely advisory, but must
  demonstrate:

(1) No USC/LPR workers are available for position
(2) Employment of applicants will not adversely affect wage rate and
    working conditions of similarly employed workers in the US;
(3) Distinguish temporary and part-time jobs.

Form I-129 must include:
   1. an approved labor certification or notice that certification cannot be
   made;
   2. countervailing evidence to rebut any notice by the Secretary of Labor
   that certification cannot be made;
   3. documentation that the alien qualifies for the job offer;
   4. statement describing in detail the temporary situation or conditions
   that make it necessary to bring the alien or aliens to the US and
   whether the need is one-time occurrence, seasonal, peakload, or
   intermittent.
                    H-3 TRAINEE
   H-3 VISA Petition for alien trainee or participant in a special
    education exchange visitor program (H-3)--


   (i) Alien trainee. The H-3 trainee is a nonimmigrant who
    seeks to enter the United States at the invitation of an
    organization or individual for the purpose of receiving
    training in any field of endeavor, such as agriculture,
    commerce, communications, finance, government,
    transportation, or the professions, as well as training in a
    purely industrial establishment. This category shall not
    apply to physicians, who are statutorily ineligible to use H-3
    classification in order to receive any type of graduate
    medical education or training.
                      H-3 TRAINEE
   Evidence required for petition involving alien trainee— The
    petitioner is required to demonstrate that:
   (1) The proposed training is not available in the alien's own
    country;
   (2) The beneficiary will not be placed in a position which is
    in the normal operation of the business and in which
    citizens and resident workers are regularly employed;
   (3) The beneficiary will not engage in productive
    employment unless such employment is incidental and
    necessary to the training; and
   (4) The training will benefit the beneficiary in pursuing a
    career outside the United States.
                       H-3 TRAINEE
   Description of training program. Each petition for a trainee
    must include a statement which:
   (1) Describes the type of training and supervision to be
    given, and the structure of the training program;
   (2) Sets forth the proportion of time that will be devoted to
    productive employment;
   (3) Shows the number of hours that will be spent,
    respectively, in classroom instruction and in on-the-job
    training;
   (4) Describes the career abroad for which the training will
    prepare the alien;
   (5) Indicates the reasons why such training cannot be
    obtained in the alien's country and why it is necessary for
    the alien to be trained in the United States; and
   (6) Indicates the source of any remuneration received by the
    trainee and any benefit which will accrue to the petitioner for
    providing the training.
                           H-3 TRAINEE
   Restrictions on training program for alien trainee. A training program
    may not be approved which:
   (A) Deals in generalities with no fixed schedule, objectives, or means of
    evaluation;
   (B) Is incompatible with the nature of the petitioner's business or
    enterprise;
   (C) Is on behalf of a beneficiary who already possesses substantial
    training and expertise in the proposed field of training;
   (D) Is in a field in which it is unlikely that the knowledge or skill will be
    used outside the United States;
   (E) Will result in productive employment beyond that which is incidental
    and necessary to the training;
   (F) Is designed to recruit and train aliens for the ultimate staffing of
    domestic operations in the United States;
   (G) Does not establish that the petitioner has the physical plant and
    sufficiently trained manpower to provide the training specified; or
   (H) Is designed to extend the total allowable period of practical training
    previously authorized a nonimmigrant student.
TN VISAS – PROFESSIONALS UNDER NAFTA
General. Under Section 214(e) of the Act, a citizen of Canada or Mexico
  who seeks temporary entry as a business person to engage in business
  activities at a professional level may be admitted to the United States in
  accordance with the North American Free Trade Agreement (NAFTA)
  as a TN for a period not to exceed one year. Form I-94 shall bear the
  legend “multiple entry”.
 Business activities at a professional level means those undertakings
  which require that, for successful completion, the individual has a least
  a baccalaureate degree or appropriate credentials demonstrating status
  as a professional in a profession set forth in Appendix1603.D.1 of the
  NAFTA.
 Business person, as defined in the NAFTA, means a citizen of Canada
  or Mexico who is engaged in the trade of goods, the provision of
  services, or the conduct of investment activities.
 Engage in business activities at a professional level means the
  performance of prearranged business activities for a United States
  entity, including an individual. It does not authorize the establishment of
  a business or practice in the United States in which the professional will
  be, in substance, self-employed. A professional will be deemed to be
  self-employed if he or she will be rendering services to a corporation or
  entity of which the professional is the sole or controlling shareholder or
  owner.
                          TN VISAS
   Examples Under Appendix 1603.D.1 (Annotated)
   --Accountant--Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A.,
    or C.M.A.
   --Architect--Baccalaureate or Licenciatura Degree; or state/provincial license
   --Computer Systems Analyst--Baccalaureate or Licenciatura Degree; or Post-
    Secondary Diploma 3/ or Post Secondary Certificate 4/ and three years'
    experience.
   --Engineer--Baccalaureate or Licenciatura Degree; or state/provincial license
   --Graphic Designer--Baccalaureate or Licenciatura Degree; or Post-Secondary
    Diploma or Post-Secondary Certificate and three years experience.
   --Interior Designer--Baccalaureate or Licenciatura Degree; or Post-Secondary
    Diploma or Post-Secondary Certificate, and three years experience.
   --Lawyer (including Notary in the province of Quebec)—L.L.B., J.D., L.L.L.,
    B.C.L., or Licenciatura degree (five years); or membership in a state/provincial
    bar.
   --Management Consultant--Baccalaureate or Licenciatura Degree; or
    equivalent professional experience as established by statement or professional
    credential attesting to five years experience as a management consultant, or five
    years experience in a field of specialty related to the consulting agreement.
   --Mathematician (including Statistician)--Baccalaureate or Licenciatura Degree.
    --Range Manager/Range Conservationist--Baccalaureate or Licenciatura
    Degree.
   --Social Worker--Baccalaureate or Licenciatura Degree.–Sylviculturist
    (including Forestry Specialist)--Baccalaureate or Licenciatura Degree.
                      TN VISAS
--MEDICAL/ALLIED PROFESSIONALS
  --Dentist--D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia
   Dental or state/provincial license.
  --Nutritionist--Baccalaureate or Licenciatura Degree.
  --Occupational Therapist--Baccalaureate or Licenciatura Degree; or
   state/provincial license.
  --Pharmacist--Baccalaureate or Licenciatura Degree; or state/provincial
   license.
  --Physician (teaching or research only)--M.D. Doctor en Medicina; or
   state/provincial license.
  --Physiotherapist/Physical Therapist--Baccalaureate or Licenciatura
   Degree; or state/provincial license.
  --Psychologist--state/provincial license; or Licenciatura Degree.
  --Recreational Therapist--Baccalaureate or Licenciatura Degree.
  --Registered nurse--state/provincial license or Licenciatura Degree.
  --Veterinarian--D.V.M., D.M.V., or Doctor en Veterinaria; or
   state/provincial license.
                         TN VISAS
   --SCIENTIST
   --Agriculturist (including Agronomist)--Baccalaureate or Licenciatura Degree.
   --Animal Breeder--Baccalaureate or Licenciatura Degree.
   --Animal Scientist--Baccalaureate or Licenciatura Degree.
   --Astronomer--Baccalaureate or Licenciatura Degree.
   --Biochemist--Baccalaureate or Licenciatura Degree.
   --Chemist--Baccalaureate or Licenciatura Degree.
   --Dairy Scientist--Baccalaureate or Licenciatura Degree.
   --Geneticist--Baccalaureate or Licenciatura Degree.
   --Geochemist--Baccalaureate or Licenciatura Degree.
   --Geophysicist (including Oceanographer in Mexico and the United States)--
    Baccalaureate or Licenciatura Degree.
   --Horticulturist--Baccalaureate or Licenciatura Degree.
   --Pharmacologist--Baccalaureate or Licenciatura Degree.
   --Physicist (including Oceanographer in Canada)—Baccalaureate or
    Licenciatura Degree.
   --Plant Breeder--Baccalaureate or Licenciatura Degree.
   --Poultry Scientist--Baccalaureate or Licenciatura Degree.
   --Soil Scientist--Baccalaureate or Licenciatura Degree.
   --Zoologist--Baccalaureate or Licenciatura Degree.
                       TN VISAS
TEACHER -
 --College--Baccalaureate or Licenciatura Degree.
 --Seminary--Baccalaureate or Licenciatura Degree.
 --University--Baccalaureate or Licenciatura Degree.

  (d) Classification of citizens of Canada or Mexico as TN
   professionals under the NAFTA—
(1) Citizens of Mexico. A citizen of Mexico who seeks temporary entry as a
   business person to engage in business activities at a professional level
   may be admitted to the United States in accordance with NAFTA upon
   presentation of a valid passport and valid TN nonimmigrant visa at a
   United States Class A port-of-entry, at a United States airport handling
   international traffic, or at a United States pre-clearance/pre-flight
   station. (Paragraph (d) revised effective 1/1/04; 69 FR 11287)

(2) Citizens of Canada. A citizen of Canada seeking temporary entry as a
   business person to engage in business activities at a professional level
   shall make application for admission with a Department officer at the
   United States Class A port-of-entry, at a United States airport handling
   international traffic, or at a United States pre-clearance/pre-flight
   station.
TREATY TRADERS AND INVESTORS (E-1/E-2)
See INA sec. 101(a)(15)(E)

The E visa category was established to give effect to those treaties
  between the US and foreign countries that provide for reciprocal
  benefits to nationals of each country who conduct trade between the
  two countries or who invest in the other country. In accordance with
  the treaty between the US and the foreign country, the applicant may
  be entitled to enter the US as an E-1 treaty trader if s/he seeks
  admission solely to carry on substantial trade, including trade in
  services or technology.

Pursuant to these same treaties (commonly known as bilateral investment
  treaties), a foreign national may also qualify as an E-2 treaty investor,
  “solely to develop and direct the operations of an enterprise in which
  he or she has invested, or of an enterprise in which he or she is
  actively in the process of investing a substantial amount of capital.”
L-I VISA INTRACOMPANY TRANSFEREE
    Admission of intracompany transferees --
   Generaly, Under section 101(a)(15)(L) of the Act, an alien
    who within the preceding three years has been employed
    abroad for one continuous year by a qualifying organization
    may be admitted temporarily to the United States to be
    employed by a parent, branch, affiliate, or subsidiary of that
    employer in a managerial or executive capacity, or in a
    position requiring specialized knowledge. An alien
    transferred to the United States under this nonimmigrant
    classification is referred to as an intracompany transferee
    and the organization which seeks the classification of an
    alien as an intracompany transferee is referred to as the
    petitioner.
                    L-1 VISA
   Definitions.

   Intracompany transferee means an alien who, within three
    years preceding the time of his or her application for
    admission into the United States, has been employed
    abroad continuously for one year by a firm or corporation or
    other legal entity or parent, branch, affiliate, or subsidiary
    thereof, and who seeks to enter the United States
    temporarily in order to render his or her services to a
    branch of the same employer or a parent, affiliate, or
    subsidiary thereof in a capacity that is managerial,
    executive, or involves specialized knowledge.
                        L-1 VISA
   Managerial capacity means an assignment within an organization in
    which the employee primarily:
   (1) Manages the organization, or a department, subdivision, function, or
    component of the organization;
   (2) Supervises and controls the work of other supervisory, professional,
    or managerial employees, or manages an essential function within the
    organization, or a department or subdivision of the organization;
   (3) Has the authority to hire and fire or recommend those as well as
    other personnel actions (such as promotion and leave authorization) if
    another employee or other employees are directly supervised; if no
    other employee is directly supervised, functions at a senior level within
    the organizational hierarchy or with respect to the function managed;
    and
   (4) Exercises discretion over the day-to-day operations of the activity or
    function for which the employee has authority. A first-line supervisor is
    not considered to be acting in a managerial capacity merely by virtue of
    the supervisor's supervisory duties unless the employees supervised
    are professional.
                   L-1 VISA
   Executive capacity means an assignment within an
    organization in which the employee primarily:
   (1) Directs the management of the organization or
    a major component or function of the organization;
   (2) Establishes the goals and policies of the
    organization, component, or function;
   (3) Exercises wide latitude in discretionary
    decision-making; and
   (4) Receives only general supervision or direction
    from higher level executives, the board of directors,
    or stockholders of the organization.
                      L-1 VISA
   Qualifying organization means a United States or foreign
    firm, corporation, or other legal entity
   (1) Meets exactly one of the qualifying relationships
    specified in the definitions of a parent, branch, affiliate or
    subsidiary specified in paragraph (l)(1)(ii) of this section;

   (2) Is or will be doing business (engaging in international
    trade is not required) as an employer in the United States
    and in at least one other country directly or through a
    parent, branch, affiliate, or subsidiary for the duration of the
    alien's stay in the United States as an intracompany
    transferee;
                    L-1 VISA
   Filing of petitions --
   A petitioner seeking to classify an alien as an intracompany
    transferee shall file a petition on Form I-129, Petition for
    Nonimmigrant Worker, only at the Service Center which has
    jurisdiction over the area where the alien will be employed,
    even in emergent situations.
   (3) Evidence for individual petitions. An individual petition
    filed on Form I - 129 shall be accompanied by:
   (i) Evidence that the petitioner and the organization which
    employed or will employ the alien are qualifying
    organizations as defined in paragraph (l)(1)(ii)(G) of this
    section.
                          L-1 VISA
   (ii) Evidence that the alien will be employed in an
    executive, managerial, or specialized knowledge capacity,
    including a detailed description of the services to be
    performed.
   (iii) Evidence that the alien has at least one continuous
    year of full-time employment abroad with a qualifying
    organization within the three years preceding the filing of
    the petition.
   (iv) Evidence that the alien's prior year of employment
    abroad was in a position that was managerial, executive, or
    involved specialized knowledge and that the alien's prior
    education, training, and employment qualifies him/her to
    perform the intended services in the United States;
    however, the work in the United States need not be the
    same work which the alien performed abroad.
TREATY TRADERS AND INVESTORS (E-1/E-2)
An employee of a treaty trader or investor may also be
  classified as an E visa holder if he or she holds the same
  nationality as the principal foreign national employer and is
  seeking admission to engage in duties of an executive or
  supervisory character or who has special qualifications
  essential to the operation of the enterprise.

The period of admission is a maximum of 2 year period for an
  initial admission and an unlimited number of two-year
  extensions. Must file an extension. Form I-129 with
  supplement E is filed if in the US. Outside US, you fill out a
  questionnaire and supporting documentation including
  Form DS-156.
             TREATY TRADERS (E-1)
In order to be eligible for E-1 status, the applicant must satisfy the following
   requirements:

   1.   The requisite treaty exists;
   2.   The individual and/or business possess the nationality of the
        treaty country;
   3.   The activities constitute trade within the meaning of INA sec.
        101(1)(15)(E);
   4.   Such trade is substantial;
        a.       Substantial trade is intended to describe the flow of goods
                 or services that re being exchanged between the
                 countries. The trade must be a continuous flow that should
                 involve numerous transactions over time.
   5.   Such trade is principally between the US and the treaty country;
                 TREATY TRADERS (E-1)
TRADE
Trade for E-1 purposes consists of three requirements, each of which must
   be present in all E-1 cases. The 3 requirements are:

   1.   Trade must constitute an exchange between the US and the
        treaty country;
   2.   Trade must be international in scope;
   3.   Trade must involve qualifying activities.

There must be an actual exchange of qualifying commodities, such as
  goods, monies, services to constitute transactions considered trade.
  Goods and services must flow between the two treaty countries
  traceable and identifiable.

An applicant cannot qualify for E-1 status for the purpose of searching for a
  trading relationship. The trade must already exist.
            TREATY INVESTORS (E-2)
In order to be eligible for E-2 status, an applicant must satisfy the following
    requirements:

   1.   The requisite treaty exists;
   2.   The individual and/or business possess the nationality of the treaty
        country;
   3.   The applicant has invested or is actively in the process of investing;
   4.   The enterprise in the US is a real and operating commercial
        enterprise;
   5.   The investment is substantial;
   6.   The investment is more than a marginal one solely for earning a
        living;
   7.   The applicant is in a position to develop and direct the enterprise;
   8.   The applicant, if an employee, is destined for an executive or
        supervisory position, or possesses skills essential to the firm’s
        operation in the US;
   9.   The applicant intends to depart the US when E-2 Status terminates.
  “O” VISA- ATHLETES, ENTERTAINERS, ETC.
See INA sec. 101(a)(15)(O)

The O category is for highly talented or acclaimed foreign nationals who
  may not qualify in other work-related nonimmigrant categories. O
  classification is a useful and flexible alternative to the H-1B program
  because there is no wage maintenance feature, no overall limit on time
  in classification, and no number cap. It especially helps artists,
  athletes, entertainers, high-end chefs, and business people lacking
  professional degrees.

O-1 category is for aliens of extraordinary ability in the sciences, arts,
  education, business, or athletics. O-2 category is for certain aliens
  accompanying O-1 aliens in the arts or athletics. The O-3 category is
  for dependants of aliens in the foregoing categories.
                                “O” VISA
O-1: EXTRAORDINARY STANDARD

O-1 beneficiaries in the sciences, arts, education, business, or athletics
  must have extraordinary ability “demonstrated by sustained national or
  international acclaim.” “Extraordinary” entails a high standard as
  applied to business persons, scientists, educators, and athletes, and a
  much lower one as applied to artists and entertainers. Extraordinary
  ability means “a level of expertise indicating that the person is one of
  the small percentage who have risen to the very top of the field of
  endeavor.”

Artists and entertainers in the television and motion picture industries
   must show “a demonstrated record of extraordinary achievement.”

The achievements of all types of O-1 applicants must be “recognized in
  the field through extensive documentation.”
                                      “O” VISA
EVIDENCE
Applicant must prove “extraordinary ability” by providing evidence either of the
   beneficiary’s receipt of a “major, internationally recognized ward, such as the Nobel
   Prize” or at least three of the following:

   1.   Receipt of nationally or internationally recognized prizes/awards for excellence
         in the field;
   2.   Membership in associations in the field that require outstanding achievement of
         their members, as judged by recognized national or international experts;
   3.   Published material in professional or major trade publications or major media
         about the alien;
   4.   Participation on a panel or as a judge of the work of others in the same or an
         allied field of specialization;
   5.   original scientific, scholarly, or business-related contributions of major
         significance;
   6.   Authorship of scholarly articles in professional journals or other major media;
   7.   Current or previous employment in a critical or essential capacity for
         organizations and establishments that have a distinguished reputation;
   8.   Past or proffered high salary or other remunerations for services, evidenced by
         contracts or other reliable evidence.

Standards are identical to the EB-1 petitions for aliens of extraordinary ability. Initial
   admission under the O category may be for a period of up to 3 years, with possible
   1 year extensions.
                              P VISA
See INA §101(a)(15)(P)

“P” visas are more appropriate for group artists enter in the
  US on trips of limited durations. P-1 visas are available to
  internationally known athletes, individually or as part of a
  group or team, and entertainment groups. P-2 applicants
  are performing artists under auspices of a reciprocal
  exchange program. P-3 applicants are culturally unique
  entertainers. P-4 are for dependents.

Admission in all P categories is limited to specific competition,
  event, performance. P-1 individual Athletes admission may
  be up to 5 years. Other athletic teams and groups’
  admission may be valid for the time needed to complete
  the competition, event, or performance.
                             P VISA
REQUIREMENTS OF P-1

Individual athletes, athletic teams, and entertainment groups
   must meet:

international recognition – meaning “a high level of
   achievement in the field evidenced by a degree of skill and
   recognition substantially above that ordinarily
   encountered, to the extent that such achievement is
   renowned, leading, or well known in more than one
   country.”
                            P VISA
1.  Athletes- must establish performance at “an internationally
     recognized” level. This standard is easier to meet that for O-1
     athletes. Applicants must show a tendered contract with a
     major US sports league or team or contract with an individual
     sport. Applicant must also establish at least two of the following:
     a. Significant participation in a prior US major league season;
     b. Participation in international competition with a national
                     team;
     c. Significant participation in a prior US college/university
                     season in intercollegiate competition;
     d. Written statement from a major US sports league or official
                     detailing the alien’s or team’s international
recognition;
     e. Written statement from the sports media or a recognized
                     expert respecting international recognition;
     f. International ranking;
     g. Significant honors/awards in the sport;
                            P VISA
2. Entertainers- applicant must perform with an
   entertainment group that has been recognized
   internationally as outstanding in the discipline for a
   sustained and substantial period of time. The proposed
   services must require an internationally recognized
   entertainment group. Applicant must establish:
   a. Group established and performed regularly for at
        least 1 year;
   b. Statement from petitioner listing each member of the
        group, exact date for which each member has been
        employed on a regular basis by the group;
   c. Evidence group has been internationally recognized
        in the discipline for a sustained and substantial period
        of time;
                              P VISA
International recognition may be shown either by evidence of the
   group’s nomination for or receipt of significant international awards
   or prizes for outstanding achievement in the field or group has
   achieved 3 of the following:

a. Has and will perform as a starring or leading entertainment group in
   productions/events with distinguished reputations;
b. International recognition and acclaim for outstanding
   achievements;
c. Has and will perform services as a leading or starring group for
   organizations and establishments with distinguished reputations;
d. Record of major commercial or critically acclaimed successes;
e. Significant recognition for achievements from organizations, critics,
   government agencies, or other recognized experts;
f. Has commanded or will command a high salary to other similarly
   situated.
g. Some exceptions apply. 8 CFR §214.2(p)
R-1 RELIGIOUS WORKERS
   General. Under section 101(a)(15)(R) of the Act,
    an alien who, for at least the two (2) years
    immediately preceding the time of application for
    admission, has been a member of a religious
    denomination having a bona fide nonprofit
    religious organization in the United States, may be
    admitted temporarily to the United States to carry
    on the activities of a religious worker for a period
    not to exceed five (5) years.
R-1 RELIGIOUS WORKERS
   The alien must be coming to the United States for
    one of the following purposes:
   solely to carry on the vocation of a minister of the
    religious denomination; or
   to work for the religious organization at the request
    of the organization in a professional capacity;
   or to work for the organization, or a bona fide
    organization which is affiliated with the religious
    denomination, at the request of the organization in
    a religious vocation or occupation.
    R-1 RELIGIOUS WORKERS
   Bona fide nonprofit religious organization in the United
    States means an organization exempt from taxation as
    described in section 501(c)(3) of the Internal Revenue
    Code of 1986 as it relates to religious organizations, or one
    that has never sought such exemption but establishes to
    the satisfaction of the Service that it would be eligible
    therefor if it had applied for tax exempt status.
   Bona fide organization which is affiliated with the religious
    denomination means an organization which is both closely
    associated with the religious denomination and exempt
    from taxation as described in section 501(c)(3) of the
    Internal Revenue Code of 1986 as it relates to religious
    organizations.
            R-1 RELIGIOUS WORKERS
   Minister means an individual duly authorized by a
    recognized religious denomination to conduct religious
    worship and to perform other duties usually performed by
    authorized members of the clergy of that religion. In all
    cases, there must be a reasonable connection between the
    activities performed and the religious calling of the minister.
    The term does not include a lay preacher not authorized to
    perform such duties. Religious vocation means a calling to
    religious life evidenced by the demonstration of
    commitment practiced in the religious denomination, such
    as the taking of vows. Examples of persons with a religious
    vocation include, but are not limited to, nuns, monks, and
    religious brothers and sisters.
   Professional capacity means an activity in a religious
    vocation or occupation for which the minimum of a United
    States baccalaureate degree or a foreign equivalent degree
    is required.
            R-1 RELIGIOUS WORKERS
   Religious occupation means an activity which relates to a traditional
    religious function. Examples of persons in religious occupations include,
    but are not limited to, liturgical workers, religious instructors, religious
    counselors, cantors, catechists, workers in religious hospitals or
    religious health care facilities, missionaries, religious translators, or
    religious broadcasters. This group does not include janitors,
    maintenance workers, clerks, fund raisers, or persons involved solely in
    the solicitation of donations.
   Religious denomination means a religious group or community of
    believers having some form of ecclesiastical government, a creed or
    statement of faith, some form of worship, a formal or informal code of
    doctrine and discipline, religious services and ceremonies, established
    places of religious worship, and religious congregations, or comparable
    indicia of a bona fide religious denomination. For the purposes of this
    definition, an inter-denominational religious organization which is
    exempt from taxation pursuant to section 501(c)(3) of the Internal
    Revenue Code of 1986 will be treated as a religious denomination.
                      “K” VISAS
On December 21, 2001, President Clinton signed into law
  the Legal Immigration and Family Equity Act (LIFE). The
  LIFE Act expanded the K non-immigrant visa to now
  include the spouse of a US citizen and his or her
  unmarried children under 21 years of age in addition to
  the existing provision for fiancée of a US citizen and his or
  her unmarried children under 21 years of age. The K non-
  immigrant is allowed to enter the US in K nonimmigrant
  status and will be allowed to apply for LPR status.
                            “K” VISAS
   A.        THE FIANCEE VISA K-1

The K-1 nonimmigrant visa category permits the fiancée of a USC
  petitioner to enter the US for a 90 day period to marry the petitioner
  and apply for permanent residence.

   1.   The K visa processing can take longer than processing for other
        nonimmigrant visas since it entails submission and consideration
        of evidence.

   2.   K-1 petition is filed “with the INS director having administrative
        jurisdiction over the place where the petitioner is residing in the
        US”. INS director means local service center.

   3.   K-1 petition is filed on INS Form I-129F and must include color
        photos of both parties, signed G-325A for both.
                        “K” VISAS
4.   REQUIREMENTS and EVIDENCE: Parties must have
     a. previously met in person within 2 years of the date of filing the
           petition, unless a waiver is granted,
     b. have a bona fide intention to marry;
     c. are legally able and actually willing to conclude a valid
           marriage in the US with 90 day s after the fiancée’s arrival.
IF the parties do not marry within 90 days, the K-1 and any K-2
dependents will be required to depart and failure to depart renders them
removable.

5.   K-2 Dependents – The minor unmarried children of K-1 principal
     beneficiary who are listed in the petition may be accorded K-2
     status if accompanying or following to join the beneficiary.
                        “K” VISAS
   A.       K-3 VISA (LIFE Act)

The K-3 visa allows the spouses of USC and their children who are
  beneficiaries of pending or approved I-130 visa petitions to be
  admitted initially as nonimmigrants and adjust status once in the US.
  Because the spouses of USC had to frequently wait as long as one
  year or more for INS approval of the initial petition and wait for the
  DOS to issue the immigrant visa. Congress wanted to speed up the
  entry of the spouse.

   1.   DOS will process the K-3 and K-4 visas in much the same way it
        processes the K-1 and K-2.
        a. K-3/K-4 are subject to the 3/10 year bars found in INA
          §212(a)(9)(B). Title 8 CFR §212.7 allows for a waiver.
                   “K” VISAS
2. ELIGIBILITY:
Only spouses of USC and their unmarried children under 21
   are eligible for K-3/K-4 nonimmigrant visas. Applicant
   must:

  a. be married to a US citizen
  b. the USC spouse must have filed an I-130 on behalf of
  his or her alien spouse with the INS for       purposes of
  an immigrant visa;
  c. A Form I-129F, Petition for Alien fiancée must also
       have been filed with and approved by INS;
  d. K-4 is merely a derivative classification; similar to the
  K-1 and K-2.
                     “K” VISAS
CONSULAR PROCESSING
DOS will issue K-3 once the following conditions are met:

  a. consular officer is satisfied that the applicant is
  qualified and has received a petition approval by INS.
  b. If marriage took place outside of US, the application
  for the K-3 visa must take place in the country in     which
  the marriage took place, or if no posts exists, then at a
  post designated by DOS.
  c. If marriage in US, application for K-3 is made a
  country as provided by 22 CFR §42.61
  d. All requirements for visa is met

				
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