Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

EMPLOYER HELP

OVERVIEW

One of the key principles of U.S. Immigration law is that temporary visitors to our country are not eligible to work during their visits. The belief, which many countries incorporate into their own immigration laws, is that the available jobs should be reserved for the nation's own citizens and permanent residents. This principle, however, is often at odds with the demands of the marketplace and the inability of government to respond quickly to those demands. Through much of the 1990's, for example, the demand for computer programmers was intense in the U.S. while the supply of such programmers in India, China and Pakistan was growing. The Congress responded slowly ? but eventually- by increasing the cap on H-1B professional visas.

In resort communities throughout the country, the need for cooks, landscapers and housekeeping personnel was intense while the availability of such foreign workers remained high. During the economic downturn of the last two years, layoffs in the IT industry have created an oversupply of computer professionals and many highly trained foreign workers have been discharged. Business in many industries sensitive to the economy has also fallen off and foreign workers are often the first to be let go.

On the other hand, many U.S. employers are confused and intimidated by vast and often conflicting array of immigration regulations. Who can you hire? Who can you let go? What paperwork do you need to prepare and how long do you need to keep it? What is your liability when you discover that an employee has an improper social security number? We will attempt to answer these and many other questions.

COMPLYING WITH CIS REQUIREMENTS

Background

The Immigration Reform and Control Act of 1986 (IRCA) mandated that all employers hiring individuals to work in the United States be required to verify that future employees were legally entitled to work. The purpose of the Act was to reduce the number of illegal aliens in the United States by removing the major incentive which brought these people to the USA -the ability to find gainful employment. The Act, which has been amended several times, has failed miserably in its purpose. The number of illegal aliens living in the United States has, in fact, dramatically increased in the past eighteen years and U.S. employers, desperately needing to fill employment vacancies during the economic boom years of the 1990's have been increasingly in a bind. The Immigration and Naturalization Service (now known as Citizenship and Immigration Services or "CIS") responded to public pressure, and largely discontinued enforcement practices. Despite the well publicized raid on Walmart in October 23, 2003, immigration enforcement continues to decline.

The average number of completed employer investigations fell from 6,100 a year during the 1990s to 1,900 a year over the past three years ? a 70 percent decline. The average number of employers fined for having undocumented workers fell from 1,025 to 110. Nevertheless, the law does remain on the books and the penalties for its violation can be very severe, resulting in substantial fines and possible imprisonment. There is no way of knowing when enforcement proceedings will resume and delinquent employers will find it impossible to "catch up" if they allow themselves to fall behind in their paperwork.

Understanding I-9's

Any employer who hires an individual for services to be performed in the United States for wages "or other remuneration" is covered by the Act. The employer is required to verify the employment eligibility of every employee hired after November 6, 1986 by completion of Form I-9. The form contains three sections. The first section requires certain biographic information from the employee including his or her name, address, date of birth and Immigration Status. The second section requires the employer to verify the identity and employability of the worker by reviewing certain documents approved by the CIS and providing information about those documents on the Form. The third section is for the employer to re- verify certain information in the event the employee's employment authorization needs to be renewed or he/she leaves the job and is later rehired.

The employer is required to retain the Form for three years after the date the employee begins work or one year after the employee's employment is terminated, which ever is later. (If the employee leaves the job after six months, the employer must retain the I-9 for 2 ½ additional years; if the employee leaves after 10 years on the job, the employer must keep the form one additional year).

The employer is obligated to retain those I-9s and make them available for inspection by Officer's of the CIS, the Department of Labor ("DOL") or the Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") upon three days advance notice.

EMPLOYER'S SPECIFIC STEPS TO BE FOLLOWED BY EMPLOYERS

All employers should designate a specific individual to be responsible for I-9 procedures. In larger companies, this would normally be undertaken by Human Resource personnel. In smaller companies, the owner may undertake the procedures himself or utilize an accountant, attorney or other independent contractor to perform the task. Whoever performs the task should take the following steps:

(1) Every potential employee should be provided the three page I-9 Form which includes a list of documents which may be presented by the employee to verify both identity and employment authorization. THE CHOICE OF WHICH DOCUMENT OR DOCUMENTS TO PROVIDE IS SOLELY WITHIN THE DISCRETION OF THE EMPLOYEE AS LONG AS THE DOCUMENT(S) COMES FROM THE PRESCRIBED LIST. The document list is divided into three sublists. The documents on List A established both identity and employment eligibility. The documents on List B established identity only and the documents on List C established employment eligibility only. The employee may choose to provide one document from List A or one document from List B and one document from List C.

(2) The employee must complete Part A of the I-9, in the presence of the employer and must fully complete this section and sign where indicated. If the employee does not read English, he or she may utilize the services of a translator in which case there is a place for the translator to sign the form as well.

(3) The employer must review the documentation provided by the employee and complete Section 2 of the form. The employer notes the type of document presented, the issuing authority, the document number and any expiration date which may be applicable. The employer then signs Section 2. In reviewing the documents provided by the employee, the employer must make a good faith effort to verify its authenticity. CIS provides numerous sample documents to aide in the verification process in an instruction booklet. Because CIS frequently updates or modifies the documents themselves, the CIS instruction booklet is never exhaustive. The employer can only reject the document if it appears on its face to be a forgery or to have been tampered with or to be the type of document which is not included on CIS's list.

(4) The employer is then responsible for maintaining a tickler system whereby he can re-verify employment authorization documents that expire. The I- 9's must be retained in a location where they can be provided for inspection by authorized government officials on three days prior written notice.

Frequently Asked Questions

Q. Must the employer be present when the employee completes Section 1 of the I-9?

Yes. The employer or a representative of the employer must be present when the Form is completed.

Q. How can the employer obtain a copy of the Form?

It can be downloaded from the CIS web site at - http://uscis.gov/graphics/formsfee/forms/i-9.htm

Q. Can the employer require specific documents from the employee in order to satisfy the requirements of Section 2?

No. The choice of what documents to provide is exclusively up to the employee, provided only that the documents offered comply with the requirements of the I-9.

Q. If the employee completes part 1 of the I-9 by indicating that his or her employment authorization will expire on a certain date, should the employer verify the information by reviewing the employee's document?

No. The employer does not have the right to view any specific document unless the employee has voluntarily presented that document in order to satisfy the requirements of Section 2 of the I-9. If the employee, for example, shows a driver license and social security card and the card does not indicate that the employee is eligible to work only with CIS authorization, then the employer cannot inquire further.

Q. If the employee voluntarily presents a work card that indicates it will expire within sixty days, can the employer reject the employee for that reason?

No. Not unless the company has a policy that covers all employees, which policy provides that every employee must make a commitment to work for a minimum number of days to exceed sixty days.

Q. The employee offers a document that he calls a "green card". It is not green and looks nothing like the sample in the INS instruction booklet. Can the employer reject it?

No. CIS frequently modifies documents as a way of preventing document forgery .There are a wide variety of acceptable "green cards", for example, and almost none of them are actually green.

Q. If the employee completes Section 1 of the Form by indicating he has no A# and/or his work authorization has no expiration date, should the employer verify these facts?

No. If the employee provides a driver license and social security card, that is sufficient and the employer has no right to inquire further.

Q. What should the employer do if the document appears to be fraudulent or tampered with?

This is a complicated question with no absolute answer. If the document is of a different type that in the CIS indicates it is willing accept and appears genuine on its face, it makes sense to accept the document, at least until the employer can verify the document with CIS or a private attorney. Even if it is different from the CIS's samples. If the document appears to have been tampered with -a name whited out or a number typed over a prior number, or a photo that has apparently been substituted -it makes sense to ask for a different document. But beware, the employer who accepts patently fraudulent documents can be liable for penalties by the CIS for knowingly employing an unauthorized worker or for document fraud. If the employer rejects the document, he may be liable to the OSC for requiring different or additional documents from the employee and authorized by regulation.

Q. Should the employer make photocopies of the documents?

Although the law permits the employer to make such copies, there is no requirement that the employer do so. Most immigration practitioners suggest that copies be made for the following reasons:

(i) if the employee has failed to note the ID # or drivers license number but has included a copy of the document, the CIS may concede that the error is forgivable, (unless it is repeatedly occurring on a multitude of I-9's);

(ii) if the document later turns out to be fraudulent and employee denies having produced the document, the employer has an obvious defense; and

(iii) the company's Human Resource Manager or private attorney can periodically review the companies procedures to spot and correct errors.

Q. Who is responsible for re-verification?

The employer. The employer's failure to re-verify a time sensitive employment authorization document can be a paperwork violation, even if the employee has obtained the necessary extension. If the worker later turns out to be unauthorized, the employer can be charged with knowingly employing an unauthorized alien. It is suggested that the employer maintain a verification system with two dates. The first should be the date by which the employer notifies the employee that his or her employment authorization is about to expire. This should be at least ninety days prior to the expiration date. The second date would consist of the actual deadline date by which the employment authorization document must actually have been extended.

Q. Do documents other than employment authorization documents need to be re-verified?

No. The employer need re-verify only work authorization documents which by their nature have an expiration date. Other documents including driver's licenses, passports, green cards, and college ID's will generally have an expiration date but will not trigger re-verification.

Q. Can the employer accept a receipt as proof of employment?

Generally no. A receipt from CIS that the employee has filed for a work authorization or an extension of work authorization, or other employment authorization document is NOT proof of work authorization. There are several expectations. These include the following:

(i) a filing receipt from the CIS which indicates that the worker has applied to replace a lost, stolen or damaged document acceptable for I-9 purposes. In such a case, the replacement document must be presented within ninety days;

(ii) an I-94 with a 1-551 or a refugee admission stamp; or

(iii) an employee in either the E, H, L, 0, P, R, or TN status who has timely applied or an extension of status or an employee already in H-1B status who is applying to work for anew employer.

Q. Does the list of acceptable documentation change from year to year?

Yes. Recent changes to the list of acceptable documents include: Form I-766 (Employment Authorization Document), although not listed on the 11/21/91 version of the Form I-9, is an acceptable List A document #10; Form I-151, is no longer an acceptable List A document #5, however, Form I-551 remains an acceptable List A document #5; and the following documents have been removed from the list of acceptable identity and work authorization documents: Certificate of U.S. Citizenship (List A #2), Certificate of Naturalization (List A #3), Unexpired Reentry Permit (List A #8), and Unexpired Refugee Travel Document (List A #9). The employer need re-verify only work authorization documents which by their nature have an expiration date. Other documents including driver's licenses, passports, green cards, and college ID's will generally have an expiration date but will not trigger re-verification.

SAMPLE FORMS

Click Here to View a Typical I-94 Completed for an Employee Claiming to be a U.S. Citizen »

Click Here to View a Typical I-9 Properly Completed for an Employee Claiming to be a Permanent Resident »

Click Here to View a Properly Completed I-94 for a Resident Alien »

Click Here to View an I-94 for a Foreign Worker in H-1 Status »

Click Here to View an I-94 That Contains Some Common Errors »

HIRING FOREIGN WORKERS

Background

Although it is a general principle of U.S. Immigration law that only U.S. citizens and permanent residents can work in this country, there are many exceptions to this rule. These exceptions fall into two broad groups: (1) Nonimmigrants who have been given general work authorization by the CIS to work for almost any employer they choose and (2) Nonimmigrants who have been given specific work authorization to perform services for a specific employer.

The CIS often approves general work authorization for a variety of reasons. The nonimmigrant:

1. May have a pending application for permanent residency or political asylum

2. Qualifies under a special program, such as Temporary Protected Status (TPS) for citizens from countries victimized by war or natural disasters, beneficiaries of LIFE Legalization, which applies to persons who have lived in the U.S. since 1980.

3. Qualifies as a student granted work authorization in furtherance of her education or for humanitarian needs.

4. Qualifies under a special grant of work authorization approved by the CIS for some other humanitarian reason.

For the employer, the reason for a grant of generalized work authorization is irrelevant. In most instances, a nonimmigrant with a work card has the same right to employment as a U.S. citizen or permanent resident provided they have the necessary documentation. Employers who turn such individuals away may face heavy penalties for discrimination. The same is not true for nonimmigrants without work cards (or other documents approved by the CIS). These individuals must be sponsored by a specific employer for a specific job under one of several work categories set out in the Immigration and Nationality Act. These categories include the following:

Class Description Initial Stay Extension of Stay
E-1 Treaty Trader Two (2) years Up to 2 years per extension. No maximum number of extensions, with some exceptions.
E-2 Treaty Investor Two (2) years Up to 2 years per extension. No maximum number of extensions, with some exceptions.
H-1B1 Professional Worker Up to 3 years Increment of up to 3 years. Total stay limited to 6 years.
H-1B2 Fashion Models Up to 3 years Increment of up to 3 years. Total stay limited to 6 years, with some exceptions.
H-1C Registered Nurse Up to 3 years Total stay limited to 3 years.
H-2A and H-2B Seasonal Workers Same as validity of labor certification, with maximum of 1 year. Same as validity of labor certification (increments of up to 1 year). Total stay limited to 3 years.
H-3 Trainees Special Education Training-up to 18 months. Other Trainee-up to 2 years Special Education Trainee-total stay limited to 18 months. Other Trainee-total stay limited to 2 years.
L-1A Intracompany Transferee (Manager or Executive) Coming to existing office-up to 3 years. Coming to new office-up to 1 year. Increments of up to 2 years. Total stay limited to 7 years.
L-1B Intracompany Transferee (Specialized Knowledge) Coming to existing office-up to 3 years. Coming to new office-up to 1 year One increment of up to 2 years. Total stay limited to 5 years.
O-1 and O-2 Aliens of Extraordinary Ability (including athletes, entertainers, scientists, educators, business) Up to 3 years Increments of up to 1 year
P-1, P-2, P-3 and their support personnel Other athletes & entertainers Individual athlete-up to 5 years.
Athletic groups and Entertainment groups-up to 1 year.
Individual athlete-Increments of up to 5 years. Total stay limited to 10 years.
Athletic groups and entertainment groups-Increments of 1 year.
R-1 and R-2 Religious Worker Up to 3 years Increments of up to 2 years. Total stay limited to 5 years.

PROFESSIONAL WORKERS (H-1B)

Requirements for H-1B's

The H-1B program allows U.S. employers to search the entire global marketplace to obtain the most suitable professional worker(s) to meet their business needs. The program does have some very specific requirements, including:

  1. A U.S. Employer
  2. Making a bone fide job offer
  3. In a specialty occupation
  4. To a qualified individual
  5. Under working conditions that will not adversely affect the working conditions of U.S. workers.

[1]-A U.S. Employer

The Petitioner must be a "United States Employer" or its agent. The U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. which (1) engages a person to work in the U.S., as specified in the petition process, (2) has or will have an employer-employee relationship with the person or persons for whom it files H-1B petitions, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the employee's work, and (3) has a U.S. Internal Revenue Service tax identification number. A foreign entity may file a petition to employ an H-1B worker in the U.S., but only if it first establishes at least a U.S. "branch office" and obtains the requisite tax identification number. The Employer does not need to be a business corporation. It may be a nonprofit organization or government agency, a partnership, or even a sole proprietorship or individual person. Only a U.S. Internal Revenue Service ("IRS") tax identification number is required. In the case of small companies and sole proprietorships, the Employer must be prepared to explain how it retains the ability to "hire, pay, fire, supervise, or otherwise control" the work of the employee named in the petition. If this test can be met there is no prohibition on the foreign national beneficiary of an H-1B petition being an owner, founder, partner, or other major stakeholder.

[2] A Bona Fide, Nonspeculative Job Offer

The employer must establish that it functions as a viable, fully operational business entity, capable of providing employment to the applicant under the terms and conditions set forth in the job offer. For large Employers this will not be a problem. For small and start-up companies, the proof of financial viability is critical for approval of the application. The Employer should submit proof of business space in the form of leases or deeds and photographs of the office location, proof of legal formation such as articles of incorporation, and financial viability through bank statements, client contracts, a business/financial plan, tax returns, and other materials such as promotional literature or product documentation.

In addition to proving that it can ?afford? the foreign worker, small Employers may also need to prove that they actually have ?need? for the employee. This may arise where the Employer is a small company that would not usually require a person in the specialty occupation of the applicant, as for example a small wholesaler applying for a financial analyst. The CIS might suspect, instead, that the person will perform nonprofessional, nonspecialized duties. An employer can sometimes avoid this trap by sponsoring the applicant on a part-time basis until the business can justify a full-time employee.

[3]- A Specialty Occupation

The foreign worker must be coming to the United States to perform work in a "specialty occupation? which is defined as an occupation that "requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor," and which ordinarily "requires the attainment of a bachelor's degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The degree must be sufficiently related to the occupation ? a Bachelor's degree in Drama may not support an application for a computer programmer ? but the CIS will generally allow some leeway. A degree in Civil Engineering may support an application for a computer programmer if the Employer is designing programs to be used in the building of bridges. Some skill is required in describing the position to the CIS. For example, both ?computer engineers? and ?computer technicians? may be called upon to repair a malfunctioning computer. The former occupation is a professional one, the later is not. The CIS may also inquire as to whether the Employer has previously hired individuals with a bachelor's degree to perform the tasks or has made do with lesser-educated people. Finally, the CIS may look to the industry norm to determine whether the position requires a bachelor's degree. If lesser-educated individuals are normally hired by other employers to perform the same or similar tasks, the Employer must be prepared to justify how his specific needs are different.

[4]- A qualified Individual

If the Employer can establish the need and ability to employ an individual in a specialty occupation, the next issue is whether the sponsored foreign worker is qualified to perform the work. The foreign worker must be "qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation."

If the foreign worker has obtained a bachelor's degree in the U.S. from an accredited college or university, the matter is easily resolved. A photocopy of the diploma and/or a copy of the transcript will usually suffice. The issue becomes more challenging if the foreign worker has obtained his education abroad or does not have a four-year college level degree from any institution. In such a case, the foreign worker may be able to show he has education or experience ?equivalent? to a U.S. bachelor's degree. This generally requires that the Employer obtain and submit "[an] evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials." The expert reviews the foreign credentials and provides an opinion as to the U.S. equivalency of the foreign degrees.

In order to satisfy CIS requirements, the evaluation must:

(i) Consider formal education only, not practice experience.

(ii) State if the collegiate training was post-secondary education, i.e., did the applicant complete the U.S. equivalent of high school before entering college?

(iii) Provide a detailed explanation of the material evaluated, rather than a simple conclusory statement.

(iv) Briefly state the qualifications and experience of the evaluator providing the opinion."

If the subject area of the degree is not precisely the same as the "specialty occupation" in which the foreign national will work, but there is a minor concentration of course work in that area shown on the transcript, the evaluator should specifically include discussion and evaluation of that course work in the report. be equivalent to a U.S. bachelor's degree, the CIS requires the foreign worker to have completed a twelve year pre-college program equivalent to U.S. high school education followed by the equivalent of a full four-year college or university academic program. The Employer should be careful to review the foreign workers credential carefully before submitting them for evaluation. In may foreign countries, for example, students enter college after the completion of ten years of pre-college education. In such a case, the CIS is likely to regard the first two years of college as the equivalent of a high school education and decide that the foreign ?bachelor's? degree is the equivalent of an U.S. associate's degree. Another problem concerns foreign workers who have degrees recognized as baccalaureate in their countries but which require only three years of full-time college study. This is common in India, South Africa, and parts of Canada, the United Kingdom, and certain eastern European countries. In Canada, the U.K., and South Africa, the "B. Tech" degree commonly involves just three years of study. The CIS recognized these three-year degrees as equivalent to a U.S. bachelor's degree in limited circumstances, such as the British higher national certificate and the Canadian bachelor of technology. (Canadian students often have thirteen years of secondary education so that three years of college or university study will result in the same 16 years of education as the U.S. system.)

If the employee has obtained an advanced degree, such as a masters or doctorate, the additional education will generally suffice to satisfy the baccalaureate requirement. Where, however, the employee lacks the additional education, he or she may be able to substitute professional-level experience in the specialty field for the ?missing? years of education. The CIS generally applies a ?3 for 1? standard under which three years of professional-level experience is equivalent to one year of university study. In such a case, a foreign worker with 10 years of secondary school, four years of college or university study and six years of experience may qualify as having a bachelor's degree.

[5]-Labor Condition Application as Prerequisite

The Employer must certify in a document called a Labor Condition Application (LCA) to the U.S. Department of Labor that it will comply with the following requirements:

  • Pay at least the greater of (1) the "actual wage level" paid by the employer to other individuals with similar experience and qualifications for the employment or (2) the "prevailing wage level" for the occupational classification in the area of intended employment, and must offer benefits or eligibility for benefits (such as insurance, retirement and savings plans, bonuses and noncash compensation such as stock options) on the same basis and in accordance with the same criteria as the employer offers to U.S. workers.
  • There is "not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment."
  • Must provide notice to employees of the filing of the LCA through (1) notification to a bargaining representative in the occupational classification or, (2) if there is no bargaining representative, use of other methods such as physical posting in conspicuous locations at the place of employment or "electronic notification" to employees in the occupational classification.
  • Keep certain records available for examination upon request by the public or by the DOL. These records include:
    1. a copy of the LCA,
    2. documentation of the wage rate paid to the H-1B worker,
    3. documentation of the system used to set the "actual wage" the employer has paid or will pay to workers in the occupation such as a memorandum summarizing the system or a copy of the employer's pay system or scale,
    4. documentation used to establish the "prevailing wage" rate for the occupation, and
    5. documentation that the requirement of notice to employees, by means of a bargaining representative or posting, has been met.

Other Things to Bear in Mind:

  • If the Employer terminates the foreign worker prior to the period of authorized employment, the Employer is liable for the reasonable costs of return transportation for the worker to his last place of residence abroad. This does not include additional costs such as the transportation of the worker's family or his personal property. The Employer need only offer to pay the cost of the transportation. If the foreign worker refuses to leave, the employer has no further liability for transportation, nor is the Employer liable in any other way in the event the worker refuses to leave the United States.
  • The Employer must also notify the CIS ?immediately? of ?any changes in the terms and conditions of employment.? This is will obviously include the termination of the worker but will also include less drastic changes as well, such as a transfer to a different job or the same job in a different location. In the case of terminations, the CIS will respond with a notice of intent to revoke the H-1B petition. The regulation does not however impose any specific penalty on the employer for failure to make prompt notification.
  • The issue of when a foreign worker becomes ?out of status? continues to be a lively topic of debate in immigration circles. A strict reading of the statute indicates that the worker is out of status (and thus required to leave the United States) immediately upon termination of employment. Thus is the Employer notifies the worker that at 4:59 pm that his services will no longer be required after 5:00 pm, the worker is supposed to be out of the United States at 5:01. Furthermore, since the worker is out of status, he or she cannot look for suitable alternative employment without leaving the United States and obtaining a new visa from the U.S. consulate. CIS seems be granting a grace period of 10 days or less with the Vermont Service Center being the most liberal and the Nebraska Service Center being the least forgiving.
  • The H-1B program has a ?cap? on the total number of new H-1's that can be issues each fiscal year. This cap does not include renewals of previously issued H-1's or H-1's issued to certain educational or nonprofit institutions. The cap, which had been temporarily increased to 195,000 for fiscal years 2001, 2002, and 2003, reverted a 65,000 limit to occur in fiscal year 2004.
  • A special "education and training" fee was part of the filing fee for H-1B applications until October 1, 2003. The money went to a fund to be used to train American workers in certain technical fields. The total filing fee for H-1B petitions has reverted back to $130.
  • In October 2000, Congress introduced the concept of "H-1B portability," which allows employers to hire H-1B workers and put them on the payroll immediately upon the filing of a new H-1B application. Formerly, the beneficiary was not allowed to begin work for the new employer until the CIS approved the petition, which could take several months. To qualify, the foreign worker must already be in the U.S. in valid H-1 status.
  • Since July of 2001, employers can now expedite the processing of the H-1B application by paying an expedite processing fee of $1,000. This fee is in addition to the normal fee of $130.00. The premium fee guarantees action within 15 days. (Action does not necessarily mean an approval or even a decision. The CIS may instead request additional information. Upon return of the additional information, the CIS will make a decision within 15 days.) Best advice: Payment of the premium processing fee makes sense if he worker is not yet in H-1B status as the normal processing times can be over four months. If the worker is already in H-1B status, he or she can begin working upon the filing of the application. Payment of the premium processing usually does not make sense in this case unless the foreign worker needs to travel.
  • The application is filed with the regional service centers having jurisdiction over the intended place of employment. These centers are located in Vermont, Nebraska, Texas, or California. The petition package must include CIS Form 1-129 and its H Supplement, the CIS Form 1-129W the certified LCA, and the supporting documentation.
  • The approval of the H-1B petition provides work authorization to the foreign worker only if that worker is in status in the U.S. and the CIS approves a change or extension of status. If the worker is outside the U.S., he or she must still obtain a visa from the American Consulate. (Except for Canadians). The consulate has the right to conduct its own inquiry (including a check of the applicant's education and experience) and such inquiries can take weeks or even months. Even if the foreign worker is in the U.S., he or she will generally be required to surrender the I-94 upon leaving the U.S. and obtain a new visa before re-entering.

H1B Frequently Asked Questions

Q. What is an H-1B?

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Q. What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Q. Is there an annual limit on the number of H-1B aliens?

Yes. The current law limits to 195,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in FY2001. In 2002 and 2003, the number of aliens who can be issued a visa will also be 195,000. In 2004, the number of aliens who can be issued an H-1B visa or be provided H-1B status otherwise will revert to 65,000.

Q. How does one apply?

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file a Form I-129 petition plus accompanying fee of $130 with the CIS and, unless specifically exempt under the law, an additional $1000 fee to sponsor the H-1B worker. Based on the CIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.

Q. What are the employer's obligations?

If the employer terminates the alien prior to the period of authorized employment, the employer is liable for the reasonable costs of return transportation for the alien to his last place of residence abroad. This does not include additional costs such as the transportation of the alien's family or his personal property. The employer need only offer to pay the cost of the transportation. If the alien refuses to leave, the employer has no further liability for transportation.

Q. Is the employer required to notify the CIS if the H-1B worker is terminated or voluntarily leaves the employment?

Yes. CIS regulations require that the employer notify the CIS ?immediately? of ?any changes in the terms and conditions of employment.? The CIS will respond with a a notice of intent to revoke the H-1B petition. The regulation does not however impose any specific penalty on the employer for failure to make prompt notification.

Q. How long can an alien be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

Q. Who can an H-1B alien work for?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the work site of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

Q. What if the alien's circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer's business will not affect the alien's status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Q. Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Q. Can an H-1B alien travel outside the U.S.?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Q. Can an H-1B alien intend to immigrate permanently to the U.S.?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from the CIS to return to the U.S.

Seasonal Workers (H-2'Bs)

Often times employers are called upon to fill job vacancies for positions that are not professional in nature. This may range from highly skilled positions, such as computer technicians, sales representatives, and specialty cooks, or it may apply to unskilled positions such as landscapers, kitchen helpers or motel housekeepers. Although there has been much debate in Immigration circles concerning the need to provide visas for these ?essential workers?, current Immigration Law generally does not permit employers to sponsor such workers. There is, however, an exception to this rule. This exception applies where the work to be performed is temporary or seasonal in nature. Examples of this type of employment include, ski instructors, lifeguards, restaurant, landscapers and cleaning crews for resort facilities, seasonal agricultural workers, and minor league baseball players. A separate subcategory- H-2A is set aside for agricultural workers and will be discussed separately.

For each of these applications, the application requires:

  1. A U.S. Employer, a United States agent, or a foreign employer filing through a United States agent
  2. A foreign worker coming temporarily to the United States to perform temporary services or labor; and
  3. Proof sufficient to demonstrate that there are not sufficient able, willing and qualified US workers available at the time and place needed under working conditions that will not create an adverse effect on the wages or working conditions of similarly employed US workers

[1]-A U.S. Employer

The requirement that the Petitioner must be a "United States Employer a United States agent, or a foreign employer filing through a United States agent" is somewhat broader than the requirement of a U.S. Employer utilized for the H-1B (see above). Although a Foreign Employer may not directly petition for an H-2B foreign worker, the Employer can work through an agent if the agent? is authorized to file the petition and to accept service of process in the United States in proceedings?

Special rules apply where a U.S. agent is used. US agents are allowed to file petitions for self-employed aliens, multiple employers, and foreign employers. When the foreign worker is self-employed, there must be a contract between the agent and the worker setting out the terms and conditions of employment. The agent must also provide a complete itinerary of the planned employment. When multiple employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent's authority to act on behalf of the employer.

[2] Temporary Need

The Employer must demonstrate not simply that there is a temporary need for the foreign worker's services but rather that the job itself is temporary in nature. The worker may not temporarily fill a position for which the employer has a regular ongoing need. To hire work as a H-2B Status, the CIS has stated that the Employer can have:

(i) a recurring seasonal need (as with a cook who works for a restaurant in a resort community where the restaurant is only open 8 months a year);

(ii) an intermittent need (as with a manufacturer who requires a technician to install a specific program or piece of equipment or operate a piece of equipment for a specific event or trade show);

(iii) a ?peak load? need (as with a florist who needs floral designers during certain holiday seasons); or

(iv) a need based on a one time occurrence where the Employer has not employed workers to perform the service in the past (as with a child care monitor who is being hired to supervise a new born child while the parents both work until the child reaches 3 years of age at which time the child will attend nursery school).

[3] U.S. Workers are not available

In order to obtain H-2 Status for a foreign worker, the Employer must first obtain a Labor Certification from the U.S. Department of Labor demonstrating that the Employer has tried to fill the position with qualified workers at the prevailing wage and working conditions. Generally, this will require that an advertisement be placed in a local major circulation newspaper designated by the Department of Labor for a period of three (3) consecutive days. The Department of Labor will first review the advertisement in order to determine that it is not unduly restricted and that the wage being offered is the ?prevailing wage? as determined by the DOL. Although applications for temporary Labor Certification receive expedited processing by the DOL, Employers should expect a processing time of at least 60 to 90 days for approval of a Labor Certification. Résumés or job experience letters are sent directly to the DOL and forwarded to the Employer. If any U.S. worker comes forward who posses the minimum job skills required for the position (and is willing to work under the prevailing working conditions) the DOL will deny the labor certification. Although the CIS considers temporary labor certifications to be advisory only, the likelihood of obtaining an CIS approval is slight if the Department of Labor denies the temporary labor certification.

Other Things to Bear in Mind:

  • The Department of Labor and Immigration and Naturalization Service CIS will generally approved temporary labor certifications for periods of less than one year. Extensions of stay are possible but will require a new labor certification (which will take 60 to 90 days.) Careful planning, therefore, requires that the Employer plan well in advance and request the longest reasonable period.
  • A single temporary labor certification can be used for multiple foreign workers who need not be named on the application if the workers will be doing the same work in the same area of intended employment. It is sufficient that the Employer designates ?Ten Unknown Workers.? This gives the Employer greater freedom to locate workers while the application is being processed. The workers will have to be named in the CIS application.
  • Employers who will be filing for H-2 workers are well advised to utilize premium processing for submission of the application to the CIS. Normal processing may take up to four months, which added to the three to four months for labor certification processing will require Employers to file 7-8 months in advance of the projected start date.
  • As with the H-1B's there is a numerical cap for H-2's. The cap is presently set 66,000 workers per year, but as the demand for such workers has never approached the cap, even in the economic boom years of the 1990's, there is little reason for Employers to be concerned.
  • The application is filed with the regional service centers having jurisdiction over the intended place of employment. These centers are located in Vermont, Nebraska, Texas, or California. The petition package must include CIS Form 1-129 and its H Supplement, the temporary labor certification, and the supporting documentation, including evidence that each worker named in the petition meets the minimum job requirement stated in the labor certification.
  • The approval of the H-2 petition provides work authorization to the foreign worker only if that worker is in status in the U.S. and the CIS approves a change or extension of status. If the worker is outside the U.S., he or she must still obtain a visa from the American Consulate. The consulate has the right to do its own inquiry and such inquiries can take weeks or even months. Even if the foreign worker is in the U.S., he or she may be required to surrender the I-94 upon leaving the U.S. and obtain a new visa before re-entering. Employers should also be warned that foreign workers who have resides illegally in the United States for period of six months or more, may be subject to the three or ten year bar which prevents the Consulate from issuing the requested visas until the alien has resided outside the U.S. for the required period.
  • A spouse or unmarried child under 21 years of age of an H-2 visa holder may qualify for an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.
  • The H 2B classification is sometimes used for minor league baseball players and other athletes and entertainers who have not yet achieved international renown. Major league players, NFL, NBA, NHL and internationally ranked tennis players as well as television, movie, and stage actors, directors, screen writers, and other renowned artists would qualify for the O or P visas.
  • The only workers who are specifically excluded from consideration from H-2B status are foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers (who are covered under the H-2A program.)

Seasonal Agricultural Workers (H-2As)

The general requirements for H2A foreign workers are the same as those for H-2B's: seasonal jobs and labor certifications that demonstrate that there are not sufficient able, willing and qualified US workers available at the time and place needed under working conditions that will not create an adverse effect on the wages or working conditions of similarly employed US workers. The H-2A category, however, relates exclusively to agricultural workers. Moreover, in seeking to protect migrant workers from abusive labor practices, the program has erected such rigid requirements that it is of little use to anyone except contract labor organizations.

H-2A workers must be offered the same wage as US workers. This has been interpreted to mean the higher of the following:

  • The industry's prevailing wage in the relevant labor market,
  • The state or federal minimum wage, or
  • The ?adverse effect wage rate?(or AEWR) as determined by the Department of Agriculture.

Employers must provide H-2A workers with the following:

  • Transportation to and from the worker's temporary home to the workplace.
  • Transportation home or to their next workplace when the contract period is up
  • Adequate housing to all H-2A workers who do not commute. The adequacy of the housing is determined by the Department of labor which inspects the premises to determine if it meets minimum federal standards for temporary labor camps.
  • Three meals a day or facilities in which the worker can prepare food.
  • Whatever tools and supplies necessary to perform the work.

On or before each pay day, the Employer must provide the H-2A worker with an earnings statement detailing the worker's total earnings, whether the alien is paid hourly or by the piece, the hours of work offered, and the hours actually worked.

Other Things to Bear in Mind:

  • The labor certification application for H-2A's is the same application as the one used for H-2B's (and also used for permanent labor certifications) The application must be submitted at least 60 days before the temporary workers are needed. The DOL must approve it 20 days before the starting work date. If approved, the employer pays a base fee of $100 plus $10 for each position certified, up to a maximum of $1000.
  • Certification will not be granted until the DOL has had an opportunity to inspect the housing facilities
  • Applications are permitted for multiple workers, and the workers may be unnamed on the application. The employer must provide the CIS with their names as they become available. If the CIS approved the petition, notification is forwarded to the appropriate consulate where the workers apply for visas.
  • An H-2A visa is generally valid for a maximum of one year. Extensions of up to one year are possible, with a maximum of three years. Once an alien has spent three years in the US in H-2A status, they must leave for six months before being able to resume H-2A employment. During this time the alien can reenter the US in any status that is not based on the performance of agricultural work.
  • A spouse or unmarried child under 21 years of age of an H-2 visa holder may qualify for an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.
  • The application is filed with the regional service centers having jurisdiction over the intended place of employment. These centers are located in Vermont, Nebraska, Texas, or California. The petition package must include CIS Form 1-129 and its H Supplement, the temporary labor certification, and the supporting documentation, including evidence that each worker named in the petition meets the minimum job requirement stated in the labor certification.

INTRACOMPANY TRANSFEREES (L-1)

Requirements for L-1's

The L-1 program allows international employers to transfer high level and highly trained employees from a foreign office to a related office in the United States. Under the right circumstances, it gives international organizations the freedom to transfer large numbers of management-level individuals with relative ease and later apply for their green cards without the necessity of a labor certification. Unlike the H-1, the L-1 does not require that the employer pay a ?prevailing wage? and does not have an annual cap on the number of new visas.

Although ideally suited for larger multinational corporations, the visa can be utilized by smaller companies as well. Even foreign companies that do not yet have an office in the United States can utilize the L-1 through creation of a new, start-up operation. However, the requirements for the visa are very specific and the CIS has often interpreted these requirements very rigidly.

The specific requirements include:

  1. A qualifying organization
  2. The transferring of a manager, executive (L-1A) or worker of specialized knowledge (L-1B) to the United States
  3. After the worked has been employed for the foreign company abroad as a manager, executive or worker of specialized knowledge for at least year of the last three years.

[1]-A Qualifying Organization

The L-1 visa requires a dual identity on the part of the Employer, that is, there must be a foreign entity and a U.S. entity that are related in a manner narrowly defined by the immigration law. The size of these entities is not overly important and they may be in any legal form ? corporations, partnerships, joint ventures, sole proprietorships ? profit or nonprofit. The key is a relationship between entities in which control of both companies is held by the entity, person or persons. According to the CIS, these entities are related through a parent as, branches, subsidiaries or affiliates. While it is easy to become bogged down in the In CIS jargon, the central issue is to establish through documentary evidence that the necessary ownership relationship exists between the companies so that a centralized control can be established. Unfortunately, the CIS often takes a rigid approach to this issue, requiring majority ownership in most instances. The organization must be ?doing business? in the U.S. and a foreign country, which means it is engaged ?in the regular systematic and continuous provision of goods and/or services.? The L status is not intended to allow self-employed workers to relocate their business to the U.S. and the foreign entity must continue in operation for the duration of the L status.

[2] A Manager, Executive or Worker of Specialized Knowledge

The foreign worker must be coming as a manager, executive or specialized knowledge employee.

Specialized knowledge refers to employees with a special knowledge of the company's products and their applications in world markets; an advanced or proprietary knowledge of the company's processes or procedures. This individual will typically be a highly trained technician who has developed and/or repaired the sophisticated products produced by the employer. The specialized knowledge category is the least favored of the three classifications because it does not permit an exemption from the labor certification requirement in the event the Employer later seeks to obtain a green card for the employee.

Executives and Managers are individuals who exercise some independent judgment and authority over the operation of company or its functions. An Executive ?establishes goals and policies, exercises wide latitude in discretionary decision making and receives only general supervision from higher level executives. A Manager directs the organization, a department, or a function of the organization. A Manager supervises and controls the work of other supervisory, professional or managerial employees. The CIS looks to see that Executives and Managers are overseeing the work of others rather than directly producing the goods and services of the company. Furthermore, Executives and Managers are directing individuals who themselves are often professionals and/or managerial individuals. Thus, in the case of a retail organization, the CIS will often balk at ?store managers? who direct the work of cashiers and front line sales personnel since these cashiers and salespeople are not themselves professionals or managers.

[3]- After Working For The Foreign Company For At Least Year Of The Last Three Years.

The foreign worker must have been continuously employed abroad for one year of the last three for a parent, affiliate, subsidiary or branch of a US employer. Time spent in the U.S. will not count toward fulfilling this requirement although it will not break the continuity of employment. The employment must have been of an executive, managerial or specialized nature but it need not have been obtained at one location or in one position.

New Office

Although the foreign entity must have been in existence for more than one year prior to the filing of an L-1A petition there is no similar requirement for the U.S. entity. The law permits a foreign entity to file a petition simultaneously with the opening of a new office. The application may be approved for an initial period of one year. To have the application extended, the Employer must prove that it can support a Manager, Executive or person of specialized knowledge. The CIS has some special requirements for New Offices. These include:

  • A lease demonstrating sufficient space to house the new office
  • The foreign worker has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and
  • Proof of the potential viability of the new office, usually in terms of an investment of capital, assets or personnel and
  • The organizational structure of the foreign entity.

Blanket L Petitions

There are special procedures that make it easier for companies to transfer large numbers of personnel under the L-1 program. Employers may qualify for ?blanket approval? if the following conditions are met:

  • The US and foreign offices must be engaged in commercial trade or services;
  • The employer's US office must have been in business for at least a year;
  • The employer must have at least three domestic or foreign branches, subsidiaries, or affiliates;
  • The Employer must show one of the following: a) at least ten L-1 visas were approved in the last year; b) the company had US sales of at least $25 million, or c) the US work force numbers over 1,000 workers.

The blanket petition may be extended upon production of the following documentation:

Extending a Blanket L Petition. A petitioner may file an I-129 to extend an expiring blanket petition. The extension petition must be filed with:

  • A copy of the previous approval notice for the blanket petition; and
  • A summary of the employment of L-1 aliens admitted under the blanket petition during the preceding three years, listing, for each alien:
    • His or her name;
    • Position(s) held during the period;
    • Employing entity;
    • Date of initial L-1 admission under the blanket;
    • Date of final departure, if the alien has been transferred outside the United States, and;
    • Documentation of any changes in approved relationships and additional qualifying relationships.

Other Things to Bear in Mind:

  • Like the H-1B status, the worker may have a dual intent of intending to depart the U.S. upon completion of his temporary status while also applying for permanent residency.
  • Executives and managers may be granted L-1 status for up to seven years, in three-year increments. Specialized knowledge employees may stay in the US for up to five years.
  • The application is filed with the regional service centers having jurisdiction over the intended place of employment. These centers are located in Vermont, Nebraska, Texas, or California. The petition package must include CIS Form 1-129 and its L Supplement, and supporting documentation. That documentation will include: evidence of the qualifying relationship between the U.S. and the foreign employer including stock certificates, stock ledgers, an annual report, copies of articles of incorporation, financial statements, letter detailing the worker's dates of employment, job duties, qualifications and salary and a detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.
  • Although the Employer is not required to pay a specified ?prevailing wage? as with H-1's, he CIS often views the proposed wage as indicative of Executive or Managerial responsibilities. The Employer should expect to be challenged by the CIS therefore if the wage appears too low for the proposed job duties.
  • The CIS may also challenge applications where the transferred employee also has an ownership interest in the company, since the CIS may not believe the owner intends to ever leave the US. The US employer must be prepared to show that the foreign worker has strong business ties to the foreign company and that another individual is being trained to take over for the foreign worker in the U.S. when the approved period expires.
  • After the CIS Service Center approves the application, the employee must apply at the US Consulate for the visa. The Consulate normally approves the application unless it believes the CIS has been defrauded or the CIS was not aware of important information. If the worker is already in the United States in legal status, the CIS may approve a change of status to L-1.
  • Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Under recent CIS regulations, the spouse of the principal beneficiary may qualify for employment authorization.
  • Dependents may be students in the U.S. while remaining in L-2 status.
  • An Employer may apply for an extension of an individual L-1 petition using Form I-129. Supporting documentation is not required, except in those cases involving new offices or when requested.

Workers With Extraordinary Ability (O's) & Athletes and Performing Artists (P's)

The O and P nonimmigrant visa/status is grouped together here because these classifications share several key elements. These elements include:

  • Both classifications apply to foreign workers who have achieved a higher level of accomplishment than that associated with others in their field.
  • The sponsoring Employer is generally required to first obtain an advisory opinion from an appropriate peer group, labor organization or management organization or show that such an organization does not exist.

O-1 Extraordinary Ability in Science, Education, Business, or Athletics

The O nonimmigrant category is for foreign workers of extraordinary ability in the arts, athletics, sciences, education, business or the motion picture or television industry. To qualify, the worker must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. There is currently no annual cap on O visas. The specific requirements are:

  1. A U.S. Employer or agent petitioning for
  2. A foreign worker of extraordinary ability in the arts, athletics, sciences, education, or business
  3. Coming to the United States temporarily to perform services in his/her area of expertise

[1] A U.S. Employer or Agent

The regulations require that the Petitioner must be a United States Employer a United States agent, or a foreign employer filing through a United States agent. A Foreign Employer may not directly petition for an O foreign worker nor can the foreign worker petition for himself or herself. The Foreign Employer can work through an agent if the agent is authorized to file the petition and to accept service of process in the United States in proceedings. Agents are often used by workers who are traditionally self-employed such as writers, lecturers, and tennis pros. The agent must submit a complete itinerary of services or engagements and the application should be filed with the CIS Service Center where the worker will be employed. If the worker will be employed at various locations across the country, the application should be filed in the Service center where the Agent is employed.

[2] A Foreign Worker Of Extraordinary Ability In The Arts, Athletics, Sciences, Education, Or Business

Although all of the Foreign Workers included in the O-1 category must show they have ?extraordinary ability? the definition of extraordinary ability differs according to the field of endeavor.

  • A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien's area of ability;
  • A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
  • Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:
    • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts;
    • Published material in professional or major trade publications, newspapers or other major media about the alien and his work in the field for which classification is sought;
    • Original scientific, scholarly, or business-related contributions of major significance in the field;
    • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
    • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
    • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;
    • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above standards do not readily apply to the alien's occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.

B. Extraordinary Ability in the Arts, Motion Picture, or Television Industry

For applicants in this group, the CIS standard is somewhat less demanding. The Foreign Worker must show he or she has attained a level of accomplishment such that he or she is recognized as outstanding, notable or leading in the motion picture or television field. Note: The Worker does not have to show that he or she is ?at the very top of the profession.? The Employer must produce the following evidence:

  • A written advisory opinion, describing the alien's ability as follows:
    • If the petition is based on the alien's extraordinary ability in the arts, the consultation must be from a peer group (including labor organizations) in the alien's field of endeavor; or a person or persons designated by the group with expertise in the alien's area of ability.
    • If the petition is based on the alien's extraordinary achievements in the motion picture or television industry, separate consultations are required from a labor and a management organization with expertise in the alien's field of endeavor.
  • A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;
  • Evidence the alien has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least three of the following:
    • Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
    • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
    • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
    • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements;
    • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the above standards do not readily apply to the alien's occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.

C. Workers of Extraordinary Ability in the Arts

Artists must show they have achieved a level of ?distinction? in their field which the CIS interprets to mean a level of achievement and skill substantially above that ordinarily encountered so that the artist can truly be described as prominent, leading, or well known in the field. The term ?art? is broadly defined to include (but not limited to) fine arts, visual arts, culinary arts, and performing arts. This category is broad enough to include directors, choreographers, costume designers and others, as well as ?stars.? The evidence to be supplied in these applications is the same evidence as that supplied to Extraordinary Ability in the Arts, Motion Picture, or Television Industry set forth in ?B? above, although it is less stringently applied.

[3] Coming To The United States Temporarily To Perform Services In His/Her Area Of Expertise

Although this category requires an individual of extraordinary ability, the Employer is Not obligated to provide evidence that the Foreign Worker will be providing services of an extraordinary nature. It is enough if the work to be performed is in the Worker's field of expertise. (Thus Pavarotti can come to the U.S. to sing in the chorus and a Nobel laureate can teach an introductory class in physics, but the Nobel laureate cannot sing in the chorus!)

Other Things to Bear in Mind:

  • A person acting as an essential and integral part of the artistic or athletic performance of an O-1 artist or athlete would be classified as an O-2 worker. He or she must perform support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1.
  • An O-2 worker requires (1) A written advisory opinion. If the O-2 petition is for an alien accompanying an O-1 alien of extraordinary ability in the arts, the opinion must be from a labor organization with expertise in the skill area involved. If the O-2 petition is for an alien accompanying an O-1 alien of extraordinary achievement in the field of motion picture or television, the opinion must be from a labor organization or a management organization with expertise in the skill area involved; (2) Evidence of the current essential critical skills, and experience of the O-2 alien with the O-1 alien, and that the alien has substantial experience utilizing the critical skills and essential support services for the O-1. In the case of a specific motion picture or television production, the evidence shall establish that significant production has taken place outside the U.S., and will take place inside the U.S. and that the continuing participation of the alien is essential to the successful completion of the production.
  • The spouses and minor children (dependents) of O-1's are admitted under O-3 status with the same restrictions as the principal. They may not work in the U.S. under this classification.

P-1 Athlete

The P-1 classification applies to an alien coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

Petition Document Requirements

A U.S. employer should file the I-129 petition with:

  • A written advisory opinion from an appropriate labor organization:
  • A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport;
  • Copies of evidence of at least two of the following:
    • Significant participation in a prior season with a major United States sports league;
    • Participation in international competition with a national team;
    • Significant participation in a prior season for a U.S. college or university in intercollegiate competition
    • A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;
    • A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
    • The individual or team is ranked, if the sport has international rankings; or
    • The alien or team has received a significant honor or award in the sport.

P-1 Entertainment Group

The P-1 classification also applies to an alien coming temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period. This person also must have had a sustained and substantial relationship with the group (ordinarily for at least one year) and/or provide functions integral to the group's performance.

Petition Document Requirements

The petition should be filed by a U.S. employer with:

  • A written advisory opinion from an appropriate labor organization;
  • A statement that the group has been established and performing regularly for at least one year;
  • Evidence the group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of the group's receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least 3 of the following:
    • The group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;
    • The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material;
    • The group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
    • The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;
    • The alien has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements; or
    • The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

P-2 Artistic Exchange

The P-2 classification applies to an alien coming temporarily to perform as an artist or entertainer individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.

Petition Document Requirements

The I-129 petition must be filed by the sponsoring organization, an employer in the U.S., or the U.S. labor organization that negotiated the agreement. The petition must be filed with:

  • A written consultation by an appropriate labor organization;
  • A copy of the formal reciprocal exchange agreement between the U.S. organization(s) sponsoring the alien and the organization(s) in a foreign country which will receive the U.S. artist or entertainer;
  • A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which classification is sought;
  • Evidence the alien and the U.S. artist or entertainer subject to the reciprocal exchange agreement are artists with comparable skills and that the terms and conditions of employment are similar.

Evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers.

P-3 Culturally Unique Artists

The P-3 classification applies to aliens coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

Petition Document Requirements

The petition should be filed by the sponsoring organization or employer in the U.S. with:

  • A written consultation from an appropriate labor organization;
  • Affidavits, testimonials or letters from recognized experts attesting to the authenticity of the alien's or group's skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of the alien's or group's skills.
    • Documentation that all of the performances or presentations will be culturally unique events, and;

Documentation that the performance of the alien or group is culturally unique as evidenced by reviews in newspapers, journals or other published materials.

P-1, 2, or 3 (Accompanying Support Personnel)

This category applies to accompanying support personnel who are highly skilled aliens coming temporarily as an essential and integral part of the competition or performance of a P-1, P-2, or P-3. Essential support personnel must perform support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance or services of the athlete or entertainer.

Petition Document Requirements

The petition must be filed in conjunction with the petition for a P-2 alien by a U.S. employer and must be filed with:

  • A written consultation with a labor organization in the skill in which the alien will be involved;
  • A statement describing the alien's prior and current essentiality, critical skills and experience with the principal alien;
  • A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.


Revised January 26, 2004