The Department of Homeland Security publishes a much-anticipated Form I-9 rule. USCIS announces it will conduct a second H-1B registration lottery. And a closer look at two recent Supreme Court cases and their impact on DACA litigation.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The Justice Department questions states’ standing to challenge DACA. Proposed H-2 regulations are under White House review. And a new Form I-9 rule is in the works — but may not take effect in time for employers relying on COVID-related flexible measures.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

Maggie Murphy is a Partner with BAL and leads the Austin office. She specializes in complex, creative business immigration solutions. She has over 20 years of technical experience in immigration law and is an industry leader in PERM, I-9 and E-Verify compliance and business visa case types. We sat down with Maggie to discuss this year’s H-1B season. 

Q: What are some of the challenges with the H-1B visa program you are seeing so far this year? 

A: The cap season was drastically bad for most employers who had registered cases. We didn’t realize that the national average was so low, although we knew that our internal average was falling right into those percentages. But to have less than 20% of registrations selected was unprecedented.  

Q: What are the implications for employers? 

A: The H-1B cap and the lottery process itself has become unreliable because of these low selection numbers compared to registrations. It is forcing employers to plan so much more ahead, and then if they get good candidates who only have one or two chances at the lottery, they are reconsidering whether they should even hire those candidates, which is really a shame. In our economy, and for our U.S. businesses that are trying to attract foreign talent, they are hitting a lot of dead ends. 

Many of our clients are doing contingency planning for their valuable foreign talent who have submitted up to three times and still haven’t been selected in the H-1B lottery. This involves developing training programs for these individuals or finding roles for them in overseas offices. But some are starting to reconsider continuing to recruit from certain foreign programs, such as foreign engineering programs, for example. Particularly, U.S. employers that don’t have international offices and can’t send someone to work in an overseas office, they are considering the E-Verify program so that they can participate in STEM Optional Practical Training (OPT). And they are also starting the permanent residence process early so the individual will have a green card-based work option by the time their OPT expires.  

Q: What do you recommend employers do? 

A: Start planning as early as you can. Unless Congress makes some change, the chances are this cycle of very low selection percentages will continue. It seems to get much lower every year.  

Q: What other options do employers have?  

For employers willing to hire students, there is OPT, which is for temporary employment directly related to a student’s major area of study who is here on an F-1 visa. F-1 visas allow students to work part time while school is in session and full time when school is not in session. Students can stay in the U.S. for one year, and up to three years if they are eligible for an extension. 

Another similar option is Curricular Practical Training (CPT), also for F-1 visa students, which allows students to come to the U.S. for training and to work in paid internship positions. CPT allows for full-time or part-time work. 

The main difference between OPT and CPT is OPT can be completed before or after a student graduates. CPT must be completed before graduation. 

 J-1 visas are for students specifically in the U.S. for educational or cultural exchange programs. Students in J-1 status are allowed to work only part time, not more than 20 hours per week, during an academic year and full time only during summer and official university breaks. 

H-3 nonimmigrant visas allow foreign nationals to come to the U.S. as trainees in any field that is not available in their home country and stay for up to two years. 

Q: What are the options for employers who are not hiring students?  

A: Employers can consider hiring foreign nationals from countries the U.S. has immigration or trade-related treaties with, such as Canada and Mexico (eligible for TN visas), Australia (eligible for E-3 visas), and Chile and Singapore (eligible for H-1B1 visas). 

Q: Are you seeing any of the alternatives become more common? Are employers turning toward L-1s for intracompany transferees or O-1s for those with extraordinary abilities, for example? 

A: An emerging trend among larger companies is to establish a contingency plan specifically for their foreign population. 

What I have seen in the last five years among larger clients that have international offices is some activity in developing rotation programs and using the H-3 trainee visa category for that, especially in the manufacturing and engineering industries. Employers tend to have already established training programs that often are at least three to six months of rigorous training before employees really get into their manufacturing or engineering role. So H-3 has been popular, although it is highly regulated and scrutinized by USCIS.  

Others have started contingency planning for L-1s, developing an international rotation program so they can eventually send a talented person they want to retain in the U.S. to work in a foreign location for a couple of years and then bring them back to the U.S. 

Both the L-1 and the H-3 visas require that the U.S. employer have an affiliated office overseas to either transfer employees to or send them to after their training rotation. 

Q: If employers have questions about any of these alternatives or want to learn more about a specific option we have discussed, how can they reach you? 

A: They are welcome to email me directly at mmurphy@bal.com. 

DALLAS, July 18, 2023 – Fast Company named BAL among the Top 100 Best Places to Work for Innovators based on the firm’s investments in culture, technology and talent development.

“BAL is leading the legal industry to revolutionize the client experience, delivering fast, holistic and bespoke services to companies and foreign nationals alike,” said CEO Jeremy Fudge. “Everything starts with our people; we invest to create an environment where we can pursue the exceptional for our clients and one another.”

The recognition included BAL’s unique oneBAL culture of collaboration across all offices and its strategic investments in people through innovative employee development programs.

“While ‘digital transformation’ has been a popular buzz word, most companies and law firms have translated it to mean simply making paper processes electronic” said Chief People and Culture Officer Nicole Dawson. “At BAL we leverage technology to significantly strengthen our culture, better support our people and maximize the impact of our leadership development programs.

BAL’s in-house technology team is unique in the legal industry. By working alongside our legal teams, our technology team quickly produces effective solutions that dramatically improve the immigration process.

“Recently, we reimagined the multistep workflow required to file the most common work visa application with the U.S. government” said CIO Jason Chancellor. “We’ve streamlined the process to save our teams and clients tens of thousands of hours a year, and reduced human error thanks to AI-powered verification.”

BAL is continuing to pursue an aggressive innovation agenda through the end of this year and beyond.

“This recognition from Fast Company not only honors the great work happening across BAL, but provides even more energy and momentum as we continue those efforts,” Fudge said.

About BAL
Established in 1980, Berry Appleman & Leiden (BAL) powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 12 offices across the United States and global coverage in more than 185 countries around the world, operates as a single entity through its oneBAL culture — a uniquely holistic approach, intentionally structured as one team, one brand, one P&L, one standard of excellence and one unifying technology. This united approach enables the firm to deliver the highest level of knowledge, insights and resources from across the entire organization. At BAL, we pursue the exceptional. To learn more, visit bal.com.

Media Contact:
Emily Albrecht
Senior Director — Marketing & Communications
ealbrecht@bal.com
469-559-0174

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

What is the H-1B classification?

H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:

  • Specialty Occupations — This includes beneficiaries who are coming to the U.S. to perform services in a “specialty occupation.” A specialty occupation is a position that normally requires a bachelor’s degree (or higher degree) in a specific field. This is the most common type of beneficiary in the H-1B classification.
  • Department of Defense Cooperative Research and Development Projects — This includes beneficiaries who will work in cooperative research and development projects administered by the U.S. Department of Defense.
  • Fashion Models — This includes beneficiaries who are fashion models of distinguished merit and ability.

What are the general requirements for the H-1B classification?

The main requirements to be eligible for the H-1B classification are:

Employer-Employee Relationship

The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.

Specialty Occupation

The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s degree (or higher degree) in a specific field as a minimum for entry into the occupation.

Paid Actual Wage or Prevailing Wage

The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:

  • Actual Wage — The wage rate paid by the employer to employees with similar experience and qualifications for that position.
  • Prevailing Wage — The wage rate required by a union contract or the average wage rate paid to similarly employed workers in the specific geographic area.

Foreign National’s Qualifications

The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.

What limits are there on the H-1B classification?

Annual Cap of H-1B Visas

The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.

Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.

Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!

Time Limitations

H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.

In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.

After reaching six years in H-1B classification, the foreign national may:

  • Change to a different nonimmigrant classification in order to continue working in the U.S., if the foreign national is eligible for another classification;
  • Obtain lawful permanent residence (a “green card”) to continue working in the U.S.; or
  • Depart and remain outside of the U.S. for one continuous year before obtaining a new H-1B visa from the available 85,000 each fiscal year.

Extensions Beyond Six Years

There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:

  • Have a Form I-140 (Immigrant Petition for Alien Worker) approved on the foreign national’s behalf but be unable to receive lawful permanent residence (a “green card”) due to a backlog of immigrant visa availability for the foreign national’s country of birth; or
  • Have a Labor Certification and/or I-140 (Immigrant Petition for Alien Worker) filed on the foreign national’s behalf at least 365 days before the end of the foreign national’s six years in H-1B classification.

What is the process to obtain H-1B classification?

Obtaining H-1B classification requires a number of steps:

  • File online registration for cap-subject H-1B — If the foreign national is subject to the annual cap of 85,000 new H-1B visas, the employer must file an online registration form during the H-1B cap registration period in March. After the registration period closes, USCIS conducts a lottery to select registrations. If USCIS selects a registration filed by the employer, the employer may file an H-1B cap petition on Form I-129 (Petition for Nonimmigrant Worker) for the foreign national named in the registration. If the foreign national is not subject to annual cap, the H-1B process starts with obtaining a certified Labor Condition Application (LCA) described below.
  • Obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor — The employer must prepare a Labor Condition Application (LCA) to file with the U.S. Department of Labor. This process requires the employer to attest to the working conditions and wages for the intended foreign national. The employer must also post copies of the LCA or notice of filing at relevant work locations to provide notice to other employees that it will be filing the LCA with the U.S. Department of Labor. The employer must submit the LCA to the U.S. Department of Labor for certification.
  • File Form I-129 (Petition for Nonimmigrant Worker) with USCIS  The employer must submit a Form I-129 (Petition for Nonimmigrant Worker) to USCIS with information and supporting documentation to demonstrate that the position and foreign national qualify for the H-1B classification. Premium processing is available for Form I-129 petitions filed with USCIS for the H-1B classification.

Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.

 

What is the difference between H-1B “change of status” petitions and H-1B “consular” petitions?

If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.

Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.

Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.

When will H-1B status take effect?

If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.

Do all foreign nationals have to travel to activate H-1B status?

If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.

What do foreign nationals need in order to obtain an H-1B visa stamp at a U.S. embassy or consulate abroad?

Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.

Are family members of H-1B workers eligible for nonimmigrant classification?

Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.

BAL can help!

Do you need BAL to file H-1Bs for your employees/organization? Click here to to contact us so we can help.

 

There are several types of Business Visitor classifications in the U.S. This article focuses on the B-1 visa, as well as visa waiver programs. There are also visas for entrepreneurs and investors.

What is the B-1 classification?

The B-1 is a nonimmigrant classification for temporary business visitors to the U.S. As opposed to workers in the U.S., B-1 visitors may enter the U.S. for the purpose of engaging in business but not for the purpose of being employed. Commercial or professional activities that are not employment are permitted under B-1 visitor status.

Examples of permissible commercial or professional activities include (but are not limited to):

  • Consulting with business associates;
  • Attending conventions or conferences;
  • Attending short-term training (as long as the visitor is not receiving any salary from a U.S. source or engaging in any productive employment);
  • Negotiating contracts;
  • Participating in business meetings;
  • Taking orders for foreign goods, or other commercial transactions that do not involve gainful U.S. employment;
  • Litigation; or
  • Independent research or professional artistic activities (e.g., recording music or creating artwork) that do not involve income from a U.S. source.

The range of acceptable business activities that fall under the B-1 classification is fact-specific and often depends on whether the activities constitute employment while in the U.S. Factors that influence whether activities constitute employment include whether the foreign national will be paid by a U.S. company or perform labor for hire in the U.S.

What are the general requirements for the B-1 classification?

Generally, the legal requirements that must be met to obtain a B-1 visa include:

  • The foreign national’s entry to the U.S. is for a limited and defined duration;
  • The foreign national intends to depart the U.S. at the expiration of his/her stay;
  • The foreign national has adequate financial resources for travel to and from the U.S. and for the stay in the U.S., without being employed in the U.S.; and
  • The foreign national will engage solely in legitimate activities relating to business, and has specific and realistic plans for his/her U.S. activities.

What is the process to obtain B-1 classification?

Foreign nationals outside the U.S. can obtain B-1 classification by applying for a B-1 Temporary Business Visitor visa through the U.S. Department of State (DOS) at a U.S. Consulate or Embassy. For more information regarding the consular application process, check out BAL’s explainer video, which describes the process for applying for a nonimmigrant visa at a U.S. Consulate or Embassy.

After DOS issues the B-1 visa, the foreign national may seek admission to the U.S. in B-1 status. Chinese nationals who receive a 10-year B-1 visa must enroll in the Electronic Visa Update System (EVUS).

Foreign nationals inside the U.S. can apply for B-1 status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with U.S. Citizenship and Immigration Services (USCIS).

Foreign nationals who already hold B-1 status in the U.S. can apply to extend their status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with USCIS.

What limits are there on the B-1 classification?

Foreign nationals may be admitted to the U.S. in B-1 status for a period of up to six months, and they may apply to extend their B-1 status in the U.S. in periods of up to six months. Due to the temporary nature of the classification, extensions are not generally permitted beyond one year.

B-1 classification is not for employment in the U.S. This means that foreign nationals in B-1 status generally cannot receive a salary or income from a U.S.-based company while in the U.S. Foreign nationals who will be in the U.S. to engage in commercial transactions, such as meeting with buyers and accepting orders, must produce the resulting goods or services outside the U.S.

Foreign nationals in B-1 status are not permitted to enroll in a course of study in the U.S.

What is the Visa Waiver Program (VWP)?

The Visa Waiver Program (VWP) allows citizens and nationals of countries participating in the program to travel to the U.S. for periods of up to 90 days without being required to obtain a visa. If entering the U.S. using the VWP, a foreign national will automatically be granted a stay of 90 days. In most cases, foreign nationals using the VWP are not eligible to apply for extensions of stay and must depart the U.S. within the 90-day period.

Nationals of VWP countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, must obtain a B-1/B-2 visa prior to traveling to the U.S. Additionally, individuals who have traveled to Cuba on or after January 12, 2021, or are nationals of Cuba are not eligible for VWP and must obtain a B-1/B-2 visa to enter the U.S. Dual nationals of Iran, Iraq, Sudan, or Syria must also obtain a B-1/B-2 visa.

What are the general requirements for the Visa Waiver Program?

To qualify for the VWP, a foreign national must meet the following requirements:

  • The purpose of travel must be permitted under the B-1 Temporary Business Visitor classification or the B-2 Tourism classification;
  • The foreign national must be a citizen or national of a VWP Designated Country (a list of currently designated countries is available on the U.S. Department of State’s website);
  • The foreign national must typically have a valid, machine-readable electronic passport with a digital chip and a digital photograph printed on the passport data page. The passport must remain valid for at least six months beyond the intended departure date from the U.S.; and
  • The foreign national must have a valid Electronic System for Travel Authorization (ESTA) prior to boarding transportation to the U.S.

What is the Electronic System for Travel Authorization (ESTA)?

The Electronic System for Travel Authorization (ESTA) is a web-based system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk.

All travelers under the VWP must submit a pre-clearance application online or through the ESTA mobile app. Each approved ESTA application is generally valid for a period of two years, such that a Visa Waiver Program visitor may travel to the U.S. repeatedly within the two-year period without being required to apply for another ESTA. Individuals must obtain a new ESTA approval if they receive a new passport or if their information changes.

ESTA is not a visa but rather a requirement for entry to the U.S. under the VWP. However, like a visa, an ESTA approval is not a guarantee of admission to the U.S. An ESTA approval authorizes an individual to board a carrier for travel to the U.S. under the VWP.

BAL can help!

Looking for expert immigration assistance for your personal or your employee’s upcoming business visits to the U.S.?  Contact us now for help with the application process, including support on how to prepare an invitation letter for business purposes.

PERM: Labor Certification Basics

What is a PERM Labor Certification and when is it required?

A Labor Certification is a document issued by the U.S. Department of Labor (DOL) that is required for many immigrant visa preference categories. The filing of a Labor Certification application with DOL by the sponsoring employer is an early step in the multi-step process for a foreign national to obtain permanent residence (a “Green Card”). The system that DOL uses to process employers’ applications for Labor Certifications is called Program Electronic Review Management, also known as “PERM.”

As part of the Labor Certification process, the employer is required to test the labor market and demonstrate that there are no U.S. workers in the geographic area of employment who are able, willing, qualified, and available to perform the job in question, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

An employer sponsoring a foreign national for the following immigrant visa preference categories must obtain an approved Labor Certification from DOL before a Form I-140 (Immigrant Petition for Alien Workers) can be filed with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national:

  • EB-2 Second Preference Category — This category includes individuals with Advanced Degrees and Exceptional Ability. Individuals applying for EB-2 Second Preference based on a National Interest Waiver are not required to obtain a Labor Certification.
  • EB-3 Third Preference Category — This category includes individuals who are Skilled Workers, Professionals, and Unskilled Workers (Other Workers).

To qualify for a Labor Certification, the employer must demonstrate:

  • There is a bona fide, full-time permanent job opening that is available to U.S. workers.
  • The job requirements adhere to what is customarily required for the occupation in the United States and are not tailored to the foreign worker’s qualifications. The job opportunity must be described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
  • The employer will pay at least the prevailing wage for the occupation in the area of intended employment.

What is the process to obtain a PERM Labor Certification?

Obtaining a Labor Certification is a multi-month process that requires a number of different steps, including:

Prepare a Job Description or Job Summary — The employer must identify the specific duties and the minimum education, skills, and experience required for the job opportunity.

Obtain a Prevailing Wage Determination — The employer must request and obtain a prevailing wage determination from DOL. This requires the employer to file a Form ETA 9141 (Application for Prevailing Wage Determination) that describes the job opportunity. DOL assesses this information and issues a determination of the prevailing wage for the occupation in the intended area of employment.

The employer must agree to pay the foreign national at least the prevailing wage when the foreign national receives lawful permanent residence (a “Green Card”) based on the Labor Certification.

Recruitment — The employer must conduct and document recruitment efforts for the job opportunity in order to demonstrate that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. This involves a number of different forms of recruitment:

  • Mandatory Recruitment Steps — These recruitment steps are required for all Labor Certification applications:
    • Job Order — Placement of a job order for a period of 30 days with the State Workforce Agency (SWA) serving the area of intended employment.
    • Advertisements in Newspaper or Professional Journals  Placement of a job opening advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the type of workers likely to apply for the opportunity. Under certain circumstances, employers may use a professional journal for one of the Sundays instead of a newspaper of general circulation.
  • Additional Recruitment Steps for Professional Occupations — If the job opportunity is for a professional occupation, the employer must also complete three additional recruitment steps from the list below:
    • Job Fairs — Recruitment at a job fair.
    • Employer’s Website — Recruitment on the employer’s own website.
    • Job Search Website — Recruitment on a job search website other than the employer’s own website.
    • On-Campus Recruiting — On-campus recruitment through a college or university.
    • Trade or Professional Organizations — Recruitment through newsletters or trade journals for the occupation.
    • Private Employment Firms — Recruitment through a private employment firm or job placement agency.
    • Employee Referral Program — Recruitment through an employee referral program with incentives.
    • Campus Placement Offices — Recruitment through a university’s or college’s job placement office.
    • Local and Ethnic Newspapers — Recruitment through advertisements in a local or ethnic newspaper.
    • Radio and Television Advertisements — Recruitment by radio or television advertisement.

The employer must document that it received job applications through these recruitment methods, that it reviewed the applications and contacted applicants that appeared qualified for the job opportunity, and that it determined each applicant was not able, willing, qualified, or available for the job opportunity. The employer must retain this documentation for five years from the date of filing the Labor Certification application with DOL.

Application for Labor Certification (PERM) — The Labor Certification application is submitted to DOL on the online Form ETA 9098. The form requires the employer to attest to the duties and minimum qualifications for the job opportunity, the recruitment steps it undertook, and that it did not identify any able, willing, qualified, and available U.S. workers for the position during recruitment.

Potential Audit — While supporting documentation is not submitted to DOL at the time of filing the Labor Certification application, DOL has the authority to conduct an audit on a pending application. If DOL initiates an audit, the employer must submit documentation demonstrating it complied with all applicable regulations and policies.

Labor Certification Decision — DOL will notify the employer when it approves or denies the Labor Certification. An approved Labor Certification allows the employer to file a Form I-140 (Immigrant Petition for Alien Worker) with USCIS on behalf of the foreign national, which will classify the foreign national for an immigrant visa preference category. The Form I-140 petition must be filed with USCIS within 180 days of the Labor Certification approval.

For more information regarding the PERM process, check out BAL’s explainer video that describes the PERM application process, including required information/documentation, case preparation, filing with the government, and approval.

What is the timeline for obtaining a PERM Labor Certification?

The timeline for obtaining an approved Labor Certification depends on a number of factors, including:

  • Timeline for Recruitment — For professional occupations, the mandatory job order with the State Workforce Agency must be posted for at least 30 days. In addition, only one of the three additional recruitment steps can take place solely during the 30-day period before filing the Application for Labor Certification.
  • Timeline for Filing the Application for Labor Certification — The Labor Certification application must be filed with DOL within the 180 days from the time the recruitment began.
  • DOL’s Processing Times — DOL generally processes prevailing wage determination requests and Labor Certification applications in the order it receives them. The processing time may vary depending on the number of requests and applications DOL has pending at any given time. Current processing times for prevailing wage determination requests and pending Labor Certification applications can be viewed on DOL’s website.
  • Whether DOL Conducts an Audit — If DOL selects the Labor Certification application for audit, it will request additional documentation to demonstrate that the employer complied with all applicable requirements. This significantly delays the Labor Certification processing time.

Click here to access BAL’s PERM Application Process Video for what to expect during your PERM process.

IMMIGRANT PREFERENCE CATEGORIES

What is the EB-1 First Preference category?

EB-1 or First Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-1 First Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of foreign nationals who may qualify for the EB-1 category:

  • Individuals of Extraordinary Ability (EB-1A) — This includes those who have sustained national or international acclaim in the sciences, arts, education, business, or athletics.
  • Outstanding Professors and Researchers (EB-1B) — This includes those who have received recognition for outstanding achievements in a particular academic field.
  • Multinational Managers or Executives (EB-1C) — This includes those who have been employed as a manager or executive for a firm or company outside the U.S. and will be employed as a manager or executive for a related employer in the U.S.

What is the EB-2 Second Preference category?

The EB-2 or Second Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-2 Second Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their:

  • Advanced Degree — This includes foreign nationals who possess at least an advanced degree (a master’s degree or higher); or
  • Exceptional Ability — This includes foreign nationals with exceptional ability in the sciences, arts, or business.

This category typically requires a job offer from an employer and a PERM Labor Certification from the U.S. Department of Labor (DOL), but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW).

What are the requirements for the EB-2 NIW category?

The EB-2 NIW category includes foreign nationals who:

  • Hold an advanced degree or claim exceptional ability in the sciences, arts, or business; and
  • Qualify for an exemption of the requirement of a job offer, and thus a PERM Labor Certification, on the basis of the U.S. national interest.

This category allows self-sponsorship. An employer may file Form I-140 on behalf of the foreign national, but a foreign national may also file Form I-140 on their own behalf as a “self-petitioner” without an offer of employment from a U.S. employer or a PERM Labor Certification from the DOL.

The EB-2 NIW is a highly specialized Green Card category for foreign nationals who can show that their work in their field is of “national interest” to the U.S.

In addition to demonstrating that the foreign national is a professional holding an advanced degree or of exceptional ability in the sciences, the arts, or business, to receive the EB-2 NIW approval, the foreign national must demonstrate that they meet the following three criteria:

  • The employee’s proposed endeavor has both substantial merit and national importance. 
  • The employee is well-positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a PERM Labor Certification for the employee. 

What is the EB-3 Third Preference category?

EB-3 or Third Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-3 Third Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of circumstances that may qualify for the EB-3 Third Preference category:

  • Skilled Workers — This includes foreign nationals who will be employed in a job that requires at least two years of training or work experience and is not of a temporary or seasonal nature.
  • Professionals — This includes foreign nationals who will be employed in a job that requires at least a U.S. bachelor’s degree or foreign equivalent, and who are members of a “profession.”
  • Unskilled Workers (Other Workers) — This includes foreign nationals who will be employed in a job that involves unskilled labor requiring less than two years of training or work experience and is not of a temporary or seasonal nature.

Click here for more info on upgrading or downgrading between EB-2 and EB-3 categories.

What is the EB-4 Fourth Preference category?

EB-4 or Fourth Preference category is an employment-based immigrant classification for “special immigrants.” Foreign nationals who qualify for the EB-4 Fourth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are a range of “special immigrants” who may qualify for the EB-4 Fourth Preference category:

  • Religious workers;
  • Special immigrant juveniles;
  • Broadcasters;
  • G-4 International Organization or NATO-6 employees and family members;
  • International employees of the U.S. Government abroad;
  • Armed forces members;
  • Panama Canal Zone employees;
  • Certain physicians;
  • Afghan and Iraqi translators; and
  • Afghan and Iraqi nationals who have provided faith service in support of U.S. Operations.

What is the EB-5 Fifth Preference category?

EB-5 or Fifth Preference category is an employment-based immigrant classification for investors. Foreign nationals who qualify for the EB-5 Fifth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are two types of requirements to qualify for the EB-5 Fifth Preference category:

  • Make the necessary investment of capital in a commercial enterprise in the U.S.; and
  • Plan to create or preserve the required full-time jobs for qualified U.S. workers.

Green Cards: Adjustment of Status & Consular Processing Basics

What is the difference between adjustment of status and consular processing?

After a foreign national is the beneficiary of an approved immigrant visa petition and an immigrant visa number is immediately available, there are two ways to apply for lawful permanent resident status (also known as a “Green Card”).

For example, an H-1B worker in the U.S. may pursue adjustment of status to a lawful permanent resident after being sponsored for an immigrant visa by his or her employer. The H-1B worker would file an application requesting that U.S. Citizenship and Immigration Services (USCIS) adjust his or her status to that of a lawful permanent resident.

Consular processing is the process of applying for an immigrant visa outside the U.S. in order to be admitted as a lawful permanent resident. Consular processing requires the applicant to depart the U.S. and attend an interview with the U.S. Department of State Embassy or Consulate outside the U.S. in order to obtain an immigrant visa authorizing admission to the U.S. as a lawful permanent resident.

For example, the same H-1B worker in the U.S. may pursue lawful permanent residence through consular processing. However, in order to return to the U.S. as a lawful permanent resident, the H-1B worker would file an immigrant visa application with the U.S. Department of State, attend a visa interview at a U.S. Consulate or Embassy outside the U.S., obtain an immigrant visa, and return to the U.S. to be admitted as a lawful permanent resident.

What is the process for adjustment of status?

An application for adjustment of status is submitted to USCIS on a Form I-485 (Application to Register Permanent Residence or Adjust Status). In general, foreign nationals may not apply for adjustment of status until a visa number is available for the specific immigrant visa category. The U.S. Department of State’s monthly Visa Bulletin determines when foreign nationals are eligible to file a Form I-485 application with USCIS based on their priority date.

After filing the Form I-485 application, applicants must attend a biometrics appointment at a USCIS Application Support Center to provide fingerprints, a photograph, and signature. USCIS will review the Form I-485 application and notify the applicant if additional documentation and/or an interview is required. After the additional documentation has been submitted and/or the interview has occurred, USCIS will determine whether to grant or deny the application. If USCIS grants the application, it will mail an approval notice to the foreign national and adjust the status of the individual to a lawful permanent resident. USCIS will mail the Green Card at a later date.

Check out BAL’s explainer video that describes the process of completing the USCIS interview stage of the Adjustment of Status application, including required information/documentation, questions that may be asked, and the events following the interview appointment.

What is the process for consular processing?

Consular processing requires the foreign national to wait for notification from the U.S. Department of State’s National Visa Center (NVC) that he or she is eligible to submit an immigrant visa application. When NVC determines that an immigrant visa number is about to become available, it will notify the beneficiary to submit the required fees and supporting documentation for the immigrant visa application. When the foreign national’s priority date is current according to the most recent Visa Bulletin, the U.S. Consulate or Embassy will contact the foreign national to schedule an immigrant visa interview.

After the foreign national attends the immigrant visa interview, the U.S. Department of State will determine whether to grant or deny the application. If the U.S. Department of State grants the application, it will provide the foreign national with a sealed visa packet that they must provide to U.S. Customs and Border Protection (CBP) at a U.S. port of entry. CBP will review the documentation contained in the visa packet and determine whether to admit the foreign national to the U.S. as a lawful permanent resident. If the individual is admitted to the U.S. as a lawful permanent resident, he or she will receive a Green Card in the mail within a few weeks of entering the country.

BAL can help!

Looking for expert immigration assistance to create and manage a customized and strategic immigration program for your company? Contact us now.

What is the Form I-9?

The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.

Check out this video made by USCIS regarding the Form I-9.

Are there deadlines to complete the form?

Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.

Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.

A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.

When does an employer need to complete a Form I-9?

All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.

In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.

What Employers Should Expect of the I-9 Audit?

In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.

Why Do You Need an Internal I-9 Audit?

Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us  for more information!

I-9 Compliance Guidance for Certain Employees That Fall Into Special Categories:

  • Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
  • Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
  • Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses.
  • Minors: Individuals under the age of 18.
  • Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
  • Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
  • Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Foreign students: Individuals traveling temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.
  • Exchange visitors: Individuals traveling temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State.
  • E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who travel to the U.S. under such treaty. This category also includes Australian specialty occupation workers.
  • NAFTA (TN) workers: Professionals and other workers from Canada and Mexico traveling temporarily under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico.
  • Temporary nonimmigrant workers: Individuals traveling to the U.S. lawfully as nonimmigrants to work temporarily in the U.S.
  • Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by or merge with another company.
  • Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.

Exceptions for Completing and Retaining Form I-9

In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:

  1. Individuals not physically working in the U.S.
  2. Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times (some limitations to this exception apply); and individuals hired for employment in the CNMI on or before Nov. 27, 2009.
  3. Individuals employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis.
  4. Independent contractors or individuals providing labor if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).

Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.

BAL can help!

BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us  for more information!

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

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