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Hundreds of thousands of student athletes have made money from their name, image and likeness since the National Collegiate Athletic Association first allowed them to do so on July 1, 2021. While these deals have provided financial support for athletes at all levels of college sports, one group has been left out: student athletes from outside of the United States.
This is because most foreign student athletes are in the U.S. on F-1 student visas, which place strict limits on their ability to work. The federal government has not expressly said whether NIL activities, such as signing autographs, making appearances or posting on social media, constitute impermissible “work,” leading to inequities among not only athletes but also schools. Some schools take a cautious approach, while others promise foreign student athletes the chance to participate in NIL activities with little regard to potential visa violations. In order to best advocate for foreign student athletes and their schools, the BAL Sports & Entertainment and Government Strategies teams set up a series of virtual roundtables with NCAA Division I schools to learn more about their experiences and solicit their insights.
The schools hailed from all parts of the country and represented several athletic conferences, including each of the NCAA’s Power Five conferences. And while they all brought a unique perspective, they stressed some of the same themes over and over again:
Across the board, schools said they want clear, precise guidance defining what NIL activities are permissible for F-1 foreign student athletes. More than any specific recommendation, schools were united on this point. They want clarity.
Absent guidance, athletic departments are under tremendous pressure to find workarounds or loopholes to attract and retain foreign student athletes. Some schools have promised foreign student athletes guaranteed NIL participation, despite the lack of clear rules on whether such activities are permissible on F-1 visas. This exposes students to potential visa violations, which could permanently affect their ability to travel to the U.S. to work, study or live.
The lack of immigration policy has led many schools to take a conservative approach, excluding foreign student athletes from NIL activities, including team-wide NIL deals. This creates inequities among not only players but also schools, some of which are less cautious. The exclusion of foreign student athletes from NIL activities complicates team and locker room dynamics, impacting team performance and morale.
Permitting foreign student athletes to engage in NIL activities supports economic growth in the U.S. While a handful of multimillion dollar endorsement deals steal the headlines, most happen at the state or local level, supporting jobs in university communities. These communities do not get the full benefit of NIL-related income when foreign student athletes are not allowed to participate. Rather, few U.S. businesses can partner with foreign student athletes, provided they leave the U.S. to conduct NIL activities abroad.
Participating in NIL activities plays an important part in the student athlete experience and the overall development of the student in their educational and cultural experience in the U.S. Though limited options may exist for some foreign student athletes to change their visa to cash in on their NIL, universities are hesitant to pursue these routes as these athletes are first and foremost students, not employees.
As we see with men’s and women’s college basketball, college sports is an increasingly international affair. As of 2022, there were more than 24,000 foreign student athletes in Division I, II and III sports. Foreign student athletes made up 12.8% of Division I athletes, including 15% of men’s college basketball players and 13% of women’s college basketball players. In both men’s and women’s Division I tennis, more than 60% came from outside of the U.S.
The inability of foreign student athletes to participate in NIL hinders the ability of U.S. schools to compete for the best international collegiate athletic talent. Foreign student athletes must be able to benefit from their NIL just as their U.S.-born teammates do. The need for government action is clear.
The patchwork of state NIL laws have prompted calls for federal NIL legislation more broadly, and at least one proposal would allow foreign student athletes to make money off their NIL without jeopardizing their F-1 status. Thus far, legislative efforts have fallen short, even with recent support from the most prominent collegiate athletic conferences.
In the absence of legislation, as we have previously argued, the Department of Homeland Security can and should publish clarifying policies on permissible NIL activities for F-1 student athletes. The Student and Exchange Visitor Program and Homeland Security Secretary Alejandro Mayorkas have both indicated they will provide guidance, but so far nothing has materialized.
The BAL Sports & Entertainment and Government Strategies teams will continue to support efforts and press the federal government to address NIL for foreign student athletes. Until then, schools must carefully evaluate the NIL landscape when developing policies for foreign student athletes. F-1 student athletes must also be cautious in their NIL activities since visa violations may render them ineligible for visas in the future.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports & Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C., office. She is a member of the firm’s Government Strategies and Sports & Entertainment teams.
If your business is facing seasonal or other short-term staffing needs, or economic uncertainty is impacting your permanent hiring decisions, H-2 visas for temporary workers may be the answer.
The need for labor is considered to be temporary if it is:
There are two H-2 visa options to consider based on your industry.
H-2A visas are appropriate for any agriculture-related industry requiring temporary or seasonal help and allow workers to remain in the U.S. for one year, but employers can request extensions annually for up to three years. At the end of three years, the worker must leave the U.S. before seeking readmission. There are no government caps on the number of H-2A visas allowed each year.
H-2B visas are used for many industries and allow workers to remain in the U.S. for up to three years, and, like the H-2A visa, the worker must leave the U.S. before seeking readmission. Also, the government caps the number of H-2B visas allowed each year, and eligible workers are selected via a lottery.
Both types of H-2 visa holders are entitled to prevailing wages and standards of employment, worker’s compensation benefits, as well as certain housing and education benefits for them and their families. The spouse and children under 21 years of age of H-2 visa holders may seek admission on H-4 visas but are not eligible for employment.
To obtain either type of H-2 visa, an employer must show that:
Meeting these requirements is integrated into the application process for both types of H-2 visas.
The H-2A process should be started 60 to 75 calendar days before the job’s start date. The process involves these basic steps:
The H2-B process should be started at least 150 calendar days before the job’s start date. This visa type’s process includes all of the above but also requires employers to first obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center (NPWC) before applying for temporary labor certification. The DOL determines the prevailing wage for the particular role and the employer must agree to pay at least that wage. Employers for H-2B workers must include the DOL’s prevailing wage determination in their application for temporary labor certification.
While we have simplified launching a temporary workers program, employers often face significant challenges, including:
BAL’s experienced immigration attorneys Ashley Foret Dees and Jeff Joseph can provide straightforward counsel on successfully navigating the H-2 visa processes. Get the temporary help your business needs on your terms, from assessing candidates to managing the documentation and responding to government agencies, ensuring compliance and reducing risk.
SAN FRANCISCO and DALLAS, September 13, 2023 — BAL, the global corporate immigration law firm helping businesses and individuals navigate complex immigration issues, announces today the appointment of Frieda Garcia as Managing Partner. Frieda is the first woman and Latina to serve in this role and the third managing partner in BAL’s 43-year history. In her new role, Frieda oversees all aspects of the firm’s legal operations and ensures that teams across the firm’s 13 offices are working together seamlessly to deliver best-in-class immigration services while building on the firm’s oneBAL culture. She continues to lead efforts to attract new clients and deliver exceptional service to the firm’s clients.
“This achievement is a significant personal and professional milestone for me. I knew early on that the foundation of the open-door policy set by BAL’s s founding partners would allow me to grow and shine as long as I kept asking questions, raising my hand to help manage complex issues and finding creative ways to enhance our firm’s culture,” said Frieda. “My journey to reach this position has been defined by cultivating meaningful relationships, hard work and sacrifice, as well as unique challenges that working mothers face while building their careers. With my position, I hope to inspire and pave the way for others like me to continue BAL’s legacy of powering human achievement.”
“For over two decades, Frieda has been a distinguished leader and mentor at BAL, and she has truly exemplified our commitment to pursue the exceptional,” said Jeremy Fudge, CEO at BAL. “Frieda’s strong character, incredible legal acumen, steady presence and grace will enable BAL to continue to make a positive difference in people’s lives.”
Additionally, in celebration of Hispanic Heritage Month, BAL is putting a spotlight on Frieda’s 22-year career at the firm. Her integrity and energy became vital to its growth and culture, and she has been instrumental in spearheading the firm’s most prominent immigration programs in the technology, finance and travel service industries. Since she started at BAL in 2001, BAL has grown from two offices to 13, a testament to her contributions to the firm’s growth and success.
Frieda’s life and career have been profoundly shaped by her family’s personal immigration journey. She was born in the U.S., but at a very young age, moved back to El Salvador with her parents. After losing her mother to cancer at the age of four and spending several years in a war-torn country, Frieda’s father obtained a work visa and moved the family back to the U.S. when she was eight. Driven by her experiences, Frieda pursued higher education at the University of California, Davis, and the University of San Francisco School of Law. It was during this time that she discovered her passion for immigration law, and she began her career assisting asylum applicants and defending deportation cases.
Among her many awards and honors, Frieda has been recognized by Best Lawyers every year since 2016. Last year, she won a Corporate Counsel’s 2022 Women, Influence & Power in Law Award for Thought Leadership. Frieda and her two daughters are members of the National Charity League, a group of mothers and daughters committed to community service, leadership development and cultural experiences. Their hands-on philanthropic engagement spans 200 hours per year, and in recognition of their dedication and time, her daughters have both earned The President’s Volunteer Service Award.
Frieda’s appointment is a significant achievement for Latinas in the legal field, showcasing BAL’s unwavering commitment to fostering diversity, equity and inclusion within the industry. The NALP reports Black and Hispanic women are the most underrepresented in partner ranks, and in 2022, Latina women accounted for less than 1% of all law partners. BAL takes immense pride in its commitment to diversity and understands that it’s a key strength that enables the firm to deliver exceptional service to clients. Recognized as the most diverse law firm, people of color at BAL represent 63% of employees and 54% of attorneys. Notably, 62% of BAL’s equity partners are people of color.
About BAL
Established in 1980, BAL powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 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
You may have seen the news recently.
“U.S. Passport Holders Will Need a Visa to Travel to Europe in 2024.”
“European Union to require U.S. travelers with passports to fill out visa application.”
“Europe Will Roll Out an Entry Fee and Visa Requirement Next Year.”
These headlines are not technically correct. The European Union is not imposing a visa requirement on Americans; however, the EU is moving to launch a new electronic travel authorization program that will make business travel and tourism slightly more complicated for nationals of 60 visa-exempt countries, including the United States.
The European Travel Information and Authorization System, or ETIAS, is expected to take effect sometime in 2024 (no exact date has been provided). It will operate similarly to Electronic System for Travel Authorization (ESTA), which the United States implemented for visa-waived travelers in 2007 as part of a group of post-9/11 reforms. ETIAS is designed to work as a “digital watchdog” for Europe and will be required for 30 EU/Schengen Area countries.
The good news is the process for obtaining travel authorization will be fairly simple. Applicants will log on to the ETIAS website or app; provide personal and travel information, including passport details; and pay a €7 fee (for travelers between 18 and 70; others can apply for free). In most cases, applicants will often receive travel authorization within minutes — though it could take longer, as discussed below. Travel authorization will remain valid for three years, or until an individual’s passport expires, whichever comes first.
Assuming the system works as intended, travelers will likely only face headaches if they forget to apply for ETIAS — or wait until the last minute.
Our advice? Start planning now.
ETIAS will take effect for 60 visa-waived countries, representing 1.4 billion people on six continents, all at once. Travelers should expect delays, and even a possible system crash.
On the business front, we predict that companies’ policies will vary. Some companies may apply for ETIAS on behalf of business travelers (ETIAS does allow third-party applications with a bit of additional legwork); others may have employees apply on their own, similar to how the U.S. ESTA program is handled.
What’s important is that employers communicate with employees about the upcoming requirement, update internal resources, speak with travel desk and/or business travel vendors, and ensure their employees apply well ahead of time. While most applications will be resolved in minutes, some could take up to 14 days if flagged for additional information — or up to 30 days if flagged for an interview.
ETIAS also does not do away with other travel and immigration rules. It only permits for stays of up to 90 days in a rolling 180-day period, and allows for the same activities as visitors are used to — business activities and tourism — but not work. Individuals traveling with an ETIAS must ensure the passport details on their ETIAS match their actual passport. Discrepancies may lead to boarding refusals or complications at the border. Non-exempt nationals must still apply for a visa.
Those visiting Ireland or the United Kingdom will not apply for travel authorization through ETIAS, though the U.K. is phasing in an Electronic Travel Authorization program of its own.
New travel requirements often catch people off guard. The end of free movement between the EU and U.K. took some by surprise even after Brexit had been in the news for years. With ETIAS, neither travelers nor companies should be intimidated. When it comes to business travel, however, the sooner companies can develop plans and identify who will own the ETIAS process, the better they, and their workforce, will be prepared for the upcoming change
DALLAS (Aug. 17, 2023) — Nearly four dozen BAL attorneys have been recognized by Best Lawyers®, shattering the firm’s previous record. A notable 20 attorneys were named “The Best Lawyers in America” for immigration and 27 were named “Best Lawyers: Ones to Watch.”
“To be featured in this prestigious publication means our attorneys’ expertise in service to clients stands out among their peers in their own practice area and geographic location,” said Managing Partner Frieda Garcia. “Recognition of so many of our attorneys as ‘Ones to Watch’ speaks to the success of our commitment to recruit and nurture the best and brightest of rising legal talent.”
The attorneys will be featured in the 2024 edition of The Best Lawyers in America®, the only purely peer-review guide to the legal profession.
“This honor reflects not only our attorneys’ individual excellence but also BAL’s firmwide commitment to pursue the exceptional,” said CEO Jeremy Fudge.
The following BAL attorneys were recognized as “Best Lawyers”:
These up-and-coming senior associates were recognized as “Best Lawyers: Ones to Watch” in immigration law for 2024:
About BAL Established in 1980, Berry Appleman & Leiden (BAL) powers human achievement through immigration expertise, people-centered client services, and innovative technology. BAL, with 13 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.
Beyond ruining tourists’ travel plans, U.S. passport delays are snarling companies’ ability to conduct their affairs abroad, and the disruptions to operations are impacting everyone from C-suite executives to field technicians who are required to travel.
Getting a passport or renewing one used to be a reliable, straightforward process taking about two to four weeks. COVID changed that. Even in this post-pandemic world, travelers now may face months of delays, spoiling vacation and business plans abroad, due to backlogs and understaffing at the U.S. State Department.
We sat down with BAL Senior Counsel Tiffany Derentz and Immigration Manager Paulina Morelos to learn what is causing the delays, how companies are being impacted and what they can do.
Q: Tiffany, you’re a member of BAL’s Government Strategies team and a former State Department official. What is the State Department saying about the unprecedented passport delays?
Derentz: There are a few factors impacting passport processing: First, there was a surge back in 2017, following record passport issuance in 2007, and increased demand nearly every year since then. Second, the department never fully recovered from the backlogs created between 2017 and 2019. And third, the COVID-19 pandemic significantly impacted consular services.
A record 22 million U.S. passports were issued in fiscal year 2022, and the State Department expects 2023 numbers will exceed that. With COVID restrictions finally easing, weekly passport applications were up as much as 40% above 2022 numbers in the first quarter this year, according to Secretary of State Antony Blinken in a recent press report. The State Department was receiving 500,000 applications per week through May this year, and around 400,000 per week during peak summer travel months. In a recent social media post, the department said it has authorized up to 40,000 overtime hours per month to try to keep up with demand. More Americans have U.S. passports today than at any time in our history.
Q: Can’t someone just go to a State Department Passport Agency in the nearest metro area to file a passport application directly, and wouldn’t that help to shorten processing times?
Derentz: Previously, yes, a U.S. citizen could make an appointment to visit a nearby Passport Agency and apply in person. However, demand is so high, in-person appointments are simply not available right now.
Q: Is it true other requirements have also been added to the expedited service process?
Derentz: The State Department breaks services down into four categories: (1) routine, (2) expedited, (3) urgent travel and (4) emergency. The latter three categories require that the international travel be within a certain time frame, and some applicants have been asked to provide proof of a travel itinerary. Many individuals are finding themselves in quite a stressful situation — they need their passport within a number of days but have no certainty whatsoever that they will have it back in time for their travel.
Q: Paulina, what kinds of disruptions are businesses experiencing due to their employees’ passport delays?
Morelos: Passport delays can lead do any number of disruptions to business travel, including missing important meetings. Companies can also face staffing gaps if workers’ passports expire and they are unable to travel. Sometimes it is workers’ children’s passports that cause delays. Newborns need passports, and children’s passports are good for only five years.
Second passports are often needed for frequent travelers because, when they need to apply for visas for certain places, their primary passport stays with the consulate office in the U.S. while the visa is processed. Travelers need to submit a letter from their employers justifying the business need they have for the individual to hold more than one passport.
Q: What does it take to get an emergency passport?
Morelos: To qualify for one, a person must prove a medical, family or business emergency and provide specific documents. Although it is easier to get an emergency passport at a U.S. consulate abroad, getting an appointment for one is difficult because appointments are limited.
Q: What other ramifications should people be aware of?
Morelos: Another consideration is, because the need is so great, we are seeing more scams. There are many online companies promising expedited passport services, but buyer beware! People are paying these companies high fees only to discover they are then stuck waiting the same processing time for the government to process their applications.
Q: What can companies do to help their employees and avoid the business disruptions we’ve discussed?
Morelos: Companies can inform their employees about the reality of today’s lengthy passport processing delays to help them plan accordingly. Also, BAL offers reliable expedited passport processing services. The caveat is that people must reach out to the firm before they apply for the passports themselves. Once the application process has started, we cannot assist. They would need to either wait until the passport is issued or withdraw their application.
In most cases, if corporate clients are proactive and can notify BAL of an employee’s need to travel on a specific date or within a certain time frame, the firm can obtain passports in as little as five to 10 business days after applying for them. Current wait times otherwise can stretch up to 15 weeks.
Q: How can people reach you for more information on BAL’s expedited passport processing service?
Morelos: They are welcome to contact their BAL attorney or global_initiation@bal.com.
Tiffany Derentz leads BAL’s Washington, D.C. office. Tiffany joined BAL after nearly a decade with the U.S. State Department in the Bureau of Consular Affairs and as a senior adviser to the Chief Legal Adviser for immigration affairs. Tiffany served as a consular officer at multiple posts overseas and has experience adjudicating U.S. passport applications. She has direct in-person experience working with consular sections worldwide as well as the Passport Office.
DALLAS (Aug. 4, 2023) — Leading immigration firm BAL once again took the top spot in Law360’s latest Diversity Snapshot for its size category. The recognition marked the fourth consecutive year the firm scored #1 in overall diversity in the elite publication’s annual survey.
“Diversity is a foundational principle at BAL,” said Nicole Dawson, Chief People and Culture Officer. “Our top ranking demonstrates the success of our DE&I initiatives. The results speak for themselves, and we appreciate this national recognition of our efforts.”
Law360 called out BAL’s high scores as one of few diversity “success stories” discovered through its survey of 283 firms. BAL scored 24.7 points above the benchmark, the third highest score of all firms in all size categories.
BAL ranked the highest in diversity among equity partners, associates and other attorneys among firms of the same size. The majority of BAL’s associates, 55.1%, are attorneys of color. Attorneys of color also make up 24% of all partners, 50% of equity partners and 59.3% of all other BAL lawyers.
“As an immigration law firm, we recognize the strength people from varied backgrounds and experiences, from all around the world, provide,” said CEO Jeremy Fudge. “We deliberately seek and promote the best talent and give them equal opportunities to make a difference. This top ranking reflects our authentic culture of empowerment where every individual is valued and contributes in meaningful ways.”
BAL leads the legal industry in its commitment to diversity, achieving national recognition multiple years in a row. In 2023 alone, in addition to the Law360 report, the firm ranked #4 out of 226 firms in The American Lawyer’s 2023 Diversity Scorecard, #1 in the National Law Journal’s 2023 Women in Law Scorecard, and received the nonprofit Lawyers of Color Aspire Diversity Award.
About BAL Established in 1980, Berry Appleman & Leiden (BAL) powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 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.
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:
The main requirements to be eligible for the H-1B classification are:
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.
The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:
The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:
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.
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!
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:
There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:
Obtaining H-1B classification requires a number of steps:
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.
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.
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.
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.
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.
Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.
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.
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):
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.
Generally, the legal requirements that must be met to obtain a B-1 visa include:
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.
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.
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.
To qualify for the VWP, a foreign national must meet the following requirements:
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.
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.
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:
To qualify for a Labor Certification, the employer must demonstrate:
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:
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.
The timeline for obtaining an approved Labor Certification depends on a number of factors, including:
Click here to access BAL’s PERM Application Process Video for what to expect during your PERM process.
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:
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:
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).
The EB-2 NIW category includes foreign nationals who:
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:
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:
Click here for more info on upgrading or downgrading between EB-2 and EB-3 categories.
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:
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:
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.
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.
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.
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