United States: Corporate Immigration

The Department of Homeland Security (DHS) oversees several agencies responsible for U.S. immigration and enforcement, including U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP). USCIS is responsible for the granting of U.S. citizenship, approving all immigrant and nonimmigrant petitions, authorizing permission to work in the U.S., issuing extensions of stay, and the changing or adjustment of status while in the U.S. ICE enforces immigration laws. CBP patrols U.S. borders and inspects individuals and items at U.S. ports of entry.

The Department of State (DOS) adjudicates visa applications, issues visas from more than 250 U.S. missions around the world and publishes a monthly Visa Bulletin announcing the availability of visas. The Department of Labor (DOL) ensures that employers are paying the proper wages and is responsible for adjudicating prevailing wage determinations and Labor Condition Applications (LCA) for certain temporary foreign workers, as well as PERM labor certifications for certain permanent foreign workers.

Employment-based visas are categorized as nonimmigrant (temporary) or immigrant (permanent residency). Nonimmigrant, employer-sponsored visas include the following:

The H-1B visa for a specialty occupation requires highly specialized knowledge and a bachelor’s degree or equivalent work experience. The government caps the number of new H-1B petitions issued per year. Petitioners must submit an online registration during a designated registration period. USCIS conducts a randomized lottery selecting the number of petitions within the cap. The petitioner may file full H-1B petitions only for those selected. By regulation, the earliest date petitioners may file an H-1B petition is April 1 for candidates who would begin work in H-1B status on Oct. 1 of the same calendar year. USCIS processing may take several months for H-1B visas, although they offer a premium processing service that reduces the processing time to 15 calendar days from the time of filing.

H-2A and H-2B visas are for foreign nationals from designated countries to fill temporary or seasonal agricultural (H-2A) or nonagricultural (H-2B) jobs for which U.S. workers are not available. H-2B visas are subject to numerical caps.

The L-1 visa is for intracompany transfers and is available to people who, within the three preceding years before entry to the U.S., have been employed outside of the U.S. continuously for at least one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in either a managerial, executive role (L-1A visa), or an employee with specialized knowledge (L-1B visa). Processing times vary by consulate and nationality, but for those companies that have previously registered their corporate relationship with USCIS, L-1 visas are typically issued in three to 10 days from the filing. Where the corporate relationship has not been registered, the processing time is several months, although they offer a premium processing service that reduces the processing time to 15 calendar days from the time of filing.

The O-1 visa is available to individuals with an extraordinary ability in the sciences, education, business, athletics, or the arts, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry. Applicants generally, will be required to prove that they have extraordinary talent and skill, they are renowned in their field, and they must be coming to the U.S. to continue work in the area of extraordinary ability or achievement. USCIS processing may take several months for O-1 visas, although they offer a premium processing service that reduces the processing time to 15 calendar days from the time of filing.

Certain nationals have additional visa options. Citizens of Canada or Mexico may obtain a TN visa based upon a qualifying profession listed in the US-Canada-Mexico Trade Agreement (formerly NAFTA). Specialty occupation visas are earmarked for nationals of Australia (E-3 visas) and Chile and Singapore (H-1B1 visas). Annual caps apply to E-3 and H-1B1 visas, but the caps are rarely met.

Immigrant visa categories include: EB-1 visas for persons of extraordinary ability, outstanding professors or researchers, or multinational executives or managers; EB-2 visas for professionals holding advanced degrees and persons of exceptional ability; EB-3 visas for skilled workers, professionals and unskilled workers; EB-4 visas for certain special immigrants; and EB-5 visas for investors. Processing times vary widely based on the qualifying category.

E-1 Treaty Trader visas are available to executives, managers, or specialists who are nationals of a country in a trade agreement with the U.S. E-2 Treaty Investor visas are for nationals of countries in a treaty with the U.S. who have invested, or are in the process of investing a substantial amount of capital in a real and operating commercial enterprise in the U.S.

Certain immigrant visa categories do not require employer sponsorship, including EB-1A visas for persons of extraordinary ability, EB-2 National Interest Waivers (NIW), and EB-5 investor visas.

Sponsoring a foreign national for an H-1B, H-1B1 or E-3 visa requires preliminary approval from the Department of Labor. The sponsoring company must file a Labor Condition Application) for nonimmigrant workers, attesting that the employee will be paid the prevailing wage for their position, and that the employer will comply with other legal obligations.

The employer must post the LCA for at least 10 days. The LCA Public Access File (PAF), including the LCA and supporting documents, must be maintained at the H-1B or E-3 worker’s actual place of employment or at the company’s principal headquarters. The H-1B or E-3 worker must be provided with a copy of the certified LCA no later than the first day that he or she reports to work. DOL regulations also require the employer to provide a summary of benefits available to H-1B and E-3 workers in order to demonstrate that H-1B and E-3 workers are afforded access to the same benefits as similarly employed U.S. workers. This summary can be placed in the company’s PAF or individual employee’s PAF.

For most immigrant categories, the employer is required to go through the DOL’s permanent labor certification (PERM) process, which includes a recruiting test of the labor market to ensure that U.S. workers are not available for the position. If all requirements are met, the DOL will issue a PERM certification and the employer may submit Form I-140 Immigrant Petition for Alien Worker with USCIS. Certain qualifying immigrants can petition for themselves under limited circumstances. EB-1 workers do not require Labor Certification, and EB-2 workers may request a National Interest Waiver on the basis that waiving Labor Certification is in the national interest of the U.S.

Employers should regularly conduct internal compliance checks to make sure records are up to date and employment and compensation are consistent with labor condition applications. Employers may receive random, unannounced inspections by USCIS, ICE and DOL officials to verify compliance with immigration and labor policies.

Some immigration applications may be filed electronically at www.uscis.gov, such as an application for naturalization, and some forms of employment authorization. Other immigration applications must be mailed to a USCIS lockbox, a secure facility the government uses to collect applications and fees. Employees receive a physical visa or employment authorization document.

Visa applicants must schedule an interview at the U.S. Embassy or Consulate, generally in the country where they live. They may interview at any U.S. Embassy or Consulate, but it may be difficult to qualify for a visa outside of their place of permanent residence. At a biometrics appointment, digital fingerprint scans and photos are taken. The applicant, spouse and any qualified unmarried children accompanying them must participate in the interview. When renewing a visa, some consulates allow processing of the visa through a “dropbox,” if certain conditions are met, waiving the in-person interview requirement.

Dependents include a same- or opposite-sex spouse and unmarried children under the age of 21. Some visa categories allow dependents to apply for employment authorization documents (EADs). Spouses of certain H-1B workers who have a pending permanent residency application may apply for an EAD. Spouses of L-1 and E visa holders are eligible for work authorization, while spouses of O-1 and TN visas are not authorized to work. Dependents holding EADs are not restricted, but their work authorization is tied to the principal’s visa status and their continued dependent relationship.

To obtain employment-sponsored permanent residence, first an employer must conduct a test of the labor market. If no qualified, willing and available U.S workers are found for the position, then the employer may proceed to petition for Permanent Labor Certification from the DOL. The PERM certification establishes the prevailing wage and working conditions. The DOL typically approves or denies Labor Certification applications within six months of filing; however, processing times may vary. If the DOL needs more information to make a decision, it will issue an audit, and a response must be provided within 30 days. If an audit is issued, that extends the normal processing times. After the Labor Certification is approved, the employer has 180 days to file a Form I-140 Petition for Immigrant Worker with USCIS. Currently, Form I-140 processing ranges from one to 13 months, and timeframes are updated regularly on the USCIS website.

If the applicant is applying for the immigrant visa abroad, USCIS forwards approved petitions to the National Visa Center, which holds petitions until a visa number becomes available. From there, the time frame for obtaining permanent residence is determined by the Visa Bulletin, a publication of the State Department that shows eligible visa numbers for the coming month. Availability of a visa number depends on the date an application was filed, employment classification and country of residence of the applicant. Those factors might allow applicants to apply for a green card immediately, or require them to wait for several months, or even years, before they are eligible to apply.

For applicants applying for permanent residence in the U.S., when their priority date is current in the Visa Bulletin, they may file Form I-485 Application for Permanent Residence with USCIS.

After five years as a permanent resident of the United States, an immigrant may apply for citizenship, though special circumstances can shorten this wait time. To apply for citizenship, an applicant completes Form N-400 with supporting documentation, may be required to attend a biometrics appointment, attends an interview, and takes a citizenship test. The applicant must be able to read and write English and take an oath of allegiance to the United States.

Business visitors enter the U.S. on a B-1 Business Visitor visa or under the Visa Waiver Program. B-1 Business Visitor visas are for individuals intending commercial or business activities, who have no intent to abandon a residence and ties outside the U.S. Business visitors are generally prohibited from engaging in productive work activities and must remain on foreign payroll. Permissible business activities include, but are not limited to: attending business meetings; traveling for a scientific, educational, professional or business convention or conference; settling an estate; negotiating a contract; and participating in short-term training as long as the individual is not receiving any salary from a U.S. source or engaging in any productive employment. B-1 visas are typically issued for one to six months, with an extension of stay of up to six months, for a total of up to one year in the U.S. at the discretion of U.S. immigration authorities. Foreigners entering the U.S. under the Visa Waiver Program are authorized to visit the U.S. for up to 90 days and extensions in country are typically not possible.

Remote work can be carried out within the U.S., but it must comply with the Labor Condition Application or PERM Labor Certification. If a worker performs remote work from a geographic area or in a role different from what was specified in the LCA or PERM, the employer must refile those documents and may be obligated to fulfil different wage requirements.

Visitors who enter the United States on a Business B-1 Visa, or citizens of countries participating in the Visa Waiver Program, may conduct temporary business in the U.S. such as:

• Attending business meetings or consultations
• Attending a business convention or conference
• Negotiating contracts

Visitors who enter the U.S. on a Tourist B-2 Visa are prohibited from conducting business for pay. An individual on a visitor visa (B1/B2) is not permitted to accept employment or work in the U.S., except B-1 visitors may work as a personal or domestic employee in limited situations.

The B-1 Visa is valid for six months, with the option for renewal. Visitors entering the U.S. under the Visa Waiver Program may stay for up to 90 days.

The U.S. does not have a remote work or nomad visa category, and there are no current proposals to introduce this type of visa.

A person may be able to switch jobs, employers, or visa categories depending on their visa classification. Under H-1B job “portability” rules, an H-1B employee may change jobs if the new employer files a new LCA and H-1B petition before the worker’s authorized stay expires. The employee can start work as soon as the new petition is filed and need not wait for the petition to be approved. Generally, temporary work visa holders lose their status once they are terminated. H-1B workers have a 60-day grace period to find new employment and have a new employer file a new H-1B petition on their behalf.

A common issue is the H-1B cap and obtaining an H-1B cap-subject petition within the annual numerical limits, as demand far outstrips the allotted quotas, which are routinely exceeded. For example, for FY2022 cap season, USCIS received over 308,000 H-1B registrations to fill the 85,000 quota. Employers whose petitions are not selected in the H-1B lottery need to find alternate visas or arrangements for these employees.

The increase in Requests for Evidence issued by USCIS seeking additional information after a petition is filed is an ongoing concern that often causes delays and uncertainty in the process. Administrative Processing, whereby certain petitions or applications are flagged for “security concerns,” also causes lengthy delays.

The lack of short-term work authorization options is another issue that arises for employers who need employees to rotate in and out of the U.S. on short assignments.

Due to COVID-19, U.S. consulates around the world continue to grapple with significant backlogs, resulting in delayed visa processing and issuance. At this time, applicants in the U.S. should also anticipate delayed processing due to operational challenges at USCIS.

Premium processing is available for certain types of petitions and applications, including H, L, O and E-3 petitions and certain Immigrant Worker Petitions. For an additional fee of $2,500, premium processing guarantees a USCIS response (such as approval, denial, RFE or other notice) within 15 days.

Legislation passed in October 2020 requires USCIS to expand premium processing to additional types of petitions and applications, including: nonimmigrant work visa petitions and associated dependent applications; additional employment-based preference categories of immigrant petitions; nonimmigrant change/extension of status; and applications for employment authorization documents.

Where premium processing is not available, a petitioner may request USCIS expedite adjudication, but they are decided on a case-by-case basis and require evidence of severe financial loss, emergency or urgent humanitarian reasons, or USCIS error.

The Biden administration’s focus on the humanitarian crisis at the border and the pandemic has slowed policy progress on legal immigration. However, there have been some positive steps on high-skilled immigration, including new STEM initiatives to attract skilled foreign nationals and automatic work authorization for E and L spouses. Continuing litigation and pending regulatory and legislative action have the potential to further impact U.S. immigration law and policy. The pandemic continues to complicate travel to the U.S. and created significant backlogs at U.S. consulates and lengthy delays in issuing visas. USCIS currently faces numerous challenges, including processing backlogs, financial solvency, staffing shortages and litigation over processing delays.

A trend that has developed over the years is the increased use of presidential executive action to implement immigration policy due to the lack of comprehensive legislation to address immigration system reform. This, in turn, has provoked more legal challenges and resulted in the courts determining immigration policy instead of Congress. This shapes the immigration landscape as policies and regulations are in flux from administration to administration and subject to court rulings and injunctions that may be reversed on appeal and changed again on remand, creating unpredictability for petitioners and employees.

The pandemic caused consular closures and delayed processing that has resulted in significant backlogs. Applicants can view wait times for a visa appointment at various consulates around the world on the State Department’s website.

The increase in remote workers during the pandemic led to more compliance issues, including worksite verification, DOL notices and amendments for location changes.

However, remote work led to some improved flexibilities in the I-9 verification process. U.S. Immigration and Customs Enforcement has issued temporary exemptions from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) and DHS is expected to finalize a regulation addressing whether employers will be able to continue to use virtual methods to verify identity and work authorization documents (“right to work” checks). U.S. Citizenship and Immigration Services also permanently adopted a measure introduced in March 2020 that allows applicants to use electronically reproduced signatures instead of the applicant’s original “wet” signature. Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

The United States vaccination policy for nonimmigrants and visitors entering by land, air or sea requires everyone age 18 or older to be fully vaccinated for COVID-19 with an approved vaccine. Exceptions are very limited.

USCIS plans to modernize the H-1B program by revising the definition of employer-employee relationship, implementing new oversight and employer site-visit rules, providing greater flexibility on work start dates in some cases, and addressing “cap-gap” issues for F-1 students, who risk falling out of status while awaiting their H-1B cap-subject petition. The agency has also instituted the phased expansion of premium processing to additional categories over a three-year period. DOL may issue new prevailing wage rules, which would raise the wages that employers must pay H-1B and other specialty workers. Electronic System for Travel Authorization (ESTA) fees increased this year and the State Department increased visa application fees. USCIS government filing fees are expected to increase substantially as well.

Technology can be leveraged by government agencies and by practitioners and employers to improve the immigration process. Initiatives that include technological innovation could transform and streamline processes by syncing systems within the agency, making online filing available for all application forms, using technological tools to facilitate communications between applicants and the agency, and eliminating paper mailings. This would make adjudications more efficient, improve timelines and increase transparency.

Employers must verify each new employee’s identity, and that he or she is authorized to work in the U.S. Employers must properly fill out and retain Form I-9 for each employee, citizen or noncitizen, hired in the U.S. The employee must present to the employer proper identification and proof of work authorization from the list of acceptable documents on Form I-9, and the employer must examine the documents and certify on the form that they appear to be genuine, relate to the individual, and authorize the individual to work.

E-Verify is a web-based system maintained by USCIS that allows employers who are enrolled in the system to verify employee eligibility to work in the U.S. The system electronically matches information on the Form I-9 against records available to DHS and the Social Security Administration (SSA). E-Verify is not mandatory for all employers, but is mandatory for employers (a) if state law requires it; (b) if the employer holds a federal government contract or subcontract containing a provision requiring E-Verify; or (c) if the employer is seeking to employ international students under the Optional Practical Training STEM-extension program. Employers who enroll in E-Verify are still obligated to fill out Form I-9 for every new hire in the U.S.

Employers face civil and/or criminal penalties for Form I-9 violations. Civil fines include monetary penalties for paperwork violations ranging from $234 to $2,332 per individual per violation. An employer who knowingly hires or continues to employ unauthorized workers is subject to fines ranging from $583 to $20,130 per violation, with repeat offenders receiving fines at the higher end.

H-1B visas are capped at 65,000 per year plus 20,000 for advanced degree holders. H-1B petitions do not require labor market testing, but employers must attest to wage obligations and that the hiring will not adversely affect U.S. workers. Employers sponsoring workers for employment-based permanent residency must conduct labor market testing via the PERM-based labor certification process. Recruitment requires job ads placed with the state agency for 30 days and two print ads in Sunday papers of general circulation. The employer must place three additional ads chosen from a list of 10 types. During recruitment, the employer must review all resumes and keep records of candidates considered and reasons for rejections. The PERM application submitted to the DOL will require information about the employer’s recruitment procedures.

No, but there are rules for employers deemed to be “H-1B dependent.” An employer is considered H-1B-dependent if it has:

• 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
• 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
• 51 or more full-time equivalent employees of whom 15% or more are H-1B nonimmigrant workers.

Employers that employ 50 or more employees in the United States, with more than 50% of these employees in H-1B, L-1A or L-1B nonimmigrant status, must pay a $4,000 fee for each new petition.

There are no specific exit procedures for foreign nationals departing permanently from the U.S. who leave at the end of their authorized period of stay.

If an H or O employee’s employment is cut short before the end of their authorized stay, the employer should notify USCIS of the early termination. If the employment ended for reasons other than the employee’s voluntary resignation, such as layoff or termination, the employer must offer to pay the employee’s reasonable cost of airfare to his or her home country.

An in-person medical exam by an approved doctor is required for green card applicants to ensure that they do not have a condition rendering them inadmissible. The current list of required vaccinations include: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenza type B, hepatitis B, COVID-19, and any others recommended by the advisory committee for immunization practices. If the immigration medical exam takes place between Oct. 1 and March 31 (the designated flu season for purposes of the immigration medical exam), the seasonal flu vaccine is required.

To obtain United States citizenship, an applicant must demonstrate English language proficiency, which is determined by the applicant’s ability to read, write, speak and understand English and pass an English and Civics Test.

The government filing fee for a Petition for Nonimmigrant Worker is $460. Additional fees may apply to certain employers. For example, employers with more than 25 employees sponsoring an H-1B worker must pay a $1,500 American Competitiveness and Workforce Improvement Act (ACWIA) fee. Employers with fewer than 25 employees must pay a $750 ACWIA fee. H-1B and L-1 employers must also pay a $500 Fraud Prevention and Detection Fee. Employers with 50 or more employees in the United States, with more than 50 percent of these employees in H-1B, L-1A or L-1B nonimmigrant status, must pay a $4,000 fee for each new petition. H-2B employers pay a $150 application fee.

The salary requirements and whether the employee is on local or foreign payroll depends on the visa category. Employers of H-1B and E-3 employees must meet complex wage threshold requirements and certify the proffered wages with the DOL.

H-1B and E-3 employers must pay the worker the U.S. prevailing wage or actual wage, whichever is higher. L-1 intracompany transferees can remain on either U.S. or foreign payroll.

Each visa category has its own maximum period of stay. The maximum period for H-1B visas is six years (the initial three years plus a three-year extension). However, H-1B visa holders with an approved immigrant petition, and those who are awaiting a visa to become available, can continue to extend their status. It is not unusual for foreign nationals in heavily backlogged categories and countries to extend successively for a decade or more.

L-1A Intracompany Managers are allowed a maximum stay of seven years; L-1B Intracompany Specialized Knowledge employees are allowed a maximum stay of five years.

Yes. Although United States law does not mention dual nationality or require a person to choose one nationality or another, the U.S. Department of State references dual nationality. U.S. citizens may naturalize in a foreign state without risking his or her U.S. citizenship. However, individuals who acquire a foreign nationality after age 18 by applying for it may relinquish their U.S. nationality if they wish to do so. In order to relinquish U.S. nationality by naturalizing as a citizen of a foreign state, the person must apply for the foreign nationality voluntarily and with the intention to relinquish U.S. nationality. Intent may be shown by the person’s statements and conduct.

Dual nationals owe allegiance to both the U.S. and the foreign country, and must obey the laws of both countries. The State Department has noted the importance of recognizing the problems attendant to dual nationality, including situations where laws of the countries are in conflict or where dual nationality hampers the U.S. government’s ability to provide consular protection when the dual national is abroad. Dual nationals must use a U.S. passport to enter and leave the United States.

Employers do not need to go through lengthy labor market testing procedures for H-1B employees. Other types of high-skilled categories, such as L-1, O-1, TN, E-1 and E-2 are not subject to numerical limits and also do not require labor market testing. H-1B and L-1 visas are “dual intent” visas, so, although they are in the category of temporary work visas, an H-1B applicant may also intend to become a permanent resident and apply concurrently for permanent residency. Nonimmigrants in the U.S. are generally able to convert status or apply for permanent residency without having to leave the country and re-enter.

Foreign students in nonimmigrant F-1 status may apply for employment authorization if employed in Curricular Practical Training (CPT), Optional Practical Training (OPT) or an extended OPT program in a STEM-related field.

In most visa categories, family members have derivative status. In some categories, including L, E, O, and some H, spouses are eligible for work authorization and open access to the labor market without needing an employer to sponsor them.