United States Immigration Laws: A Collegiate Perspective

This is a selective overview of U.S. immigration related statutes, regulation and policies. The focus is primarily upon status and employment related provisions which are of concern to college students, exchange visitors and campus administrators. It seeks to addresses how foreign nationals may normally visit, study, work in, or immigrate to the United States.

There are a few distinctions one should be aware of initially. Persons physically present in the United States are considered either citizens or nationals of the U.S., or they are aliens. There are two classes of legal aliens. Nonimmigrants who are admitted to the U.S. temporarily and Immigrants who may reside in the U.S. permanently. Immigrants are also referred to as lawful permanent residents or "Green Card" holders.

Lawful permanent residents may become naturalized U.S. citizens if they subsequently satisfy certain residence and other specific requirements. Each individual's immigration status is often unique and any analysis of the benefits available to any alien depends upon the circumstances, objectives, nationality, and qualifications of each individual.

IMMIGRANTS

There are several ways to immigrate (obtain legal permanent resident status –– “green card”) to the United States. One of the most common is through sponsorship by a family member who is a U.S. citizen or legal permanent resident. U.S. citizens can sponsor their spouses, parents, children and brother-sisters for permanent residency. Legal permanent residents can sponsor spouses, parents and unmarried children. Spouses, parents, and minor children of U.S. citizens are considered "immediate relatives". Immediate relatives are eligible to apply to immigrate to the United States without having to wait for a visa priority date to be reached. Other individuals may often have to wait from several months to many years before they can complete this immigration process.

The second most common route to permanent residency is through employment. Certain skilled workers may be eligible to immigrate to the U.S. if their present or prospective employer obtains what is referred to as a "labor certification." This is a complicated and often lengthy process that is controlled by the U.S. Department of Labor. To qualify an employer must demonstrate there are no qualified U.S. workers who are ready and willing to perform the specific job at a specific location for which the foreign-born worker has been or is expected to be hired. Certain individuals who are deemed as having extraordinary or exceptional ability in the sciences, art, education, business, or athletics may be able to qualify without having to first obtain a labor certification.

THE EMPLOYMENT PREFERENCE SYSTEM

Currently, U.S. immigration law allots 140,000 employment-based visas to immigrants. These employment-based visas are divided into the following categories:

FIRST PREFERENCE: Up to 40,000 visas a year may be issued to priority workers. People who have extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers fall into this category. In addition, any visas left over from the fourth and fifth preferences are added to this category.

SECOND PREFERENCE: Up to 40,000 visas a year (plus any visas left over from the first preference) may be issued to persons who are members of the professions holding advanced degrees or aliens of exceptional ability in their field.

THIRD PREFERENCE: Up to 40,000 visas a year (plus any visas left over from the first and second preferences) may be issued to skilled workers, professionals, and other workers. The other workers category covers workers who are capable of performing unskilled labor, and who are not temporary or seasonal. Workers in this category are limited to 5,000 visas per year. Skilled workers must be capable of performing skilled labor requiring at least two years training or experience.

FOURTH PREFERENCE: Up to 10,000 visas a year may be issued to certain special immigrants, including ministers, religious workers, former U.S. government employees and others.

FIFTH PREFERENCE: Up to 10,000 visas a year may be issued to persons who have between $500,000 and $3 million to invest in a job-creating enterprise in the U.S. At least 10 U.S. workers must be employed by each investor. The amount of investment needed can vary depending on which area of the country will benefit from the investment. If the investor fails to meet the conditions specified, he or she can lose permanent resident status.

Obtaining approval of either a family-based or employer-based petition is not the equivalent of obtaining permanent resident status. This initial step only establishes eligibility to apply for permanent resident status. Because there are annual limits to the number of permanent resident visas available for the family and employment based categories, people from certain countries have a shorter waiting time than those from other countries. The U.S. Department of State's Visa Bulletin establishes these waiting periods each month based on the individuals "priority date". This bulletin containing the current priority dates for each category-country can be accessed at Processing Times.

There are other less common avenues to obtaining permanent residence which are beyond the scope of this article (e.g., Visa Lottery, asylees, etc.).

LABOR CERTIFICATIONS

An Application for a Labor Certification may be filed by a US employer who has offered the alien beneficiary permanent employment in the US. A labor certification is a statement from the US Department of Labor (USDOL) that a particular position at a particular company is "open" because no US workers who satisfy the minimum requirements for the job are available. The labor certification process requires the employer to recruit US workers at prevailing wages and working conditions by advertising, posting notice of the job opportunity, and other appropriate means. A USDOL regional certifying officer makes a decision to grant or deny the labor certification based on the results of the employer's recruitment efforts and compliance with USDOL regulations.

THE FAMILY PREFERENCE SYSTEM

Through family-based immigration, a U.S. citizen or Legal Permanent Resident (LPR) can sponsor his or her close family members for permanent residence. A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, and brothers and sisters. An LPR can sponsor his or her spouse, minor children, and adult unmarried children. As a result of recent changes in the law, all citizens or LPR’s wishing to petition for a family member must have an income at least 125% of the federal poverty level (POV Guide) and sign a legally enforceable affidavit to support their family member.

By statute, Congress has also placed limits on the number of foreign-born individuals who are admitted to the United States annually as family-based immigrants.

Family-based immigration is limited by statute to 480,000 persons per year. Family-based immigration is governed by a formula that imposes a cap on every family-based immigration category, with the exception of immediate relatives (spouses, minor unmarried children, and parents of U.S. citizens). The formula allows unused employment-based immigrant visas in one year to be dedicated to family-based immigration the following year, and unused family-based immigration visas in one year to be added to the cap the next year. This formula means that there are slight variations from year to year in family-based immigration. Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories.

There is no numerical cap on the number of immediate relatives (spouses, minor unmarried children and parents of U.S. citizens) admitted annually to the U.S. as immigrants. However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year (with a floor of 226,000).

NONIMMIGRANTS

There is a wide range of nonimmigrant (temporary) visas, used for many different purposes, with validity periods ranging from a few days to several years. The United States Citizenship and Immigration Service (USCIS) in the Department of Homeland Services (DHS) must approve some in advance before being reviewed and issued by the State Department; others are only reviewed by the State Department. Visas may be granted to the principal applicant and to his or her dependents (spouse and minor children). There is a difference between a visa and a status, although both are referred to in the same manner and with the same alphabetical designation (based on the respective section of the U.S. Immigration and Nationality Act).

A visa does not grant the bearer the right to enter the United States. A visa is simply a document in the person's passport. It serves as a ticket to ensure that a foreign national can board an airplane to travel to the U.S and apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), exchange visitor (J), temporary worker (H), etc.). The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The DHS immigration inspectors determine admission into, length of stay and conditions of stay in the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when the holder may apply for entry into the U.S. A DHS immigration inspector will record the terms of admission on the alien’s Arrival/Departure Record (I-94 white or I-94W green) and in their passport.

A person’s visa status is the category in which he or she is admitted to the United States and also determines the period of time he or she may remain. An individual's visa status is granted by a DHS inspector once the applicant arrives at the U.S. border or a port of entry, and can be changed or extended by the DHS at one of its Service Centers while an individual is in the U.S. Such periods and extensions granted by DHS while the individual is in the U.S. are not limited by when a person’s visa may expire. However, when the person leaves the U.S. they are required to have a valid-unexpired DOS issued visa in their passport before they can reenter the U.S. (even though the status period granted by the DHS while they were physically present has not expired). There are exceptions to visa requirements for certain Citizens of Canada.

SPECIAL NONIMMIGRANT VISA PROCESSING PROCEDURES

The Enhanced Border Security and Visa Reform Act of 2002 provides that no nonimmigrant visa under Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) shall be issued to any alien from a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Attorney General and the heads of other appropriate United States agencies, that such alien does not pose a threat to the safety or national security of the United States. Seven countries are currently designated as state sponsors of terrorism. They are North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya.

U.S. VISA WAIVER PROGRAM (VWP)

Passport holders from the following countries may seek entry to the U.S. for business or pleasure for up to 90 days without a visa if they travel on a registered carrier, have a round-trip or onward ticket in their possession when arriving in the U.S., and are otherwise eligible for U.S. entry. Some foreign nationals, as indicated below, are required to have a Machine-Readable Passport (MRP) to participate in this program. A U.S. visa waiver traveler cannot extend, change, nor normally adjust his/her status while in the U.S. If a U.S. visa waiver traveler wishes to engage in any activity that is not otherwise allowed using a visitor (B-1or B-2) visa, that traveler must qualify for the appropriate visa. These VWP countries are:

EXPEDITED REMOVAL

In 1996 the 104th Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA"). This Act created a new expedited removal process in effect at all U.S. ports of entry. Under this expedited process, persons attempting to enter the U.S. with fraudulent documents or no documents can be summarily removed from the U.S. by a DHS inspector at the port of entry. Additionally, persons who attempt to enter by “mis-representation” also may be removed. The decision of the USCIS inspector is reviewed by his or her supervisor. A person subject to expedited removal can be barred by the DHS officer from reentering the U.S. for a minimum for five years, and possibly permanently. Certain aliens who have committed an "aggravated felony" are also subject to removal in expedited administrative proceedings.

BARS TO ADMISSION

IIRAIRA also created new bars to admissibility to the U.S. for people who have been unlawfully present in the U.S. for six months or longer. Under these new provisions, anyone who tries to enter the U.S. who has previously been in the country unlawfully for more than 180 days but less than one year, will be barred from reentering the U.S. for three years. Anyone who is in the U.S. unlawfully for one year or more will be barred from reentering for ten years. The period of unlawful presence in the U.S. only starts to count on and after April 1, 1997, the date of enactment of IIRAIRA. Not every individual who is out of status is deemed to be “unlawfully” present in the U.S. in which case neither the three or ten year bars would apply. For those who are subject to these bars, only very limited and narrow waivers and exceptions to these bars to admissibility exist. It is therefore extremely important that most nonimmigrants in the U.S. be able to document there departure(s) from the U.S. as follows:

If you returned home with your Arrival/Departure Record (I-94 white or I-94W green) still in your passport, your departure was not properly recorded. It is your responsibility to provide the DHS sufficient information to properly record your timely departure from the United States. If you do not show a timely departure from the U.S., or if you cannot reasonably prove one when you next seek entry into the U.S., DHS may conclude you remained in the U.S. beyond your authorized stay. If so, your visa may be cancelled, your entry into the U.S. may be barred and you may be returned immediately to your foreign point of origin.

To show your departure, DHS will consider a variety of information, including, but not limited to:

• Original I-94 white or I-94W green.
• Original boarding passes used to depart the U.S.
• Photocopies of entry or departure stamps in your passport indicating entry to another country after you departed the U.S. (copy all passport pages that are not completely blank and include the biographical page containing your photograph).
• Photocopies of other supporting evidence that shows your name and date, to indicate you were in another country after leaving the United States, such as:
  • Dated pay slips or vouchers from your employer outside the U.S.
  • Dated bank records showing transactions outside the U.S.
  • School records showing attendance at a school outside the U.S.
  • Dated credit card receipts, with the credit card number deleted, for purchases made outside the U.S.

Your statement alone, without supporting evidence, is unacceptable. If you send original materials, you should retain a copy since DHS will not return original materials after processing. To help correct your records include a signed, dated explanation in English and mail your explanation and supporting documents to : ACS-INS SBU, P.O. Box 7125, London KY 40742-7125, USA.

Do not mail your I-94 or supporting documents to any U.S. Consulate or Embassy, any other DHS office or to any address other than the one stated above. Only at this location can DHS make the necessary corrections to your records to prevent serious disruption to U.S. travel in the future.

EMPLOYMENT OF ALIENS

Employment Eligibility Verification

The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986 (see exceptions below). To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens (Form I-9 and instructions can be accessed at www.immigration.gov./graphics/formsfee/forms/i-9.htm).

EXCEPTIONS:

• The employee was hired before November 7, 1986, and has been continuously employed by the same employer.
• Individuals providing domestic services in a private household that are sporadic, irregular, or intermittent;
• Providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
• Providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)

Employment Authorization Documents

The United States Citizenship & Immigration Service (USCIS) issues Employment Authorization Documents (EAD). The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiancés of American citizens; and dependents of foreign government officials. See Form I-765 Application for Employment Authorization at http://uscis.gov/graphics/formsfee/forms/i-765.htm for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States. U.S. citizens do not need an Employment Authorization Document.

Lawful permanent residents and conditional permanent residents do not need an Employment Authorization Document. Their Alien Registration Card proves they may work in the United States.

Aliens authorized to work for a specific employer do not need an Employment Authorization Document. Their passport and Form I-94 (Arrival-Departure Record) proves they may work in the United States. 8 CFR 274a.12(b), provides a full list of the categories of people who do not need to apply for an EAD.

STUDENTS (F)

On-Campus Employment

The easiest way for an F-1 student to legally work is to take a job on campus. On-campus employment is limited to 20 hours per week while classes are in session. Full-time work is permitted during holidays or school vacation periods. On-campus employment must either be performed on the school's premises (including at non-university businesses operating on campus, like restaurants or the school bookstore but such company must be providing services directly to students) or an off-campus location which is educationally affiliated with the school. Work performed off-campus for an educational affiliation must be associated with the school's established curriculum or related to certain government-funded research projects. And the work must be an integral part of the program of study. Spouse and children in F-2 status are not permitted to work.

Practical Training (Curricular and Optional)

Students granted practical training (PT) authorization may work off campus. There are two types of practical training - curricular practical training and optional practical training.

Curricular practical training (CPT) includes programs that are an "integral part of an established curriculum." CPT programs include alternate work/study, internship, cooperative education, or any other type of required internship which is offered by sponsoring employers through cooperative agreements with the school. A student should apply for CPT with the school's Designated Student Officer (DSO). If the DSO approves, the DSO will enter the information in the DHS’s SEVIS database and print out an I-20 with the CPT authorization for the student. No employment authorization document is needed for curricular practical training. The student should only begin working under CPT after the DSO has endorsed their I-20.

Optional practical training (OPT) allows students to work off campus for employers in order to gain training in the student's field of study. Unlike curricular practical training, OPT is not offered as a part of a set curriculum for the student. OPT can take place either before graduation or in the year following graduation. After graduation, post-graduation OPT must be completed within 14 months of the student's graduation. OPT employment can only start after receiving an employment authorization document (EAD). The EAD is a laminated small card that resembles a driver's license or a green card.

On December 11, 2002, the legacy INS published a final rule titled “Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)”. The rule took effect on January 1, 2003. This final rule not only implemented SEVIS, it also made a number of changes in how students maintain and reinstate status, how and when they can obtain practical training authorization, etc.

Optional Practical Training [214.2(f)(10)]

F-1 students now become eligible for a new one-year period of post completion optional practical training (“OPT”) when a student changes to a higher educational level. Under the new rules, a student could receive one year of OPT upon completing a Bachelors, then get an additional one year OPT for Masters, and then, if the student newly enrolls in a Doctoral program, the F-1 can get a third year of post completion OPT once the Ph.D. is completed.

Requests for Practical Training [214.2(f)(10)(ii)(C)]

The new rule specifies that post completion OPT must be requested prior to the completion of the course requirements or prior to the completion of the course of study. For students requesting summer vacation OPT after the first year of study, the application to the USCIS (after school approval of the student’s request for OPT) may be made up to 90 days prior to the completion of the first academic year.

OPT Procedures under SEVIS [214.2(f)(10)(ii)(E); 214.2(f)(12)]

The new rule establishes that, despite the electronic SEVIS records, and the school’s obligation to verify work and home addresses during OPT as well as dates of OPT in the Department of Homeland Security’s SEVIS records, an EAD card still must be requested and obtained before OPT can commence.

A student in OPT remains in F-1 status and therefore the school is required to update in SEVIS any name, address or employment changes during OPT. The term “employment changes” should not be construed to mean that the student must first get permission from the school or DHS prior to changing OPT jobs or employers.

Reinstatement of Status [214.2(f)(16)]

The new rule changes the legal standards for applications for reinstatement of student status. Now, the student must apply for reinstatement not more than 5 months after being out of status. Or, if the application is outside of the 5-month limit, the student must establish that failure to timely file was the result of exceptional circumstances. To have a reinstatement approved, the student must show either that the violation of status resulted from circumstances beyond the student's control or that the violation relates to a reduction in the student's course load that would have been within a Designated School Official's power to authorize and that failure to approve reinstatement would result in extreme hardship to the student.

Grace Periods [214.2(f)(5)(iv)]

Students who have completed their course of study and any authorized practical training have a 60-day grace period after expiration of F-1 status. The 60 days run from the end date of the completion of the course of study or the end date of any authorized practical training, whichever is later. F-1 students who obtain authorization from their school to withdraw from school receive a 15-day grace period. Under the new rules, grace periods explicitly do not apply in any other circumstance.

Reduced Course Load [214.2(f)(6)(iii)]

The new rule establishes that a reduced course load is only acceptable to maintain F-1 status if it is subject to prior approval by the school and includes at least six semester or quarter hours, or half the clock hours required for a full course of study. A reduced course load for less than half time is only acceptable for defined medical reasons (214.2(f)(6)(iii)(B)) or for the final term of study if the school determines that fewer courses are needed to complete the course of study (214.2(f)(6)(iii)(C)).

Program Completion Date [214.2(f)(7)(ii)]

The new rule eliminates the ability of schools to allow a grace period of up to one year to the program completion date.

Program Extension [214.2(f)(7)(iii)]

The new rule requires that program extension must be requested by the student prior to the end date on the I-20. Any student who is unable to complete the educational program before the end date on the I-20, and does not request a program extension prior to the end date on the I-20, is out of status.

On Campus Employment [214.2(f)(9)(i)]

The new rule establishes that F-1 students may not work on-campus more than 30 days prior to the actual start date of classes, for those F-1s making their first F-1 entry to the U.S. Under the new rule, transferring F-1s cannot work on-campus until the receiving school has SEVIS jurisdiction over the student’s SEVIS records.

Exchange Visitors (J)

The "J" exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

The Department of State, not the DHS administers the J-1 visa program which was implemented in 1961 by the Fullbright-Hays Act. To obtain a J-1 visa for an employee, an organization must either become designated by the Department of State as a J-1 visa program sponsor or initiate an application through an approved third party training sponsor organization. Such third party organizations must approve the application and training program of a proposed employer and issue Form DS-2019 (replaced former form IAP-66).

Like “F” students, “J” applicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they are coming to the United States for a temporary period. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

Employment

Employment of a J-1 visa holder while in "J" exchange visitor status depends upon the terms of the program. Participants in programs which provide for on-the-job training, teaching, research, or other activities which involve paid employment may accept such employment. Participants in programs which do not involve work may not accept outside employment. J-1’s are normally exempt from FICA withholdings.

Professors and Research Scholars

J-1 professors are aliens who have come to the US to teach, lecture, observe or consult at post-secondary educational institutions. They may also conduct research unless their program sponsor specifically forbids it. Research scholars are individuals who are in the US primarily to conduct research, observe or consult at research institutions, educational institutions and similar organizations. Unless specifically forbidden by the program sponsor, research scholars may teach and lecture. The position filled by the J-1 alien must be temporary. J-1 professors and research scholars may enter for a three-year period, initially, and the program sponsor may approve a six-month extension. After this extension, the person’s stay can be extended further, with the approval of the State Department.

College and University Students

The J-1 student visa category is reserved to those who are pursuing a full-time formal course of study at a college or university, and to those who are receiving English language training at an accredited educational institution. J-1 students are eligible for two types of employment –– academic training and student employment. For academic training, it must be related to the field of study, the student must be in good academic standing, and the school’s responsible officer must approve it in writing. Part time (no more than 20 hours a week) student employment is allowed if it is part of a scholarship or fellowship, is on campus, or is off campus and necessary because of unforeseen economic circumstances. This employment authorization is valid until the course of study is over, or 12 months, whichever is less. Following the completion of studies, undergraduate and pre-doctoral students are eligible for up to 18 months of practical training, and post-doctoral students are available for up to 36 months of training.

The spouse and single children (under 21) of a J-1 principal applicant are eligible to apply for J-2 visas. A J-2 spouse may obtain Employment Authorization. However a J-2 alien spouse may only use his or her income to support the family's customary recreational and cultural activities and related travel among other things. Employment will not be authorized for J-2 dependants if the income is needed to support the J-1 principal alien.

Foreign Residency Requirement

Certain "J" exchange visitors who participate in programs which are financed in whole or in part, directly or indirectly, by an agency of the U.S. Government or by the exchange visitor's government, or who are nationals or residents of a country which has been designated by the Exchange Visitor Program and Designation Staff as requiring the skills of the exchange visitor, must return to their country of nationality or last residence after completing their program in the United States, and reside there physically for two years before they may become eligible to apply for an immigrant or temporary worker visa. J-2 Spouse and children are subject to any foreign residency requirements. Waivers of the foreign residency requirement may be available (http://www.americanvisas.com/j1.htm).

"Specialty Occupations” (H-1B)

The Immigration and Nationality Act of 1952 first established an H-1 nonimmigrant visa classification for temporary workers "of distinguished merit and ability." The law has since been amended several times, leading to the H-1B program of today which was recently modified by The American Competitiveness in the Twenty-First Century Act ("AC 21”). A number of AC 21’s provisions expired in October, 2003 and new legislation is pending. The following representations assume that the new legislation will renew the original provisions of AC 21, which assumption may be erroneous.

Two separate agencies exercise responsibility for the H-1B program, the DHS through the USCIS and the U.S. Department of Labor ("DOL"). The DHS authorizes actual H-1B classification for a particular foreign national beneficiary, based on a petition submitted by the employer describing the job to be performed and the person's qualifications. The DOL reviews and certifies the employer's labor condition application, a prerequisite to filing the DHS petition, and retains jurisdiction to enforce the employer's obligations relating to wages and working conditions.

H-1B classification requires that a specific job offer in the United States be made by an employer, the Petitioner. The Petitioner must be a "United States Employer" or its agent. The U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. which (1) engages a person to work in the U.S., as specified in the petition process, (2) has or will have an employer-employee relationship with the person or persons for whom it files H-1B petitions, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the employee's work, and (3) has a U.S. Internal Revenue Service tax identification number. A foreign entity may file a petition to employ an H-1B worker in the U.S., but only if it first establishes "branch office" in the U.S.

The job offer must be for a "specialty occupation" position. A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor," and which ordinarily "requires the attainment of a bachelor's degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States." The job offer must be nonspeculative based on an actual need for the foreign national's services in such specialty occupation.

The foreign national for whom an H-1B is sought must be "qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation." To satisfy this criteria, the foreign national may:

1. hold a baccalaureate or higher degree "required by the specialty occupation" from an accredited U.S. college or university,
2. hold a foreign degree determined to be the academic equivalent of such a U.S. degree,
3. hold an unrestricted state license, registration, or certification to practice the specialty occupation in the state of intended employment, or
4. "have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation," "recognition of expertise in the specialty through progressively responsible positions directly related to the specialty."

This last provision can permit a foreign national to qualify for H-1B status who does not have at least a baccalaureate degree if s/he has experience which when combined with any education, is equivalent to a U.S. baccalaureate degree or higher, that would normally be required for the H-1B qualifying position offered.

An article previously published by this author which describes the H-1B process in greater detail may be accessed here. (Warning: this article was published prior to and does not take into consideration the effects of the expiration (sunset) of the provisions contained in the AC21 legislation referenced above. Congress is currently considering extending-modifying the existing H-1B law accordingly.)

Tax Issues

The U.S. has income tax treaties in effect with many countries. If the alien is a resident or citizen of such a country they may qualify for benefits which reduce the need to withhold income or employment taxes. To take advantage of treaty benefits aliens should file Form 8233 with their employers to reduce the withholding of income taxes. They must also attach a statement to Form 8233. Examples of statements are contained in IRS Publication 519, a U.S. tax guide for resident and nonresident.

Disclaimer
These materials have been prepared for informational purposes only and receipt thereof does not constitute formation of an attorney-client relationship. Immigration laws-policies change frequently. No one should rely upon this information for any purpose without seeking legal advice from a competent licensed immigration attorney. There is no endorsement made or responsibility taken for any third-party content that may be accessed through reference to websites in this article. E. Vance Winningham, the Law Firm of Winningham & Stein, and www.AmericanVisas.com expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this material. Should you wish to communicate with us via mail@americanvisas.com, you should note that the security of internet e-mail is uncertain. By sending sensitive or confidential e-mail messages which are not encrypted you accept the risks of such uncertainty and possible lack of confidentiality over the internet.

*Biographic Summary:

E. Vance Winningham: Only Oklahoma immigration lawyer listed in The Best Lawyer in America © (Currently 235 immigration lawyers have been so designated by their peers nationally www.bestlawyers.com). Member of the first Board of Trustees of the American Immigration Law Foundation based in Washington, D.C. Founder of Oklahoma’s first law firm specializing in U.S. Immigration Law. Originator and Administrator of web based network of nationally prominent immigration lawyers (www.AmericanVisas.com). Former Chapter Chair, American Immigration Lawyers Association. Juris Doctor, University of Oklahoma. Baccalaureate, Oklahoma State University.

Copyright © 2003 Winningham & Stein, The Registry, Oklahoma City, Oklahoma 73112-8044 USA. This material may be reproduced only in its entirety without alteration and for non-commercial purposes.