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Immigration for Professionals
U.S. immigration law provides numerous options for professionals and other qualified individuals to obtain authorization to work and live in the United States. D.Ray Mantle works closely with employers and professionals to determine the best strategy for obtaining and maintaining employment authorization. Whether you are in need of a temporary work visa, or are ready to pursue permanent residence through PERM labor certification, Mr. Mantle can assist with each step of the process.
Many U.S. employers have relied on the H-1B visa program to fill critical labor shortages for high tech and other professional positions. With current demand far outpacing the availability of new H-1B visas, employers and foreign nationals must turn to other, more complicated visa options. By scheduling a consultation with D.Ray Mantle, you can find out the best visa options for your particular circumstances.
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H-1B | Professional Occupations
U.S. employers may petition for a foreign worker to enter the U.S. to work in a "specialty occupation." Qualifying positions require theoretical and practical application of highly specialized knowledge, normally associated with obtaining a bachelor's degree in the field. A Labor Condition Application (LCA) must first be filed with the Department of Labor, binding the employer to certain notice, pay, and other working condition requirements. Initial H-1Bs are issued for 3 years, and can be extended for an additional 3 years. Further extensions may be available based on filed labor certifications and approved immigrant petitions. High demand for new H-1B visas has quickly exhausted the annual quota for the past several years. Employers should prepare to file new petitions on the first available date, April 1, in order to be included in a random lottery. A treaty with Australia also provides Australian professionals with the ability to work in the U.S. in E-3 status, a category similar to H-1B.
» Learn more about H-1B Visas
L | Intracompany Transferees
Managers and executives of multi-national corporations, as well as specialized knowledge workers, may transfer to U.S. subsidiaries, parent companies, or affiliates under the L visa category.
To qualify, the U.S. and foreign employers must provide evidence of their corporate relationship and ownership and that the individual has been employed in a qualifying position for at least one year with the foreign company. Foreign companies looking to set up a new office in the U.S. can also apply for L-1 visas.
» Learn more about L-1 Visas
E | Treaty Investors & Traders
An individual coming to the U.S. in furtherance of substantial international trade (E-1) or to further a substantial investment in a U.S. company (E-2) may be eligible for a visa based on specific treaties between the U.S. and other nations. E-1 trade must be principally (more than 50%) between the U.S. and the treaty country. An E-2 investor must demonstrate that a substantial investment has been made in a U.S. entity and that the invested funds or assets have been placed at risk. For both E-1 and E-2, the U.S. entity must be at least 50% owned by non-U.S. resident nationals of the treaty nation. An application may be made to the U.S. consulate to qualify the company as an E-1/E-2 employer in order to bring over additional executives, supervisors, or essential employees.
» Learn more about E Treaty Visas
TN | NAFTA Professionals
The North America Free Trade Agreement (NAFTA) established the TN visa category for Canadian (TN-1) and Mexican (TN-2) citizens to temporarily work in the U.S. in professional positions identified in the agreement. (Click here for the full list of occupations.) Each entry in TN status can only be for up to one year, but there is no fixed limit on how many times the status can be renewed by re-applying and re-entering. Unless the applicant is changing to TN status in the U.S., an application does not need to be filed with USCIS. Canadians may apply for entry in TN status directly at the port of entry, and Mexicans may apply at the U.S. consulate.
» Learn more about TN Visas
H-3 | Training Programs
The H-3 trainee visa is available to foreign nationals who are seeking training in any field (except physicians). The application must be accompanied by a detailed training program and specific certifications from the sponsoring company. The training program must be designed to prepare the individual for a position abroad and is limited to no more than 18 months. To qualify, the applicant cannot already have substantial training or experience in the field, and similar training must not be available in the applicants home country. Participants in an H-3 training program of less than 18 months duration are not subject to any foreign residency requirements.
J-1 | Exchange Programs
Individuals participating in a recognized international cultural or educational exchange program may obtain J-1 visas. Programs are available for scholars, teachers, college and high school students, and other specified fields. J-1 programs are also available for trainees, allowing them to fill internship positions with U.S. employers and institutions. Depending on the exchange program sponsor or the field of training, the individual may be required to return and live in their home country for at least two years before they can apply for a work visa or permanent residence.
O | Extraordinary Ability
Individuals demonstrating extraordinary ability in the arts, sciences, education, business, or athletics may qualify for an O-1 visa. Artists must be recognized nationally or internationally as prominent in their field. Other fields of endeavor require documentation of sustained national or international acclaim. The petitioning employer or agent must also obtain a written consultation letter from the appropriate peer group or labor organization. Certain support personnel may also qualify for O-2 visas. Visit the Extraordinary Ability practice section to learn more about qualifying for this category.
P | Athletes & International Entertainers
Members of internationally recognized athletic teams and entertainment groups may obtain P-1 visas to enter the U.S. for competitions, events, or performances. Substantial international recognition in the field over a sustained period of time is required, and in most cases, individuals must have been a participating member of the group for at least one year. As with the O-1 category, a written consultation letter is required from the appropriate peer group or labor organization.
R | Religious Workers
Ministers and individuals working in a professional capacity in a religious vocation or occupation may qualify for R-1 visa status if they have been a member of the sponsoring religious denomination. USCIS is considering new regulations in this category and has already increased scrutiny of religious worker petitions, causing substantial delays in processing.
A paid minister entering the U.S. to continue his or her vocation may also qualify as a special immigrant. Ministers must be members of a religious denomination with a bona fide religious organization in the U.S. and must prove they have been continuously paid for their work as a minister for at least two years. Other paid workers in religious occupations or vocations may also qualify as special immigrants if certain conditions are met.
B | Business Visitors & Visa Waiver Program
Foreign nationals attending business meetings, conferences, training, and similar activities may apply for a B-1 visitor visa. Applicants must not only show the purpose of their visit, but must also prove they will not engage in productive employment. Evidence of strong ties to the applicant's home country is required to prove the applicant will only be in the U.S. for a brief period. Most business visitors are admitted for no more than 30-90 days at a time. Business visitors from countries participating in the Visa Waiver Program may enter the U.S. for up to 90 days at a time to engage in activities similar to the B-1 classification.
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Most foreign workers seeking permanent residence must first obtain an approved labor certification through the U.S. Department of Labor (DOL). The online application can only be filed after the employer has taken specified steps to recruit for the position and has failed to find an able, willing, qualified and available U.S. worker. An increased number of applications are being audited by DOL, emphasizing how critical it is for employers to document their compliance with DOL regulations before filing the application. D.Ray Mantle works directly with employers to ensure full compliance with DOL regulations.
» Learn more about PERM
Job Requirements & Prevailing Wage
The employer must first identify the specific job duties and minimum requirements for the position being offered to the foreign national. For reasons discussed in the Permanent Residence practice section, employees may attempt to influence their employers to raise the requirements to at least a master's degree, or a bachelor's degree with 5 years of experience. The higher the requirements, however, the higher the salary that must be offered to the foreign national once their green card application is approved. Employers must certify the true minimum requirements for the position, as supported by prior hiring practices and industry standards. Once this is defined, the job description and requirements are submitted to the state workforce agency to determine the prevailing wage for the position.
Recruitment
Employers must engage in a recruitment campaign to determine if there are any available U.S. workers who are qualified, willing and able to perform the job. Required postings include a 30-day job order with the state workforce agency, an internal notice of filing to employees, and two Sunday ads in the newspaper of general circulation for the area. The employer must also engage in three additional forms of recruitment, such as job search websites, employee referral programs, and the employer's website. Unwaivable filing deadlines require careful tracking of each recruitment step to ensure the final application remains valid at the time of filing.
Audits
PERM applications are submitted online and, in most cases, are processed automatically by the Department of Labor. Now that DOL has eliminated the backlog of pre-PERM labor certification applications, their attention has turned to auditing PERM applications. D.Ray Mantle gathers all of the required documentation throughout the recruitment process so that employers can be fully prepared if their application is selected for an audit.
Employers Only
Under recent regulatory changes, DOL has stripped foreign employees of any legal interest in the PERM application process, and requires all costs and expenses to be born solely by the sponsoring employer. D.Ray Mantle is available to answer initial questions employees may have about PERM, but any decision on how to proceed with the application must be made by the employer.
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Once the PERM application has been certified, the sponsoring employer has up to six months to file an immigrant petition with US Citizenship and Immigration Services (USCIS) on behalf of the foreign employee. At this stage of the green card process, USCIS is chiefly concerned with:
- The employer's intention and ability to offer permanent employment to the foreign worker;
- The employer's ability to pay the offered salary; and
- The foreign workers qualifications in light of the minimum job requirements stated in the PERM application.
Qualified multinational managers and executives are able to skip the PERM labor certification process, but have other burdens of proof to demonstrate in the immigrant petition. Although the immigrant petition does not provide work authorization itself, an approved petition is a prerequisite for obtaining an employment-based green card.
» Learn more about PERM
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The final step in the green card process is an application filed by the foreign employee requesting an adjustment of status to lawful permanent residence. Read more about critical issues in the adjustment of status process in the Permanent Residence practice section.
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D.Ray Mantle assists employers and employees in obtaining positive immigration results in a timely, personal, and professional manner. Your individual circumstances are carefully reviewed by an experienced immigration attorney to determine which options are available to you. Mr. Mantle provides guidance and help in gathering the necessary information and documents for your case, prepares all of the necessary application forms, and ensures that your final applications meet all government requirements.
If you would like to understand more about employment-based immigration and to find out if you qualify for a work visa, please contact D.Ray Mantle for a consultation.
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