It’s that time of year when employers prepare and file H-1B visa petitions on behalf of foreign workers. The H-1B visa is an employment-based, non-immigrant visa category for temporary workers. H-1B visas allow foreign workers with at least a bachelor’s degree or equivalent to work in specialty occupations for U.S. employers. They have become an essential tool for many businesses to get highly skilled and qualified workers in many different fields. In fact, many industries continue to lobby the government to raise the H-1B caps, which limit the number of H-1B visas granted each year, and thereby enable more foreign workers to work in the U.S.
All arriving travelers are subject to inspection by a CBP officer prior to entering the United States. The U.S. Customs and Border Protection (CBP) is responsible for conducting immigration inspections at America’s 329 Ports of Entry with the goal of excluding those that are not eligible for entry, while ensuring the entry of lawful travelers. With the recent terrorist attacks and the increased focus on maintaining security during immigration screening, there are more concerns than ever about making sure that only eligible nonimmigrants enter the U.S. As a result, it is particularly important for travelers to know what to do at the airport when they arrive and speak with CBP personnel.
The best thing to do is to know the rules. Getting a visa to visit the U.S. for business or pleasure can be difficult for some travelers. Before we get to the rules, the first issue is to verify whether your family member needs a visa. For those individuals who are nationals or citizens of Visa Waiver countries, a visa is not required in most cases and they can apply online under the Electronic System for Travel Authorization (ESTA). The State Department provides a list of Visa Waiver countries and instructions. If your family member is not a national or a citizen of a Visa Waiver country, then she needs to request a visa from her local U.S. consulate.
Once you determine that she does need a visa, the greatest areas of concern that can arise during the interview generally fall into these 3 categories:
A frequent issue for people visiting the U.S. with a visa is how long they can remain in the country lawfully. A visa is a travel document that allows a foreign traveler to request admission to the U.S. at a U.S. border or port of entry. Typically, a visa will allow travel to the U.S. over an extended period. For example, B-1 and B-2 visas for business travelers are usually valid for 10 years. That permits these visitors to make regular trips to the U.S. over the 10-year period without having to apply for a visa for each individual trip. However, they cannot stay in the U.S. continuously for 10 years. This rule applies for any nonimmigrant visa although the overall length of the visa varies based on country and visa type.
International students with Science, Technical, Engineering and Math (STEM) degrees may become eligible to work in the U.S. for up to 3 years under new proposed rules. On October 19, 2015 the U.S. Department of Homeland Security (DHS) issued proposed changes to its regulations, which offer both additional benefits and employer requirements for students and businesses using post-completion STEM Optional Practical Training (OPT). The proposed rules are in a comment period and are not final.
Overview of the proposed rules
The proposed STEM extension rules will replace the 2008 STEM extension rule currently available to certain STEM students. The proposed regulations are in response to a federal district court’s decision invalidating USCIS’s 2008 STEM extension rule and also a part of President Obama’s executive action to strengthen and extend on-the-job training for STEM graduates of U.S. universities. After completing a post-secondary degree program (e.g., undergraduate, graduate or post-graduate) in the U.S., an F-1 visa student can apply for the post-completion OPT program to get work authorization for 1 year. However, those in qualifying STEM fields can apply for an additional work permit beyond the 1-year under the STEM OPT program.
The 2008 STEM OPT program gave STEM students work authorization for an additional 17 months after the 12-month period available to any F-1 student (29 months in total). The proposed rule would extend the current STEM OPT period from 17 months to 24 months, for a total of 36 months. [Read more…]
I have to go to the US for a business trip. What can I do and not do while I am in the US?
It’s very important to understand the dos and don’ts of business visits to the US. We regularly get calls from multinational companies who have sent employees to the US for business and they have been stopped by US immigration authorities at the border or at the airport. Before we get to what types of activities are permissible, however, the first issue is whether you’re coming with a passport from a visa waiver country. If you do have a passport from a visa waiver country, you may apply under the Electronic System for Travel Authorization (ESTA) and enter the US for business or pleasure without a visa stamp for a period up to three months. Otherwise, you must apply for a B-1/B-2 visa stamp at the nearest US Embassy or Consulate before traveling to the US. Note that if you enter with a visa stamp, as opposed to visa waiver, you may be allowed to stay up to six months in the US.
Once that’s settled, there are real concerns about what constitutes permissible activities for business visitors. Although temporary business visitors may enter the US to engage in legitimate activities relating to a business for limited duration, there are some basic rules. These include:
- The business activity should be associated with international trade or commerce. This means the work product can’t be predominantly created in the US and the services in the US must be incidental to international trade and commerce.
- The business visitor cannot engage in productive employment (salaried or independent) in the US.
- Profits of the activity must accrue abroad.
- The work should be controlled primarily by a foreign employer, not by a US entity.
- Payment to the business visitor should generally come from a foreign employer.
- The services performed are not ones which a U.S. worker would have to be hired for, are not inherently part of the US labor market, and are not primarily benefiting the US entity as local work.
Many H-1B employers, especially in the IT industry, send their employees to various locations to work for clients. Unfortunately, they don’t always realize that such a move could result in revocation of an H-1B visa. On July 21, 2015, USCIS released its final guidance on when such employers must file an amended or new H-1B petition for changes in work location. This follows a recent decision in Matter of Simeio Solutions, LLC (Simeio). The decision and guidance clarify when there is a material change in the conditions of employment, the employer must obtain a new Labor Condition Application for Nonimmigrant Workers (LCA) and amended H-1B petitions.
Prior to this new decision, there was a great deal of ambiguity in the rules which resulted in conflicting decisions around the country.
In Simeio, the company had an H-1B employee working at various client sites in different parts of CA and NY. The company didn’t disclose this and USCIS revoked the H-1B visa. The case went to the Administrative Appeals Office (AAO) which confirmed the USCIS action. The AAO held that an H-1B employer must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment.
New rules to benefit the families of H-1B visa holders went into effect on May 26,, 2015. The Department of Homeland Security (“DHS”) granted certain spouses with H-4 visas the ability to seek employment authorization so they could work in the US. The purpose behind the new regulation is to help the US attract and retain highly skilled foreign workers and minimize the disruption to US businesses which results when H-1B nonimmigrants choose not to remain in the US and pursue lawful permanent resident status.
Prior to the May regulation, the families of employees with H-1B visas would get an H-4 visa, which did not allow them to work in the US. As a result, the family would have to rely on the H-1B nonimmigrant as sole support, a burden that would cause some workers to leave the US. It was especially burdensome to H-1B employees who have a long waiting period to get a green card as is the case with workers from countries with low annual quotas for green cards, such as India and China.