World Trade Organization
Symposium
Mode 4 of the GATS-
Taking Stock and
Moving Forward
Geneva
22-23 September 2008
Ellen G. Yost
Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
7 Hanover Square
New York, NY 10004-2756
Phone: +1 212 230 2874
Fax: +1 212 446-0371
Email: eyost@[Link]
Website: [Link]
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The Fragomen Firm
• Practices exclusively in the area of business
immigration and nationality law
• More than 250 attorneys and almost 1000
professional immigration specialists
• 30 offices in the Americas, Europe and Asia-
Pacific regions
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Involved Government Agencies
• Department of Homeland Security:
1. United States Citizenship and Immigration Services - USCIS
(formerly the Immigration & Naturalization Service – INS or BCIS)
2. Immigration & Customs Enforcement – ICE
3. Customs & Border Protection – CBP
4. CIS Ombudsman
• Department of Labor
– Centralized processing out of Atlanta and Chicago.
– State Workforce Agencies (SWAs)
• Department of State (DOS): U.S. Embassies and
Consulates
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Basic Concepts
• Immigrants vs. non-immigrants, not exactly
permanent v. temporary
• Dual intent
• Petitions, visas, & status
• Quotas & chargeability
• Preservation of family unity
• Priority workers
• Preference classification
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Nonimmigrants
• Coming to the U.S. temporarily
• Retain residence abroad
• Dual intent - only for H’s and L’s
• “Alphabet Soup” - A-V
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Business and Employment Visas
Common business and employment-based visa
categories:
• Business visitors (B-1)
• Intracompany transferees (L-1)
• Treaty Traders and Investors (E-1 & E-2)
• Professional Visa for Australians (E-3)
• New hires (H-1B, TN & O-1)
• Trainees (J-1 & H-3)
• Students on Practical Training (F-1 & J-1)
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B-1 Business Visitors
• On foreign payroll
• Activity in U.S. benefits foreign employer
– Business meetings, training, & joint development
projects
- Activity in US must not accrue to the benefit
of any US entity
• Visa Waiver Program
- 27 participating countries
– 90-day maximum stay
– Ineligible for Change and Extension of Status
– ESTA
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L-1 Intracompany Transferees
• Intracompany Relationship:
– Parent, subsidiary, affiliate, branch or joint venture
• Prior Employment Abroad:
– 1 year within 3 years preceding transfer to U.S.
• Qualifying Capacity:
– Executive, Managerial (L-1A)
– Specialized Knowledge (L-1B)
• Duration:
– L-1A = 7 years
– L-1B = 5 years
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F-1 Students
• Academic studies: elementary through postdoctoral
– admitted for “duration of status” (D/S)
• Full-time matriculated student at approved school
• “Optional Practical Training:” pre- or post-graduation
– total = 12 months (29 months for STEM graduates who work with
employers that use E-Verify); part-time during school year, full-time
during vacations and after graduation
– need employment authorization document (EAD);
– School endorsed I-20 (issued via SEVIS System)
– not tied to particular employer
• “Curricular” practical training if part of educational program
– Need letter from school
– School endorsed I-20 (issued via SEVIS System)
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H-1B Category: USCIS Provisions
• “Specialty Occupation” -- Entry level requirement = minimum
Bachelor Degree or equivalent
• 3 for 1 rule -- 3 yrs. experience = 1 yr. of college
• Labor Condition Application certified prior to filing petition
• Six-Year Maximum Stay (can extend under certain
circumstances - AC-21)
• 65,000 Annual Ceiling
– 6,800 of 65,000 reserved for citizens of Chile and Singapore
– For FY 2008 and 2009, cap reached at the start of filing.
• 20,000 additional visa numbers available to foreign nationals
holding Master’s or higher degrees from U.S. universities
• Reasonable costs of return transportation for dismissed
employee
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Labor Condition Application
• Filed with U.S. Department of Labor
• Attests to four basic conditions
– Wages
– Working conditions
– No strike or lockout
– Notice
• Wage offered must be the higher of Prevailing Wage
or Actual Wage paid to similarly situated employees
• H-1B dependent vs. nondependent employers
• Public Access file
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E-3 Visa for Australians
• Similar to H-1B visa
– For specialty occupations
– Employee must have Bachelor’s degree
– Employer must secure LCA from DOL
• Not subject to 65,000 cap
– But limited to 10,500 per year
• Spouse eligible for work authorization
• No foreign residence requirement
• Can be renewed indefinitely
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J-1 Trainees and Interns
• Exchange visitor program
• Categories include trainees, interns, research scholars,
specialists, students
• Emphasis on reciprocity, cross-cultural activities, and
orientation
• Some J-Visa holders must return to home country for 2 years
after completion of program or seek waiver of this
requirement
– skills list
– government funding
– graduate medical education
• SEVIS (Student Exchange Visitor Information System) web-
based system for generation of Forms DS-2019 and tracking
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E’s, O’s & P’s
E-1 Treaty Trader
E-2 Treaty Investor
O-1 Persons of extraordinary ability
P Internationally recognized athletes or
entertainment groups
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E-2 TREATY INVESTORS
• Employer & employee “nationals” of country
with qualifying treaty with U.S.
• Based on substantial investment in the U.S.
• Employer > 50% owned by nationals of
treaty country
• Visa typically valid for 5 years
• 2 year admission; no limit on extensions
• E spouses authorized to work (must apply for
EAD)
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TN’s
Canadian and Mexican professionals performing
certain occupations (based on then-existing US law,
NAFTA categories were original model for the GATS)
Must be nationals of either Canada or Mexico
– Coming to U.S. to work in profession listed on NAFTA
schedule
– Generally require a Bachelor’s degree in field
– Canadians apply at border (non-national dependents
must obtain visa at U.S. Consulate)
– Mexicans apply at Consulate
– One year stay, renewable in one-year increments
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H-2B Seasonal Workers
• Since 1990, cap of 66,000 visas annually, has been used up
every year since 1994
• Seasonal positions (not agriculture), on one-time projects,
during times of exceptionally high workload, or intermittently
• For landscaping, seasonal hospitality, and seasonal
construction, or to meet specific needs in manufacturing, food
packaging and processing, fisheries, retail and other
industries
• Requires employers to advertise through the state and federal
labor departments and first to hire U.S. workers who apply
• Must return home at the end of the season
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Immigrants
• “Green card holders” = “permanent residents” =
“immigrants”
• Coming to U.S. permanently
• Numerically limited
– Visa bulletin
– Priority date
• Can become U.S. citizens 3 or 5 years after
receiving green card
• Importantly, not all temporary workers become
eligible for permanent visa
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Family-Based Permanent Residence
• Immediate relatives (spouses, minor children &
parents of U.S. citizens)
• Other close family members of citizens or
permanent residents, including:
– Unmarried sons & daughters of citizens (over age 21)
– Married sons & daughters of citizens
– Spouses, children & unmarried sons/daughters of
permanent resident aliens
– Brothers & sisters of citizens
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Employment-Based Permanent
Residence: 2/3-Step Process
• Labor certification (where required)
– filed by employer on behalf of foreign national
– processed by U.S. Department of Labor
• Immigrant preference petition
– filed by employer
– processed by USCIS
• Adjustment of status or consular processing
– filed by the foreign national & family members
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Employment-Based Categories
EB-1: Priority workers
EB-2: Advance-degree professionals &
aliens of exceptional ability*
EB-3: Professional, skilled & unskilled
workers*
EB-4: Special immigrants
EB-5: Employment creation
(* labor certification required)
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EB-1: Priority Workers
• Persons of extraordinary ability
(similar to the O-1 nonimmigrant category)
• Outstanding professors & researchers
• Multinational executives/managers
• Labor Certification not required
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EB-2: Advanced-Degree Professionals
& Persons of Exceptional Ability
• Job requires advanced degree (Master’s & above)
or Bachelor’s degree + 5 years of progressive
professional experience
• Persons of exceptional ability in science, art or
business
• Labor Certification required
• Waiver of labor certification requirement if
employment is in the “National Interest” or foreign
national is of “Exceptional Ability”
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EB-3: Professionals, Skilled Workers,
& Other Workers
• Most commonly used / highest demand
• Professionals: position requires Bachelor’s degree
or foreign equivalent degree
• Skilled workers: position requires minimum 2
years of experience and/or training
• Other workers: limited to 10,000
• Labor certification required in all cases
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Visit [Link] for
links to key Web sites
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THANK YOU
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