practical advice on bringing foreign national employees to work in the u.s

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Practical Advice on Bringing Foreign National Employees to Work in the U.S.

August 11, 2016

Sarah Ames Eric LedbetterMaria Kallmeyer

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Business Law Training Program

What to do to get to the U.S. borderFiling petitions, obtaining visa and boarding planes

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Documentation needed to enter the US

• When DO travelers need a visa stamp/sticker in their passport- to work in the U.S.- to enter the U.S. for any reason if traveler is not from a country

whose citizen can enter under the visa waiver program (ESTA) - to stay in the U.S. for more than 90 days if traveler is a citizen of a

country who can enter under the visa-waiver program (ESTA) • When do travelers NOT need a visa

- If traveler is a citizen of a country who can enter under the visa waiver program (ESTA) and is coming either as a business travel or a tourist but is NOT coming to the U.S. to work or perform services.

- Canadian TN and L visa holders

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Entering the U.S. without a visa under the Visa Waiver Program (ESTA)• only available for citizens from certain countries• requires online registration and payment of fee of $14.

https://esta.cbp.dhs.gov/esta/• Only for tourists and business travelers• Does not allow travelers to work in the U.S.

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When a visa stamp is required

• Can be a 1-3 step process• When a visa stamp is required, between 1-3 different U.S.

federal government agencies can be involved.– Dept. of Homeland Security - specifically USCIS– Dept. of Labor– Dept. of State

• Every work visa – except for E visas for treaty traders or treaty investors – requires the filing of a visa petition by a U.S. employer in the U.S.

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Filing a visa petition

• Requires the filing of a petition by a U.S. employer with USCIS in the U.S. (for most common non-immigrant work visas like L and H visas)

• Some petitions can only be filed if a labor condition application was filed with and approved by the Department of Labor in advance (H and E-3 visas)

• Some petitions can be expedited which requires an additional fee• Processing times can be a few days or several months• Requires that all documents are translated into English

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Filing a visa petition cont.

• Filed petitions often receive Requests for Evidence (RFE) – can be extensive

• Approval of petition can either extend the stay of a person who is already in the U.S. or allow alien to apply for a visa at a U.S. Consulate.

• Most petitions are approved for 1-3 years• Approval notice is called Form I-797 and is sent to Employer only

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Sample I-797 Form Petition Approval notice

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Exceptions when no prior approved petition is needed for work visas• E-1 Treaty Trader and E-2 Treaty Investor visas are mostly applied for

directly at a U.S. Consulate (exception can be application for change of status in the U.S.)

• TN visas for Canadians and Mexicans with professional degrees• L-Blanket visas (for employees of multi-national companies that have

previously filed a blanket petition)• J visas for trainees and interns (requires approval from qualified

program sponsor organizations)

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What is a visa

• A visa allows one to travel to the border of the U.S. and request to be admitted in a certain category.

• Once the employer’s petition is approved, the alien can apply for a visa at a U.S. Consulate.

• Consulates are only outside the U.S.• Even with an approved petition, a visa is not guaranteed. • Obtaining a visa is a privilege – not a right.

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How to apply for a visa

• The visa application is an application by the alien• Requires completion of form DS-160, an electronic form

– Requires information about the alien– Questions depend on who completes the form– Incomplete or incorrectly completed forms can delay the visa issuance– Once submitted it cannot be changed– Each family member has to complete a separate form

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Sample of a DS-160 Confirmation Page

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How to apply for the visa

• Compile documents for visa application– Confirmation page of form DS-160– Proof of payment of visa fee– Approved petition (if applicable)– Copy of application– Documentation about family members– Passport

• Schedule appointment for visa interview at appropriate U.S. Consulate– Children under 14 and adults older than 65 don’t have to go for an interview

and submit application by mail

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The Interview at the Consulate

• Only applicants and family members applying for visas can attend the interview – applicants can’t be accompanied by attorneys.

• Tight security at Consulates – no cell phones, laptops, pads, electronics, suitcases or backpacks. Check security notices.

• Wait times at the Consulates can be several hours, but interview is usually 5-15 minutes long.

• Interview is to check qualification and eligibility.• Interviews are often in English.• No dress code but should be appropriate.• Remember, it’s a right not a privilege, act accordingly.

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After the interview

• If visa is approved– Consulate will keep passport and mail it back within 3-7 days– Few Consulates allow pick-up of passport– Travel to the U.S. can be at any time after return of passport

• If visa is not approved– Consular officers have wide discretion and there is no appeal.– Reason can be in the nature of applicant (for example: does not have the

intent to return to the home country, prior convictions, lack of required experience, does not speak enough English)

– Reason can be lack of qualification of employer (for example not enough investment, financial inability of employer, no need for alien)

– U.S. Consulate can review the application de novo and make its own findings

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What does a visa look like

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Departing for the U.S.

• Travel documents needed– Passport– I-797 approval notice– Copy of Petition

• Checking in at the airport– At check-in with airline, point out the visa

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Have a good flightPhoto courtesy of Sarah Ames

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Welcome to the United States!

An overview of the procedures and documentation required to enter the United States as a temporary worker

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CBP Entry & Inspection Procedure•DHS vs. DOS•Immigration vs. Customs•Visa vs. Status

U.S. Customs andBorder Protection

U.S. Customs and Border Protection

CBP Entry & Inspection Procedure•DHS vs. DOS•Immigration vs. Customs•Visa vs. Status

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Department of Homeland Security

• Three Agencies within DHS

• U.S. Customs & Border Protection (CBP)• U.S. Immigration & Customs Enforcement (ICE)• U.S. Citizenship & Immigration Services (CIS)

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Customs & Border Protection

• CBP is primarily a law enforcement agency• Concerned with inspecting people and things that

enter the U.S.– Immigration– Customs– National security/terrorism– Medical/Quarantine

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- When in doubt…better to disclose- Entering with Pets

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Customs & Border Protection

Getting an I-94 Arrival/Departure Record• What is it?• Paperless nowadays (https://i94.cbp.dhs.gov)• Visa vs. Status

- E-2 visa = 5 yrs, E-2 status = 2 yrs- Blanket L-1 visa = 3 or 5 yrs, I-129S and I-94 = 3 yrs (or less)

• Deferred Inspection for corrections

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Sample I-94(from Google Images)

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Customs & Border Protection

CBP – Primary vs. Secondary Inspection

• Primary is designed for speed• Secondary Inspection is for questions, clarifications, complications• Can submit a TRIP Claim if erroneously being routed to Secondary

(https://help.cbp.gov/app/forms/complaint/kw/trip%20claim/sno/1)

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Customs & Border Protection

CBP – Trusted Travelers Programs• Global Entry

– https://www.cbp.gov/travel/us-citizens• Nexus (Canada)

– https://www.cbp.gov/travel/trusted-traveler-programs/nexus• Sentri (Mexico)

– https://www.cbp.gov/travel/trusted-traveler-programs/sentri

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Customs & Border Protection

CBP & Canadian Citizens

• CBP can process L-1 + TN applications• But

– Need visa for E-1/E-2– Need USCIS approval for H-1B, O-1, P-1

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Customs & Border Protection

Automatic Visa Revalidation (AVR)• If…“Brief, Casual and Innocent” trips to Can/Mex

– Less than 30 days– No new visa application while there– No departure from North America

• Then…– Can enter on expired visa in different class

• Be Aware... – AVR can be used to block you from getting new I-94

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Customs & Border Protection

What’s Hot with CBP

• What’s new: Mobile Passport Control App• Visa revocations due to DUI/crimes• Which to use: Visa or Advance Parole?• Perennial Problem: Long absences as Permanent Resident

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What happens next?

• Stay true to the letter• Start working within 10 days entry

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Form I-9

• All employers must use Form I-9 to verify identity and employment authorization

• Must complete an I-9 Form, Section 1 on the first day, Section 2 by the third day

• Should be given the option of one document from List A or a List B and List C document

• Most foreign national visa holders will only have a foreign passport, with an I-94 that indicates they are authorized to work for you

• Develop a reminder system for re-verification

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Form I-9, Section 1

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Form I-9, List of Acceptable Documents

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Form I-9, Section 2

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Sample Foreign Passport

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Sample I-94

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Sample I-797 Approval Notice with I-94

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Sample Permanent Resident Card

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Sample I-797 Form Petition Approval Notice

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Sample Visa

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E-Verify

• What is E-Verify? • If you use E- Verify, wait to create a case until you have the SSN.  • The employee must bring you the Social Security Number when they

get it, and complete Section 1 on their own. • Employer can then create E-Verify case, and note why it was late.

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Social Security Number Applications  

• Eligible if in the U.S. in a work authorized status, either incident to status or with Employment Authorization Card

• L-2 and E spouses are eligible • Based on the SAVE database• Be consistent with name spelling, even when booking a flight ticket• Should apply 10 days after entry

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Driver's License Applications

• Must show lawful presence, and meet the State's residency requirements

• Review each State's web site for specific State specific rules• Immigration check based on SAVE database

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Questions?– Sarah Ames

• sarah.ames@quarles.com• 312-715-5180

– Maria Kallmeyer• maria.kallmeyer@quarles.com• 312-715-5009

– Eric Ledbetter• eric.ledbetter@quarles.com• 312-715-5018

© 2016 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.