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INTRODUCTION TO IMMIGRATION LAW

JOSÉ L. FLEMING,

IMMIGRATION COMPLIANCE OFFICER

MICHAEL SCHWARTZ, DIRECTOR

TIM WHITE, IMMIGRATION CONSULTANT

HUMAN RESOURCES,

COMPLIANCE & IMMIGRATION SERVICES

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IMMIGRATION &

WORK AUTHORIZATION

Why is knowledge of Immigration Laws (and who is legally allowed to work in the U.S.) Important for UVA Departments?

Congress has placed employers in the middle of the work authorization process

UVa strategic goals: - Increase our global presence - Compete for and bring to UVA the best and brightest

students, faculty, researchers, and scholars from around the world

Liability/penalties for discrimination on basis of national origin during hiring/recruitment process

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U.S. GOVERNMENT AGENCIES

US Citizenship and Immigration Service (USCIS- formerly known as Immigration & Naturalization Services, INS; ww.uscis.gov)

US Department of Labor (DOL;www.dol.gov)

US Department of State (DOS; www.state.gov)

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GLOSSARY OF IMMIGRATION TERMS

Please refer to your hand-out of frequently used immigration terminology.

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I-94 CARD ISSUED BY CBP:RECEIVED UPON U.S. ENTRY & AUTHORIZES DATE

OF ADMISSION AND END OF STAY

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GENERAL IMMIGRATION ISSUES

What is a visa?A visa is a travel document issued by an American Consulate outside the U.S. which allows an individual to travel to the U.S.

What if my visa expires?If you are in the U.S. it does not matter if you visa expires. A valid visa is only required when you are trying to enter the U.S.

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VISA ISSUED AT U.S. CONSULATE ABROAD -U.S. ENTRY & EXIT TRAVEL DOCUMENT

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GENERAL IMMIGRATION ISSUES

What is “status”?Status is a foreign national’s (FN) right to remain in the U.S. FN’s must must have valid immigration status at all times. This is reflected in their “I-94” card which they are given each time they are inspected and admitted to the U.S.

What is a passport?A passport is also a travel document like a visa. The true purpose of a passport is to confirm that if a FN violates the laws of a foreign country, the country will take them back. A valid passport is required at all times; a valid visa is not.

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EMPLOYMENT AUTHORIZATION CARD ISSUED BY USCIS:AUTHORIZES EMPLOYMENT BEGIN AND END DATES

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IMMIGRATION STATUSES

United States Citizens (USC) Legal Permanent Residents (LPR)

(a.k.a. “green card” holders) Non-immigrants

(e.g. refugees, asylees, tourists, foreign students, diplomats, temporary workers)

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IMMIGRATION/WORK AUTHORIZATION

What does it mean to be a Permanent Resident?

- Can live in U.S. permanently & engage in unrestricted employment

- Can support spouse & unmarried children for permanent residence

- Can lose permanent residence by engaging in criminal acts or residing abroad for an extended period of time

- No right to vote, serve on juries, or run for office

- Researchers & Scholars may apply for government grants

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IMMIGRATION/WORK AUTHORIZATION

How do you obtain Permanent Residence?

Family based: U.S. citizens & LPRs can sponsor close relatives

Employment based:Typically, employer must first document to Departments of Labor that there are no qualified U.S. workers available for the position (This step is not required for “persons of extraordinary ability”, “outstanding professors/researchers” or those whose employment is deemed to be in the “national interest”)

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IMMIGRATION/WORK AUTHORIZATION

Non-Immigrant Visas:

Foreign nationals who are traveling to the U.S. for a temporary intention are categorized under U.S. law as non-immigrants.

The law necessitates that these people provide proof that they don’t plan to immigrate to the United States.

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IMMIGRATION/WORK AUTHORIZATION

Non-Immigrant Visas:

As these visas are temporary, the individual must show: - The financial resource of support while in the United

States - Intent to return to the home country

There are several types of non-immigrant visas, according to the purpose of the trip.

- For example: there are special visas for fiancés of U.S. citizens, diplomatic employees, tourists, business people, exchange visitors, au pairs, treaty traders/investors, researchers, registered nurses, vocational scholars, students, religious workers, musicians, athletes, performers, and many more

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IMMIGRATION/WORK AUTHORIZATIONEmployment-Based Immigrant Visas:

Employment-based immigrants will require a U.S. company to sponsor them in orderto obtain a green card. Each year, around 140,000 applicants are awarded green cards under this category.Employment based visas are divided into five preference categories. Some categories necessitate Labor Certification from the USDOL.

This category does not include: Immigrants with extraordinary abilities. For example, athletes, musicians, artists,

scientists, etc. Certain investors. Special immigrants. For instance, religious workers and juvenile wards of the court. Before a U.S. employer can sponsor a foreign employee, the employer must

persuade the Department of Labor via Labor Certification, to certify that there are no American workers available for the position being taken by a foreign employee. Visas are sooner available for positions requiring at least two years of experience, than for positions requiring less experience.

The University of Virginia sponsors Labor Certification applications, and green card petitions filed under the Outstanding Professor/Researcher category

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IMMIGRATION/WORK AUTHORIZATION

Work Visas:

U.S. companies can apply for work visas to temporarily bringover foreign employees.

For example: H-1B visa programs allow highly skilled foreign personnel and

students to temporarily live and work in the US. Common positions that fall under the this visa category are physical, occupational, and speech therapy, engineers, doctors, pharmacists, IT professionals, management professionals, sales force, etc.

L-1 visas allow managers, executives and specialized knowledge employees to transfer from a foreign company to a US parent, affiliated, or subsidiary branch to perform temporary jobs.

Though the above-mentioned visas are temporary, an individual with an H-1 or L-1 visa may be able to apply for permanent residency (green card) if he/she wishes to become a legal permanent resident of the United States.

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IMMIGRATION/WORK AUTHORIZATIONTourist Visas (Short stay in the US):

If an individual wishes to enter the US for tourism, medical visits, or some business purposes, a tourist visa (or a visitor visa) is generally needed. *However, if an alien is coming from a qualified country, he/she is capable of visiting the U.S. without a visa, through the Visa Waiver Pilot Program (VWPP).

B-2 is a tourist visa that allows a person to spend up to 6 months in the USA for pleasure (no work authorization) or medical treatments with the possibility of an extension from the INS.

B-1 business visitor visas allow business people to engage in trade shows, scientific, educational, or religious conventions. It also allows these people to participate in business-related activities, such as negotiating contracts, consulting with clients, and litigation, while in the United States. However, the persons cannot take a position that would necessitate a US working visa and cannot be paid by a U.S. company.

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IMMIGRATION/WORK AUTHORIZATIONStudent Visas (Studying in the USA):

Lots of students come to the U.S. from around the world to study and advance their knowledge. There are a number of programs providing many learning opportunities. Three major categories of student visas include F-1, J-1, and M-1 visas.

F-1 Visa (for academic studies or language training programs): The F-1 visa is issued for non-immigrant students who wish to study or conduct research at an accredited U.S. college or university.

J-1 visa (academic studies as an exchange visitor): This visa is reserved for non-immigrants who will be engaging in an exchange visitor program in the country. The J-1 visa is the major visa for educational and cultural exchange programs.

M-1 Visa (for nonacademic or vocational studies): This temporary visa is available to people who want to study or train at a nonacademic institution in the US.

The application process is almost identical for these visas. However, there are some differences in terms of eligibility and other restrictions. For further information, email us with questions.

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IMMIGRATION/WORK AUTHORIZATION

Visitors Who Do Not Need Visas

Under the Visitor Waiver Pilot Program certain types ofvisitors from 35 specified countries are authorized to temporarily enter the U.S. without applying for a visa.

The United States chose countries to participate in the program on the basis of a low visa refusal rate and a determination that citizens of those nations generally pose no threat to the health, safety, welfare or security of the U.S.

This information can be found on the U.S. Citizenship and Immigration Services website at:

http://uscis.gov/graphics/publicaffairs/newsrels/visawaiv.htm

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IMMIGRATION/WORK AUTHORIZATION

As of January 1, 2009, the participating nations are:

35 nations are eligible under the U.S. Visa Waiver Program, which include Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Under the VWPP, an individual from one of the 35 participating countries can enter the U.S. without a visa if he/she:

is traveling for business or pleasure. will stay in the US for 90 days or less. No extension or

Adjustment of Status permitted. enter the country at a land border or aboard a participating carrier. is not ineligible for a visa. not eligible for a change of status machine readable passport

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Q & A

Human Resources

Compliance & Immigration Services

914 Emmet Street, P.O. Box 400127, Charlottesville, VA. 22904-4127

Phone: (434) 924-4393

Fax: (434) 924-3194

Visit our web-site for more information at:

http://www.hrs.virginia.edu/cis.html