Follow ICLE on social media - iclega.org · Follow ICLE on social media: ... L-1A/B, TN Courtney B. Noce, Greenberg Traurig ... Eligibility in the Adjudication of Petitions for Extension

Follow ICLE on social media:

http://www.facebook.com/iclega

bit.ly/ICLELinkedIn

#iclega#TuesAt2

WWW.ICLEGA.ORG

INSTITUTE OF CONTINUING LEGAL EDUCATION

PROGRAM MATERIALSJanuary 10, 2018

BU

SINE

SS IMM

IGR

AT

ION

20

18

BUSINESSIMMIGRATION

creo

Business Immigration 1 of 175

Wednesday, January 10, 2018 ICLE: State Bar Series

Business Immigration

6 CLE Hours1 Ethics Hour | 1 Professionalism Hour

Sponsored By: Institute of Continuing Legal Education


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Tangela S. KingDirector, ICLE

Rebecca A. HallAssociate Director, ICLE

Printed By:

Copyright © 2017 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.



AGENDA

Presiding:Dara L. Berger, Program Chair, Berger Immigration Law LLC, Atlanta

8:25 WELCOME AND PROGRAM OVERVIEW Dara L. Berger

8:30 THE MOST COMMON PROFESSIONAL EMPLOYMENT BASED VISAS (H-1B, L-1A/B, TN Courtney B. Noce, Greenberg Traurig, LLP, Atlanta Laine S. Posel, Schwartz Posel Immigration Law Group, Atlanta

9:30 NON-IMMIGRANT VISA ALTERNATIVES FOR EMPLOYMENT BASED IMMIGRATION: E, O AND P VISAS Kenneth S. “Ken” Levine, Freeman Mathis & Gary LLP, Atlanta

10:15 IS THE DOCTOR IN? NON-IMMIGRANT AND IMMIGRANT VISA OPTIONS FOR FOREIGN MEDICAL GRADUATES Elizabeth L.A. Garvish, Garvish Immigration Law Group LLC, Atlanta

11:00 BREAK

11:15 COMPLIANCE IN THE WORKPLACE: RECORDS TO BE MAINTAINED WHEN FOREIGN WORKERS ARE ON STAFF; BEING PREPARED FOR AN AUDIT (WHETHER BY THE DOL, USCIS OR ICE) Layli Eskandari Deal, Freeman Mathis & Gary LLP, Atlanta

12:15 LUNCH (Included in registration fee.)

12:45 PERM LABOR CERTIFICATION: THE JOB DESCRIPTION, MINIMUM REQUIREMENTS AND RECRUITMENT STRATEGIES; AND PERM TO I-140 ADJUDICATION: DEGREE EQUIVALENCY AND OTHER ISSUES Erin Elliott Ustaoglu, Elliot Immigration Law LLC, Atlanta Danielle M. Claffey, Kuck Immigration Partners LLC, Atlanta

2:00 ETHICAL CONSIDERATIONS RELATING TO DUAL REPRESENTATION OF AN EMPLOYER AND AN EMPLOYEE Charles H. Kuck, Kuck Immigration Partners LLC, Atlanta

3:00 BREAK

3:15 BUSINESS IMMIGRATION IN THE NEW ADMINISTRATION Jay I. Solomon, Arnall Golden Gregory LLP, Atlanta

4:00 ADJOURN

v



TABLE OF CONTENTSvii

Foreword .................................................................................................................................................. iii

Agenda ........................................................................................................................................................v

Business Immigration ................................................................................................................. 9- 175

Appendix: ICLE Board ................................................................................................................................................. 1Georgia Mandatory CLE Fact Sheet ................................................................................................ 2

Page



8:30 THE MOST COMMON PROFESSIONAL EMPLOYMENT BASED VISAS (H-1B, L-1A/B, TN) Courtney B. Noce, Greenberg Traurig, LLP, Atlanta Laine S. Posel, Schwartz Posel Immigration Law Group, Atlanta


Business Immigration Law Conference Materials: THE MOST COMMON PROFESSIONAL EMPLOYMENT BASED VISAS (H-1B, L-1A/B, TN)

Courtney B. Noce, Greenberg Traurig, LLP, Atlanta Laine Posel, Schwartz Posel Immigration Law Group, Atlanta

October 23, 2017 PM-602-0151

Policy Memorandum SUBJECT: Rescission of Guidance Regarding Deference to Prior Determinations of

Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Purpose This policy memorandum (PM) supersedes and rescinds the April 23, 2004 memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015 policy memorandum titled “L-1B Adjudications Policy.” Scope This PM applies to, and is binding on, all U.S. Citizenship and Immigration Services (USCIS) employees. The updated guidance is effective immediately. Authority

• Section 291 of the Immigration and Nationality Act (INA), Title 8, United States Code, section 1361.

• Title 8 Code of Federal Regulations (CFR), sections 103.2(b)(1) and 214.1(c)(5). Policy On April 23, 2004, USCIS issued a memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.” This memorandum directed adjudicators, when adjudicating petition extensions involving the same parties and underlying facts as the initial

U. S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000


Business Immigration Law Conference Materials: THE MOST COMMON PROFESSIONAL EMPLOYMENT BASED VISAS (H-1B, L-1A/B, TN)

Courtney B. Noce, Greenberg Traurig, LLP, Atlanta Laine Posel, Schwartz Posel Immigration Law Group, Atlanta

October 23, 2017 PM-602-0151

Policy Memorandum SUBJECT: Rescission of Guidance Regarding Deference to Prior Determinations of

Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Purpose This policy memorandum (PM) supersedes and rescinds the April 23, 2004 memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015 policy memorandum titled “L-1B Adjudications Policy.” Scope This PM applies to, and is binding on, all U.S. Citizenship and Immigration Services (USCIS) employees. The updated guidance is effective immediately. Authority

• Section 291 of the Immigration and Nationality Act (INA), Title 8, United States Code, section 1361.

• Title 8 Code of Federal Regulations (CFR), sections 103.2(b)(1) and 214.1(c)(5). Policy On April 23, 2004, USCIS issued a memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.” This memorandum directed adjudicators, when adjudicating petition extensions involving the same parties and underlying facts as the initial

U. S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000


PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 2 petition, to defer to prior determinations of eligibility, except in certain, limited circumstances.1 On August 17, 2015, USCIS issued a policy memorandum titled “L-1B Adjudications Policy” which directed USCIS adjudicators, in the context of L-1B petition extensions, to give deference to the prior determinations of eligibility by USCIS, except in certain, limited circumstances.2 For the reasons detailed below, USCIS is rescinding the policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status as articulated in the above memoranda. USCIS is also providing updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers. In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.3 The burden of proof in establishing eligibility is, at all times, on the petitioner.4 The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.

1 The April 23, 2004 memo provided in part:

In matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference. A case where a prior approval of the petition need not be given deference includes where: (1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. [Footnote omitted]

2 The August 17, 2015 memo provided in part:

In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioner and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification. In such cases, USCIS officers should re-examine a finding of L-1B eligibility only where it is determined that: (1) there was a material error with regard to the previous approval for L-1B classification; (2) there has been a substantial change in circumstances since that approval; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. [Footnotes omitted]

3 Adjudicator’s Field Manual, Chapter 10.3(a). 4 INA § 291.

PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 3 Accordingly, this memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of nonimmigrant status is sought.5 While the April 23, 2004 memorandum explicitly acknowledged that USCIS has the authority to review prior adjudicative decisions and deny certain requests for extensions of status, the memorandum unduly limited adjudicators’ inherent fact-finding authority in certain cases.6 An adjudicator’s fact-finding authority, as was the case prior to April 23, 2004, should not be constrained by any prior petition approval, but instead, should be based on the merits of each case. In this regard, USCIS acknowledges that the regulations in certain instances do not require supporting documents to be submitted as initial evidence when an employer files a petition extension without change on behalf of the same alien.7 However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits. Further, because it was viewed as a default position upon beginning review of a filing, the deference policy may, in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case. In addition, that policy likely had the unintended consequence of officers not discovering material errors in prior adjudications. While adjudicators may, of course, reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point. In accordance with the foregoing, the above-referenced April 23, 2004 memorandum and section VII of the August 17, 2015 memorandum articulating a default policy of deference are therefore rescinded. 5 See 8 CFR § 103.2(b)(1) (“An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication); 8 CFR § 214.1(c)(5) (“Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service.”) 6 The following guidance from the April 23, 2004 memo is preserved and hereby incorporated:

[US]CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology Intl, 19 I&N Dec. 593, 597 (Commissioner 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d) [(2011)].

7 See, e.g., 8 CFR §§ 214.2(h)(14), (l)(14)(i), (o)(11), and (p)(13).


PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 2 petition, to defer to prior determinations of eligibility, except in certain, limited circumstances.1 On August 17, 2015, USCIS issued a policy memorandum titled “L-1B Adjudications Policy” which directed USCIS adjudicators, in the context of L-1B petition extensions, to give deference to the prior determinations of eligibility by USCIS, except in certain, limited circumstances.2 For the reasons detailed below, USCIS is rescinding the policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status as articulated in the above memoranda. USCIS is also providing updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers. In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.3 The burden of proof in establishing eligibility is, at all times, on the petitioner.4 The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.

1 The April 23, 2004 memo provided in part:

In matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference. A case where a prior approval of the petition need not be given deference includes where: (1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. [Footnote omitted]

2 The August 17, 2015 memo provided in part:

In matters relating to an extension of L-1B status involving the same parties (i.e., the same petitioner and beneficiary employee) and the same underlying facts, USCIS officers should give deference to the prior determination by USCIS approving L-1B classification. In such cases, USCIS officers should re-examine a finding of L-1B eligibility only where it is determined that: (1) there was a material error with regard to the previous approval for L-1B classification; (2) there has been a substantial change in circumstances since that approval; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. [Footnotes omitted]

3 Adjudicator’s Field Manual, Chapter 10.3(a). 4 INA § 291.

PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 3 Accordingly, this memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of nonimmigrant status is sought.5 While the April 23, 2004 memorandum explicitly acknowledged that USCIS has the authority to review prior adjudicative decisions and deny certain requests for extensions of status, the memorandum unduly limited adjudicators’ inherent fact-finding authority in certain cases.6 An adjudicator’s fact-finding authority, as was the case prior to April 23, 2004, should not be constrained by any prior petition approval, but instead, should be based on the merits of each case. In this regard, USCIS acknowledges that the regulations in certain instances do not require supporting documents to be submitted as initial evidence when an employer files a petition extension without change on behalf of the same alien.7 However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits. Further, because it was viewed as a default position upon beginning review of a filing, the deference policy may, in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case. In addition, that policy likely had the unintended consequence of officers not discovering material errors in prior adjudications. While adjudicators may, of course, reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point. In accordance with the foregoing, the above-referenced April 23, 2004 memorandum and section VII of the August 17, 2015 memorandum articulating a default policy of deference are therefore rescinded. 5 See 8 CFR § 103.2(b)(1) (“An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication); 8 CFR § 214.1(c)(5) (“Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service.”) 6 The following guidance from the April 23, 2004 memo is preserved and hereby incorporated:

[US]CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology Intl, 19 I&N Dec. 593, 597 (Commissioner 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d) [(2011)].

7 See, e.g., 8 CFR §§ 214.2(h)(14), (l)(14)(i), (o)(11), and (p)(13).


PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 4 Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information If USCIS officers have questions or suggestions regarding this PM, they should direct them through their appropriate chains of command to the Office of Policy and Strategy.

U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000

PM-602-0153 November 20, 2017 Policy Memorandum SUBJECT: TN Nonimmigrant Economists Are Defined by Qualifying Business Activity I. Purpose This policy memorandum (PM) clarifies that for an applicant to qualify for TN status based on work in the profession of economist, the applicant must engage in activities consistent with the profession of economist. Activities that constitute a broad range of other professions related to economics, such as activity performed by financial analysts, market research analysts, and marketing specialists do not qualify for TN status. II. Scope This PM applies to and is binding on all USCIS employees. The updated guidance is effective immediately. III. Authorities

• Immigration and Nationality Act (INA) section 214(e), 8 U.S.C. 1184(e) • Title 8 Code of Federal Regulations (CFR) section 214.6

IV. Background The North American Free Trade Agreement (NAFTA) created special economic and trade relationships between the United States, Canada and Mexico. Under NAFTA, the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.1 The eligible

1 Specifically, a beneficiary must show that: he or she is a citizen of Canada or Mexico; his or her profession qualifies under the regulations; the position in the United States requires a NAFTA professional; he or she has a prearranged full-time or part-time job with a U.S. employer; and he or she has the qualifications to practice in the profession in question. 8 CFR 214.6.


PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status Page 4 Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information If USCIS officers have questions or suggestions regarding this PM, they should direct them through their appropriate chains of command to the Office of Policy and Strategy.


PM-602-0153 November 20, 2017 Policy Memorandum SUBJECT: TN Nonimmigrant Economists Are Defined by Qualifying Business Activity I. Purpose This policy memorandum (PM) clarifies that for an applicant to qualify for TN status based on work in the profession of economist, the applicant must engage in activities consistent with the profession of economist. Activities that constitute a broad range of other professions related to economics, such as activity performed by financial analysts, market research analysts, and marketing specialists do not qualify for TN status. II. Scope This PM applies to and is binding on all USCIS employees. The updated guidance is effective immediately. III. Authorities

• Immigration and Nationality Act (INA) section 214(e), 8 U.S.C. 1184(e) • Title 8 Code of Federal Regulations (CFR) section 214.6

IV. Background The North American Free Trade Agreement (NAFTA) created special economic and trade relationships between the United States, Canada and Mexico. Under NAFTA, the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.1 The eligible

1 Specifically, a beneficiary must show that: he or she is a citizen of Canada or Mexico; his or her profession qualifies under the regulations; the position in the United States requires a NAFTA professional; he or she has a prearranged full-time or part-time job with a U.S. employer; and he or she has the qualifications to practice in the profession in question. 8 CFR 214.6.


TN Nonimmigrant Economists Are Defined by Qualifying Business Activity

2

professions are set forth in NAFTA’s Appendix 1603.D.1 to D.3 and the minimum requirements are codified at 8 CFR 214.6(c). One of the professions listed is “Economist” and it requires a baccalaureate or licenciatura degree. See 8 CFR 214.6(c). However, NAFTA does not include an in-depth description of an economist. The lack of a description has raised questions and led to inconsistent adjudications about whether certain types of analysts, and persons engaged in other occupations, such as financial analysts, market research analysts and marketing specialists qualify under the economist profession. IV. Policy Whether a particular job is that of an economist is determined by the primary activity, not by the title. For purposes of the TN classification, the profession of economist must not primarily include the activity of other occupations, such as, but not limited to, those performed by financial analysts, market research analysts, and marketing specialists. Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other).2 In addition to these two broad focus areas, economists may apply economic analysis to issues in a variety of fields, such as labor, international trade, development, econometrics, education, health, and industrial organization, among other fields. Further, the Department of Labor’s Standard Occupational Classification (SOC) system defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.3 Economists may collect and process economic and statistical data using sampling techniques and econometric methods.4 Notably, the SOC’s definition of the economist occupation specifically excludes the occupations market research analyst and marketing specialist (SOC #13-1161).5 Therefore, to be consistent with the SOC, USCIS is clarifying that persons who are engaged primarily in activities associated with market research analysts and marketing specialists, as described in the SOC and the Bureau of Labor Statistics’ Occupational

2 The Bureau of Labor Statistics (BLS) provides a formal description of the Economist occupation at its Occupational Outlook Handbook (OOH) information suite, at https://www.bls.gov/ooh/life-physical-and-social-science/economists.htm#tab-2. 3 The Standard Occupational Classification (SOC) system is used by Federal statistical agencies to classify workers into occupational categories. All workers are classified into one of 840 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together. Available at https://www.bls.gov/soc/. 4 The Bureau of Labor Statistics, Standard Occupational Classification system definition of Economist (#19-3011): https://www.bls.gov/soc/2010/soc193011.htm 5 Id.


3

Outlook Handbook (OOH), do not qualify for the TN nonimmigrant classification as an economist. 6 With respect to the occupation of financial analyst, USCIS recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions.7 Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA. V. Use This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. VI. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the Office of Policy and Strategy.

6 As the OOH does not include the activities of market research analysts and marketing specialists within the definition of economist and does not provide specific details between the positions, USCIS refers to the SOC for a more specific definition. 7 The Bureau of Labor Statistics, Standard Occupational Classification system definition of Financial Analyst (#13-2051), Available at: https://www.bls.gov/soc/2010/soc132051 htm.



2

professions are set forth in NAFTA’s Appendix 1603.D.1 to D.3 and the minimum requirements are codified at 8 CFR 214.6(c). One of the professions listed is “Economist” and it requires a baccalaureate or licenciatura degree. See 8 CFR 214.6(c). However, NAFTA does not include an in-depth description of an economist. The lack of a description has raised questions and led to inconsistent adjudications about whether certain types of analysts, and persons engaged in other occupations, such as financial analysts, market research analysts and marketing specialists qualify under the economist profession. IV. Policy Whether a particular job is that of an economist is determined by the primary activity, not by the title. For purposes of the TN classification, the profession of economist must not primarily include the activity of other occupations, such as, but not limited to, those performed by financial analysts, market research analysts, and marketing specialists. Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other).2 In addition to these two broad focus areas, economists may apply economic analysis to issues in a variety of fields, such as labor, international trade, development, econometrics, education, health, and industrial organization, among other fields. Further, the Department of Labor’s Standard Occupational Classification (SOC) system defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.3 Economists may collect and process economic and statistical data using sampling techniques and econometric methods.4 Notably, the SOC’s definition of the economist occupation specifically excludes the occupations market research analyst and marketing specialist (SOC #13-1161).5 Therefore, to be consistent with the SOC, USCIS is clarifying that persons who are engaged primarily in activities associated with market research analysts and marketing specialists, as described in the SOC and the Bureau of Labor Statistics’ Occupational

2 The Bureau of Labor Statistics (BLS) provides a formal description of the Economist occupation at its Occupational Outlook Handbook (OOH) information suite, at https://www.bls.gov/ooh/life-physical-and-social-science/economists.htm#tab-2. 3 The Standard Occupational Classification (SOC) system is used by Federal statistical agencies to classify workers into occupational categories. All workers are classified into one of 840 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together. Available at https://www.bls.gov/soc/. 4 The Bureau of Labor Statistics, Standard Occupational Classification system definition of Economist (#19-3011): https://www.bls.gov/soc/2010/soc193011.htm 5 Id.


3

Outlook Handbook (OOH), do not qualify for the TN nonimmigrant classification as an economist. 6 With respect to the occupation of financial analyst, USCIS recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions.7 Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA. V. Use This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. VI. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the Office of Policy and Strategy.

6 As the OOH does not include the activities of market research analysts and marketing specialists within the definition of economist and does not provide specific details between the positions, USCIS refers to the SOC for a more specific definition. 7 The Bureau of Labor Statistics, Standard Occupational Classification system definition of Financial Analyst (#13-2051), Available at: https://www.bls.gov/soc/2010/soc132051 htm.



November 8, 2017 PM-602-0148 Policy Memorandum SUBJECT: Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) Purpose This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of G- Inc. as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases. Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate directorate channels to the AAO.

ADOPTED DECISION

MATTER OF G- INC.

ADMINISTRATIVE APPEALS OFFICE U.S. CITIZENSHIP AND IMMIGRATION SERVICES

DEPARTMENT OF HOMELAND SECURITY

November 8, 2017[1]

(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish

that the function is a clearly defined activity and is core to the organization. (2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position

meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

FOR THE PETITIONER: Sara E. Herbek, Esquire, Atlanta, Georgia The Petitioner, a multinational technology-based product development corporation, seeks to permanently employ the Beneficiary as its “Director, Financial Planning and Analysis (FP&A)” under the first preference immigrant classification for multinational executives or managers.2 More specifically, the Petitioner seeks to classify the Beneficiary as a “function manager.” The Director of the Nebraska Service Center denied the Form I-140, Immigrant Petition for Alien Worker, finding the Petitioner did not establish that it would employ the Beneficiary in a managerial capacity.3

1 On February 17, 2017, we issued this decision as a non-precedent decision. We have reopened this decision on our own motion under 8 C.F.R. § 103.5(a)(5)(i) for the purpose of making revisions in preparation for U.S. Citizenship and Immigration Services designating it as an Adopted Decision. 2 See Immigration and Nationality Act (the Act) section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. A labor certification is not required for this classification. 3 The Director also found the Petitioner did not establish, as required, that it had been doing business for at least one year prior to the petition filing date. See 8 C.F.R. § 204.5(j)(3)(i)(D). We disagree. The record amply demonstrates that the

U.S. Citizenship and Immigration Services Administrative Appeals Office 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090



November 8, 2017 PM-602-0148 Policy Memorandum SUBJECT: Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) Purpose This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of G- Inc. as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases. Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate directorate channels to the AAO.

ADOPTED DECISION

MATTER OF G- INC.

ADMINISTRATIVE APPEALS OFFICE U.S. CITIZENSHIP AND IMMIGRATION SERVICES

DEPARTMENT OF HOMELAND SECURITY

November 8, 2017[1]

(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish

that the function is a clearly defined activity and is core to the organization. (2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position

meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

FOR THE PETITIONER: Sara E. Herbek, Esquire, Atlanta, Georgia The Petitioner, a multinational technology-based product development corporation, seeks to permanently employ the Beneficiary as its “Director, Financial Planning and Analysis (FP&A)” under the first preference immigrant classification for multinational executives or managers.2 More specifically, the Petitioner seeks to classify the Beneficiary as a “function manager.” The Director of the Nebraska Service Center denied the Form I-140, Immigrant Petition for Alien Worker, finding the Petitioner did not establish that it would employ the Beneficiary in a managerial capacity.3

1 On February 17, 2017, we issued this decision as a non-precedent decision. We have reopened this decision on our own motion under 8 C.F.R. § 103.5(a)(5)(i) for the purpose of making revisions in preparation for U.S. Citizenship and Immigration Services designating it as an Adopted Decision. 2 See Immigration and Nationality Act (the Act) section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. A labor certification is not required for this classification. 3 The Director also found the Petitioner did not establish, as required, that it had been doing business for at least one year prior to the petition filing date. See 8 C.F.R. § 204.5(j)(3)(i)(D). We disagree. The record amply demonstrates that the

U.S. Citizenship and Immigration Services Administrative Appeals Office 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


Matter of G- Inc. Adopted Decision On appeal, the Petitioner4 states that it has employed the Beneficiary as an L-1A nonimmigrant5 in a position with the same title as the proffered position since 2013. The Petitioner argued that the Director erroneously misstated facts and abused his discretion in denying the petition. The central issue here is whether the Petitioner established that the Beneficiary will be employed in a qualifying “managerial capacity” as defined in the Act, and specifically, whether the Beneficiary will primarily manage an “essential function” within the organization. Upon de novo review, we will sustain the appeal.

I. APPLICABLE LAW To be classified as a multinational executive or manager, a beneficiary must have been employed abroad in that capacity for at least one year and seek to work in that capacity in the United States for the same employer (or for its parent, affiliate, or subsidiary). Section 203(b)(1)(C) of the Act. Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A),6 defines the term “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily—

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or

managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the

authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

Petitioner has satisfied this requirement. Specifically, the Petitioner has 250 employees in the United States, provided services to clients in the United States for at least one year, and reported over $100 million in earnings on its most recent tax return. 4 The Petitioner states that it is a leader in full-lifecycle product development services working across multiple industries to design and deliver innovative technology-based products. The Petitioner has 8000 employees worldwide, with offices in the United States, India, Argentina, the United Kingdom, and Ukraine. 5 The L-1A classification allows a company to transfer a qualifying foreign employee to the United States to work temporarily in a managerial or executive capacity. 6 The statutory definition for “managerial capacity” found at 101(a)(44)(A) of the Act applies to both multinational managers and L-1A managers; therefore, the following analysis applies equally to both classifications.

2

Matter of G- Inc. Adopted Decision

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

(Emphasis added). This definition of “managerial capacity” allows for both “personnel managers” and “function managers.” Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees, whereas function managers must primarily manage an “essential function” within the organization.7 A function manager may also directly oversee personnel, if incidental to managing the function.8

II. ANALYSIS A. Essential Function The statute and regulations do not define the term “essential function,” so we consulted the dictionary to provide us with guidance in defining this term. Of the two words, “essential” is the easier to define; it means “necessary,” “core,” or “fundamental.”9 On the other hand, we located various definitions of “function.”10 Putting aside its mathematical usage, we discern two primary definitions of the word “function,” one that focuses on an activity and one that focuses on an organizational unit that performs an activity. Viewed within the context of the relevant statutory passage (“manages an essential function within the organization, or a department or subdivision of the organization”), it is clearly the former, activity-focused definition at play here, since the statutory passage draws a distinction between a function and an organizational unit (a department or subdivision). Construing the term “essential function” as a core activity of an organization is consonant with Congress’s purpose in creating this classification: to facilitate the transfer of key managers or executives within a multinational organization. These senior, managerial personnel advance their organizations’ core activities.11 Whether the function is sufficiently related to an organization’s core activity or activities is inherently one of degree, and therefore, all relevant facts should be considered in making this determination. Ultimately, we will evaluate what is an “essential function” in the context of a given petition. The petitioner must (1) describe with specificity the activity to be managed, and (2) establish that the function is core to the organization.

7 See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 8 Alternatively, a position that a petitioner claims to be primarily supervisory in nature should be evaluated as a personnel manager. See section 101(a)(44)(A)(ii) of the Act. 9 Essential, Merriam-Webster Unabridged, http://unabridged.merriam-webster.com/unabridged/essential (last visited Nov. 8, 2017). 10 Function, Merriam-Webster Unabridged, http://unabridged.merriam-webster.com/unabridged/function (last visited Nov. 8, 2017) (“an organizational unit performing a group of related acts and processes”); Function, Cambridge Business English Dictionary (Cambridge Univ. Press 2011) (“a particular area of responsibility of a company”); Function, Black’s Law Dictionary (10th ed. 2014) (an “[a]ctivity that is appropriate to a particular business or profession”); Function, Webster’s New College Dictionary (3rd ed. 2008) (“1. The action for which a person or thing is particularly fitted or employed. 2a. Assigned duty or activity. b. Specific occupation or role …”). 11 An organization may have more than one core activity, such as the manufacture or provision of an end product or service, and research and development into other products or services.

3


Matter of G- Inc. Adopted Decision On appeal, the Petitioner4 states that it has employed the Beneficiary as an L-1A nonimmigrant5 in a position with the same title as the proffered position since 2013. The Petitioner argued that the Director erroneously misstated facts and abused his discretion in denying the petition. The central issue here is whether the Petitioner established that the Beneficiary will be employed in a qualifying “managerial capacity” as defined in the Act, and specifically, whether the Beneficiary will primarily manage an “essential function” within the organization. Upon de novo review, we will sustain the appeal.

I. APPLICABLE LAW To be classified as a multinational executive or manager, a beneficiary must have been employed abroad in that capacity for at least one year and seek to work in that capacity in the United States for the same employer (or for its parent, affiliate, or subsidiary). Section 203(b)(1)(C) of the Act. Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A),6 defines the term “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily—

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or

managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the

authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

Petitioner has satisfied this requirement. Specifically, the Petitioner has 250 employees in the United States, provided services to clients in the United States for at least one year, and reported over $100 million in earnings on its most recent tax return. 4 The Petitioner states that it is a leader in full-lifecycle product development services working across multiple industries to design and deliver innovative technology-based products. The Petitioner has 8000 employees worldwide, with offices in the United States, India, Argentina, the United Kingdom, and Ukraine. 5 The L-1A classification allows a company to transfer a qualifying foreign employee to the United States to work temporarily in a managerial or executive capacity. 6 The statutory definition for “managerial capacity” found at 101(a)(44)(A) of the Act applies to both multinational managers and L-1A managers; therefore, the following analysis applies equally to both classifications.

2


(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

(Emphasis added). This definition of “managerial capacity” allows for both “personnel managers” and “function managers.” Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees, whereas function managers must primarily manage an “essential function” within the organization.7 A function manager may also directly oversee personnel, if incidental to managing the function.8

II. ANALYSIS A. Essential Function The statute and regulations do not define the term “essential function,” so we consulted the dictionary to provide us with guidance in defining this term. Of the two words, “essential” is the easier to define; it means “necessary,” “core,” or “fundamental.”9 On the other hand, we located various definitions of “function.”10 Putting aside its mathematical usage, we discern two primary definitions of the word “function,” one that focuses on an activity and one that focuses on an organizational unit that performs an activity. Viewed within the context of the relevant statutory passage (“manages an essential function within the organization, or a department or subdivision of the organization”), it is clearly the former, activity-focused definition at play here, since the statutory passage draws a distinction between a function and an organizational unit (a department or subdivision). Construing the term “essential function” as a core activity of an organization is consonant with Congress’s purpose in creating this classification: to facilitate the transfer of key managers or executives within a multinational organization. These senior, managerial personnel advance their organizations’ core activities.11 Whether the function is sufficiently related to an organization’s core activity or activities is inherently one of degree, and therefore, all relevant facts should be considered in making this determination. Ultimately, we will evaluate what is an “essential function” in the context of a given petition. The petitioner must (1) describe with specificity the activity to be managed, and (2) establish that the function is core to the organization.

7 See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 8 Alternatively, a position that a petitioner claims to be primarily supervisory in nature should be evaluated as a personnel manager. See section 101(a)(44)(A)(ii) of the Act. 9 Essential, Merriam-Webster Unabridged, http://unabridged.merriam-webster.com/unabridged/essential (last visited Nov. 8, 2017). 10 Function, Merriam-Webster Unabridged, http://unabridged.merriam-webster.com/unabridged/function (last visited Nov. 8, 2017) (“an organizational unit performing a group of related acts and processes”); Function, Cambridge Business English Dictionary (Cambridge Univ. Press 2011) (“a particular area of responsibility of a company”); Function, Black’s Law Dictionary (10th ed. 2014) (an “[a]ctivity that is appropriate to a particular business or profession”); Function, Webster’s New College Dictionary (3rd ed. 2008) (“1. The action for which a person or thing is particularly fitted or employed. 2a. Assigned duty or activity. b. Specific occupation or role …”). 11 An organization may have more than one core activity, such as the manufacture or provision of an end product or service, and research and development into other products or services.

3


Matter of G- Inc. Adopted Decision B. Function Manager Once the petitioner demonstrates the essential function, it must then establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. The petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty. See 8 C.F.R. § 204.5(j)(5). While he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function.12 In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function. We will consider all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization,13 that will contribute to understanding the beneficiary’s actual duties and role in the business. In sum, to establish that the beneficiary will be employed in a managerial capacity as a “function manager” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations. C. Application of Law to Facts

1. The Function is a Clearly Defined Activity within the Petitioner’s Organization The Petitioner has clearly specified how FP&A (Financial Planning and Analysis) qualifies as a “function” that meets the business needs within its organization. The record substantiates that FP&A is a clearly defined activity that provides the Petitioner with financial strategies to optimize

12 See Matter of Church Scientology Int’l, 19 I&N Dec. 593, 604 (Comm’r 1988) (“[T]he employee’s duties must be primarily at the managerial or executive level. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.”); see also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070-71 (9th Cir. 2008) (explaining that the petitioner bore the burden of demonstrating the beneficiary “was primarily engaged in overseeing essential functions of [the] business rather than performing them himself”); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003) (determining that the former INS reasonably concluded that the position was “not primarily managerial” because the record failed to establish that the beneficiary was “not merely performing the functions of the company”); IKEA US, Inc. v. U.S. Dep’t of Justice INS, 48 F. Supp. 2d 22, 24-25 (D.D.C. 1999) (sustaining agency’s determination that a beneficiary did not qualify as a function manager where the petitioner failed to document what proportion of the beneficiary’s duties would be managerial functions) (citing Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991)). 13 We may also consider employees of the wider “qualifying organization” when assessing a petitioner’s staffing needs and determining whether a beneficiary will be sufficiently relieved from performing operational and administrative duties. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016).

4

Matter of G- Inc. Adopted Decision business opportunities and growth. The role of the FP&A function is to generate accurate and complete data to properly assess global revenue.

2. The Function is Essential to the Petitioner’s Organization The record substantiates that FP&A is “essential” to the petitioning organization. The unit’s revenue planning and forecasting process impacts every business unit and geographic area within the worldwide organization. Additionally, the Petitioner’s executive team and board of directors depend on these FP&A reports and strategies to drive its financial health and make critical decisions regarding mergers and acquisitions. Given the type and scope of the Petitioner’s business, size, and international reach, we find that financial analysis and planning is core to the Petitioner’s business and therefore, it is an “essential” function to this business.

3. The Beneficiary Will Primarily Manage the Essential Function

The record also demonstrates that the Beneficiary will primarily manage the essential function. The Beneficiary primarily develops and directs revenue forecasts and analysis for the worldwide organization, leads mergers and acquisitions, and oversees strategic pricing analysis. The Petitioner has established that the Beneficiary will continue to manage the compilation and processing of raw financial data by the finance team to prepare forecasts and create short-and long-term financial strategies. To complete the revenue forecasts, the Beneficiary will continue to direct the work of various teams across the Petitioner’s five business units and six geographic delivery areas to provide revenue estimates to the chief executive team and the board of directors. The Petitioner submitted evidence, including organizational and workflow charts, which indicate that the Beneficiary leads an FP&A team that oversees the monthly revenue forecast process and collects financial data from delivery leads and global sales teams. The record reflects that the Beneficiary will continue to be supported by six direct and three indirect reports.14 These personnel perform the routine duties associated with the FP&A function, enabling the Beneficiary to primarily develop policies and goals and oversee the execution of long-term strategies. The Petitioner has shown that this staff will continue to relieve the Beneficiary from performing day-to-day administrative and reporting tasks, allowing him to primarily manage the FP&A function rather than perform it himself. That he supervises his direct reports does not detract from our finding that he primarily manages the function.

14 The following persons report directly to the Beneficiary: (1) an analyst; (2) assistant manager, FP&A; (3) senior associate, FP&A; (4) senior associate, finance; (5) manager, FP&A; and (6) manager, finance. His indirect reports are: (1) manager, finance; (2) assistant manager, finance; and (3) senior executive, finance.

5


Matter of G- Inc. Adopted Decision B. Function Manager Once the petitioner demonstrates the essential function, it must then establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. The petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty. See 8 C.F.R. § 204.5(j)(5). While he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function.12 In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function. We will consider all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization,13 that will contribute to understanding the beneficiary’s actual duties and role in the business. In sum, to establish that the beneficiary will be employed in a managerial capacity as a “function manager” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations. C. Application of Law to Facts

1. The Function is a Clearly Defined Activity within the Petitioner’s Organization The Petitioner has clearly specified how FP&A (Financial Planning and Analysis) qualifies as a “function” that meets the business needs within its organization. The record substantiates that FP&A is a clearly defined activity that provides the Petitioner with financial strategies to optimize

12 See Matter of Church Scientology Int’l, 19 I&N Dec. 593, 604 (Comm’r 1988) (“[T]he employee’s duties must be primarily at the managerial or executive level. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.”); see also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070-71 (9th Cir. 2008) (explaining that the petitioner bore the burden of demonstrating the beneficiary “was primarily engaged in overseeing essential functions of [the] business rather than performing them himself”); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003) (determining that the former INS reasonably concluded that the position was “not primarily managerial” because the record failed to establish that the beneficiary was “not merely performing the functions of the company”); IKEA US, Inc. v. U.S. Dep’t of Justice INS, 48 F. Supp. 2d 22, 24-25 (D.D.C. 1999) (sustaining agency’s determination that a beneficiary did not qualify as a function manager where the petitioner failed to document what proportion of the beneficiary’s duties would be managerial functions) (citing Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991)). 13 We may also consider employees of the wider “qualifying organization” when assessing a petitioner’s staffing needs and determining whether a beneficiary will be sufficiently relieved from performing operational and administrative duties. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016).

4

Matter of G- Inc. Adopted Decision business opportunities and growth. The role of the FP&A function is to generate accurate and complete data to properly assess global revenue.

2. The Function is Essential to the Petitioner’s Organization The record substantiates that FP&A is “essential” to the petitioning organization. The unit’s revenue planning and forecasting process impacts every business unit and geographic area within the worldwide organization. Additionally, the Petitioner’s executive team and board of directors depend on these FP&A reports and strategies to drive its financial health and make critical decisions regarding mergers and acquisitions. Given the type and scope of the Petitioner’s business, size, and international reach, we find that financial analysis and planning is core to the Petitioner’s business and therefore, it is an “essential” function to this business.

3. The Beneficiary Will Primarily Manage the Essential Function

The record also demonstrates that the Beneficiary will primarily manage the essential function. The Beneficiary primarily develops and directs revenue forecasts and analysis for the worldwide organization, leads mergers and acquisitions, and oversees strategic pricing analysis. The Petitioner has established that the Beneficiary will continue to manage the compilation and processing of raw financial data by the finance team to prepare forecasts and create short-and long-term financial strategies. To complete the revenue forecasts, the Beneficiary will continue to direct the work of various teams across the Petitioner’s five business units and six geographic delivery areas to provide revenue estimates to the chief executive team and the board of directors. The Petitioner submitted evidence, including organizational and workflow charts, which indicate that the Beneficiary leads an FP&A team that oversees the monthly revenue forecast process and collects financial data from delivery leads and global sales teams. The record reflects that the Beneficiary will continue to be supported by six direct and three indirect reports.14 These personnel perform the routine duties associated with the FP&A function, enabling the Beneficiary to primarily develop policies and goals and oversee the execution of long-term strategies. The Petitioner has shown that this staff will continue to relieve the Beneficiary from performing day-to-day administrative and reporting tasks, allowing him to primarily manage the FP&A function rather than perform it himself. That he supervises his direct reports does not detract from our finding that he primarily manages the function.

14 The following persons report directly to the Beneficiary: (1) an analyst; (2) assistant manager, FP&A; (3) senior associate, FP&A; (4) senior associate, finance; (5) manager, FP&A; and (6) manager, finance. His indirect reports are: (1) manager, finance; (2) assistant manager, finance; and (3) senior executive, finance.

5



4. The Beneficiary Will Act at a Senior Level Within the Organization and With Respect to the Function Managed15

Further, the record demonstrates that, as the director of the global FP&A team, the Beneficiary will continue to act at a senior level within the organization and with respect to the function managed. See section 101(a)(44)(A)(iii) of the Act; see also 8 C.F.R. § 204.5(j)(2). In an organization with over 8000 employees worldwide, the Beneficiary reports directly to the CFO and indirectly to the CEO, while working closely with other senior executives and managers. The record substantiates that the Beneficiary’s revenue forecasts are used directly by the CFO and CEO to make critical financial decisions that impact the organization as a whole. For example, in overseeing the FP&A function, the Beneficiary managed $50 to $100 million in investments during fiscal year 2015 and is expected to manage similar high value investments in the proffered permanent position. Thus, the Petitioner has demonstrated that the Beneficiary will continue to act at a senior level within the organization and with respect to the function managed.

5. The Beneficiary Will Have Discretionary Authority Over the Day-to-Day Operations Related to the Function Managed

Finally, the Beneficiary will continue to have significant discretionary authority over the day-to-day operations related to the FP&A function. See section 101(a)(44)(A)(iv) of the Act; see also 8 C.F.R. § 204.5(j)(2). The Beneficiary establishes policies and processes used by staff to provide the financial information necessary to drive the FP&A function, and he has the discretionary authority to identify, execute, and finalize mergers and acquisitions.

III. CONCLUSION The Petitioner has established that the Beneficiary will be employed as a function manager. ORDER: The appeal is sustained. Cite as Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017)

15 Section 101(a)(44)(A)(iii) of the Act is worded in the disjunctive, requiring a function manager to occupy “a senior level within the organizational hierarchy or with respect to the function managed.” (emphasis added). Although not required, both criteria have been satisfied in this case.

6


March 31, 2017 PM-602-0142

Policy Memorandum

SUBJECT: Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions”

Purpose This policy memorandum (PM) supersedes and rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions” issued to Nebraska Service Center (NSC) employees by Terry Way. Scope This PM applies to all U.S. Citizenship and Immigration Services (USCIS) employees. The updated guidance is effective immediately. Authority

• Sections 101(a)(15)(H)(i)(b) and 214(a)(1), (c)(1), (i) of the Immigration and Nationality Act (INA), Title 8, United States Code, sections 1101(a)(15)(H)(i)(b) and 1184(a)(1), (c)(1), (i).

• Title 8 Code of Federal Regulations (CFR), section 214.2(h). Policy On April 1, 2006, USCIS instituted “bi-specialization” procedures that discontinued the adjudication of H-1B petitions by the NSC and the Texas Service Center. On July 1, 2016, the NSC once again began to directly accept certain H-1B and H-1B1 (Chile/Singapore Free Trade) petitions. USCIS instituted this change to help address a large increase in H-1B petitions and provide the operational flexibility to redistribute caseloads as necessary to meet processing goals. Now that H-1B petitions are once again being adjudicated by the NSC, USCIS officers at that service center may inadvertently follow the prior, but no longer adhered to, memorandum entitled “Guidance memo on H1B computer related positions” (dated December 22, 2000) from Terry Way, the former director of the NSC. As the guidance provided in this NSC memorandum is not an accurate articulation of current agency policy, USCIS is rescinding it to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions.



4. The Beneficiary Will Act at a Senior Level Within the Organization and With Respect to the Function Managed15

Further, the record demonstrates that, as the director of the global FP&A team, the Beneficiary will continue to act at a senior level within the organization and with respect to the function managed. See section 101(a)(44)(A)(iii) of the Act; see also 8 C.F.R. § 204.5(j)(2). In an organization with over 8000 employees worldwide, the Beneficiary reports directly to the CFO and indirectly to the CEO, while working closely with other senior executives and managers. The record substantiates that the Beneficiary’s revenue forecasts are used directly by the CFO and CEO to make critical financial decisions that impact the organization as a whole. For example, in overseeing the FP&A function, the Beneficiary managed $50 to $100 million in investments during fiscal year 2015 and is expected to manage similar high value investments in the proffered permanent position. Thus, the Petitioner has demonstrated that the Beneficiary will continue to act at a senior level within the organization and with respect to the function managed.

5. The Beneficiary Will Have Discretionary Authority Over the Day-to-Day Operations Related to the Function Managed

Finally, the Beneficiary will continue to have significant discretionary authority over the day-to-day operations related to the FP&A function. See section 101(a)(44)(A)(iv) of the Act; see also 8 C.F.R. § 204.5(j)(2). The Beneficiary establishes policies and processes used by staff to provide the financial information necessary to drive the FP&A function, and he has the discretionary authority to identify, execute, and finalize mergers and acquisitions.

III. CONCLUSION The Petitioner has established that the Beneficiary will be employed as a function manager. ORDER: The appeal is sustained. Cite as Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017)

15 Section 101(a)(44)(A)(iii) of the Act is worded in the disjunctive, requiring a function manager to occupy “a senior level within the organizational hierarchy or with respect to the function managed.” (emphasis added). Although not required, both criteria have been satisfied in this case.

6


March 31, 2017 PM-602-0142

Policy Memorandum

SUBJECT: Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions”

Purpose This policy memorandum (PM) supersedes and rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions” issued to Nebraska Service Center (NSC) employees by Terry Way. Scope This PM applies to all U.S. Citizenship and Immigration Services (USCIS) employees. The updated guidance is effective immediately. Authority

• Sections 101(a)(15)(H)(i)(b) and 214(a)(1), (c)(1), (i) of the Immigration and Nationality Act (INA), Title 8, United States Code, sections 1101(a)(15)(H)(i)(b) and 1184(a)(1), (c)(1), (i).

• Title 8 Code of Federal Regulations (CFR), section 214.2(h). Policy On April 1, 2006, USCIS instituted “bi-specialization” procedures that discontinued the adjudication of H-1B petitions by the NSC and the Texas Service Center. On July 1, 2016, the NSC once again began to directly accept certain H-1B and H-1B1 (Chile/Singapore Free Trade) petitions. USCIS instituted this change to help address a large increase in H-1B petitions and provide the operational flexibility to redistribute caseloads as necessary to meet processing goals. Now that H-1B petitions are once again being adjudicated by the NSC, USCIS officers at that service center may inadvertently follow the prior, but no longer adhered to, memorandum entitled “Guidance memo on H1B computer related positions” (dated December 22, 2000) from Terry Way, the former director of the NSC. As the guidance provided in this NSC memorandum is not an accurate articulation of current agency policy, USCIS is rescinding it to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions.


PM-602-0142: Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” Page 2

One concern with the Terry Way memorandum is that it is now somewhat obsolete. Relying on the 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook (Handbook),1 it was issued during what the NSC Director called a period of “transition” for certain-computer related occupations.2 In addition, this memorandum also relied partly on a perceived line of relatively early unpublished (and unspecified) decisions, which did not address the computer-related occupations as they have evolved since those decisions were issued.3 But more importantly, statements in the memorandum do not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications. While the memorandum stated that most programmers had a bachelor’s degree or higher based on information provided by the Handbook, that information is not particularly relevant to a specialty occupation adjudication if it does not also provide the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation. Further, the memorandum failed to mention that only “some” of those that had a bachelor’s or higher degree at that time held a degree in “computer science . . . or information systems.”4 Furthermore, the memorandum also did not accurately portray essential information from the Handbook that recognized that some computer programmers qualify for these jobs with only “2-year degrees.” While the memorandum did mention beneficiaries with “2-year” degrees, it incorrectly described them as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Handbook did not support such a statement. Rather, the 2000-01 edition did not make such a distinction and described all programmers as sharing a fundamental job duty, i.e., writing and testing computer code. According to the current version of the Handbook, this is still the case; and individuals with only an “associate’s degree” may still enter these occupations.5 As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation.”

1 USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses; however, USCIS does not maintain that the Handbook is the exclusive source of relevant information. 2 In stating that the computer programmer occupation was in transition, the NSC Director presumably relied on information in the 2000-01 edition of the Occupational Outlook Handbook. That edition indicated that the computer programmer occupation included those with varying and shifting job titles and descriptions due to the many technological innovations in programming at that time. 3 While 8 CFR 103.3(c) provides that precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 4 U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2000-01 ed., “Computer Programmers.” 5 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., “Computer Programmers,” https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last visited Mar. 31, 2017).


The memorandum also does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.6 This is relevant in that, absent additional evidence to the contrary, the Handbook indicates that an individual with an associate’s degree may enter the occupation of computer programmer. As such, while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U.S. bachelor’s or higher degree in the specific specialty, or its equivalent. See section 214(i)(1) of the Act; 8 CFR 214.2(h)(4)(ii).7 Based on the current version of the Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at

6 Officers are reminded that “USCIS must determine whether the attestations and content of [a Labor Condition Application (LCA)] correspond to and support the H-1B visa petition.” See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 (AAO 2015). Accordingly, USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. In general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at https://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. Through the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties. Id. 7 Officers are also reminded that USCIS does not bear the burden of establishing that a particular position does not qualify as a specialty occupation. Instead, the petitioner bears the burden of establishing eligibility for the benefit sought. Section 291 of the INA, 8 U.S.C. § 1361. Accordingly, USCIS officers may not approve a petition based on inconclusive statements from the Handbook about the entry-level requirements for a given occupation. Rather, the petitioner bears the burden to submit probative evidence from objective and authoritative sources that the proffered position qualifies as an H-1B specialty occupation.



One concern with the Terry Way memorandum is that it is now somewhat obsolete. Relying on the 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook (Handbook),1 it was issued during what the NSC Director called a period of “transition” for certain-computer related occupations.2 In addition, this memorandum also relied partly on a perceived line of relatively early unpublished (and unspecified) decisions, which did not address the computer-related occupations as they have evolved since those decisions were issued.3 But more importantly, statements in the memorandum do not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications. While the memorandum stated that most programmers had a bachelor’s degree or higher based on information provided by the Handbook, that information is not particularly relevant to a specialty occupation adjudication if it does not also provide the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation. Further, the memorandum failed to mention that only “some” of those that had a bachelor’s or higher degree at that time held a degree in “computer science . . . or information systems.”4 Furthermore, the memorandum also did not accurately portray essential information from the Handbook that recognized that some computer programmers qualify for these jobs with only “2-year degrees.” While the memorandum did mention beneficiaries with “2-year” degrees, it incorrectly described them as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Handbook did not support such a statement. Rather, the 2000-01 edition did not make such a distinction and described all programmers as sharing a fundamental job duty, i.e., writing and testing computer code. According to the current version of the Handbook, this is still the case; and individuals with only an “associate’s degree” may still enter these occupations.5 As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation.”

1 USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses; however, USCIS does not maintain that the Handbook is the exclusive source of relevant information. 2 In stating that the computer programmer occupation was in transition, the NSC Director presumably relied on information in the 2000-01 edition of the Occupational Outlook Handbook. That edition indicated that the computer programmer occupation included those with varying and shifting job titles and descriptions due to the many technological innovations in programming at that time. 3 While 8 CFR 103.3(c) provides that precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 4 U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2000-01 ed., “Computer Programmers.” 5 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., “Computer Programmers,” https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last visited Mar. 31, 2017).


The memorandum also does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.6 This is relevant in that, absent additional evidence to the contrary, the Handbook indicates that an individual with an associate’s degree may enter the occupation of computer programmer. As such, while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U.S. bachelor’s or higher degree in the specific specialty, or its equivalent. See section 214(i)(1) of the Act; 8 CFR 214.2(h)(4)(ii).7 Based on the current version of the Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at

6 Officers are reminded that “USCIS must determine whether the attestations and content of [a Labor Condition Application (LCA)] correspond to and support the H-1B visa petition.” See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 (AAO 2015). Accordingly, USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. In general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at https://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. Through the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties. Id. 7 Officers are also reminded that USCIS does not bear the burden of establishing that a particular position does not qualify as a specialty occupation. Instead, the petitioner bears the burden of establishing eligibility for the benefit sought. Section 291 of the INA, 8 U.S.C. § 1361. Accordingly, USCIS officers may not approve a petition based on inconclusive statements from the Handbook about the entry-level requirements for a given occupation. Rather, the petitioner bears the burden to submit probative evidence from objective and authoritative sources that the proffered position qualifies as an H-1B specialty occupation.



8 CFR 214.2(h)(4)(iii). Section 214(i)(1) of the INA; see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).8 Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

Contact Information If USCIS officers have questions or suggestions regarding this PM, they should direct them through their appropriate chains of command to the Office of Policy and Strategy.

8 Specifically, the court explained in Royal Siam, 484 F.3d at 147, that:

The courts and the agency consistently have stated that, although a general-purpose bachelor’s degree, such as a business administration degree, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int’l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm’r] 1988) (providing frequently cited analysis in connection with a conceptually similar provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree requirement.



8 CFR 214.2(h)(4)(iii). Section 214(i)(1) of the INA; see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).8 Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

Contact Information If USCIS officers have questions or suggestions regarding this PM, they should direct them through their appropriate chains of command to the Office of Policy and Strategy.

8 Specifically, the court explained in Royal Siam, 484 F.3d at 147, that:

The courts and the agency consistently have stated that, although a general-purpose bachelor’s degree, such as a business administration degree, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int’l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm’r] 1988) (providing frequently cited analysis in connection with a conceptually similar provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree requirement.









9:30 NON-IMMIGRANT VISA ALTERNATIVES FOR EMPLOYMENT BASED IMMIGRATION: E, O AND P VISAS Kenneth S. “Ken” Levine, Freeman Mathis & Gary LLP, Atlanta


Copyright © 2017, American Immigration Lawyers Association. Reprinted, with permission, from Navigating the Fundamentals of Immigration Law (2017–18 Ed.), AILA Education, http://agora.aila.org.

Copyright © 2017, American Immigration Lawyers Association (AILA)

159

E-1 and E-2 Nonimmigrants originally authored and updated by Henry J. Chang*

Henry J. Chang is a partner with the firm of Blaney McMurtry LLP in Toronto. He has practiced exclusively in the field of immigration law more than 25 years. Mr. Chang is a member of the State Bar of California and the Law Society of Upper Can-ada.

**********

INTRODUCTION

The E nonimmigrant is defined at Immigration and Nationality Act1 (INA) §101(a)(15)(E) as an alien enti-tled to enter the United States under and in pursuance of the provisions of a treaty of commerce and naviga-tion between the United States and the foreign state of which he or she is a national, and the spouse and chil-dren of any such alien if accompanying or following-to-join the principal: Solely to carry on substantial trade, including trade in services or trade in technology, principally be-

tween the United States and the foreign state of which he or she is a national; Solely to develop and direct the operations of an enterprise in which he or she has invested, or of an en-

terprise in which he or she is actively in the process of investing, a substantial amount of capital; or Solely to perform services in a specialty occupation in the United States if the alien is a national of

Australia and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under INA §212(t)(1).

The E category therefore consists of three subcategories: treaty traders (E-1), treaty investors (E-2), and Australians working in specialty occupations (E-3). However, the E-3 classification is very differ-ent than the E-1 and E-2 classifications; it applies only to Australian citizens and more closely resembles the H-1B classification than the E-1 or E-2. For this reason, only the E-1 and E-2 classifications will be discussed herein.

In addition, when the Consolidated Natural Resources Act of 20082 (CNRA) was signed into law on May 8, 2008, it extended U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI). During a brief transition period,3 the CRNA permitted foreign long-term investors who had been admitted to the CNMI with a long-term investor visa under the prior CNMI immigration law to remain there under E-2 status. However, the eligibility requirements were very different than a traditional E-2; the transition period also ended on Decem-ber 31, 2014. As a result, a discussion of the CNMI-specific E-2 classification is also outside the scope of this article.

Many practitioners prefer to remain on familiar ground, opting for the L-1 and H-1B classifications when-ever possible. Nevertheless, the E-1 and E-2 classifications are two of the most useful nonimmigrant options and should be considered when available.

* Updated from the 2016–17 edition of Navigating the Fundamentals of Immigration Law (AILA 2016). 1 Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101–1524). 2 Consolidated Natural Resources Act of 2008, Pub. L. 110–229, May 8, 2008, 122 Stat. 754. 3 November 29, 2009, to December 31, 2014.

160 NAVIGATING THE FUNDAMENTALS OF IMMIGRATION LAW (2017–18 ED.)


AUTHORITIES

In addition to the statutory definition above, practitioners should refer to the regulations of the Department of State (DOS), which appear at 22 CFR §41.51, and the regulations of the Department of Homeland Security (DHS), which appear at 8 CFR §214.2(e).4 DOS and DHS rules are similar, but not identical to each other.

The final regulations of DOS and the former Immigration and Naturalization Service (legacy INS) pertain-ing to the E classification were first published in the Federal Register on September 12, 1997.5 Although the proposed legacy INS regulations had initially differed from the DOS regulations, legacy INS subsequently altered them so that the final regulations would more closely track the DOS regulations.

Legacy INS’s willingness to alter its regulations to conform to DOS regulations reflected the general con-sensus that primary jurisdiction over the adjudication of E nonimmigrant cases rested with DOS. Although practitioners should always refer first to the DHS regulations in cases involving a change of status or exten-sion of stay, DOS guidance should also carry weight at the California Service Center in the absence of specif-ic U.S. Citizenship and Immigration Services (USCIS) guidance.

Another extremely useful authority is DOS’s Foreign Affairs Manual (FAM).6 Although the notes con-tained in the FAM are not binding on consular officers, they can be a valuable source of guidance for practi-tioners, and they are persuasive authority. Where relevant, the FAM should be cited for visa cases filed with U.S. consulates abroad and even in change of status or extension of stay cases filed with USCIS, where no equivalent reference appears in the DHS regulations.

ISSUES APPLICABLE TO BOTH E-1 AND E-2 NONIMMIGRANTS

Existence of Treaty

The basis of the E-1 and E-2 classifications lies in treaties that were intended to enhance and facilitate economic and commercial interaction between the United States and the treaty country. Therefore, a treaty of Freedom, Commerce and Navigation (FCN) must exist between the United States and the country of the ap-plicant’s nationality.7 Bilateral investment treaties (BITs) have also been held to be equivalent to an FCN treaty.8 A treaty country also includes a foreign state that is accorded treaty visa privileges by specific legisla-tion,9 as in the case of the North American Free Trade Agreement (NAFTA).10

A list of treaties or the equivalent in effect between the United States and other countries that give rise to E-1 and E-2 eligibility appears at 9 FAM 402.910, and also on the DOS website.11 It is also reproduced at the end of this article as Appendix I. The most recent additions to the list of eligible countries are: E-1/E-2 eligibility for Chile;12 E-1/E-2 eligibility for Singapore;13 E-2 eligibility for Denmark;14 and E-1/E-2 eligibility for Kosovo, Montenegro, and Serbia.15

4 E adjudications within the United States are handled by USCIS, the benefits arm of DHS. 5 The U.S. Department of State (DOS) final regulations appeared at 62 Fed. Reg. 48149 (Sept. 12, 1997). Legacy INS final regulations appeared at 62 Fed. Reg. 48138 (Sept. 12, 1997). Both became effective November 12, 1997. 6 9 FAM 402.9 [formerly 9 FAM 41.51]. The Foreign Affairs Manual can be accessed at https://fam.state.gov. 7 INA §101(a)(15)(E); 22 CFR §§41.51(a)(6), (b)(6); 9 FAM 402.9-4(A) [formerly 9 FAM 41.51 N3]. 8 9 FAM 402.9-4(A) [formerly 9 FAM 41.51 N3]. 9 22 CFR §§41.51(a)(6), (b)(6). 10 North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (Dec. 8, 1993). 11 The list of treaty countries can be found at http://1.usa.gov/TreatyCountriesChart. 12 U.S.-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 Stat. 909 (effective Jan. 1, 2004). 13 U.S.-Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78, 117 Stat. 948 (effective Jan. 1, 2004). 14 The effective date of this treaty was December 10, 2008.




159

E-1 and E-2 Nonimmigrants originally authored and updated by Henry J. Chang*

Henry J. Chang is a partner with the firm of Blaney McMurtry LLP in Toronto. He has practiced exclusively in the field of immigration law more than 25 years. Mr. Chang is a member of the State Bar of California and the Law Society of Upper Can-ada.

**********

INTRODUCTION

The E nonimmigrant is defined at Immigration and Nationality Act1 (INA) §101(a)(15)(E) as an alien enti-tled to enter the United States under and in pursuance of the provisions of a treaty of commerce and naviga-tion between the United States and the foreign state of which he or she is a national, and the spouse and chil-dren of any such alien if accompanying or following-to-join the principal: Solely to carry on substantial trade, including trade in services or trade in technology, principally be-

tween the United States and the foreign state of which he or she is a national; Solely to develop and direct the operations of an enterprise in which he or she has invested, or of an en-

terprise in which he or she is actively in the process of investing, a substantial amount of capital; or Solely to perform services in a specialty occupation in the United States if the alien is a national of

Australia and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under INA §212(t)(1).

The E category therefore consists of three subcategories: treaty traders (E-1), treaty investors (E-2), and Australians working in specialty occupations (E-3). However, the E-3 classification is very differ-ent than the E-1 and E-2 classifications; it applies only to Australian citizens and more closely resembles the H-1B classification than the E-1 or E-2. For this reason, only the E-1 and E-2 classifications will be discussed herein.

In addition, when the Consolidated Natural Resources Act of 20082 (CNRA) was signed into law on May 8, 2008, it extended U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI). During a brief transition period,3 the CRNA permitted foreign long-term investors who had been admitted to the CNMI with a long-term investor visa under the prior CNMI immigration law to remain there under E-2 status. However, the eligibility requirements were very different than a traditional E-2; the transition period also ended on Decem-ber 31, 2014. As a result, a discussion of the CNMI-specific E-2 classification is also outside the scope of this article.

Many practitioners prefer to remain on familiar ground, opting for the L-1 and H-1B classifications when-ever possible. Nevertheless, the E-1 and E-2 classifications are two of the most useful nonimmigrant options and should be considered when available.

* Updated from the 2016–17 edition of Navigating the Fundamentals of Immigration Law (AILA 2016). 1 Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101–1524). 2 Consolidated Natural Resources Act of 2008, Pub. L. 110–229, May 8, 2008, 122 Stat. 754. 3 November 29, 2009, to December 31, 2014.



AUTHORITIES

In addition to the statutory definition above, practitioners should refer to the regulations of the Department of State (DOS), which appear at 22 CFR §41.51, and the regulations of the Department of Homeland Security (DHS), which appear at 8 CFR §214.2(e).4 DOS and DHS rules are similar, but not identical to each other.

The final regulations of DOS and the former Immigration and Naturalization Service (legacy INS) pertain-ing to the E classification were first published in the Federal Register on September 12, 1997.5 Although the proposed legacy INS regulations had initially differed from the DOS regulations, legacy INS subsequently altered them so that the final regulations would more closely track the DOS regulations.

Legacy INS’s willingness to alter its regulations to conform to DOS regulations reflected the general con-sensus that primary jurisdiction over the adjudication of E nonimmigrant cases rested with DOS. Although practitioners should always refer first to the DHS regulations in cases involving a change of status or exten-sion of stay, DOS guidance should also carry weight at the California Service Center in the absence of specif-ic U.S. Citizenship and Immigration Services (USCIS) guidance.

Another extremely useful authority is DOS’s Foreign Affairs Manual (FAM).6 Although the notes con-tained in the FAM are not binding on consular officers, they can be a valuable source of guidance for practi-tioners, and they are persuasive authority. Where relevant, the FAM should be cited for visa cases filed with U.S. consulates abroad and even in change of status or extension of stay cases filed with USCIS, where no equivalent reference appears in the DHS regulations.

ISSUES APPLICABLE TO BOTH E-1 AND E-2 NONIMMIGRANTS

Existence of Treaty

The basis of the E-1 and E-2 classifications lies in treaties that were intended to enhance and facilitate economic and commercial interaction between the United States and the treaty country. Therefore, a treaty of Freedom, Commerce and Navigation (FCN) must exist between the United States and the country of the ap-plicant’s nationality.7 Bilateral investment treaties (BITs) have also been held to be equivalent to an FCN treaty.8 A treaty country also includes a foreign state that is accorded treaty visa privileges by specific legisla-tion,9 as in the case of the North American Free Trade Agreement (NAFTA).10

A list of treaties or the equivalent in effect between the United States and other countries that give rise to E-1 and E-2 eligibility appears at 9 FAM 402.910, and also on the DOS website.11 It is also reproduced at the end of this article as Appendix I. The most recent additions to the list of eligible countries are: E-1/E-2 eligibility for Chile;12 E-1/E-2 eligibility for Singapore;13 E-2 eligibility for Denmark;14 and E-1/E-2 eligibility for Kosovo, Montenegro, and Serbia.15

4 E adjudications within the United States are handled by USCIS, the benefits arm of DHS. 5 The U.S. Department of State (DOS) final regulations appeared at 62 Fed. Reg. 48149 (Sept. 12, 1997). Legacy INS final regulations appeared at 62 Fed. Reg. 48138 (Sept. 12, 1997). Both became effective November 12, 1997. 6 9 FAM 402.9 [formerly 9 FAM 41.51]. The Foreign Affairs Manual can be accessed at https://fam.state.gov. 7 INA §101(a)(15)(E); 22 CFR §§41.51(a)(6), (b)(6); 9 FAM 402.9-4(A) [formerly 9 FAM 41.51 N3]. 8 9 FAM 402.9-4(A) [formerly 9 FAM 41.51 N3]. 9 22 CFR §§41.51(a)(6), (b)(6). 10 North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (Dec. 8, 1993). 11 The list of treaty countries can be found at http://1.usa.gov/TreatyCountriesChart. 12 U.S.-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 Stat. 909 (effective Jan. 1, 2004). 13 U.S.-Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78, 117 Stat. 948 (effective Jan. 1, 2004). 14 The effective date of this treaty was December 10, 2008.


E-1 AND E-2 NONIMMIGRANTS 161


In addition, legislation authorizing E-2 visas for Israel was signed into law on June 8, 2012.16 However, this legislation will not be effective until the terms and conditions of the final agreement are finalized between the United States and Israel.17

Some treaties allow for E-1 or E-2 status, but not both.18 Other treaties contain specific restrictions on E-1 or E-2 eligibility.19 Practitioners should refer to the list contained in the FAM and, if necessary, the text of the treaty itself.

Nationality

To qualify for either E-1 treaty trader or E-2 investor status, the applicant must possess the nationality of the treaty country.20 In most cases, determining nationality is simple; however, establishing the requisite nationality can be difficult in certain situations.

According to DOS regulations, the authorities of the foreign state of which the noncitizen is a national de-termine the nationality of an individual treaty trader or treaty investor.21 In unclear cases, practitioners should examine the nationality laws of the treaty country and the language of the relevant treaty in order to determine whether the individual qualifies for E status. For example, in treaty countries where the doctrine of jus san-guinis exclusively applies, an individual born within the country’s jurisdiction may not be a national of that country.

The nationality of a business is determined by the nationality of the individual owners of that business.22 A business that is at least 50 percent owned by nationals of the relevant treaty country will be eligible for E sta-tus.23 Where two noncitizens equally own a company, and each possesses a different nationality, the company will possess both nationalities.24

Applicants who hold dual nationality (other than U.S. citizenship) may qualify for E status, but they must hold themselves out as nationals of the treaty country in question.25 Consequently, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, nationals of a treaty country who also hold U.S. citizenship26 or U.S. lawful per-manent resident status27 are not considered nationals of the treaty country for the purposes of E eligibility.

15 These countries’ eligibility is due to the fact that they are successor states to the former Socialist Federal Republic of Yugoslavia. 16 Pub. L. No. 112-130, 126 Stat. 376 (2012). 17 At the April 2013 AILA DOS Liaison Committee meeting, AILA inquired as to the current status of the implementation process. It was advised that Israel did not yet have an equivalent status for U.S. citizens in Israel and that DOS had been work-ing with Israeli government officials to facilitate Israel’s development of a visa status similar to the E-2. On August 13, 2014, the Israeli Parliament established an investor visa category for U.S. citizens. DOS has not yet made an announcement regarding E-2 eligibility for Israeli citizens, but this is expected to occur in the future. 18 For example, nationals of Greece may seek E-1 status but not E-2. 19 For example, the Convention to Regulate Commerce, which permits nationals of the United Kingdom to seek E-1 and E-2 status, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands, and Gibraltar) and to “inhabitants” of such territory. The term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” 20 22 CFR §§41.51(a)(6), (b)(6); 9 FAM 402.9-4(B)(a) [formerly 9 FAM 41.51 N2]. 21 Id. 22 Id. 23 9 FAM 402.9-4(B)(c) [formerly 9 FAM 41.51 N3.1]. 24 9 FAM 402.9-4(B)(c) [formerly 9 FAM 41.51 N3.3]. 25 Id. 26 Verbally confirmed by J. Gorsky, of the DOS Visa Office, at the 2002 AILA Annual Conference. See also 22 CFR §40.2(a), which prohibits the issuance of a visa to a national of the United States. 27 9 FAM 402.9-7(A) [formerly 9 FAM 41.51 N14.1].



The company’s country of incorporation is irrelevant to the nationality requirement for E visa purposes.28 In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the con-sular officer may presume that the nationality of the corporation is that of the location of the exchange.29 However, where the stock of a corporation is traded in more than one country, the presumption will not apply. In such cases, the applicant will have to establish nationality using the best evidence available. The FAM ad-vises consular officers to request an advisory opinion in these situations.30

The source of investment capital is clearly not relevant to the issue of nationality. For example, a corpora-tion that is 50 percent owned by a treaty national will have the nationality of the treaty country, even if 100 percent of the investment capital comes from other investors. Although this scenario might create other eligi-bility problems, such as the treaty investor’s inability to satisfy the substantial investment requirement (unless the corporation acts as the treaty investor), the nationality requirement clearly would be satisfied.

The nationality requirement is easy to satisfy when the treaty business is at least 50 percent owned by trea-ty nationals. However, if the treaty business is less than 50 percent owned by treaty nationals, it may need to be restructured in order to satisfy the nationality requirement.

One possible solution is to transfer an appropriate amount of shares from the non–treaty national to the treaty national. As payment for the shares, the treaty national could execute a loan agreement with an option to later repurchase the shares from the non–treaty national at the original price. This option could be exercisa-ble only after the expiration date of the treaty national’s visa or upon certain earlier events, such as the treaty national’s departure from the business or insolvency. This strategy should satisfy the nationality requirement while also protecting the interests of the non–treaty national.

Some practitioners may believe that they can satisfy the nationality requirement by having the treaty na-tional hold the non–treaty national’s shares in a trust. This is because under common law, a trust is not a sepa-rate legal entity from the trustee; the trustee is the legal owner of trust assets. If common law controlled, the treaty national trustee rather than the non–treaty national beneficiary would legally own the shares. However, DOS has confirmed that it will look to the beneficiaries, rather than to the trustee, when determining the na-tionality of the treaty business.31

Intention to Depart the United States

In order to qualify for E classification, the foreign national must intend to depart the United States upon the termination of his or her status.32 However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon.33 The applicant’s expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary.34 This intent can normally be expressed by way of a written statement submitted with the E visa application.

A limited form of dual intent is recognized for E nonimmigrants. DOS’s position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that he or she will not remain in the United States to adjust status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status.35 USCIS’s position is that an application for initial admis-sion, change of status, or extension of stay in E classification may not be denied solely on the basis of an ap-

28 9 FAM 402.9-4(B)(b) [formerly 9 FAM 41.51 N3.2]. 29 Id. 30 Id. 31 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 1999 AILA Annual Conference. 32 22 CFR §§41.51(a)(1), (b)(1). 33 9 FAM 402.9-4(C) [formerly 9 FAM 41.51 N15]. 34 Id. 35 Id.




In addition, legislation authorizing E-2 visas for Israel was signed into law on June 8, 2012.16 However, this legislation will not be effective until the terms and conditions of the final agreement are finalized between the United States and Israel.17

Some treaties allow for E-1 or E-2 status, but not both.18 Other treaties contain specific restrictions on E-1 or E-2 eligibility.19 Practitioners should refer to the list contained in the FAM and, if necessary, the text of the treaty itself.

Nationality

To qualify for either E-1 treaty trader or E-2 investor status, the applicant must possess the nationality of the treaty country.20 In most cases, determining nationality is simple; however, establishing the requisite nationality can be difficult in certain situations.

According to DOS regulations, the authorities of the foreign state of which the noncitizen is a national de-termine the nationality of an individual treaty trader or treaty investor.21 In unclear cases, practitioners should examine the nationality laws of the treaty country and the language of the relevant treaty in order to determine whether the individual qualifies for E status. For example, in treaty countries where the doctrine of jus san-guinis exclusively applies, an individual born within the country’s jurisdiction may not be a national of that country.

The nationality of a business is determined by the nationality of the individual owners of that business.22 A business that is at least 50 percent owned by nationals of the relevant treaty country will be eligible for E sta-tus.23 Where two noncitizens equally own a company, and each possesses a different nationality, the company will possess both nationalities.24

Applicants who hold dual nationality (other than U.S. citizenship) may qualify for E status, but they must hold themselves out as nationals of the treaty country in question.25 Consequently, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, nationals of a treaty country who also hold U.S. citizenship26 or U.S. lawful per-manent resident status27 are not considered nationals of the treaty country for the purposes of E eligibility.

15 These countries’ eligibility is due to the fact that they are successor states to the former Socialist Federal Republic of Yugoslavia. 16 Pub. L. No. 112-130, 126 Stat. 376 (2012). 17 At the April 2013 AILA DOS Liaison Committee meeting, AILA inquired as to the current status of the implementation process. It was advised that Israel did not yet have an equivalent status for U.S. citizens in Israel and that DOS had been work-ing with Israeli government officials to facilitate Israel’s development of a visa status similar to the E-2. On August 13, 2014, the Israeli Parliament established an investor visa category for U.S. citizens. DOS has not yet made an announcement regarding E-2 eligibility for Israeli citizens, but this is expected to occur in the future. 18 For example, nationals of Greece may seek E-1 status but not E-2. 19 For example, the Convention to Regulate Commerce, which permits nationals of the United Kingdom to seek E-1 and E-2 status, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands, and Gibraltar) and to “inhabitants” of such territory. The term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” 20 22 CFR §§41.51(a)(6), (b)(6); 9 FAM 402.9-4(B)(a) [formerly 9 FAM 41.51 N2]. 21 Id. 22 Id. 23 9 FAM 402.9-4(B)(c) [formerly 9 FAM 41.51 N3.1]. 24 9 FAM 402.9-4(B)(c) [formerly 9 FAM 41.51 N3.3]. 25 Id. 26 Verbally confirmed by J. Gorsky, of the DOS Visa Office, at the 2002 AILA Annual Conference. See also 22 CFR §40.2(a), which prohibits the issuance of a visa to a national of the United States. 27 9 FAM 402.9-7(A) [formerly 9 FAM 41.51 N14.1].



The company’s country of incorporation is irrelevant to the nationality requirement for E visa purposes.28 In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the con-sular officer may presume that the nationality of the corporation is that of the location of the exchange.29 However, where the stock of a corporation is traded in more than one country, the presumption will not apply. In such cases, the applicant will have to establish nationality using the best evidence available. The FAM ad-vises consular officers to request an advisory opinion in these situations.30

The source of investment capital is clearly not relevant to the issue of nationality. For example, a corpora-tion that is 50 percent owned by a treaty national will have the nationality of the treaty country, even if 100 percent of the investment capital comes from other investors. Although this scenario might create other eligi-bility problems, such as the treaty investor’s inability to satisfy the substantial investment requirement (unless the corporation acts as the treaty investor), the nationality requirement clearly would be satisfied.

The nationality requirement is easy to satisfy when the treaty business is at least 50 percent owned by trea-ty nationals. However, if the treaty business is less than 50 percent owned by treaty nationals, it may need to be restructured in order to satisfy the nationality requirement.

One possible solution is to transfer an appropriate amount of shares from the non–treaty national to the treaty national. As payment for the shares, the treaty national could execute a loan agreement with an option to later repurchase the shares from the non–treaty national at the original price. This option could be exercisa-ble only after the expiration date of the treaty national’s visa or upon certain earlier events, such as the treaty national’s departure from the business or insolvency. This strategy should satisfy the nationality requirement while also protecting the interests of the non–treaty national.

Some practitioners may believe that they can satisfy the nationality requirement by having the treaty na-tional hold the non–treaty national’s shares in a trust. This is because under common law, a trust is not a sepa-rate legal entity from the trustee; the trustee is the legal owner of trust assets. If common law controlled, the treaty national trustee rather than the non–treaty national beneficiary would legally own the shares. However, DOS has confirmed that it will look to the beneficiaries, rather than to the trustee, when determining the na-tionality of the treaty business.31

Intention to Depart the United States

In order to qualify for E classification, the foreign national must intend to depart the United States upon the termination of his or her status.32 However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon.33 The applicant’s expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary.34 This intent can normally be expressed by way of a written statement submitted with the E visa application.

A limited form of dual intent is recognized for E nonimmigrants. DOS’s position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that he or she will not remain in the United States to adjust status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status.35 USCIS’s position is that an application for initial admis-sion, change of status, or extension of stay in E classification may not be denied solely on the basis of an ap-

28 9 FAM 402.9-4(B)(b) [formerly 9 FAM 41.51 N3.2]. 29 Id. 30 Id. 31 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 1999 AILA Annual Conference. 32 22 CFR §§41.51(a)(1), (b)(1). 33 9 FAM 402.9-4(C) [formerly 9 FAM 41.51 N15]. 34 Id. 35 Id.




proved request for permanent labor certification or a filed or approved immigrant visa petition.36 In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status.37 This clearly shows that an E nonimmigrant may be the beneficiary of a labor certification, immigrant petition, or have an adjustment of status application pending, and remain eligible for E status.

Notwithstanding the above, INA §214(b) applies to E nonimmigrants. A prior overstay or violation of sta-tus while in the United States may infer that the applicant does not intend to depart the United States upon termination of E status. The only way to overcome the presumption of immigrant intent in such situations is to establish (if possible) that the violation or overstay was brief and inadvertent.

Consular officers will expect the visa applicant to provide evidence of prior lawful status, especially if he or she has already been in the United States for an extended period of time. In addition, where the visa appli-cant has been away from his or her country of citizenship or residence for an extended period, consular offic-ers may ask for evidence of economic, family, or social ties to that country. Note, however, that simply providing evidence of close family members residing in the applicant’s country of citizenship or permanent residence may be insufficient to establish an intention to depart.

Employees of E-1 and E-2 Principal Noncitizens

General Requirements A noncitizen employee of a treaty trader may be classified E-1 and a noncitizen employee of a treaty in-

vestor may be classified E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifica-tions that make the services to be rendered essential to the efficient operation of the enterprise.38 Employees of treaty traders or treaty investors seeking E status must have the same nationality as their employer.39

To support an E-1 or E-2 application filed on behalf of a noncitizen employee of a treaty trader or treaty investor, the employer must be: A person having the nationality of the treaty country, who is maintaining the status of treaty trader or

treaty investor if in the United States or, if not in the United States, would be classifiable as a treaty trader or treaty investor; or

An organization at least 50 percent owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders or treaty investors.40

In other words, where the employer is residing in the United States in some capacity other than E-1 or E-2, it is not possible to seek treaty trader or treaty investor status on behalf of employees. The same applies in the case of a corporate employer, where more than 50 percent of the individuals who own the employer are resid-ing in the United States in some capacity other than E-1 or E-2.

This requirement can create problems in the case of publicly traded corporations where the shares are widely held. It would be very difficult to determine whether any of these small shareholders were in the Unit-ed States under some classification other than E-2 (e.g., H-1B). It would also be difficult to determine wheth-er they could be classifiable as treaty traders or treaty investors, since none of these small shareholders would possess sufficient ownership or control to qualify as principal traders or investors. Although some of these small shareholders might potentially qualify as E-1 or E-2 employees, it would be very difficult to establish that at least 50 percent of the shareholders meet this requirement.

36 8 CFR §214.2(e)(5). 37 INS Memorandum, P. Virtue, Acting Executive Commissioner, HQ 70/6.2.5, 70/6.2.9 (Aug. 5, 1997), reprinted in 74 Interpreter Releases 1226–29 (Aug. 11, 1997). 38 22 CFR §§41.51(a)(2), (b)(2). 39 9 FAM 402.9-7(A) [formerly 9 FAM 41.51 N14.1]. 40 22 CFR §§41.51(a)(2), (b)(2).



Consular posts should exercise common sense in such circumstances; they should not apply this require-ment strictly in the case of widely held corporations, even though there have been cases where this has oc-curred.

Executive or Supervisory Character Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s

overall operation or a major component thereof.41 An executive position provides the employee great authori-ty to determine the policies and direction of the enterprise.42 A supervisory position grants the employee su-pervisory responsibility for a significant proportion of an enterprise’s operations and does not generally in-volve the direct supervision of low-level employees.43

The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function.44 For example, if the position principally requires management skills or entails key supervisory responsibility for a large portion of a firm’s operations and only incidentally involves routine substantive staff work, an E classification would generally be appropriate.45 Conversely, if the position chiefly involves routine work and secondarily entails supervision of low-level em-ployees, the position could not be termed executive or supervisory.46

In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company’s organizational structure, the duties of the position, the de-gree to which the applicant will have ultimate control and responsibility for the company’s operations or a major component thereof, the number and skill level of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.47

The weight given to a particular factor will vary from case to case.48 For example, the title of “vice presi-dent” or “manager” might be of use in assessing the supervisory nature of a position if the applicant were coming to a major operation having numerous employees.49 However, if the applicant were coming to a small two-person office, such a title in and of itself would be of little significance.50

The concept of “managing an essential function,” which is recognized in DHS regulations for L-1A multina-tional managers,51 is not expressly recognized for the E classification. However, there is also no specific re-quirement that an E-1 or E-2 supervisory employee manage subordinate workers. The definition of “supervisory character” states only that it does not involve the direct supervision of low-level employees.52 A similar limita-tion applies to L-1A multinational managers.53 Therefore, a manager of an essential function might be consid-ered a supervisory employee within the E-1 and E-2 context.

41 22 CFR §§41.51(a)(11), (b)(12). 42 Id. 43 Id. 44 Id. 45 9 FAM 402.9-7(B) [formerly 9 FAM 41.51 N14.2]. 46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 8 CFR §214.2(l)(1)(ii)(B). 52 22 CFR §§41.51(a)(11), (b)(12). 53 8 CFR §214.2(l)(1)(ii)(B).




proved request for permanent labor certification or a filed or approved immigrant visa petition.36 In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status.37 This clearly shows that an E nonimmigrant may be the beneficiary of a labor certification, immigrant petition, or have an adjustment of status application pending, and remain eligible for E status.

Notwithstanding the above, INA §214(b) applies to E nonimmigrants. A prior overstay or violation of sta-tus while in the United States may infer that the applicant does not intend to depart the United States upon termination of E status. The only way to overcome the presumption of immigrant intent in such situations is to establish (if possible) that the violation or overstay was brief and inadvertent.

Consular officers will expect the visa applicant to provide evidence of prior lawful status, especially if he or she has already been in the United States for an extended period of time. In addition, where the visa appli-cant has been away from his or her country of citizenship or residence for an extended period, consular offic-ers may ask for evidence of economic, family, or social ties to that country. Note, however, that simply providing evidence of close family members residing in the applicant’s country of citizenship or permanent residence may be insufficient to establish an intention to depart.

Employees of E-1 and E-2 Principal Noncitizens

General Requirements A noncitizen employee of a treaty trader may be classified E-1 and a noncitizen employee of a treaty in-

vestor may be classified E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifica-tions that make the services to be rendered essential to the efficient operation of the enterprise.38 Employees of treaty traders or treaty investors seeking E status must have the same nationality as their employer.39

To support an E-1 or E-2 application filed on behalf of a noncitizen employee of a treaty trader or treaty investor, the employer must be: A person having the nationality of the treaty country, who is maintaining the status of treaty trader or

treaty investor if in the United States or, if not in the United States, would be classifiable as a treaty trader or treaty investor; or

An organization at least 50 percent owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders or treaty investors.40

In other words, where the employer is residing in the United States in some capacity other than E-1 or E-2, it is not possible to seek treaty trader or treaty investor status on behalf of employees. The same applies in the case of a corporate employer, where more than 50 percent of the individuals who own the employer are resid-ing in the United States in some capacity other than E-1 or E-2.

This requirement can create problems in the case of publicly traded corporations where the shares are widely held. It would be very difficult to determine whether any of these small shareholders were in the Unit-ed States under some classification other than E-2 (e.g., H-1B). It would also be difficult to determine wheth-er they could be classifiable as treaty traders or treaty investors, since none of these small shareholders would possess sufficient ownership or control to qualify as principal traders or investors. Although some of these small shareholders might potentially qualify as E-1 or E-2 employees, it would be very difficult to establish that at least 50 percent of the shareholders meet this requirement.

36 8 CFR §214.2(e)(5). 37 INS Memorandum, P. Virtue, Acting Executive Commissioner, HQ 70/6.2.5, 70/6.2.9 (Aug. 5, 1997), reprinted in 74 Interpreter Releases 1226–29 (Aug. 11, 1997). 38 22 CFR §§41.51(a)(2), (b)(2). 39 9 FAM 402.9-7(A) [formerly 9 FAM 41.51 N14.1]. 40 22 CFR §§41.51(a)(2), (b)(2).



Consular posts should exercise common sense in such circumstances; they should not apply this require-ment strictly in the case of widely held corporations, even though there have been cases where this has oc-curred.

Executive or Supervisory Character Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s

overall operation or a major component thereof.41 An executive position provides the employee great authori-ty to determine the policies and direction of the enterprise.42 A supervisory position grants the employee su-pervisory responsibility for a significant proportion of an enterprise’s operations and does not generally in-volve the direct supervision of low-level employees.43

The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function.44 For example, if the position principally requires management skills or entails key supervisory responsibility for a large portion of a firm’s operations and only incidentally involves routine substantive staff work, an E classification would generally be appropriate.45 Conversely, if the position chiefly involves routine work and secondarily entails supervision of low-level em-ployees, the position could not be termed executive or supervisory.46

In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company’s organizational structure, the duties of the position, the de-gree to which the applicant will have ultimate control and responsibility for the company’s operations or a major component thereof, the number and skill level of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.47

The weight given to a particular factor will vary from case to case.48 For example, the title of “vice presi-dent” or “manager” might be of use in assessing the supervisory nature of a position if the applicant were coming to a major operation having numerous employees.49 However, if the applicant were coming to a small two-person office, such a title in and of itself would be of little significance.50

The concept of “managing an essential function,” which is recognized in DHS regulations for L-1A multina-tional managers,51 is not expressly recognized for the E classification. However, there is also no specific re-quirement that an E-1 or E-2 supervisory employee manage subordinate workers. The definition of “supervisory character” states only that it does not involve the direct supervision of low-level employees.52 A similar limita-tion applies to L-1A multinational managers.53 Therefore, a manager of an essential function might be consid-ered a supervisory employee within the E-1 and E-2 context.

41 22 CFR §§41.51(a)(11), (b)(12). 42 Id. 43 Id. 44 Id. 45 9 FAM 402.9-7(B) [formerly 9 FAM 41.51 N14.2]. 46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 8 CFR §214.2(l)(1)(ii)(B). 52 22 CFR §§41.51(a)(11), (b)(12). 53 8 CFR §214.2(l)(1)(ii)(B).




Essential Skills Generally

The applicant bears the burden of establishing at the time of application not only the need for the special qualifications that he or she offers but also the length of time that such skills will be needed.54 In general, the E classification is intended for specialists and not for ordinary skilled workers.55

Special qualifications are those skills that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.56 The essential nature of the foreign na-tional’s skills is determined by assessing the foreign national’s degree of proven expertise in the area of oper-ations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform the duties effectively, and the salary that the special qualifications commands.57 Whether the special qualifications are essential will be assessed in light of all circumstances at the time of the visa application, on a case-by-case basis.58

The availability of U.S. workers provides another factor in assessing the degree of specialization the appli-cant possesses and the essentiality of the skilled worker to the successful operation of the business.59 This consideration is not a labor certification test, but a measure of the degree of specialization of the skills in question and the need for such skills.60 For example, a TV technician coming to train U.S. workers in new TV technology not generally available in the U.S. market probably would qualify for a visa.61 If the essential-skills question cannot be resolved on the basis of initial documentation, the consular officer may ask the firm to provide statements from such sources as chambers of commerce, labor organizations, industry trade sources, or state employment services as to the unavailability of U.S. workers in the skill areas concerned.62

There is no requirement that an “essential” employee have any previous employment with the treaty enter-prise.63 The only time that such previous employment is a factor is when the needed skills can only be ob-tained by that employment.64

In the L-1B context, “specialized knowledge” means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests, and its application in international markets, or an advanced level of knowledge or expertise in the organiza-tion’s processes and procedures.65 This definition emphasizes knowledge of the petitioning organization that is gained while working with that organization abroad. In contrast, the definition of “essential skills” makes clear that an employee can be essential without having previously worked for the treaty enterprise.

There are two distinct types of essential skills workers: (a) short-term workers, and (b) long-term workers. Each type is briefly discussed below.

Short-Term Need In the case of short-term essential workers, the employer may need the skills for only a relatively short peri-

od of time when the purpose of the employee’s admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, 54 9 FAM 402.9-7(C)(c) [formerly 9 FAM 41.51 N14.3-1]. 55 Id. 56 22 CFR §§41.51(a)(12), (b)(13). 57 Id. 58 Id. 59 9 FAM 402.9-7(C)(g) [formerly 9 FAM 41.51 N14.3-2]. 60 Id. 61 Id. 62 9 FAM 402.9-7(C)(h) [formerly 9 FAM 41.51 N14.3-2]. 63 9 FAM 402.9-7(C)(l) [formerly 9 FAM 41.51 N14.3-4]. 64 Id. 65 8 CFR §214.2(l)(1)(ii)(D).



maintenance, and repair functions.66 Ordinarily skilled workers can qualify as essential employees, but this al-most always involves workers needed for start-up or training purposes.67

A new business or an established business expanding into a new field in the United States might need or-dinarily skilled workers for a short period of time.68 Such employees derive their essentiality from familiarity with the overseas operations rather than the nature of their skills.69

Employers in such cases are typically expected to train United States workers to replace these employees within a short period of time (i.e., one or two years).70 Short-term essential skills workers are therefore in a less desirable position than L-1B specialized knowledge workers, who are not required to demonstrate that U.S. workers will be trained to replace them.71

To illustrate the above, it may be useful to consider Matter of X.72 In this case, the treaty investor company sought an extension of stay for its E-2 employee as a “tatami service specialist” in a Japanese restaurant. The employer described the position as follows:

The gourmet cuisine and service in a “Tatami” room is the most highly specialized, intricate and important in Japanese gastronomy, and requires intimate familiarity with the Japanese arts of the tea ceremony and flower arrangement. Because of her four years of experience, and her high level of linguistic proficiency acquired at the Tokyo Foreign Language School, X is uniquely qualified for her position.

One year of training was required for the applicant to learn how to perform the duties of her position, and she earned $29,705 a year for her services.

Relying upon guidance contained in the FAM, the Administrative Appeals Unit (AAU) stated that the ap-plicant had to demonstrate that she was either a highly trained and specially qualified technician, or a start-up employee of a new enterprise whose essentiality was based on her familiarity with the overseas operations of the employer rather than on the nature of her skills. It concluded that the applicant was not a technician or a highly trained employee. She had not been shown to have any familiarity with an overseas operation of her employer in the United States, and the employer’s business operation was not a new enterprise. The absence of a training program intended to replace the foreign national with a U.S. worker was also considered a nega-tive factor. The AAU concluded that she was an ordinary skilled worker and denied her extension of stay.

The outcome might possibly have been different if the employee (although an ordinary skills worker) had previously worked for the employer’s foreign operation, if the U.S. operation was considered a new enter-prise, and/or if the employer had a training program in place designed to eventually replace the employee.

Long-Term Need Long-term essentiality may be established in connection with continuous activities in areas such as prod-

uct improvement, quality control, or the provision of a service not generally available in the United States.73 If an applicant establishes that he or she has special qualifications and that, on a long-term basis, these quali-fications are essential for the efficient operation of the treaty enterprise, the training of U.S. workers as re-

66 9 FAM 402.9-7(C)(d) [formerly 9 FAM 41.51 N14.3-1]. 67 9 FAM 402.9-7(C)(k) [formerly 9 FAM 41.51 N14.3-3]. 68 Id. 69 Id. 70 9 FAM 402.9-7(C)(d) [formerly 9 FAM 41.51 N14.3-1]. See also 8 CFR §214.2(e)(20)(ii). 71 L-1B specialized knowledge workers rarely have difficulty extending their status up to the five-year maximum described in INA §214(c)(2)(D). 72 11 Immigr. Rptr. B2-79 (AAU 1993). 73 22 CFR §§41.51(a)(12), (b)(13).




Essential Skills Generally

The applicant bears the burden of establishing at the time of application not only the need for the special qualifications that he or she offers but also the length of time that such skills will be needed.54 In general, the E classification is intended for specialists and not for ordinary skilled workers.55

Special qualifications are those skills that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.56 The essential nature of the foreign na-tional’s skills is determined by assessing the foreign national’s degree of proven expertise in the area of oper-ations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform the duties effectively, and the salary that the special qualifications commands.57 Whether the special qualifications are essential will be assessed in light of all circumstances at the time of the visa application, on a case-by-case basis.58

The availability of U.S. workers provides another factor in assessing the degree of specialization the appli-cant possesses and the essentiality of the skilled worker to the successful operation of the business.59 This consideration is not a labor certification test, but a measure of the degree of specialization of the skills in question and the need for such skills.60 For example, a TV technician coming to train U.S. workers in new TV technology not generally available in the U.S. market probably would qualify for a visa.61 If the essential-skills question cannot be resolved on the basis of initial documentation, the consular officer may ask the firm to provide statements from such sources as chambers of commerce, labor organizations, industry trade sources, or state employment services as to the unavailability of U.S. workers in the skill areas concerned.62

There is no requirement that an “essential” employee have any previous employment with the treaty enter-prise.63 The only time that such previous employment is a factor is when the needed skills can only be ob-tained by that employment.64

In the L-1B context, “specialized knowledge” means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests, and its application in international markets, or an advanced level of knowledge or expertise in the organiza-tion’s processes and procedures.65 This definition emphasizes knowledge of the petitioning organization that is gained while working with that organization abroad. In contrast, the definition of “essential skills” makes clear that an employee can be essential without having previously worked for the treaty enterprise.

There are two distinct types of essential skills workers: (a) short-term workers, and (b) long-term workers. Each type is briefly discussed below.

Short-Term Need In the case of short-term essential workers, the employer may need the skills for only a relatively short peri-

od of time when the purpose of the employee’s admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, 54 9 FAM 402.9-7(C)(c) [formerly 9 FAM 41.51 N14.3-1]. 55 Id. 56 22 CFR §§41.51(a)(12), (b)(13). 57 Id. 58 Id. 59 9 FAM 402.9-7(C)(g) [formerly 9 FAM 41.51 N14.3-2]. 60 Id. 61 Id. 62 9 FAM 402.9-7(C)(h) [formerly 9 FAM 41.51 N14.3-2]. 63 9 FAM 402.9-7(C)(l) [formerly 9 FAM 41.51 N14.3-4]. 64 Id. 65 8 CFR §214.2(l)(1)(ii)(D).



maintenance, and repair functions.66 Ordinarily skilled workers can qualify as essential employees, but this al-most always involves workers needed for start-up or training purposes.67

A new business or an established business expanding into a new field in the United States might need or-dinarily skilled workers for a short period of time.68 Such employees derive their essentiality from familiarity with the overseas operations rather than the nature of their skills.69

Employers in such cases are typically expected to train United States workers to replace these employees within a short period of time (i.e., one or two years).70 Short-term essential skills workers are therefore in a less desirable position than L-1B specialized knowledge workers, who are not required to demonstrate that U.S. workers will be trained to replace them.71

To illustrate the above, it may be useful to consider Matter of X.72 In this case, the treaty investor company sought an extension of stay for its E-2 employee as a “tatami service specialist” in a Japanese restaurant. The employer described the position as follows:

The gourmet cuisine and service in a “Tatami” room is the most highly specialized, intricate and important in Japanese gastronomy, and requires intimate familiarity with the Japanese arts of the tea ceremony and flower arrangement. Because of her four years of experience, and her high level of linguistic proficiency acquired at the Tokyo Foreign Language School, X is uniquely qualified for her position.

One year of training was required for the applicant to learn how to perform the duties of her position, and she earned $29,705 a year for her services.

Relying upon guidance contained in the FAM, the Administrative Appeals Unit (AAU) stated that the ap-plicant had to demonstrate that she was either a highly trained and specially qualified technician, or a start-up employee of a new enterprise whose essentiality was based on her familiarity with the overseas operations of the employer rather than on the nature of her skills. It concluded that the applicant was not a technician or a highly trained employee. She had not been shown to have any familiarity with an overseas operation of her employer in the United States, and the employer’s business operation was not a new enterprise. The absence of a training program intended to replace the foreign national with a U.S. worker was also considered a nega-tive factor. The AAU concluded that she was an ordinary skilled worker and denied her extension of stay.

The outcome might possibly have been different if the employee (although an ordinary skills worker) had previously worked for the employer’s foreign operation, if the U.S. operation was considered a new enter-prise, and/or if the employer had a training program in place designed to eventually replace the employee.

Long-Term Need Long-term essentiality may be established in connection with continuous activities in areas such as prod-

uct improvement, quality control, or the provision of a service not generally available in the United States.73 If an applicant establishes that he or she has special qualifications and that, on a long-term basis, these quali-fications are essential for the efficient operation of the treaty enterprise, the training of U.S. workers as re-

66 9 FAM 402.9-7(C)(d) [formerly 9 FAM 41.51 N14.3-1]. 67 9 FAM 402.9-7(C)(k) [formerly 9 FAM 41.51 N14.3-3]. 68 Id. 69 Id. 70 9 FAM 402.9-7(C)(d) [formerly 9 FAM 41.51 N14.3-1]. See also 8 CFR §214.2(e)(20)(ii). 71 L-1B specialized knowledge workers rarely have difficulty extending their status up to the five-year maximum described in INA §214(c)(2)(D). 72 11 Immigr. Rptr. B2-79 (AAU 1993). 73 22 CFR §§41.51(a)(12), (b)(13).




placement workers is not required.74 It should therefore be possible for such an employee to remain in the United States in E-1 or E-2 status for an indefinite period of time.

The precedent decision relating to long-term essential skills workers is Matter of Walsh and Pollard.75 The employees in that case were automotive design engineers from Britain who were coming to the United States (pursuant to a contract between the treaty investor and General Motors) for the purpose of redesigning Gen-eral Motors’ line of cars in a smaller, more European fashion. It was established that a worker with an engi-neering degree would still require approximately 10 years of training to become an automotive design engi-neer and that there were not sufficient numbers of U.S. automotive design engineers to fill the present needs of the automotive industry. The Board of Immigration Appeals (BIA) concluded that the employees were long-term essential skills workers and the treaty investor was not expected to replace the employees with U.S. workers in the future.

Labor Disputes (Citizens of Canada and Mexico)

Because of the terms of NAFTA, citizens of Canada or Mexico are not entitled to E classification if the at-torney general76 and the secretary of labor have certified that: There is in progress a strike or lockout in the course of a labor dispute in the occupational classification

at the place or intended place of employment; and The noncitizen has failed to establish that the noncitizen’s entry will not affect adversely the settlement

of the strike or lockout, or the employment of any person who is involved in the strike or lockout.77 Citizens of Chile and Singapore could theoretically become subject to a similar restriction in the future al-

so, due to the language contained in their respective treaties. However, the DOS regulations still only apply this restriction to Canadian and Mexican citizens.78

The author has yet to encounter a case where the visa applicant was refused because of a strike or lockout in the course of a labor dispute. However, practitioners should be aware of this provision.

ISSUES APPLICABLE TO E-1 TREATY TRADERS ONLY

Definition of Trade

The term “trade” means the existing international exchange of items of trade for consideration between the United States and the treaty country.79 This exchange must be traceable and identifiable, and title to the trade item must pass from one treaty party to the other.80 According to the FAM, trade for E-1 purposes consists of three requirements: Trade must constitute an exchange; Trade must be international in scope; and Trade must involve qualifying activities.

74 9 FAM 402.9-7(C)(j) [formerly 9 FAM 41.51 N14.3-3]. 75 20 I&N Dec. 60 (BIA 1988). 76 The reference to the attorney general should now be read as the “Secretary of Homeland Security.” 77 22 CFR §§41.51(a)(13), (b)(14). 78 Id. 79 22 CFR §41.51(a)(7). 80 Id.



Trade Entails Exchange

According to the FAM, there must be an actual exchange, in a meaningful sense, of qualifying commodi-ties, such as goods, moneys, or services, to create transactions considered trade.81 An exchange of a good or service for consideration must flow between the two treaty countries.

Trade Must Be in Existence

The above definition clearly requires the presence of existing trade. If the noncitizen is unable to docu-ment preexisting transactions or successfully negotiated contracts of the type described above, he or she will have to travel to the United States as a business visitor until existing trade can be established.

This requirement may not be as onerous as it seems. Existing trade includes successfully negotiated con-tracts, binding upon the parties, that call for the immediate exchange of items of trade.82 Such contracts alone would appear to meet the requirement of existing trade, without the need for documentation of previous ex-changes.

In addition, the author has successfully argued that qualifying trade engaged in by a different corporate en-tity that is related to the treaty trader should be counted as existing trade if these trade agreements will be transferred to the treaty trader on or before the date of visa issuance. Of course, consular officers have consid-erable discretion, so this fact situation may not be accepted by all officers.

Items of Trade

According to DOS regulations, items that qualify for trade within these provisions include, but are not lim-ited to, goods, services, technology, monies, international banking, insurance, transportation, tourism, com-munications, and some news-gathering activities.83 DHS regulations also specifically refer to data processing, advertising, accounting, design and engineering, and management consulting.84 However, neither list is in-tended to be exhaustive.

DOS regulations do not define the meaning of “goods” or “services.” However, DHS regulations define goods as “tangible commodities or merchandise having extrinsic value” and services as “legitimate economic activities, which provide other than tangible goods.” 85

The DHS definition does not specifically include intangible property. However, as the trade in intangible property often involves trade in related services, this activity should qualify as a service. In any event, the distinction between goods and services is not significant, since both DOS and DHS regulations refer to goods and services collectively as “items of trade.” 86

The FAM confirms that these lists of items do not constitute an all-inclusive list but are merely examples of the types of services found to fall within the E-1 meaning of trade.87 Essentially, any item commonly trad-ed in international commerce could qualify.

Trade Must Be International

The above definition of “trade” requires an international exchange of items of trade for consideration be-tween the United States and the treaty country. Development of the domestic market without international exchange does not constitute trade in the E-1 visa context.88 Thus, engaging in purely domestic trade is not 81 9 FAM 402.9-5(B)(b) [formerly 9 FAM 41.51 N4.2]. 82 22 CFR §41.51(a)(7). 83 22 CFR §41.51(a)(8). 84 8 CFR §214.2(e)(9). 85 Id. 86 22 CFR §41.51(a)(8); 8 CFR §214.2(e)(9). 87 9 FAM 402.9-5(B)(f) [formery 9 FAM 41.51 N4.5]. 88 9 FAM 402.9-5(B)(c) [formerly 9 FAM 41.51 N4.3].




placement workers is not required.74 It should therefore be possible for such an employee to remain in the United States in E-1 or E-2 status for an indefinite period of time.

The precedent decision relating to long-term essential skills workers is Matter of Walsh and Pollard.75 The employees in that case were automotive design engineers from Britain who were coming to the United States (pursuant to a contract between the treaty investor and General Motors) for the purpose of redesigning Gen-eral Motors’ line of cars in a smaller, more European fashion. It was established that a worker with an engi-neering degree would still require approximately 10 years of training to become an automotive design engi-neer and that there were not sufficient numbers of U.S. automotive design engineers to fill the present needs of the automotive industry. The Board of Immigration Appeals (BIA) concluded that the employees were long-term essential skills workers and the treaty investor was not expected to replace the employees with U.S. workers in the future.

Labor Disputes (Citizens of Canada and Mexico)

Because of the terms of NAFTA, citizens of Canada or Mexico are not entitled to E classification if the at-torney general76 and the secretary of labor have certified that: There is in progress a strike or lockout in the course of a labor dispute in the occupational classification

at the place or intended place of employment; and The noncitizen has failed to establish that the noncitizen’s entry will not affect adversely the settlement

of the strike or lockout, or the employment of any person who is involved in the strike or lockout.77 Citizens of Chile and Singapore could theoretically become subject to a similar restriction in the future al-

so, due to the language contained in their respective treaties. However, the DOS regulations still only apply this restriction to Canadian and Mexican citizens.78

The author has yet to encounter a case where the visa applicant was refused because of a strike or lockout in the course of a labor dispute. However, practitioners should be aware of this provision.

ISSUES APPLICABLE TO E-1 TREATY TRADERS ONLY

Definition of Trade

The term “trade” means the existing international exchange of items of trade for consideration between the United States and the treaty country.79 This exchange must be traceable and identifiable, and title to the trade item must pass from one treaty party to the other.80 According to the FAM, trade for E-1 purposes consists of three requirements: Trade must constitute an exchange; Trade must be international in scope; and Trade must involve qualifying activities.

74 9 FAM 402.9-7(C)(j) [formerly 9 FAM 41.51 N14.3-3]. 75 20 I&N Dec. 60 (BIA 1988). 76 The reference to the attorney general should now be read as the “Secretary of Homeland Security.” 77 22 CFR §§41.51(a)(13), (b)(14). 78 Id. 79 22 CFR §41.51(a)(7). 80 Id.



Trade Entails Exchange

According to the FAM, there must be an actual exchange, in a meaningful sense, of qualifying commodi-ties, such as goods, moneys, or services, to create transactions considered trade.81 An exchange of a good or service for consideration must flow between the two treaty countries.

Trade Must Be in Existence

The above definition clearly requires the presence of existing trade. If the noncitizen is unable to docu-ment preexisting transactions or successfully negotiated contracts of the type described above, he or she will have to travel to the United States as a business visitor until existing trade can be established.

This requirement may not be as onerous as it seems. Existing trade includes successfully negotiated con-tracts, binding upon the parties, that call for the immediate exchange of items of trade.82 Such contracts alone would appear to meet the requirement of existing trade, without the need for documentation of previous ex-changes.

In addition, the author has successfully argued that qualifying trade engaged in by a different corporate en-tity that is related to the treaty trader should be counted as existing trade if these trade agreements will be transferred to the treaty trader on or before the date of visa issuance. Of course, consular officers have consid-erable discretion, so this fact situation may not be accepted by all officers.

Items of Trade

According to DOS regulations, items that qualify for trade within these provisions include, but are not lim-ited to, goods, services, technology, monies, international banking, insurance, transportation, tourism, com-munications, and some news-gathering activities.83 DHS regulations also specifically refer to data processing, advertising, accounting, design and engineering, and management consulting.84 However, neither list is in-tended to be exhaustive.

DOS regulations do not define the meaning of “goods” or “services.” However, DHS regulations define goods as “tangible commodities or merchandise having extrinsic value” and services as “legitimate economic activities, which provide other than tangible goods.” 85

The DHS definition does not specifically include intangible property. However, as the trade in intangible property often involves trade in related services, this activity should qualify as a service. In any event, the distinction between goods and services is not significant, since both DOS and DHS regulations refer to goods and services collectively as “items of trade.” 86

The FAM confirms that these lists of items do not constitute an all-inclusive list but are merely examples of the types of services found to fall within the E-1 meaning of trade.87 Essentially, any item commonly trad-ed in international commerce could qualify.

Trade Must Be International

The above definition of “trade” requires an international exchange of items of trade for consideration be-tween the United States and the treaty country. Development of the domestic market without international exchange does not constitute trade in the E-1 visa context.88 Thus, engaging in purely domestic trade is not 81 9 FAM 402.9-5(B)(b) [formerly 9 FAM 41.51 N4.2]. 82 22 CFR §41.51(a)(7). 83 22 CFR §41.51(a)(8). 84 8 CFR §214.2(e)(9). 85 Id. 86 22 CFR §41.51(a)(8); 8 CFR §214.2(e)(9). 87 9 FAM 402.9-5(B)(f) [formery 9 FAM 41.51 N4.5]. 88 9 FAM 402.9-5(B)(c) [formerly 9 FAM 41.51 N4.3].




contemplated under this classification. The traceable exchange in goods or services must be between the United States and the other treaty country.89

During the 2000 AILA Annual Conference, a DOS representative suggested that title to the goods would be considered, rather than the origin thereof, when considering whether trade was international.90 If this posi-tion were followed, an exchange would not be considered domestic merely because the goods were originally manufactured in the country to which they were being shipped. For example, if a treaty national were to pur-chase and ship goods manufactured in the United States (previously exported to the treaty country by a third party) from the treaty country back to the United States for sale to a U.S. national, the exchange would still be considered international. However, there is no formal guidance that specifically addresses this issue.

It should be mentioned that the treaties that give rise to E nonimmigrant eligibility are designed to promote trade in goods manufactured by the United States and the treaty country, and will often provide rules for de-termining the origin of such goods. It may be that, to qualify as trade for the purposes of E-1 eligibility, the item of trade would have to comply with those rules. However, as country of origin rules are intended to ad-dress customs issues rather than immigration issues, they may not be relevant to E-1 eligibility after all.

There is no clear guidance regarding how the existence of international trade in services may be estab-lished where the services will be provided directly by the treaty trader. If the treaty trader provides services directly to U.S. clients while physically in the United States, a question arises as to whether this is interna-tional trade or domestic U.S. trade.

If the treaty trader continues to maintain a business presence in the treaty country and continues to invoice its U.S. clients from that country (and profits continue to accrue in that country), it is certainly arguable that such trade is international even if the services are provided while the treaty trader is physically in the United States. During the 2000 AILA Annual Conference, a DOS representative indicated that this would probably be acceptable.91 However, there are still no clear guidelines regarding what minimum presence would be re-quired in the treaty country.

Merely funneling U.S. revenue through a foreign-based bank account is clearly not sufficient to establish that trade is international. The FAM now states that merely placing the proceeds from services performed in the United States in a bank account in the treaty country does not necessarily indicate that a meaningful ex-change has occurred if the proceeds do not support any business activity in the treaty country.92 However, the addition of a foreign-based corporate entity, even if it has no other employees, might be sufficient to demon-strate international trade to a consular officer.

Trade Must Be Substantial

The term “substantial trade” means the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country.93 This continuous flow contemplates numerous ex-changes over time rather than a single transaction, regardless of the monetary value.94 The volume of trade conducted is more significant than the monetary value of the item being exchanged, with cases involving more numerous exchanges of larger value receiving the most favorable consideration.95

Large corporations engaged in international trades of high monetary value would have no problem estab-lishing that their trade was substantial, as long as they were engaged in more than one transaction. In the case

89 Id. 90 This is consistent with 22 CFR §41.51(a)(7), which states that title to the trade item must pass from one treaty party to the other. 91 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS’s Visa Office. 92 9 FAM 402.9-5(B)(b) [formerly 9 FAM 41.51 N4.2]. 93 22 CFR §41.51(a)(9). 94 Id. 95 Id.



of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.96

DOS regulations specifically permit the consular officer to consider any conditions in the treaty country that may affect the foreign national’s ability to carry on substantial trade.97 A similar provision also appears in the DHS regulations.98 For example, currency restrictions in the treaty country may detrimentally affect trade volume. However, the preamble to the DHS regulations states that, at some point, country conditions could become so restrictive that treaty eligibility would have to be denied. In the past, it has been possible to obtain an E-1 visa based on the substantiality of projected future trade even though the trader’s present trade (while in existence) was not yet at the level where it would be considered substantial. However, some consular offic-ers may impose a requirement that existing trade already be substantial at the time of the application. Practi-tioners should be aware of this potential issue.

Trade Must Be Principally Between the United States and the Treaty Country

An E-1 treaty trader’s international trade must be principally (more than 50 percent) between the United States and the treaty country.99 The remainder of the trade in which the treaty trader is engaged may be inter-national trade with other countries or domestic trade.100

The reference to “domestic trade” appears to refer to trade that takes place entirely within the United States, rather than domestic trade within the treaty country. While domestic U.S. trade appears to be counted against the trader when calculating the percentage of international trade between the United States and the treaty country, domestic trade in the treaty country does not appear to be relevant. Where 80 percent of the treaty trader’s total trade takes place entirely within the treaty country and only 20 percent is international, the treaty trader should still qualify for E-1 if at least 50 percent of that international trade (10 percent of the total trade) is between the United States and the treaty country.

To measure the requisite trade one must look to the trade conducted by the legal entity that is seeking eli-gibility as the treaty trader.101 As a subsidiary is a separate legal entity from its parent, a U.S. subsidiary could qualify as a treaty trader even if its foreign parent corporation was not engaged in any trade between the Unit-ed States and the treaty country.102 However, the U.S. branch of a foreign corporation would not be consid-ered a separate legal entity.103

When calculating principal trade, one question that may arise relates to whether the goods must actually be shipped between the United States and the treaty country in order to qualify. For example, the treaty trader may sell goods manufactured in the treaty country to a U.S. national, who consumes the goods in the treaty country rather than shipping them to the United States. The FAM states that the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the noncitizen’s nationality.104 Therefore, physical shipment of the goods between the United States and the trea-ty country should not be necessary.

Another question that may arise relates to whether the goods must originate from the treaty country. As stated above, during the 2000 AILA Annual Conference, a DOS representative had suggested that title to the goods would be considered, rather than the origin thereof. If true, goods manufactured in a third country could qualify as trade between the United States and the treaty country as long as title to the goods was ini- 96 Id. 97 22 CFR §41.51(a)(1). 98 8 CFR §214.2(e)(1)(i). 99 22 CFR §41.51(a)(10); 9 FAM 402.9-5(D)(a) [formerly 9 FAM 41.51 N7]. 100 Id. 101 9 FAM 402.9-5(D)(b) [formerly 9 FAM 41.51 N7.1]. 102 Id. 103 Id. 104 9 FAM 402.9-5(D)(a) [formerly 9 FAM 41.51 N7].




contemplated under this classification. The traceable exchange in goods or services must be between the United States and the other treaty country.89

During the 2000 AILA Annual Conference, a DOS representative suggested that title to the goods would be considered, rather than the origin thereof, when considering whether trade was international.90 If this posi-tion were followed, an exchange would not be considered domestic merely because the goods were originally manufactured in the country to which they were being shipped. For example, if a treaty national were to pur-chase and ship goods manufactured in the United States (previously exported to the treaty country by a third party) from the treaty country back to the United States for sale to a U.S. national, the exchange would still be considered international. However, there is no formal guidance that specifically addresses this issue.

It should be mentioned that the treaties that give rise to E nonimmigrant eligibility are designed to promote trade in goods manufactured by the United States and the treaty country, and will often provide rules for de-termining the origin of such goods. It may be that, to qualify as trade for the purposes of E-1 eligibility, the item of trade would have to comply with those rules. However, as country of origin rules are intended to ad-dress customs issues rather than immigration issues, they may not be relevant to E-1 eligibility after all.

There is no clear guidance regarding how the existence of international trade in services may be estab-lished where the services will be provided directly by the treaty trader. If the treaty trader provides services directly to U.S. clients while physically in the United States, a question arises as to whether this is interna-tional trade or domestic U.S. trade.

If the treaty trader continues to maintain a business presence in the treaty country and continues to invoice its U.S. clients from that country (and profits continue to accrue in that country), it is certainly arguable that such trade is international even if the services are provided while the treaty trader is physically in the United States. During the 2000 AILA Annual Conference, a DOS representative indicated that this would probably be acceptable.91 However, there are still no clear guidelines regarding what minimum presence would be re-quired in the treaty country.

Merely funneling U.S. revenue through a foreign-based bank account is clearly not sufficient to establish that trade is international. The FAM now states that merely placing the proceeds from services performed in the United States in a bank account in the treaty country does not necessarily indicate that a meaningful ex-change has occurred if the proceeds do not support any business activity in the treaty country.92 However, the addition of a foreign-based corporate entity, even if it has no other employees, might be sufficient to demon-strate international trade to a consular officer.

Trade Must Be Substantial

The term “substantial trade” means the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country.93 This continuous flow contemplates numerous ex-changes over time rather than a single transaction, regardless of the monetary value.94 The volume of trade conducted is more significant than the monetary value of the item being exchanged, with cases involving more numerous exchanges of larger value receiving the most favorable consideration.95

Large corporations engaged in international trades of high monetary value would have no problem estab-lishing that their trade was substantial, as long as they were engaged in more than one transaction. In the case

89 Id. 90 This is consistent with 22 CFR §41.51(a)(7), which states that title to the trade item must pass from one treaty party to the other. 91 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS’s Visa Office. 92 9 FAM 402.9-5(B)(b) [formerly 9 FAM 41.51 N4.2]. 93 22 CFR §41.51(a)(9). 94 Id. 95 Id.



of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.96

DOS regulations specifically permit the consular officer to consider any conditions in the treaty country that may affect the foreign national’s ability to carry on substantial trade.97 A similar provision also appears in the DHS regulations.98 For example, currency restrictions in the treaty country may detrimentally affect trade volume. However, the preamble to the DHS regulations states that, at some point, country conditions could become so restrictive that treaty eligibility would have to be denied. In the past, it has been possible to obtain an E-1 visa based on the substantiality of projected future trade even though the trader’s present trade (while in existence) was not yet at the level where it would be considered substantial. However, some consular offic-ers may impose a requirement that existing trade already be substantial at the time of the application. Practi-tioners should be aware of this potential issue.

Trade Must Be Principally Between the United States and the Treaty Country

An E-1 treaty trader’s international trade must be principally (more than 50 percent) between the United States and the treaty country.99 The remainder of the trade in which the treaty trader is engaged may be inter-national trade with other countries or domestic trade.100

The reference to “domestic trade” appears to refer to trade that takes place entirely within the United States, rather than domestic trade within the treaty country. While domestic U.S. trade appears to be counted against the trader when calculating the percentage of international trade between the United States and the treaty country, domestic trade in the treaty country does not appear to be relevant. Where 80 percent of the treaty trader’s total trade takes place entirely within the treaty country and only 20 percent is international, the treaty trader should still qualify for E-1 if at least 50 percent of that international trade (10 percent of the total trade) is between the United States and the treaty country.

To measure the requisite trade one must look to the trade conducted by the legal entity that is seeking eli-gibility as the treaty trader.101 As a subsidiary is a separate legal entity from its parent, a U.S. subsidiary could qualify as a treaty trader even if its foreign parent corporation was not engaged in any trade between the Unit-ed States and the treaty country.102 However, the U.S. branch of a foreign corporation would not be consid-ered a separate legal entity.103

When calculating principal trade, one question that may arise relates to whether the goods must actually be shipped between the United States and the treaty country in order to qualify. For example, the treaty trader may sell goods manufactured in the treaty country to a U.S. national, who consumes the goods in the treaty country rather than shipping them to the United States. The FAM states that the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the noncitizen’s nationality.104 Therefore, physical shipment of the goods between the United States and the trea-ty country should not be necessary.

Another question that may arise relates to whether the goods must originate from the treaty country. As stated above, during the 2000 AILA Annual Conference, a DOS representative had suggested that title to the goods would be considered, rather than the origin thereof. If true, goods manufactured in a third country could qualify as trade between the United States and the treaty country as long as title to the goods was ini- 96 Id. 97 22 CFR §41.51(a)(1). 98 8 CFR §214.2(e)(1)(i). 99 22 CFR §41.51(a)(10); 9 FAM 402.9-5(D)(a) [formerly 9 FAM 41.51 N7]. 100 Id. 101 9 FAM 402.9-5(D)(b) [formerly 9 FAM 41.51 N7.1]. 102 Id. 103 Id. 104 9 FAM 402.9-5(D)(a) [formerly 9 FAM 41.51 N7].




tially held by a treaty national and subsequently transferred to a U.S. national. However, there is still no for-mal guidance that clearly addresses this issue.

If the treaty trader, whether foreign-based or U.S.-based, meets the 50 percent requirement, the duties of an employee need not be similarly apportioned to qualify for an E-1 visa.105 For example, if a U.S. subsidiary of a foreign firm is engaged principally in trade between the United States and the treaty country, it is not ma-terial that the E-1 employee is also engaged in third-country or intra-U.S. trade or that the parent firm’s head-quarters abroad is engaged primarily in trade with other countries.106

Special Provisions for Employees of TECRO

The United States does not have official relations with Taiwan and it does not recognize Taiwan as an in-dependent sovereign state; as a result, representatives of Taiwan are not entitled to receive “A” 107 or “G” 108 nonimmigrant visas.109 The Taipei Economic and Cultural Representative Office (TECRO) is the instrumen-tality provided for in §10 of the Taiwan Relations Act110 (TRA) to represent Taiwan in the United States in the absence of diplomatic relations.111 Representatives of Taiwan employed by TECRO (and their depend-ents) are entitled to receive E-1 nonimmigrant visas.112

Persons possessing a Taiwan passport who are assigned for more than 90 days to the TECRO offices in the United States and their dependent spouses and unmarried sons and daughters (who are members of the same household) are issued E-1 visas.113 Other immediate family members (e.g., parents, in-laws, etc.) who are members of the same household are entitled to E-1 dependent visas in limited circumstances.114 Personal employees of TECRO personnel may be issued B-1 visas, subject to the same regulations as applied to the personal employees of nonimmigrants in general.115

Dependent children of E-1 noncitizens who reach the age of 21 normally are ineligible for E-1 dependent status.116 However, TRA §4(a) preserves the entitlements applied with respect to Taiwan prior to January 1, 1979, the date of Taiwan’s de-recognition by the United States.117

As a result, children of TECRO employees may continue to seek E-1 dependent status even after they reach the age of 21.118 They may be issued E-1 dependent visas provided that they continue to meet the definition of “immediate family,” 119 which includes unmarried sons and daughters of the principal noncitizen or spouse who: Are related to the principal noncitizen or spouse by blood or adoption; Are not members of some other household; and Will reside regularly in the household of the principal noncitizen.

105 9 FAM 402.9-5(D)(c) [formerly 9 FAM 41.51 N7.2]. 106 Id. 107 INA §101(a)(15)(A). 108 INA §101(a)(15)(G). 109 9 FAM 402.3-5(I)(1) [formerly 9 FAM 41.22 PN1.1]. 110 Pub. L. No. 96-8, 93 Stat. 14 (1979). 111 Reciprocity Schedule for Taiwan, available at http://travel.state.gov/content/visas/english/fees/reciprocity-by-country/TW.html. 112 9 FAM 402.3-5(I)(1) [formerly 9 FAM 41.22 PN1.1]. 113 See Reciprocity Schedule for Taiwan, Note 111, supra. 114 Id.; see also 22 CFR §41.21(a)(3). 115 See Reciprocity Schedule for Taiwan, Note 111, supra. 116 INA §101(b)(1). 117 9 FAM 402.3-5(I)(2)(a) [formerly 9 FAM 41.22 PN1.2a]. 118 9 FAM 402.3-5(I)(2)(b) [formerly 9 FAM 41.22 PN1.2b]. 119 Id.; see also 22 CFR §41.21(a)(3).



A noncitizen spouse or unmarried son or daughter of a TECRO employee may apply for an open-market em-ployment authorization.120 However, the noncitizen must fall within the definition of “dependent,” 121 which in-cludes the following immediate family members habitually residing in the same household as the principal nonciti-zen: Spouse; Unmarried children under the age of 21; Unmarried sons or daughters under the age of 23 who are in full-time attendance as students at post-

secondary educational institutions;122 Unmarried sons or daughters under the age of 25 who are in full-time attendance as students at post-

secondary educational institutions if a formal bilateral employment agreement permitting their em-ployment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughters;

Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot ad-equately care for themselves or cannot establish, maintain, or reestablish their own households.

Employees of TECRO and their dependents are admitted for duration of status (D/S).123 TECRO depend-ents who are deemed to be out of status because an immigration officer annotated their Form I-94 with an expiration date instead of D/S may apply for reinstatement to E-1 status.124 To request reinstatement, TECRO must submit the following to the DOS Visa Office through the American Institute in Taiwan (AIT): The applicant’s passport, valid for at least six months; A currently valid Form I-94 (USCIS will not consider processing a case where the applicant’s Form I-

94 has already expired); and A letter from TECRO requesting that the Form I-94 be annotated to read D/S.125

ISSUES APPLICABLE TO E-2 TREATY INVESTORS ONLY Definition of Investment

The term “investment” means the treaty investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.126 These requirements are discussed in greater detail below.

Possession and Control of the Funds Invested

The treaty investor must be in possession of and have control over the capital invested or being invest-ed.127 If the investor has received funds by legitimate means (e.g., savings, gift, inheritance, contest, etc.) and has control and possession over the funds, the proper employment of the funds may constitute a proper in-vestment.128 The source of the funds need not be outside the United States.129 However, inheriting the treaty business itself will not constitute an investment.130

120 8 CFR §274.12(c)(2); 9 FAM 402.3-5(I)(5)(a) [formerly 9 FAM 41.22 PN4]. 121 8 CFR §214.2(a)(2). 122 See also 9 FAM 402.3-5(I)(5)(b) [formerly 9 FAM 41.22 PN4.1]. 123 9 FAM 402.3-5(I)(3) [formerly 9 FAM 41.22 PN2]. 124 9 FAM 402.3-5(I)(4) [formerly 9 FAM 41.22 PN3]. 125 Id. 126 22 CFR §41.51(b)(7). 127 Id. 128 9 FAM 402.9-6(B)(b) [formerly 9 FAM 41.51 N8.1-1].




tially held by a treaty national and subsequently transferred to a U.S. national. However, there is still no for-mal guidance that clearly addresses this issue.

If the treaty trader, whether foreign-based or U.S.-based, meets the 50 percent requirement, the duties of an employee need not be similarly apportioned to qualify for an E-1 visa.105 For example, if a U.S. subsidiary of a foreign firm is engaged principally in trade between the United States and the treaty country, it is not ma-terial that the E-1 employee is also engaged in third-country or intra-U.S. trade or that the parent firm’s head-quarters abroad is engaged primarily in trade with other countries.106

Special Provisions for Employees of TECRO

The United States does not have official relations with Taiwan and it does not recognize Taiwan as an in-dependent sovereign state; as a result, representatives of Taiwan are not entitled to receive “A” 107 or “G” 108 nonimmigrant visas.109 The Taipei Economic and Cultural Representative Office (TECRO) is the instrumen-tality provided for in §10 of the Taiwan Relations Act110 (TRA) to represent Taiwan in the United States in the absence of diplomatic relations.111 Representatives of Taiwan employed by TECRO (and their depend-ents) are entitled to receive E-1 nonimmigrant visas.112

Persons possessing a Taiwan passport who are assigned for more than 90 days to the TECRO offices in the United States and their dependent spouses and unmarried sons and daughters (who are members of the same household) are issued E-1 visas.113 Other immediate family members (e.g., parents, in-laws, etc.) who are members of the same household are entitled to E-1 dependent visas in limited circumstances.114 Personal employees of TECRO personnel may be issued B-1 visas, subject to the same regulations as applied to the personal employees of nonimmigrants in general.115

Dependent children of E-1 noncitizens who reach the age of 21 normally are ineligible for E-1 dependent status.116 However, TRA §4(a) preserves the entitlements applied with respect to Taiwan prior to January 1, 1979, the date of Taiwan’s de-recognition by the United States.117

As a result, children of TECRO employees may continue to seek E-1 dependent status even after they reach the age of 21.118 They may be issued E-1 dependent visas provided that they continue to meet the definition of “immediate family,” 119 which includes unmarried sons and daughters of the principal noncitizen or spouse who: Are related to the principal noncitizen or spouse by blood or adoption; Are not members of some other household; and Will reside regularly in the household of the principal noncitizen.

105 9 FAM 402.9-5(D)(c) [formerly 9 FAM 41.51 N7.2]. 106 Id. 107 INA §101(a)(15)(A). 108 INA §101(a)(15)(G). 109 9 FAM 402.3-5(I)(1) [formerly 9 FAM 41.22 PN1.1]. 110 Pub. L. No. 96-8, 93 Stat. 14 (1979). 111 Reciprocity Schedule for Taiwan, available at http://travel.state.gov/content/visas/english/fees/reciprocity-by-country/TW.html. 112 9 FAM 402.3-5(I)(1) [formerly 9 FAM 41.22 PN1.1]. 113 See Reciprocity Schedule for Taiwan, Note 111, supra. 114 Id.; see also 22 CFR §41.21(a)(3). 115 See Reciprocity Schedule for Taiwan, Note 111, supra. 116 INA §101(b)(1). 117 9 FAM 402.3-5(I)(2)(a) [formerly 9 FAM 41.22 PN1.2a]. 118 9 FAM 402.3-5(I)(2)(b) [formerly 9 FAM 41.22 PN1.2b]. 119 Id.; see also 22 CFR §41.21(a)(3).



A noncitizen spouse or unmarried son or daughter of a TECRO employee may apply for an open-market em-ployment authorization.120 However, the noncitizen must fall within the definition of “dependent,” 121 which in-cludes the following immediate family members habitually residing in the same household as the principal nonciti-zen: Spouse; Unmarried children under the age of 21; Unmarried sons or daughters under the age of 23 who are in full-time attendance as students at post-

secondary educational institutions;122 Unmarried sons or daughters under the age of 25 who are in full-time attendance as students at post-

secondary educational institutions if a formal bilateral employment agreement permitting their em-ployment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughters;

Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot ad-equately care for themselves or cannot establish, maintain, or reestablish their own households.

Employees of TECRO and their dependents are admitted for duration of status (D/S).123 TECRO depend-ents who are deemed to be out of status because an immigration officer annotated their Form I-94 with an expiration date instead of D/S may apply for reinstatement to E-1 status.124 To request reinstatement, TECRO must submit the following to the DOS Visa Office through the American Institute in Taiwan (AIT): The applicant’s passport, valid for at least six months; A currently valid Form I-94 (USCIS will not consider processing a case where the applicant’s Form I-

94 has already expired); and A letter from TECRO requesting that the Form I-94 be annotated to read D/S.125

ISSUES APPLICABLE TO E-2 TREATY INVESTORS ONLY Definition of Investment

The term “investment” means the treaty investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.126 These requirements are discussed in greater detail below.

Possession and Control of the Funds Invested

The treaty investor must be in possession of and have control over the capital invested or being invest-ed.127 If the investor has received funds by legitimate means (e.g., savings, gift, inheritance, contest, etc.) and has control and possession over the funds, the proper employment of the funds may constitute a proper in-vestment.128 The source of the funds need not be outside the United States.129 However, inheriting the treaty business itself will not constitute an investment.130

120 8 CFR §274.12(c)(2); 9 FAM 402.3-5(I)(5)(a) [formerly 9 FAM 41.22 PN4]. 121 8 CFR §214.2(a)(2). 122 See also 9 FAM 402.3-5(I)(5)(b) [formerly 9 FAM 41.22 PN4.1]. 123 9 FAM 402.3-5(I)(3) [formerly 9 FAM 41.22 PN2]. 124 9 FAM 402.3-5(I)(4) [formerly 9 FAM 41.22 PN3]. 125 Id. 126 22 CFR §41.51(b)(7). 127 Id. 128 9 FAM 402.9-6(B)(b) [formerly 9 FAM 41.51 N8.1-1].




As funds either gifted or loaned (without security being placed on the business assets) can be attributed to the recipient for E-2 purposes, it may be possible to make another individual the principal investor where the original owner of the funds is not eligible for E-2 status. For example, a U.S. permanent resident who is ineli-gible for E-2 status may not bring in an E-2 employee; however, by gifting or lending the funds to a nonciti-zen holding treaty nationality, that noncitizen can qualify for E-2 status as the principal investor. Similarly, where two investors seek E-2 status for the same business, but neither is personally investing sufficient funds to meet the proportionality or substantiality requirements, one investor can gift or loan his or her funds to the other and then seek status as an E-2 employee.

It may also be possible to pool investment capital through the use of a holding corporation. Where there are several investors, none of whom is investing sufficient funds to qualify as the principal investor, it may still be possible to establish a holding corporation that will qualify. If the holding corporation possesses treaty nationality, it could act as the principal investor for the purposes of E-2 eligibility. The holding corporation could invest in the treaty enterprise, establishing 100 percent proportionality of its investment and its ability to develop and direct the treaty enterprise. Some or all of the shareholders of the holding corporation could then seek E-2 status as employees thereof.

On occasion, some consular officers have questioned whether funds transferred to the treaty business from a joint bank account held by the principal investor and several third parties are under the sole possession and control of the principal investor. In the author’s opinion, the transferred funds may be attributed to the princi-pal investor if all of the third parties confirm, by sworn affidavit, that their interests in the funds (if any) were intended to be a gift or loan to the principal investor, so that he or she could invest in the treaty enterprise.

There should be no need to transfer the funds to a bank account held exclusively by the principal investor before it is transferred to the treaty enterprise, in order to establish possession and control. Nevertheless, it may be advisable to do so in order to avoid confusion, assuming that the lawyer is retained before the visa applicant has transferred his or her funds to the treaty enterprise.

Investment at Risk

The investment capital must be subject to partial or total loss if investment fortunes reverse.131 Such in-vestment capital must be the investor’s unsecured personal business capital or capital secured by personal assets.132 Indebtedness secured by the assets of the business is not considered a qualifying investment.133 This is true even where personal assets in addition to the assets of the business secure the indebtedness.134 Howev-er, unsecured loans or loans secured solely by the foreign national’s own personal assets are considered quali-fying investments.135

Although the FAM states that indebtedness secured by both personal and business assets is not an invest-ment, where the security interest registered against the business assets is less than the total amount of the in-debtedness, it may be possible to count the remaining asset value as an investment. For example, where an $80,000 loan is secured by the principal investor’s personal assets and also by a business asset worth $50,000, it should be possible to classify the remaining $30,000 as an investment. This is because this additional amount cannot possibly be secured by the business asset.

129 Id. 130 Id. 131 22 CFR §41.51(b)(7). 132 Id. 133 9 FAM 402.9-6(B)(c) [formerly 9 FAM 41.51 N8.1-2]. 134 Id. 135 Id.



Investment Is Irrevocably Committed

Capital that is “in the process of being invested” must be irrevocably committed to the enterprise.136 How-ever, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the com-mitment of funds.137 For the foreign national to be “in the process of investing,” the foreign national must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property.138

Mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective invest-ment arrangements entailing no present commitment, will not suffice.139 However, a reasonable amount of cash, held in a business bank account or similar fund to be used for routine business operations, may be counted as investment funds.140

Where the applicant is purchasing an established business, it is easy to show that the entire qualifying in-vestment has been irrevocably committed, even where the purchase has not been completed. A binding agreement of purchase and sale coupled with a closing in escrow (conditional upon visa issuance) will clearly satisfy the requirement. Similarly, an irrevocable direction by the applicant to his or her lawyer, directing the lawyer to apply the funds to the purchase of the business (subject to visa issuance), might also provide the necessary irrevocable commitment.

Where the applicant is starting a new business, it is much more difficult to show an irrevocable commit-ment of the entire qualifying investment. In such cases, the applicant will be expected to spend a sufficient percentage of the investment capital before irrevocability will be established. However, not all of the qualify-ing investment must be spent before a visa will be issued.

As stated above, the FAM specifically states that a reasonable amount of cash, held in a business bank ac-count or similar fund, to be used for routine business operations, may be counted as investment funds.141 How-ever, the amount of capital actually committed must be enough to demonstrate that the applicant intends to fol-low through with the entire investment once the visa is approved.142

Other Financial Transactions as Investments

Payments in the form of leases or rents for property or equipment may be calculated toward the in-vestment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business.143 However, more than one month of payments may be counted if they are made in advance.144 For example, if the treaty investor prepays an equipment lease for one year, the entire year’s worth of payments may be counted as part of the qualifying investment.

The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment.145 The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the

136 22 CFR §41.51(b)(7). 137 Id. 138 9 FAM 402.9-6(B)(f) [formerly 9 FAM 41.51 N8.1-3]. 139 Id. 140 9 FAM 402.9-6(B)(d) [formerly 9 FAM 41.51 N8.1-2]. 141 Id. 142 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 2000 AILA Annual Conference. 143 9 FAM 402.9-6(B)(g) [formerly 9 FAM 41.51 N8.2-1]. 144 Id. 145 9 FAM 402.9-6(B)(h) [formerly 9 FAM 41.51 N8.2-2].




As funds either gifted or loaned (without security being placed on the business assets) can be attributed to the recipient for E-2 purposes, it may be possible to make another individual the principal investor where the original owner of the funds is not eligible for E-2 status. For example, a U.S. permanent resident who is ineli-gible for E-2 status may not bring in an E-2 employee; however, by gifting or lending the funds to a nonciti-zen holding treaty nationality, that noncitizen can qualify for E-2 status as the principal investor. Similarly, where two investors seek E-2 status for the same business, but neither is personally investing sufficient funds to meet the proportionality or substantiality requirements, one investor can gift or loan his or her funds to the other and then seek status as an E-2 employee.

It may also be possible to pool investment capital through the use of a holding corporation. Where there are several investors, none of whom is investing sufficient funds to qualify as the principal investor, it may still be possible to establish a holding corporation that will qualify. If the holding corporation possesses treaty nationality, it could act as the principal investor for the purposes of E-2 eligibility. The holding corporation could invest in the treaty enterprise, establishing 100 percent proportionality of its investment and its ability to develop and direct the treaty enterprise. Some or all of the shareholders of the holding corporation could then seek E-2 status as employees thereof.

On occasion, some consular officers have questioned whether funds transferred to the treaty business from a joint bank account held by the principal investor and several third parties are under the sole possession and control of the principal investor. In the author’s opinion, the transferred funds may be attributed to the princi-pal investor if all of the third parties confirm, by sworn affidavit, that their interests in the funds (if any) were intended to be a gift or loan to the principal investor, so that he or she could invest in the treaty enterprise.

There should be no need to transfer the funds to a bank account held exclusively by the principal investor before it is transferred to the treaty enterprise, in order to establish possession and control. Nevertheless, it may be advisable to do so in order to avoid confusion, assuming that the lawyer is retained before the visa applicant has transferred his or her funds to the treaty enterprise.

Investment at Risk

The investment capital must be subject to partial or total loss if investment fortunes reverse.131 Such in-vestment capital must be the investor’s unsecured personal business capital or capital secured by personal assets.132 Indebtedness secured by the assets of the business is not considered a qualifying investment.133 This is true even where personal assets in addition to the assets of the business secure the indebtedness.134 Howev-er, unsecured loans or loans secured solely by the foreign national’s own personal assets are considered quali-fying investments.135

Although the FAM states that indebtedness secured by both personal and business assets is not an invest-ment, where the security interest registered against the business assets is less than the total amount of the in-debtedness, it may be possible to count the remaining asset value as an investment. For example, where an $80,000 loan is secured by the principal investor’s personal assets and also by a business asset worth $50,000, it should be possible to classify the remaining $30,000 as an investment. This is because this additional amount cannot possibly be secured by the business asset.

129 Id. 130 Id. 131 22 CFR §41.51(b)(7). 132 Id. 133 9 FAM 402.9-6(B)(c) [formerly 9 FAM 41.51 N8.1-2]. 134 Id. 135 Id.



Investment Is Irrevocably Committed

Capital that is “in the process of being invested” must be irrevocably committed to the enterprise.136 How-ever, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the com-mitment of funds.137 For the foreign national to be “in the process of investing,” the foreign national must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property.138

Mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective invest-ment arrangements entailing no present commitment, will not suffice.139 However, a reasonable amount of cash, held in a business bank account or similar fund to be used for routine business operations, may be counted as investment funds.140

Where the applicant is purchasing an established business, it is easy to show that the entire qualifying in-vestment has been irrevocably committed, even where the purchase has not been completed. A binding agreement of purchase and sale coupled with a closing in escrow (conditional upon visa issuance) will clearly satisfy the requirement. Similarly, an irrevocable direction by the applicant to his or her lawyer, directing the lawyer to apply the funds to the purchase of the business (subject to visa issuance), might also provide the necessary irrevocable commitment.

Where the applicant is starting a new business, it is much more difficult to show an irrevocable commit-ment of the entire qualifying investment. In such cases, the applicant will be expected to spend a sufficient percentage of the investment capital before irrevocability will be established. However, not all of the qualify-ing investment must be spent before a visa will be issued.

As stated above, the FAM specifically states that a reasonable amount of cash, held in a business bank ac-count or similar fund, to be used for routine business operations, may be counted as investment funds.141 How-ever, the amount of capital actually committed must be enough to demonstrate that the applicant intends to fol-low through with the entire investment once the visa is approved.142

Other Financial Transactions as Investments

Payments in the form of leases or rents for property or equipment may be calculated toward the in-vestment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business.143 However, more than one month of payments may be counted if they are made in advance.144 For example, if the treaty investor prepays an equipment lease for one year, the entire year’s worth of payments may be counted as part of the qualifying investment.

The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment.145 The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the

136 22 CFR §41.51(b)(7). 137 Id. 138 9 FAM 402.9-6(B)(f) [formerly 9 FAM 41.51 N8.1-3]. 139 Id. 140 9 FAM 402.9-6(B)(d) [formerly 9 FAM 41.51 N8.1-2]. 141 Id. 142 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 2000 AILA Annual Conference. 143 9 FAM 402.9-6(B)(g) [formerly 9 FAM 41.51 N8.2-1]. 144 Id. 145 9 FAM 402.9-6(B)(h) [formerly 9 FAM 41.51 N8.2-2].




goods or machinery will be put to use in an ongoing commercial enterprise.146 The treaty investor must estab-lish that the purchased goods or equipment are for business, not personal purposes.147 While a company car may or may not meet this burden, because it may also be used for personal purposes, inventory or industrial equipment certainly will.

The issue of book value versus market value of transferred assets should also be considered. Either the his-torical cost (i.e., original purchase price, less depreciation) or market value of an existing asset would appear to be acceptable for the purposes of calculating the qualifying investment. The FAM makes reference to both the “amount spent” and the “value of goods or equipment.” 148 From the practitioner’s perspective, it usually makes sense to use the higher of the two figures.

Rights to intangible or intellectual property may also be considered capital assets to the extent that their value can reasonably be determined.149 Where no market value is available for a copyright or patent, the value of current publishing or manufacturing contracts generated by the asset may be used.150 If none exist, the opinions of experts in the particular field in question may be submitted for consideration and acceptance.151

Where the applicant is seeking E-2 status based on an established business that he or she has operated for an extended period of time (perhaps under a different nonimmigrant status), it is sometimes difficult to docu-ment the investment. However, in the author’s opinion, it is not enough to simply show the current market value of the business as evidence that an investment has been made. Practitioners should document the initial capital contribution made to the treaty business. In addition, they should document that the proportionality of the investment is still sufficient at the time of the application.

Where the applicant began with a small initial investment but has operated an established business for a period of time, much of the investment may now be in the form of retained earnings. In such cases, the cur-rent investment may be considered too small to be substantial unless retained earnings are also counted.

Retained earnings represent previously earned income that has been retained in the treaty enterprise in-stead of being paid out to the shareholders. Although in the EB-5 context, it is often stated that retained earn-ings do not qualify because they are not sufficiently personal to the investor, even where the corporation is wholly owned and controlled by that investor, this appears to be less of a problem in the E-2 context.

DOS has expressed a willingness to consider retained earnings as part of the qualifying investment.152 The author’s own experiences also confirm that retained earnings will usually be considered part of the qualifying E-2 investment. This is especially true in the context of E-2 renewals, where the investor has operated the treaty business for several years and its asset value has now increased by means of retained earnings.

In the EB-5 immigrant investor context, USCIS takes the position that retained earnings are not part of the investment because the capital is not personal to the investor (even if the corporate entity is 100 percent owned and controlled by the investor). It instead requires that the investor personally receive the retained earnings (i.e., as a dividend), pay income tax on the income, and then reinvest the funds into the corporation. However, the negative tax implications often make this very undesirable. Fortunately, DOS appears to take a more relaxed position in the E-2 context, at least for now.

Retained earnings would appear to comply with the concept of “investment,” as that term is defined in the DOS regulations and in the FAM.153 The FAM clearly states that the INA does not require the source of the

146 Id. 147 Id. 148 Id. 149 9 FAM 402.9-6(B)(i) [formerly 9 FAM 41.51 N8.2-3]. 150 Id. 151 Id. 152 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 2000 AILA Annual Conference. 153 22 CFR §41.51(b)(7); 9 FAM 402.9-6(B) [formerly 9 FAM 41.51 N8].



funds to be from outside the United States.154 Further, if the treaty business is wholly owned and controlled by the investor, he or she should be able to demonstrate possession and control of the funds invested, as required by the FAM.155

Some consular officers may still allege that retained earnings held by a corporation are not personal to a shareholder until paid out as dividends. If this occurs, the attorney should consider characterizing the corpora-tion that operates the treaty business as the treaty investor. In that situation, the retained earnings of the corpo-ration would clearly be personal to the corporation. The corporation’s shareholders could then seek status as E-2 managerial or supervisory employees.

Bona Fide Enterprise

The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some ser-vice or commodity for profit, and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.156 It cannot be a paper organization or an idle speculative investment held for potential appreciation, such as underdeveloped land or stocks held by an investor without the intent to direct the enterprise.157 As the investment must be a commercial enterprise, E-2 status is not available to nonprofit organizations.158

Investing in a residential property, clearly would not qualify, since it would be considered a passive in-vestment, even if some limited management activities are required to rent the property to a tenant. Investing in more than one investment property would not change the passive nature of the investment, unless the in-vestment portfolio was so large that it required the establishment of an active property management business to administer it. In such cases, the property management business might qualify as an active enterprise.

Investment Is Substantial

According to INA §101(a)(45), the term “substantial” means “such an amount of trade or capital as is es-tablished by the Secretary of State, after consultation with appropriate agencies of Government.” DOS’s posi-tion continues to be that there is no set minimum dollar amount that will be considered “substantial” for the purposes of E-2 eligibility. The FAM states that as long as all the other requirements for E-2 status are met, the cost of the business is not independently relevant or determinative of qualification for E-2 status.159 While a manufacturing business might easily cost millions of dollars, the cost of purchasing or establishing a con-sulting firm may be relatively low.160

In practice, many consular posts still apply an informal minimum investment threshold in addition to the proportionality test, although there appears to be no legal basis for such a position. In the past, some consu-lates would accept investments approaching $50,000, since the FAM made specific reference to an invest-ment of $50,000.161 However, these specific examples were subsequently deleted, apparently because too

154 9 FAM 402.9-6(B)(b) [formerly 9 FAM 41.51 N8.1-1]. 155 Id. If the investor did not own the entire E business, retained earnings would likely have to be apportioned according to the investor’s actual ownership interest. 156 22 CFR §41.51(b)(8). 157 9 FAM 402.9-6(C) [formerly 9 FAM 41.51 N9]. 158 Id. 159 9 FAM 402.9-6(D)(e) [formerly 9 FAM 41.51 N10.3]. 160 Id. 161 The former 9 FAM 41.51 N9.3 included the following specific examples: (a) in the case of a $50,000 investment, an investment approaching 90–100 percent would easily meet the test; (b) a business costing $100,000 might require an investment of 75–100 percent to meet the test; (c) a business costing $500,000 would demand generally upwards of a 60 percent investment, with a $375,000 investment clearly meeting the test; (d) in the case of a million-dollar business, a lesser percentage might be needed, but a 50–60 percent investment would qualify; (e) a business requiring $10 million to purchase or establish would require a much lower percentage—a $3 million investment might suffice in view of the sheer magnitude of the dollar amount invested;




goods or machinery will be put to use in an ongoing commercial enterprise.146 The treaty investor must estab-lish that the purchased goods or equipment are for business, not personal purposes.147 While a company car may or may not meet this burden, because it may also be used for personal purposes, inventory or industrial equipment certainly will.

The issue of book value versus market value of transferred assets should also be considered. Either the his-torical cost (i.e., original purchase price, less depreciation) or market value of an existing asset would appear to be acceptable for the purposes of calculating the qualifying investment. The FAM makes reference to both the “amount spent” and the “value of goods or equipment.” 148 From the practitioner’s perspective, it usually makes sense to use the higher of the two figures.

Rights to intangible or intellectual property may also be considered capital assets to the extent that their value can reasonably be determined.149 Where no market value is available for a copyright or patent, the value of current publishing or manufacturing contracts generated by the asset may be used.150 If none exist, the opinions of experts in the particular field in question may be submitted for consideration and acceptance.151

Where the applicant is seeking E-2 status based on an established business that he or she has operated for an extended period of time (perhaps under a different nonimmigrant status), it is sometimes difficult to docu-ment the investment. However, in the author’s opinion, it is not enough to simply show the current market value of the business as evidence that an investment has been made. Practitioners should document the initial capital contribution made to the treaty business. In addition, they should document that the proportionality of the investment is still sufficient at the time of the application.

Where the applicant began with a small initial investment but has operated an established business for a period of time, much of the investment may now be in the form of retained earnings. In such cases, the cur-rent investment may be considered too small to be substantial unless retained earnings are also counted.

Retained earnings represent previously earned income that has been retained in the treaty enterprise in-stead of being paid out to the shareholders. Although in the EB-5 context, it is often stated that retained earn-ings do not qualify because they are not sufficiently personal to the investor, even where the corporation is wholly owned and controlled by that investor, this appears to be less of a problem in the E-2 context.

DOS has expressed a willingness to consider retained earnings as part of the qualifying investment.152 The author’s own experiences also confirm that retained earnings will usually be considered part of the qualifying E-2 investment. This is especially true in the context of E-2 renewals, where the investor has operated the treaty business for several years and its asset value has now increased by means of retained earnings.

In the EB-5 immigrant investor context, USCIS takes the position that retained earnings are not part of the investment because the capital is not personal to the investor (even if the corporate entity is 100 percent owned and controlled by the investor). It instead requires that the investor personally receive the retained earnings (i.e., as a dividend), pay income tax on the income, and then reinvest the funds into the corporation. However, the negative tax implications often make this very undesirable. Fortunately, DOS appears to take a more relaxed position in the E-2 context, at least for now.

Retained earnings would appear to comply with the concept of “investment,” as that term is defined in the DOS regulations and in the FAM.153 The FAM clearly states that the INA does not require the source of the

146 Id. 147 Id. 148 Id. 149 9 FAM 402.9-6(B)(i) [formerly 9 FAM 41.51 N8.2-3]. 150 Id. 151 Id. 152 Verbally confirmed by S. Fischel, Director of Legislation, Regulations and Advisory Assistance for the DOS Visa Office, during the 2000 AILA Annual Conference. 153 22 CFR §41.51(b)(7); 9 FAM 402.9-6(B) [formerly 9 FAM 41.51 N8].



funds to be from outside the United States.154 Further, if the treaty business is wholly owned and controlled by the investor, he or she should be able to demonstrate possession and control of the funds invested, as required by the FAM.155

Some consular officers may still allege that retained earnings held by a corporation are not personal to a shareholder until paid out as dividends. If this occurs, the attorney should consider characterizing the corpora-tion that operates the treaty business as the treaty investor. In that situation, the retained earnings of the corpo-ration would clearly be personal to the corporation. The corporation’s shareholders could then seek status as E-2 managerial or supervisory employees.

Bona Fide Enterprise

The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some ser-vice or commodity for profit, and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.156 It cannot be a paper organization or an idle speculative investment held for potential appreciation, such as underdeveloped land or stocks held by an investor without the intent to direct the enterprise.157 As the investment must be a commercial enterprise, E-2 status is not available to nonprofit organizations.158

Investing in a residential property, clearly would not qualify, since it would be considered a passive in-vestment, even if some limited management activities are required to rent the property to a tenant. Investing in more than one investment property would not change the passive nature of the investment, unless the in-vestment portfolio was so large that it required the establishment of an active property management business to administer it. In such cases, the property management business might qualify as an active enterprise.

Investment Is Substantial

According to INA §101(a)(45), the term “substantial” means “such an amount of trade or capital as is es-tablished by the Secretary of State, after consultation with appropriate agencies of Government.” DOS’s posi-tion continues to be that there is no set minimum dollar amount that will be considered “substantial” for the purposes of E-2 eligibility. The FAM states that as long as all the other requirements for E-2 status are met, the cost of the business is not independently relevant or determinative of qualification for E-2 status.159 While a manufacturing business might easily cost millions of dollars, the cost of purchasing or establishing a con-sulting firm may be relatively low.160

In practice, many consular posts still apply an informal minimum investment threshold in addition to the proportionality test, although there appears to be no legal basis for such a position. In the past, some consu-lates would accept investments approaching $50,000, since the FAM made specific reference to an invest-ment of $50,000.161 However, these specific examples were subsequently deleted, apparently because too

154 9 FAM 402.9-6(B)(b) [formerly 9 FAM 41.51 N8.1-1]. 155 Id. If the investor did not own the entire E business, retained earnings would likely have to be apportioned according to the investor’s actual ownership interest. 156 22 CFR §41.51(b)(8). 157 9 FAM 402.9-6(C) [formerly 9 FAM 41.51 N9]. 158 Id. 159 9 FAM 402.9-6(D)(e) [formerly 9 FAM 41.51 N10.3]. 160 Id. 161 The former 9 FAM 41.51 N9.3 included the following specific examples: (a) in the case of a $50,000 investment, an investment approaching 90–100 percent would easily meet the test; (b) a business costing $100,000 might require an investment of 75–100 percent to meet the test; (c) a business costing $500,000 would demand generally upwards of a 60 percent investment, with a $375,000 investment clearly meeting the test; (d) in the case of a million-dollar business, a lesser percentage might be needed, but a 50–60 percent investment would qualify; (e) a business requiring $10 million to purchase or establish would require a much lower percentage—a $3 million investment might suffice in view of the sheer magnitude of the dollar amount invested;




many consular officers were using them as bright-line tests instead of considering substantiality on a case-by-case basis.

The current FAM contains only two specific examples of what would qualify as a substantial invest-ment.162 It states that investments of 100 percent or a higher percentage would normally automatically qualify for a small business of $100,000 or less. It also states that an investment of $10 million in a $100 million business would likely qualify, based on the sheer magnitude of the investment itself.

According to the current FAM, the purpose of the substantiality requirement is to ensure to a reasonable extent that the proposed treaty business is not speculative, but is or soon will be a successful enterprise.163 It further states that the rules regarding the amount of funds committed to the commercial enterprise and the character of the funds, primarily personal or loans based on personal collateral, are intended to weed out risky undertakings and to ensure that the investor is unquestionably committed to the success of the business.164

The FAM still states that the requirement of substantiality is met by satisfying the “proportionality test.” It defines the proportionality test as a comparison between two figures: The amount of qualifying funds invested; and The cost of an established business or, if a newly created business, the cost of establishing such a busi-

ness.165 The cost of an established business is, generally, its purchase price, which is normally considered to be the

fair market value.166 The cost of a newly created business is the actual cost needed to establish such a busi-ness to the point of being operational.167 In addition, an element of judgment to be factored into the require-ment of substantial investment concerns an assessment of the extent of the investor’s commitment to the suc-cessful operation of the project in view of the amount invested.168

Although consular posts may still be willing to approve an E-2 based on an investment of $50,000, the elimination of the specific examples contained in the FAM has made it more difficult to qualify based on in-vestments at this level. Generally, a more realistic minimum investment might be $100,000, since the FAM currently refers to this amount, although even this level of investment may not be accepted at certain consular posts. Of course, it is still possible for investments of less than $100,000 to qualify in appropriate cases.

Investment Is Not Marginal

To qualify for E-2 status, the applicant must not have invested in a marginal enterprise solely for the purpose of earning a living for herself and her family.169 A marginal business is an enterprise that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.170 However, an enterprise that has a present or future capacity to make a significant economic contribution is not considered a marginal enterprise.171

In other words, the best way to show that the business is not marginal is by demonstrating that it currently (or soon will) employ U.S. workers; the more employees and the higher their salaries, the better. However,

and (f) an investment of $10 million in a $100 million business would qualify based on the sheer magnitude of the investment itself. 162 9 FAM 402.9-6(D)(f) [formerly 9 FAM 41.51 N10.4]. 163 9 FAM 402.9-6(D)(a) [formerly 9 FAM 41.51 N10.1]. 164 Id. 165 9 FAM 402.9-6(D)(c) [formerly 9 FAM 41.51 N10.2]. See also 22 CFR §41.51(b)(9). 166 9 FAM 402.9-6(D)(c) [formerly 9 FAM 41.51 N10.2]. 167 Id. 168 9 FAM 402.9-6(D)(g) [formerly 9 FAM 41.51 N10.5]. 169 22 CFR §41.51(b)(1); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 170 22 CFR §41.51(b)(10). 171 Id.



even if the enterprise does not have U.S. workers, it may be possible to demonstrate that the investment will indirectly expand job opportunities locally or otherwise have a positive significant economic impact on the local economy. For example, if the business regularly hires subcontractors to perform jobs, it is indirectly creating employment. In addition, a business that earns much more than would be necessary to support the investor and his or her family should not be considered a marginal enterprise because it could support U.S. workers, if the investor chose to hire them. However, the projected future capacity should generally be realiz-able within five years from the date the foreign national commences normal business activities.172

It was previously possible to establish that the treaty enterprise was not marginal by showing independent sources of income to support the applicant and his or her dependents; if the applicant possessed other sources of income for support, the treaty enterprise would not exist solely to earn a living.173 However, this is no longer possible, and the applicant must now establish that the income from the treaty business alone is not marginal.174

It is recommended that the applicant submit a business plan to demonstrate the capacity of the proposed treaty business to realize a sufficient profit within five years. Practitioners may wish to refer to Matter of Ho175 for guidance on what should be included in a business plan. Although Matter of Ho involved an EB-5 case, the guidance contained therein is relevant to E-2 cases as well.

Ability to Develop and Direct the Business

A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business.176 The ability to develop and direct can be established by owning at least 50 percent of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means.177

In instances in which a sole proprietor or an individual who is a majority owner wishes to enter the United States as an “investor,” or to send an employee to the United States as his or her personal employee, or as an employee of the U.S. enterprise, the owner must demonstrate that he or she personally develops and directs the enterprise.178 Likewise, if a foreign corporation owns at least 50 percent of a U.S. enterprise, and wishes its employee to enter the United States as an employee of the parent corporation, or as an employee of the U.S. business, the foreign corporation must demonstrate that it develops and directs the U.S. enterprise.179

Factors considered include ownership, control of stock by proxy, management position and authority, etc.180 Where the treaty investor does not possess at least 50 percent of the treaty business, the attorney may wish to consider the use of proxy agreements and/or management agreements to evidence his or her ability to develop and direct the business.

172 22 CFR §41.51(b)(10); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 173 Matter of Kung, 17 I&N Dec. 260 (Comm’r 1978). 174 22 CFR §41.51(b)(10); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 175 22 I&N Dec. 206 (Assoc. Comm’r, Examinations 1998). Although Matter of Ho involved an EB-5 case, the guidance relating to business plans is equally relevant to E-2 cases. 176 22 CFR §41.51(b)(1). Confirmation that this requirement does not apply to E-2 employees appears in Matter of Walsh and Pollard, 20 I&N Dec. 60 (BIA 1988), and Visa Office Response to Interrogatory 17, reprinted in 66 Interpreter Releases 369 (Apr. 3, 1989). 177 22 CFR §41.51(b)(11). 178 9 FAM 402.9-6(F)(c) [formerly 9 FAM 41.51 N12.2]. 179 Id. 180 Matter of Walsh and Pollard, 20 I&N Dec. 60; Visa Office Response to Interrogatory 17, reprinted in 66 Interpreter Releases 369 (Apr. 3, 1989).




many consular officers were using them as bright-line tests instead of considering substantiality on a case-by-case basis.

The current FAM contains only two specific examples of what would qualify as a substantial invest-ment.162 It states that investments of 100 percent or a higher percentage would normally automatically qualify for a small business of $100,000 or less. It also states that an investment of $10 million in a $100 million business would likely qualify, based on the sheer magnitude of the investment itself.

According to the current FAM, the purpose of the substantiality requirement is to ensure to a reasonable extent that the proposed treaty business is not speculative, but is or soon will be a successful enterprise.163 It further states that the rules regarding the amount of funds committed to the commercial enterprise and the character of the funds, primarily personal or loans based on personal collateral, are intended to weed out risky undertakings and to ensure that the investor is unquestionably committed to the success of the business.164

The FAM still states that the requirement of substantiality is met by satisfying the “proportionality test.” It defines the proportionality test as a comparison between two figures: The amount of qualifying funds invested; and The cost of an established business or, if a newly created business, the cost of establishing such a busi-

ness.165 The cost of an established business is, generally, its purchase price, which is normally considered to be the

fair market value.166 The cost of a newly created business is the actual cost needed to establish such a busi-ness to the point of being operational.167 In addition, an element of judgment to be factored into the require-ment of substantial investment concerns an assessment of the extent of the investor’s commitment to the suc-cessful operation of the project in view of the amount invested.168

Although consular posts may still be willing to approve an E-2 based on an investment of $50,000, the elimination of the specific examples contained in the FAM has made it more difficult to qualify based on in-vestments at this level. Generally, a more realistic minimum investment might be $100,000, since the FAM currently refers to this amount, although even this level of investment may not be accepted at certain consular posts. Of course, it is still possible for investments of less than $100,000 to qualify in appropriate cases.

Investment Is Not Marginal

To qualify for E-2 status, the applicant must not have invested in a marginal enterprise solely for the purpose of earning a living for herself and her family.169 A marginal business is an enterprise that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.170 However, an enterprise that has a present or future capacity to make a significant economic contribution is not considered a marginal enterprise.171

In other words, the best way to show that the business is not marginal is by demonstrating that it currently (or soon will) employ U.S. workers; the more employees and the higher their salaries, the better. However,

and (f) an investment of $10 million in a $100 million business would qualify based on the sheer magnitude of the investment itself. 162 9 FAM 402.9-6(D)(f) [formerly 9 FAM 41.51 N10.4]. 163 9 FAM 402.9-6(D)(a) [formerly 9 FAM 41.51 N10.1]. 164 Id. 165 9 FAM 402.9-6(D)(c) [formerly 9 FAM 41.51 N10.2]. See also 22 CFR §41.51(b)(9). 166 9 FAM 402.9-6(D)(c) [formerly 9 FAM 41.51 N10.2]. 167 Id. 168 9 FAM 402.9-6(D)(g) [formerly 9 FAM 41.51 N10.5]. 169 22 CFR §41.51(b)(1); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 170 22 CFR §41.51(b)(10). 171 Id.



even if the enterprise does not have U.S. workers, it may be possible to demonstrate that the investment will indirectly expand job opportunities locally or otherwise have a positive significant economic impact on the local economy. For example, if the business regularly hires subcontractors to perform jobs, it is indirectly creating employment. In addition, a business that earns much more than would be necessary to support the investor and his or her family should not be considered a marginal enterprise because it could support U.S. workers, if the investor chose to hire them. However, the projected future capacity should generally be realiz-able within five years from the date the foreign national commences normal business activities.172

It was previously possible to establish that the treaty enterprise was not marginal by showing independent sources of income to support the applicant and his or her dependents; if the applicant possessed other sources of income for support, the treaty enterprise would not exist solely to earn a living.173 However, this is no longer possible, and the applicant must now establish that the income from the treaty business alone is not marginal.174

It is recommended that the applicant submit a business plan to demonstrate the capacity of the proposed treaty business to realize a sufficient profit within five years. Practitioners may wish to refer to Matter of Ho175 for guidance on what should be included in a business plan. Although Matter of Ho involved an EB-5 case, the guidance contained therein is relevant to E-2 cases as well.

Ability to Develop and Direct the Business

A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business.176 The ability to develop and direct can be established by owning at least 50 percent of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means.177

In instances in which a sole proprietor or an individual who is a majority owner wishes to enter the United States as an “investor,” or to send an employee to the United States as his or her personal employee, or as an employee of the U.S. enterprise, the owner must demonstrate that he or she personally develops and directs the enterprise.178 Likewise, if a foreign corporation owns at least 50 percent of a U.S. enterprise, and wishes its employee to enter the United States as an employee of the parent corporation, or as an employee of the U.S. business, the foreign corporation must demonstrate that it develops and directs the U.S. enterprise.179

Factors considered include ownership, control of stock by proxy, management position and authority, etc.180 Where the treaty investor does not possess at least 50 percent of the treaty business, the attorney may wish to consider the use of proxy agreements and/or management agreements to evidence his or her ability to develop and direct the business.

172 22 CFR §41.51(b)(10); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 173 Matter of Kung, 17 I&N Dec. 260 (Comm’r 1978). 174 22 CFR §41.51(b)(10); 9 FAM 402.9-6(E) [formerly 9 FAM 41.51 N11]. 175 22 I&N Dec. 206 (Assoc. Comm’r, Examinations 1998). Although Matter of Ho involved an EB-5 case, the guidance relating to business plans is equally relevant to E-2 cases. 176 22 CFR §41.51(b)(1). Confirmation that this requirement does not apply to E-2 employees appears in Matter of Walsh and Pollard, 20 I&N Dec. 60 (BIA 1988), and Visa Office Response to Interrogatory 17, reprinted in 66 Interpreter Releases 369 (Apr. 3, 1989). 177 22 CFR §41.51(b)(11). 178 9 FAM 402.9-6(F)(c) [formerly 9 FAM 41.51 N12.2]. 179 Id. 180 Matter of Walsh and Pollard, 20 I&N Dec. 60; Visa Office Response to Interrogatory 17, reprinted in 66 Interpreter Releases 369 (Apr. 3, 1989).




An equal share of the investment in a 50/50 joint venture, or an equal partnership of two parties, generally gives controlling interest, if each joint venturer/partner retains full management rights and responsibilities.181 However, an equal partnership with more than two partners would not give any of the parties control based on ownership, as the element of control would be too remote.182

In instances in which treaty country ownership may be too diffuse to permit one individual or company to demonstrate the ability to direct and develop the U.S. enterprise, the owners of treaty country nationality must: Show that together they own 50 percent of the U.S. enterprise; and Must demonstrate, that at least collectively, they have the ability to develop and direct the U.S. enter-

prise.183 In these cases, an individual owner will not be eligible to receive an E-2 visa as the “investor,” nor may an employee be considered to be an employee of an owner for E-2 purposes.184 However, an owner and any oth-er employee may still qualify for E-2 status as an employee of the U.S. enterprise (i.e., the corporate entity), which will be the treaty investor.185

Recently, some consular officers have equated the requirement that the investors have the ability to devel-op and direct the treaty business to an obligation that they be involved in day-to-day management of the busi-ness, even where they own and control at least 50 percent of the treaty business. During the 2008 AILA An-nual Conference, a DOS representative also agreed with this characterization. The reason given was that they had been encountering retired foreign nationals who applied for their E-2 visas based on the purchase of a treaty business that would be ultimately managed by an employee or co-owner, with the retired foreign na-tional playing little or no role in the operation of the business. The DOS representative stated that an E-2 was not appropriate in such cases because the foreign national was not developing or directing the treaty business, even if he or she owned and controlled at least 50 percent of the treaty business.

The author respectfully disagrees with this interpretation, because it contradicts the clear language of the DOS regulations.186 Even the current version of the FAM confirms that the national of the treaty country may show “through ownership or other means” that he or she develops and directs the activities of the treaty busi-ness.187

In the case of franchised businesses, many franchise agreements contain restrictions on how the franchisee can operate the business. If the restrictions are too onerous, a consular officer may conclude that the franchi-see has assigned its operational control to the franchiser by contract. However, a franchise business may still qualify for E-2 status if the franchisee retains sufficient control over the management of the business, includ-

181 9 FAM 402.9-6(F)(b) [formerly 9 FAM 41.51 N12]. This note incorrectly defines the concept of “negative control.” It states that “[w]ith each of the two parties possessing equal responsibilities, they each have the capacity of making decisions that are binding on the other party.” This instead describes the nature of a partnership, where both parties have equal ownership and control over the entire partnership. Negative control contemplates each party having a veto power over decision making, as in the case of a joint venture where two shareholders both own 50 percent of the voting shares of the corporation. Neither may make a decision without the consent of the other, which results in negative control. However, this error does not affect the DOS position that both equal partnerships and joint ventures involving two parties are sufficient to give each party the ability to develop and direct the enterprise. 182 Id. 183 9 FAM 402.9-6(F)(d) [formerly 9 FAM 41.51 N12.3]. 184 9 FAM 402.9-6(F)(e) [formerly 9 FAM 41.51 N12.3]. 185 Id. 186 22 CFR §41.51(b)(11). The ability to develop and direct may be established solely on the basis of ownership and control of at least 50 percent of the treaty business. Day-to-day operational control should only be considered if the investor does not possess a controlling interest. 187 9 FAM 402.9-6(F)(a) [formerly 9 FAM 41.51 N12.1] (emphasis added).



ing the ability: (1) to hire and fire employees; (2) to set wage scales; and (3) to set the hours of business.188 In most cases, this will not become an issue; however, if it does, practitioners should be prepared to explain how the franchisee continues to retain operational control.

INCIDENTAL ACTIVITIES WHILE IN E-1 AND E-2 STATUS

Treaty traders and investors are entitled to engage in incidental activities so long as their primary purpose for coming to the United States is to develop and direct the treaty enterprise.189 However, such activities are generally limited to those in which a visitor could engage. In addition, as dependents of treaty traders and in-vestors are permitted to attend school,190 it is probable that the treaty trader or investor will also be permitted to do so, at least on a part-time basis.

On the other hand, a treaty trader, treaty investor, or treaty employee may only engage in employment that is consistent with the terms and conditions of his or her status and the activity forming the basis for E treaty status.191 For example, in Matter of Laigo,192 the BIA found that a self-employed treaty investor (who con-trolled companies that were engaged in the development of the Philippine Cultural and Trade Center) violated her status when she began selling cemetery plots on behalf of an unrelated third-party company, in return for commissions.

The one exception is employment with a subsidiary of the treaty enterprise. Performing work for such an entity will not be deemed to constitute a substantive change in the terms and conditions of the underlying E treaty employment if, at the time the E treaty status was determined, the applicant presents evidence establish-ing: The enterprise or organization, and any subsidiaries thereof, where the work will be performed; the

requisite parent-subsidiary relationship; and that the subsidiary independently qualifies as a treaty or-ganization or enterprise;

In the case of an employee of a treaty trader or treaty investor, the work to be performed requires exec-utive, supervisory, or essential skills; and

The work is consistent with the terms and conditions of the activity forming the basis of the classifica-tion.193

DEPENDENTS OF E-1 AND E-2 NONIMMIGRANTS

The spouse and dependent children (unmarried and under age 21) of an E-1 or E-2 nonimmigrant are enti-tled to the same classification as the principal foreign national.194 The nationality of a spouse and child is not material to their eligibility.195 Such treaty dependents are permitted to engage in incidental activities, such as engaging in tourism196 or attending school.197 However, this does not mean that treaty dependents are entitled to engage in employment without authorization.

According to 8 CFR §214.1(e), nonimmigrants may not engage in any employment unless they have been accorded a nonimmigrant classification that authorizes employment, or they have been granted permission to 188 Matter of Kung, 17 I&N Dec. 260 (Comm’r 1978). The franchise agreement in this case was fairly restrictive and yet the franchisee was still found to have sufficient control over the treaty enterprise. 189 9 FAM 402.1-3(a) [formerly 9 FAM 41.11 N3.1]. 190 8 CFR §248.3(e)(2); 9 FAM 402.1-5(C) [formerly 9 FAM 41.11 N5.2]. 191 8 CFR §214.2(e)(8)(i). 192 15 I&N Dec. 65 (BIA 1974). 193 8 CFR §214.2(e)(8)(ii). 194 22 CFR §§41.51(a)(3), (b)(3). 195 Id. 196 9 FAM 402.1-3(a) [formerly 9 FAM 41.11 N3.1]. 197 8 CFR §248.3(e)(2); 9 FAM 402.1-5(C) [formerly 9 FAM 41.11 N5.2].




An equal share of the investment in a 50/50 joint venture, or an equal partnership of two parties, generally gives controlling interest, if each joint venturer/partner retains full management rights and responsibilities.181 However, an equal partnership with more than two partners would not give any of the parties control based on ownership, as the element of control would be too remote.182

In instances in which treaty country ownership may be too diffuse to permit one individual or company to demonstrate the ability to direct and develop the U.S. enterprise, the owners of treaty country nationality must: Show that together they own 50 percent of the U.S. enterprise; and Must demonstrate, that at least collectively, they have the ability to develop and direct the U.S. enter-

prise.183 In these cases, an individual owner will not be eligible to receive an E-2 visa as the “investor,” nor may an employee be considered to be an employee of an owner for E-2 purposes.184 However, an owner and any oth-er employee may still qualify for E-2 status as an employee of the U.S. enterprise (i.e., the corporate entity), which will be the treaty investor.185

Recently, some consular officers have equated the requirement that the investors have the ability to devel-op and direct the treaty business to an obligation that they be involved in day-to-day management of the busi-ness, even where they own and control at least 50 percent of the treaty business. During the 2008 AILA An-nual Conference, a DOS representative also agreed with this characterization. The reason given was that they had been encountering retired foreign nationals who applied for their E-2 visas based on the purchase of a treaty business that would be ultimately managed by an employee or co-owner, with the retired foreign na-tional playing little or no role in the operation of the business. The DOS representative stated that an E-2 was not appropriate in such cases because the foreign national was not developing or directing the treaty business, even if he or she owned and controlled at least 50 percent of the treaty business.

The author respectfully disagrees with this interpretation, because it contradicts the clear language of the DOS regulations.186 Even the current version of the FAM confirms that the national of the treaty country may show “through ownership or other means” that he or she develops and directs the activities of the treaty busi-ness.187

In the case of franchised businesses, many franchise agreements contain restrictions on how the franchisee can operate the business. If the restrictions are too onerous, a consular officer may conclude that the franchi-see has assigned its operational control to the franchiser by contract. However, a franchise business may still qualify for E-2 status if the franchisee retains sufficient control over the management of the business, includ-

181 9 FAM 402.9-6(F)(b) [formerly 9 FAM 41.51 N12]. This note incorrectly defines the concept of “negative control.” It states that “[w]ith each of the two parties possessing equal responsibilities, they each have the capacity of making decisions that are binding on the other party.” This instead describes the nature of a partnership, where both parties have equal ownership and control over the entire partnership. Negative control contemplates each party having a veto power over decision making, as in the case of a joint venture where two shareholders both own 50 percent of the voting shares of the corporation. Neither may make a decision without the consent of the other, which results in negative control. However, this error does not affect the DOS position that both equal partnerships and joint ventures involving two parties are sufficient to give each party the ability to develop and direct the enterprise. 182 Id. 183 9 FAM 402.9-6(F)(d) [formerly 9 FAM 41.51 N12.3]. 184 9 FAM 402.9-6(F)(e) [formerly 9 FAM 41.51 N12.3]. 185 Id. 186 22 CFR §41.51(b)(11). The ability to develop and direct may be established solely on the basis of ownership and control of at least 50 percent of the treaty business. Day-to-day operational control should only be considered if the investor does not possess a controlling interest. 187 9 FAM 402.9-6(F)(a) [formerly 9 FAM 41.51 N12.1] (emphasis added).



ing the ability: (1) to hire and fire employees; (2) to set wage scales; and (3) to set the hours of business.188 In most cases, this will not become an issue; however, if it does, practitioners should be prepared to explain how the franchisee continues to retain operational control.

INCIDENTAL ACTIVITIES WHILE IN E-1 AND E-2 STATUS

Treaty traders and investors are entitled to engage in incidental activities so long as their primary purpose for coming to the United States is to develop and direct the treaty enterprise.189 However, such activities are generally limited to those in which a visitor could engage. In addition, as dependents of treaty traders and in-vestors are permitted to attend school,190 it is probable that the treaty trader or investor will also be permitted to do so, at least on a part-time basis.

On the other hand, a treaty trader, treaty investor, or treaty employee may only engage in employment that is consistent with the terms and conditions of his or her status and the activity forming the basis for E treaty status.191 For example, in Matter of Laigo,192 the BIA found that a self-employed treaty investor (who con-trolled companies that were engaged in the development of the Philippine Cultural and Trade Center) violated her status when she began selling cemetery plots on behalf of an unrelated third-party company, in return for commissions.

The one exception is employment with a subsidiary of the treaty enterprise. Performing work for such an entity will not be deemed to constitute a substantive change in the terms and conditions of the underlying E treaty employment if, at the time the E treaty status was determined, the applicant presents evidence establish-ing: The enterprise or organization, and any subsidiaries thereof, where the work will be performed; the

requisite parent-subsidiary relationship; and that the subsidiary independently qualifies as a treaty or-ganization or enterprise;

In the case of an employee of a treaty trader or treaty investor, the work to be performed requires exec-utive, supervisory, or essential skills; and

The work is consistent with the terms and conditions of the activity forming the basis of the classifica-tion.193

DEPENDENTS OF E-1 AND E-2 NONIMMIGRANTS

The spouse and dependent children (unmarried and under age 21) of an E-1 or E-2 nonimmigrant are enti-tled to the same classification as the principal foreign national.194 The nationality of a spouse and child is not material to their eligibility.195 Such treaty dependents are permitted to engage in incidental activities, such as engaging in tourism196 or attending school.197 However, this does not mean that treaty dependents are entitled to engage in employment without authorization.

According to 8 CFR §214.1(e), nonimmigrants may not engage in any employment unless they have been accorded a nonimmigrant classification that authorizes employment, or they have been granted permission to 188 Matter of Kung, 17 I&N Dec. 260 (Comm’r 1978). The franchise agreement in this case was fairly restrictive and yet the franchisee was still found to have sufficient control over the treaty enterprise. 189 9 FAM 402.1-3(a) [formerly 9 FAM 41.11 N3.1]. 190 8 CFR §248.3(e)(2); 9 FAM 402.1-5(C) [formerly 9 FAM 41.11 N5.2]. 191 8 CFR §214.2(e)(8)(i). 192 15 I&N Dec. 65 (BIA 1974). 193 8 CFR §214.2(e)(8)(ii). 194 22 CFR §§41.51(a)(3), (b)(3). 195 Id. 196 9 FAM 402.1-3(a) [formerly 9 FAM 41.11 N3.1]. 197 8 CFR §248.3(e)(2); 9 FAM 402.1-5(C) [formerly 9 FAM 41.11 N5.2].




engage in employment. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain sta-tus, which may give rise to removal proceedings.

As a result of legislation enacted in 2002,198 dependent spouses of E-1 and E-2 nonimmigrants who have been admitted in E status may apply for an employment authorization document (EAD) that permits them to work for any employer. However, the legislation does not extend employment eligibility to dependent chil-dren of the principal foreign national.

Although the INA now permits the issuance of an EAD to dependent spouses of E-2 nonimmigrants, the USCIS regulations have not been amended to reflect this fact. The instructions to Form I-765 state that de-pendent spouses of E-1 and E-2 principal aliens should make reference to 8 CFR §274a.12(a)(17); however, this subsection does not yet exist. Nevertheless, USCIS has been issuing EADs to dependent spouses of E-1 and E-2 principal aliens even in the absence of implementing regulations.

The absence of relevant DHS regulations has created some uncertainty regarding whether spouses of E-1 or E-2 principal aliens will be permitted to adjust status if they engage in employment without an EAD. Ac-cording to INA §245(c)(2), an alien who continues in or accepts unauthorized employment prior to filing an adjustment application is not eligible for adjustment of status. However, in an unpublished 2013 decision, the BIA concluded that an E-2 dependent spouse was not barred from adjustment because she was authorized to be employed under INA §214(e)(6) and the DHS regulations did not specifically require her to apply for an EAD.199

PERIOD OF VISA VALIDITY AND PERIOD OF ADMISSION

The maximum validity period for an E visa will depend upon reciprocity with the foreign national’s country of nationality. The maximum visa validity period for each country is shown in the reciprocity tables that appear in the FAM. In many cases this will be five years.200

The period of validity of a nonimmigrant visa is the period during which the foreign national may use it in making an application for admission.201 This has no relationship to the period of time the immigration author-ities at a port of entry may authorize the foreign national to remain in the United States.202

To determine the maximum period of admission in the United States, one must refer to the DHS regula-tions. According to the regulations, an E-1 or E-2 nonimmigrant (including dependents) may be admitted for an initial period of not more than two years.203 This is the period that will be shown on the foreign national’s Form I-94. However, as long as the foreign national continues to hold a valid E visa, he or she may depart from the United States before the expiration of this two-year period and then reenter the United States using the visa. At the time of admission, the foreign national may request a new Form I-94 from the port of entry for an additional two years.

As the validity period of the visa has no relationship to the period of admission, the foreign national may seek a two-year period of admission even if his or her visa is due to expire within a shorter period of time. Even if the foreign national enters the United States one day before the visa is due to expire, the immigration officer at the port of entry may issue a Form I-94 for a period of two years.204 However, if the foreign national subsequently leaves the United States prior to the expiration of the Form I-94, he or she will not be readmitted for the remainder of his or her status without a valid visa (since a visa is required for admission to the United States), unless automatic visa revalidation applies.

198 Pub. L. No. 107–124, 115 Stat. 2402 (2002). 199 Matter of Lee, A089 047 352 (BIA Nov. 5, 2013), which can be found at AILA Doc. No. 13123041. 200 The reciprocity tables are available at http://bit.ly/visa-reciprocity. 201 22 CFR §41.112(a). 202 Id. 203 8 CFR §214.2(e)(19). 204 9 FAM 403.9-4(A)(b) [formerly 9 FAM 41.112 N1].



Reentry on a visa that is about to expire can still be useful in light of the long delays in adjudicating E visa applications at consulates abroad. A foreign national may reenter (using the still-valid visa), obtain a new two-year Form I-94, and then continue working in the United States while his or her visa application is pending abroad.

WHERE TO APPLY

Noncitizens who are currently in the United States may seek E-1 or E-2 status from USCIS by applying for a change of status or extension of stay through the California Service Center. However, in most cases it is preferable for the noncitizen to apply for an E visa at a consulate abroad.

In contrast to most other nonimmigrant employment classifications, U.S. consulates issue E visas without prior petition approval from USCIS. Also, because E visa eligibility is derived from treaties negotiated by the United States, the general consensus is that DOS has primary jurisdiction over E adjudications.

Visa applicants who previously acquired E status through a change of status in the United States will find that consular posts do not simply issue E visas based on prior USCIS adjudications. Instead, they will require the noncitizen to submit a new application to the consular post along with completed forms, fees, and supporting doc-umentation. For this reason, it is usually more efficient to simply apply through a consular post.

There are limited situations in which the filing of a petition with USCIS may be the appropriate option. For example, where the consular post having jurisdiction over the applicant’s country of citizenship or resi-dence is particularly hostile, it may be preferable to initially apply through the California Service Center and then apply for a visa abroad after the treaty business has established a track record of success and the appli-cant’s investment therein has grown. In addition, where the applicant must immediately begin management of the treaty business, it may be quicker to seek a change of status (using premium processing) and apply for the E-2 visa later. However, given the California Service Center’s past record of adjudicating E-1 and E-2 appli-cations very strictly, the author believes that the USCIS option should be used sparingly.

Noncitizens who acquire E-2 status by means of a change of status will be unable to travel abroad until they have obtained an E-2 visa at a consular post abroad. However, they should be permitted to travel to con-tiguous territory and then reenter the United States, despite the fact that they do not possess a valid E-2 visa, pursuant to automatic visa revalidation.205

Unfortunately, Canadian citizens who change status to E-2 will be unable to take advantage of automatic visa revalidation. This is because Canadians are visa-exempt under most nonimmigrant categories. As they will not have initially entered the United States using a visa, there will be no visa to revalidate.

CONCLUSION

The E nonimmigrant category offers numerous advantages over other nonimmigrant options, including, without limitation: (a) long visa validity periods; (b) no limit on the number of renewals; (c) the ability to en-gage in self-employment; and (d) no requirement that an employee have a previous employment history with the employing organization. Practitioners should always consider treaty trader or treaty investor status when such status may be beneficial to their clients.

205 22 CFR §41.112(d). Foreign nationals who were already in E-1 or E-2 status in the United States could previously choose to revalidate their visas through the DOS Visa Office in St. Louis, instead of applying at a consulate abroad. However, visa revalidation ended on July 16, 2004. “AILA Practice Advisory—Additional Information on Termination of Visa Revalidations,” AILA Doc. No. 04062363.




engage in employment. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain sta-tus, which may give rise to removal proceedings.

As a result of legislation enacted in 2002,198 dependent spouses of E-1 and E-2 nonimmigrants who have been admitted in E status may apply for an employment authorization document (EAD) that permits them to work for any employer. However, the legislation does not extend employment eligibility to dependent chil-dren of the principal foreign national.

Although the INA now permits the issuance of an EAD to dependent spouses of E-2 nonimmigrants, the USCIS regulations have not been amended to reflect this fact. The instructions to Form I-765 state that de-pendent spouses of E-1 and E-2 principal aliens should make reference to 8 CFR §274a.12(a)(17); however, this subsection does not yet exist. Nevertheless, USCIS has been issuing EADs to dependent spouses of E-1 and E-2 principal aliens even in the absence of implementing regulations.

The absence of relevant DHS regulations has created some uncertainty regarding whether spouses of E-1 or E-2 principal aliens will be permitted to adjust status if they engage in employment without an EAD. Ac-cording to INA §245(c)(2), an alien who continues in or accepts unauthorized employment prior to filing an adjustment application is not eligible for adjustment of status. However, in an unpublished 2013 decision, the BIA concluded that an E-2 dependent spouse was not barred from adjustment because she was authorized to be employed under INA §214(e)(6) and the DHS regulations did not specifically require her to apply for an EAD.199

PERIOD OF VISA VALIDITY AND PERIOD OF ADMISSION

The maximum validity period for an E visa will depend upon reciprocity with the foreign national’s country of nationality. The maximum visa validity period for each country is shown in the reciprocity tables that appear in the FAM. In many cases this will be five years.200

The period of validity of a nonimmigrant visa is the period during which the foreign national may use it in making an application for admission.201 This has no relationship to the period of time the immigration author-ities at a port of entry may authorize the foreign national to remain in the United States.202

To determine the maximum period of admission in the United States, one must refer to the DHS regula-tions. According to the regulations, an E-1 or E-2 nonimmigrant (including dependents) may be admitted for an initial period of not more than two years.203 This is the period that will be shown on the foreign national’s Form I-94. However, as long as the foreign national continues to hold a valid E visa, he or she may depart from the United States before the expiration of this two-year period and then reenter the United States using the visa. At the time of admission, the foreign national may request a new Form I-94 from the port of entry for an additional two years.

As the validity period of the visa has no relationship to the period of admission, the foreign national may seek a two-year period of admission even if his or her visa is due to expire within a shorter period of time. Even if the foreign national enters the United States one day before the visa is due to expire, the immigration officer at the port of entry may issue a Form I-94 for a period of two years.204 However, if the foreign national subsequently leaves the United States prior to the expiration of the Form I-94, he or she will not be readmitted for the remainder of his or her status without a valid visa (since a visa is required for admission to the United States), unless automatic visa revalidation applies.

198 Pub. L. No. 107–124, 115 Stat. 2402 (2002). 199 Matter of Lee, A089 047 352 (BIA Nov. 5, 2013), which can be found at AILA Doc. No. 13123041. 200 The reciprocity tables are available at http://bit.ly/visa-reciprocity. 201 22 CFR §41.112(a). 202 Id. 203 8 CFR §214.2(e)(19). 204 9 FAM 403.9-4(A)(b) [formerly 9 FAM 41.112 N1].



Reentry on a visa that is about to expire can still be useful in light of the long delays in adjudicating E visa applications at consulates abroad. A foreign national may reenter (using the still-valid visa), obtain a new two-year Form I-94, and then continue working in the United States while his or her visa application is pending abroad.

WHERE TO APPLY

Noncitizens who are currently in the United States may seek E-1 or E-2 status from USCIS by applying for a change of status or extension of stay through the California Service Center. However, in most cases it is preferable for the noncitizen to apply for an E visa at a consulate abroad.

In contrast to most other nonimmigrant employment classifications, U.S. consulates issue E visas without prior petition approval from USCIS. Also, because E visa eligibility is derived from treaties negotiated by the United States, the general consensus is that DOS has primary jurisdiction over E adjudications.

Visa applicants who previously acquired E status through a change of status in the United States will find that consular posts do not simply issue E visas based on prior USCIS adjudications. Instead, they will require the noncitizen to submit a new application to the consular post along with completed forms, fees, and supporting doc-umentation. For this reason, it is usually more efficient to simply apply through a consular post.

There are limited situations in which the filing of a petition with USCIS may be the appropriate option. For example, where the consular post having jurisdiction over the applicant’s country of citizenship or resi-dence is particularly hostile, it may be preferable to initially apply through the California Service Center and then apply for a visa abroad after the treaty business has established a track record of success and the appli-cant’s investment therein has grown. In addition, where the applicant must immediately begin management of the treaty business, it may be quicker to seek a change of status (using premium processing) and apply for the E-2 visa later. However, given the California Service Center’s past record of adjudicating E-1 and E-2 appli-cations very strictly, the author believes that the USCIS option should be used sparingly.

Noncitizens who acquire E-2 status by means of a change of status will be unable to travel abroad until they have obtained an E-2 visa at a consular post abroad. However, they should be permitted to travel to con-tiguous territory and then reenter the United States, despite the fact that they do not possess a valid E-2 visa, pursuant to automatic visa revalidation.205

Unfortunately, Canadian citizens who change status to E-2 will be unable to take advantage of automatic visa revalidation. This is because Canadians are visa-exempt under most nonimmigrant categories. As they will not have initially entered the United States using a visa, there will be no visa to revalidate.

CONCLUSION

The E nonimmigrant category offers numerous advantages over other nonimmigrant options, including, without limitation: (a) long visa validity periods; (b) no limit on the number of renewals; (c) the ability to en-gage in self-employment; and (d) no requirement that an employee have a previous employment history with the employing organization. Practitioners should always consider treaty trader or treaty investor status when such status may be beneficial to their clients.

205 22 CFR §41.112(d). Foreign nationals who were already in E-1 or E-2 status in the United States could previously choose to revalidate their visas through the DOS Visa Office in St. Louis, instead of applying at a consulate abroad. However, visa revalidation ended on July 16, 2004. “AILA Practice Advisory—Additional Information on Termination of Visa Revalidations,” AILA Doc. No. 04062363.




Appendix 1: List of E-1/E-2 Treaty Countries

COUNTRY CLASS. EFFECTIVE DATE Albania E-2 January 4, 1998

Argentina E-1 December 20, 1854 E-2 December 20, 1854

Armenia E-2 March 29, 1996 Australia E-1 December 16, 1991 Australia E-2 December 27, 1991

Austria E-1 May 27, 1931 E-2 May 27, 1931

Azerbaijan E-2 August 2, 2001 Bahrain14 E-2 May 31, 2001 Bangladesh E-2 July 25, 1989

Belgium E-1 October 3, 1963 E-2 October 3, 1963

Bolivia15 E-1 November 9, 1862 E-2 June 6, 2001

Bosnia and Herzegovina11 E-1 November 15, 1982 E-2 November 15, 1982

Brunei E-1 July 11, 1853 Bulgaria12 E-2 June 2, 1994 Cameroon E-2 April 6, 1989

Canada E-1 January 1, 1994 E-2 January 1, 1994

Chile E-1 January 1, 2004 E-2 January 1, 2004

China (Taiwan)1 E-1 November 30, 1948 E-2 November 30, 1948

Colombia13 E-1 June 10, 1848 E-2 June 10, 1848

Congo (Brazzaville) E-2 August 13, 1994 Congo (Kinshasa) E-2 July 28, 1989

Costa Rica E-1 May 26, 1852 E-2 May 26, 1852

Croatia11 E-1 November 15, 1982 E-2 November 15, 1982

Czech Republic2 E-2 January 1, 1993

Denmark3 E-1 July 30, 1961 E-2 December 10, 2008

Ecuador E-2 May 11, 1997 Egypt E-2 June 27, 1992

Estonia E-1 May 22, 1926 E-2 February 16, 1997

Ethiopia E-1 October 8, 1953 E-2 October 8, 1953

Finland E-1 August 10, 1934 E-2 December 1, 1992

COUNTRY CLASS. EFFECTIVE DATE

France4

E-1 December 21, 1960 E-2 December 21, 1960

Georgia E-2 August 17, 1997

Germany E-1 July 14, 1956 E-2 July 14, 1956

Greece E-1 October 13, 1954 Grenada E-2 March 3, 1989

Honduras E-1 July 19, 1928 E-2 July 19, 1928

Iran E-1 June 16, 1957 E-2 June 16, 1957

Ireland E-1 September 14, 1950 E-2 November 18, 1992

Israel E-1 April 3, 1954

Italy E-1 July 26, 1949 E-2 July 26, 1949

Jamaica E-2 March 7, 1997

Japan5 E-1 October 30, 1953 E-2 October 30, 1953

Jordan E-1 December 17, 2001 E-2 December 17, 2001

Kazakhstan E-2 January 12, 1994

Korea (South) E-1 November 7, 1957 E-2 November 7, 1957

Kosovo11 E-1 November 15, 1982 E-2 November 15, 1982

Kyrgyzstan E-2 January 12, 1994

Latvia E-1 July 25, 1928 E-2 December 26, 1996

Liberia E-1 November 21, 1939 E-2 November 21, 1939

Lithuania E-2 November 22, 2001

Luxembourg E-1 March 28, 1963 E-2 March 28, 1963

Macedonia, the Former Yugoslav Republic of (FRY) 11

E-1 November 15, 1982 E-2 November 15, 1982

Mexico E-1 January 1, 1994 E-2 January 1, 1994

Moldova E-2 November 25, 1994 Mongolia E-2 January 1, 1997

Montenegro11 E-1 November 15, 1982 E-2 November 15, 1982

Morocco E-2 May 29, 1991

Netherlands6 E-1 December 5, 1957 E-2 December 5, 1957




Norway7 E-1 January 18, 1928 E-2 January 18, 1928

Oman E-1 June 11, 1960 E-2 June 11, 1960

Pakistan E-1 February 12, 1961 E-2 February 12, 1961

Panama E-2 May 30, 1991

Paraguay E-1 March 7, 1860 E-2 March 7, 1860

Philippines E-1 September 6, 1955 E-2 September 6, 1955

Poland E-1 August 6, 1994 E-2 August 6, 1994

Romania E-2 January 15, 1994 Senegal E-2 October 25, 1990

Serbia E-1 November 15, 1982 E-2 November 15, 1982

Singapore E-1 January 1, 2004 E-2 January 1, 2004

Slovak Republic2 E-2 January 1, 1993

Slovenia11 E-1 November 15, 1982 E-2 November 15, 1982

Spain8 E-1 April 14, 1903 E-2 April 14, 1903

Sri Lanka E-2 May 1, 1993

Suriname9 E-1 February 10, 1963 E-2 February 10, 1963

Sweden E-1 February 20, 1992 E-2 February 20, 1992

Switzerland E-1 November 8, 1855 E-2 November 8, 1855

Thailand E-1 June 8, 1968 E-2 June 8, 1968

Togo E-1 February 5, 1967 E-2 February 5, 1967

Trinidad & Tobago E-2 December 26, 1996 Tunisia E-2 February 7, 1993

Turkey E-1 February 15, 1933 E-2 May 18, 1990

Ukraine E-2 November 16, 1996

United Kingdom10 E-1 July 3, 1815 E-2 July 3, 1815

Yugoslavia11 E-1 November 15, 1982 E-2 November 15, 1982

1 China (Taiwan)—Pursuant to Section 6 of the TRA and Executive Order 12143, 44 Fed. Reg. 37191, this agreement which was concluded with the Taiwan authorities prior to January 1, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan. 2 Czech Republic and Slovak Republic—The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 1, 1993. 3 Denmark—The Convention of 1826 does not apply to the Faroe Islands of Greenland. The Treaty, which entered into force on July 30, 1961, does not apply to Greenland. 4 France—The Treaty, which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana, and Reunion. 5 Japan—The Treaty, which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972. 6 Netherlands—The Treaty, which entered into force on December 5, 1957, is applicable to Aruba and Netherlands Antilles. 7 Norway—The Treaty, which entered into force on Septem-ber 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands). 8 Spain—The Treaty, which entered into force on April 14, 1903, is applicable to all territories. 9 Suriname—The Treaty with the Netherlands, which entered into force December 5, 1957, was made applicable to Suriname on February 10, 1963. 10 United Kingdom—The Convention which entered into force on July 3, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands, and Gibraltar) and to “inhabitants” of such territory. This term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” Also, in order to qualify for treaty trader or treaty investor status under this treaty, the noncitizen must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty. 11 Yugoslavia—The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY—Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Slovenia, and the Federal Republic of Yugoslavia continue to be bound by the treaty in force with the SFRY at the time of dissolution. With regard to Croatia and Macedonia, the current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1982. 12. The current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1954. 13. The current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1948.




Appendix 1: List of E-1/E-2 Treaty Countries

COUNTRY CLASS. EFFECTIVE DATE Albania E-2 January 4, 1998

Argentina E-1 December 20, 1854 E-2 December 20, 1854

Armenia E-2 March 29, 1996 Australia E-1 December 16, 1991 Australia E-2 December 27, 1991

Austria E-1 May 27, 1931 E-2 May 27, 1931

Azerbaijan E-2 August 2, 2001 Bahrain14 E-2 May 31, 2001 Bangladesh E-2 July 25, 1989

Belgium E-1 October 3, 1963 E-2 October 3, 1963

Bolivia15 E-1 November 9, 1862 E-2 June 6, 2001

Bosnia and Herzegovina11 E-1 November 15, 1982 E-2 November 15, 1982

Brunei E-1 July 11, 1853 Bulgaria12 E-2 June 2, 1994 Cameroon E-2 April 6, 1989

Canada E-1 January 1, 1994 E-2 January 1, 1994

Chile E-1 January 1, 2004 E-2 January 1, 2004

China (Taiwan)1 E-1 November 30, 1948 E-2 November 30, 1948

Colombia13 E-1 June 10, 1848 E-2 June 10, 1848

Congo (Brazzaville) E-2 August 13, 1994 Congo (Kinshasa) E-2 July 28, 1989

Costa Rica E-1 May 26, 1852 E-2 May 26, 1852

Croatia11 E-1 November 15, 1982 E-2 November 15, 1982

Czech Republic2 E-2 January 1, 1993

Denmark3 E-1 July 30, 1961 E-2 December 10, 2008

Ecuador E-2 May 11, 1997 Egypt E-2 June 27, 1992

Estonia E-1 May 22, 1926 E-2 February 16, 1997

Ethiopia E-1 October 8, 1953 E-2 October 8, 1953

Finland E-1 August 10, 1934 E-2 December 1, 1992


France4

E-1 December 21, 1960 E-2 December 21, 1960

Georgia E-2 August 17, 1997

Germany E-1 July 14, 1956 E-2 July 14, 1956

Greece E-1 October 13, 1954 Grenada E-2 March 3, 1989

Honduras E-1 July 19, 1928 E-2 July 19, 1928

Iran E-1 June 16, 1957 E-2 June 16, 1957

Ireland E-1 September 14, 1950 E-2 November 18, 1992

Israel E-1 April 3, 1954

Italy E-1 July 26, 1949 E-2 July 26, 1949

Jamaica E-2 March 7, 1997

Japan5 E-1 October 30, 1953 E-2 October 30, 1953

Jordan E-1 December 17, 2001 E-2 December 17, 2001

Kazakhstan E-2 January 12, 1994

Korea (South) E-1 November 7, 1957 E-2 November 7, 1957

Kosovo11 E-1 November 15, 1982 E-2 November 15, 1982

Kyrgyzstan E-2 January 12, 1994

Latvia E-1 July 25, 1928 E-2 December 26, 1996

Liberia E-1 November 21, 1939 E-2 November 21, 1939

Lithuania E-2 November 22, 2001

Luxembourg E-1 March 28, 1963 E-2 March 28, 1963

Macedonia, the Former Yugoslav Republic of (FRY) 11

E-1 November 15, 1982 E-2 November 15, 1982

Mexico E-1 January 1, 1994 E-2 January 1, 1994

Moldova E-2 November 25, 1994 Mongolia E-2 January 1, 1997

Montenegro11 E-1 November 15, 1982 E-2 November 15, 1982

Morocco E-2 May 29, 1991

Netherlands6 E-1 December 5, 1957 E-2 December 5, 1957




Norway7 E-1 January 18, 1928 E-2 January 18, 1928

Oman E-1 June 11, 1960 E-2 June 11, 1960

Pakistan E-1 February 12, 1961 E-2 February 12, 1961

Panama E-2 May 30, 1991

Paraguay E-1 March 7, 1860 E-2 March 7, 1860

Philippines E-1 September 6, 1955 E-2 September 6, 1955

Poland E-1 August 6, 1994 E-2 August 6, 1994

Romania E-2 January 15, 1994 Senegal E-2 October 25, 1990

Serbia E-1 November 15, 1982 E-2 November 15, 1982

Singapore E-1 January 1, 2004 E-2 January 1, 2004

Slovak Republic2 E-2 January 1, 1993

Slovenia11 E-1 November 15, 1982 E-2 November 15, 1982

Spain8 E-1 April 14, 1903 E-2 April 14, 1903

Sri Lanka E-2 May 1, 1993

Suriname9 E-1 February 10, 1963 E-2 February 10, 1963

Sweden E-1 February 20, 1992 E-2 February 20, 1992

Switzerland E-1 November 8, 1855 E-2 November 8, 1855

Thailand E-1 June 8, 1968 E-2 June 8, 1968

Togo E-1 February 5, 1967 E-2 February 5, 1967

Trinidad & Tobago E-2 December 26, 1996 Tunisia E-2 February 7, 1993

Turkey E-1 February 15, 1933 E-2 May 18, 1990

Ukraine E-2 November 16, 1996

United Kingdom10 E-1 July 3, 1815 E-2 July 3, 1815

Yugoslavia11 E-1 November 15, 1982 E-2 November 15, 1982

1 China (Taiwan)—Pursuant to Section 6 of the TRA and Executive Order 12143, 44 Fed. Reg. 37191, this agreement which was concluded with the Taiwan authorities prior to January 1, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan. 2 Czech Republic and Slovak Republic—The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 1, 1993. 3 Denmark—The Convention of 1826 does not apply to the Faroe Islands of Greenland. The Treaty, which entered into force on July 30, 1961, does not apply to Greenland. 4 France—The Treaty, which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana, and Reunion. 5 Japan—The Treaty, which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972. 6 Netherlands—The Treaty, which entered into force on December 5, 1957, is applicable to Aruba and Netherlands Antilles. 7 Norway—The Treaty, which entered into force on Septem-ber 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands). 8 Spain—The Treaty, which entered into force on April 14, 1903, is applicable to all territories. 9 Suriname—The Treaty with the Netherlands, which entered into force December 5, 1957, was made applicable to Suriname on February 10, 1963. 10 United Kingdom—The Convention which entered into force on July 3, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands, and Gibraltar) and to “inhabitants” of such territory. This term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” Also, in order to qualify for treaty trader or treaty investor status under this treaty, the noncitizen must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty. 11 Yugoslavia—The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY—Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Slovenia, and the Federal Republic of Yugoslavia continue to be bound by the treaty in force with the SFRY at the time of dissolution. With regard to Croatia and Macedonia, the current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1982. 12. The current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1954. 13. The current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective in 1948.




14 The current list contained in 9 FAM 402.9-10 incorrectly states that the treaty became effective on May 30, 2001. 15 The Government of Bolivia previously gave notice of termination of the bilateral investment treaty between the United States and Bolivia, effective June 10, 2012. Bolivian nationals with qualifying investments in place in the United States by June 10, 2012 will continue to be entitled to E-2

classification until June 10, 2022. However, the only nationals of Bolivia (other than those qualifying for derivative status based on a familial relationship to an E-2 principal alien) who may qualify for E-2 visas at this time are those applicants who are coming to the United States to engage in E-2 activity in furtherance of covered investments established or acquired prior to June 10, 2012.



* Updated from the 2016–17 edition of Navigating the Fundamentals of Immigration Law (AILA 2016).


186

O and P Nonimmigrants updated by Karin Wolman*

Karin Wolman is a sole practitioner in New York serving businesses of all sizes, nonprofit organizations, and individuals, across industries from healthcare and the sciences, academia, finance and technology, to the performing arts and entertainment, fine and graphic arts and new media, culinary arts, fashion and beauty, architecture, and design. Ms. Wolman is a frequent speaker at local and national conferences on topics in immigration law ranging from aliens of extraordinary ability to naturali-zation, for organizations including AILA, the Practising Law Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar Association. A graduate of Columbia University and UCLA School of Law, she worked at the Brook-lyn Academy of Music when the O & P categories were introduced. She has served since 2002 as moderator of the AILA In-foNet forum on O & P visas, in addition to other employment-based forums. Her office website is at www.kwvisalaw.com.

**********

EDITOR’S NOTE

U.S. Citizenship and Immigration Services (USCIS) appears to be facing significant gaps in leadership experience, and training in the area of O & P adjudications, as reflected in the patterns of all-too-common Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and petition denials, many of which misstate the applicable standards. An unpredictable adjudications climate at USCIS is compounded by the U.S. Department of State (DOS), where widespread readjudication of approved O-1 and P-1 petitions at consular posts pose a subsequent risk, often absent any allegations of material misrepresentation in the approved petition. Consular officers at certain posts appear to lack familiarity with 9 FAM 402.13-5(B), often taking the position that there was USCIS error in a petition approval on the grounds that the officer does not believe the beneficiary to be famous enough. This situation is exacerbated by Foreign Service training that provides no coverage at all of the three O-1 petition standards in 8 CFR §214.2 et seq., and by the Kentucky Consular Center’s policy of not scanning significant portions of petition documentation into the PIMS database, such as press articles and event programs.

Adjudications of petitions not submitted to premium processing may take unpredictably long periods of time, sometimes 120 days or more, but sometimes close to the statutory 14 days to which USCIS once promised to adhere. Processing time reports are posted to www.uscis.gov two months after the agency updates processing times internally. Consistency is a distant memory, and the quality and intelligibility of RFEs, NOIDs and denials has declined across the board, despite the adoption of templates. Too many of these notices and decisions emanating from service centers reflect misunderstanding or ignorance of the regulatory requirements, binding policy memoranda and precedent decisions. The problem of unsupported novel and restrictive requirements invented by adjudicators remains rife. Despite frequent reminders, they seem insensitive to the preponderance of evidence standard of proof, so they use RFE templates simply to assert that the petitioner failed to meet its burden of proof no matter what evidence is in the record, much of which seems to be disregarded. Prior petition approvals on behalf of the same parties, no matter how many nor how recent, are not accorded the weight afforded them by regulation.

Obtaining USCIS approval of an O or P petition now is far more difficult and problematic than it ever has been. U.S. petitioners and their industries bear a greatly increased burden, financial and otherwise, and many are reconsidering their commitment to foreign talent, if not giving up altogether. Foreign nationals grow increasingly concerned and, thus, hesitant about pursuing opportunities in the U.S. market. Attorneys have no choice but to practice their craft meticulously and defensively, knowing that, all too often, no degree of care and effort will avoid an RFE.

We must hope that this, too, shall pass, and that USCIS will regain its equilibrium and a stronger sense of the key role the O and P visa classifications play in enriching the cultural and economic life of this nation.


O AND P NONIMMIGRANTS 187


O NONIMMIGRANTS: Individuals of Extraordinary Ability or Achievement

Introduction

The O classification accommodates a wide range of talented and acclaimed foreign nationals who may not qualify in other work-related nonimmigrant categories, such as H or L, or who wish to avoid them. Especially helpful to those in the arts and athletics, entertainers, chefs, the design professions, and highly accomplished business people lacking professional degrees, O-1 classification is a useful, flexible alternative to the H-1B program because it has no prevailing wage feature and no requirement that the worker must be treated as a salaried employee; thus, it accommodates a diverse array of work arrangements and forms of compensation. The O-1 faces no overall time limit, and no annual numerical cap, a feature that has drastically reduced the utility of H-1B classification, now unavailable to most petitioners for 51 weeks each year. While in theory, O--1 status is unavailable to foreign nationals who might also qualify for H-1B classification, in practice, peti-tioners outside the arts, athletics, and motion picture and television productions may well be able to choose between the H and O categories for the most highly qualified candidates. So long as the candidate meets the ever more challenging standards for “extraordinary ability,” the O-1 is an attractive option for those who lack a degree matching the job, those whose compensation package includes nonsalary remuneration, and those offered work in the private sector who do not wish to consign the fate of their careers to a random selection lottery.1

Statutory Authority and Scope

INA §101(a)(15)(O) defines the O-1, O-2, and O-3 classifications added by section 207 of the Immigration Act of 1990 (IMMACT90)2 as modified by sections 204, 205, and 207 of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA).3 The O-1 category is for individual “aliens of extraordinary ability” in the sciences, arts, education, business, or athletics. The O-2 category is for certain essential “support aliens” accompanying O-1 foreign nationals in the arts or athletics. The O-3 category is for dependent spouses and minor children of foreign nationals in the foregoing categories. Consultation requirements are specifically authorized by INA §214(c)(6), of which subsection (c)(6)(D) offers authority for a mandated government processing time of 14 days—honored primarily in the breach since the advent of premium processing.

Regulatory Authority

The governing USCIS regulations are at 8 CFR §214.2(o), with their DOS counterparts at 22 CFR §41.55 and accompanying notes at 9 Foreign Affairs Manual (FAM) ch. 402-13, formerly 41.55.4 Chapter 33 of the USCIS Adjudicator’s Field Manual (AFM)5 covers the O classification, but will soon be eclipsed by the “Online Policy Manual,” 6 still incomplete as of this writing (April 2017).

1 INA §101(a)(15)(H)(i)(b) describes the services permissible under that subparagraph as “services (other than services described in ... subparagraph (O) or (P) ...).” But see Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 U.S. Dist. Lexis 3331 (E.D. La. Mar. 15, 2000) (legacy Immigration and Naturalization Service (INS) denial of H-1B for musician upheld on evidentiary, not statutory, grounds). Models, on the other hand, may qualify either under the H-1B or O-1 categories. See 8 CFR §214.2(h)(4)(vii). 2 Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978. 3 Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat. 1733. 4 Legacy INS published final regulations governing business persons, scientists, and educators at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing artists, athletes, and entertainers, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these activities at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding non–U.S. petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997). 5 Available at http://1.usa.gov/uscis-afm. 6 Available at www.uscis.gov/policymanual.



The “Extraordinary” Standards for O-1 Foreign Nationals

Some confusion about what constitutes “extraordinary” is understandable, as there are only two regulatory descriptions of O-1 classifications,7 under which beneficiaries in the arts, sciences, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim,” and those in motion picture and television productions must have “a demonstrated record or extraordinary achievement.” 8 However, the regulation then gives three separate definitions of what it means to be extraordinary,9 with two corresponding evidentiary standards—the same evidentiary criteria apply to arts and motion pictures, worded identically,10 but weighed differently. In science, education, business, and athletics, “extraordinary ability” means “one of the small percentage who have arisen to the very top of the field of endeavor. Foreign nationals working in motion pictures and television must show “a degree of skill and recognition significantly above that ordinarily encountered,” a standard that falls somewhere in the middle. The definition at the lowest level says “extraordinary ability in the arts means distinction.” The accomplishments of all types of O-1 beneficiaries must be “recognized in the field through extensive documentation.” 11 8 CFR §§214.2(o)(2)(ii), (iii) set out in some detail the general documentary requirements.

The subjective nature of all three standards renders them vulnerable to vague and ill-considered RFEs, NOIDs and unjustified denials. Insufficient training, varied aptitudes of adjudicators, and the absence of consistent guidance from headquarters and oversight by seasoned supervisors contribute to the problem, which starts with an absence of training on the different O-1 standards.12

Evidentiary Criteria Regarding the Beneficiary

The petitioner must establish the foreign national’s extraordinary ability or achievement, as applicable, by submitting evidence that the beneficiary is coming to the United States to continue work in the area of extraordinary ability or achievement and that he or she meets the evidentiary criteria for the applicable occupational field (summarized below).13

Scientists, Educators, Business Persons, and Athletes Scientists, educators, business persons, and athletes able to document the required level of extraordinary

ability may be admitted in O-1 classification, provided they seek entry to continue work in their area of expertise. “Extraordinary ability” in this subcategory means “a level of expertise indicating that the person is one of the small percentage who have [sic] risen to the very top of the field of endeavor.”14 Under 8 CFR §214.2(o)(3)(iii), the petitioner must prove “extraordinary ability” by providing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize”—while perhaps insufficient on their own, nominations and placements should nonetheless be documented as well—or documentation of at least three of the following:

7 8 CFR §214.2(o)(1)(ii). 8 8 CFR §214.2(o)(1)(ii)(A)(1), (2). 9 8 CFR §214.2(o)(3)(ii). 10 Compare 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6) with 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6). 11 INA §101(a)(15)(O)(i). 12 Aware of this problem, USCIS has tried to impose discipline on adjudicators by adopting “RFE templates,” in hopes of achieving greater uniformity and adherence to the regulations. Thus far, USCIS has published draft templates for O-1B and O-2 petitions for the motion picture and television industry, O-2 accompanying personnel, O-1B petitions in the arts, and O-1A petitions for those in the sciences, education, business, and athletics. See AILA Doc. Nos. 13012252, 13012254, 13012255, and 13012250. 13 8 CFR §214.2(o)(3)(i). 14 8 CFR §214.2(o)(3)(ii).




O NONIMMIGRANTS: Individuals of Extraordinary Ability or Achievement

Introduction

The O classification accommodates a wide range of talented and acclaimed foreign nationals who may not qualify in other work-related nonimmigrant categories, such as H or L, or who wish to avoid them. Especially helpful to those in the arts and athletics, entertainers, chefs, the design professions, and highly accomplished business people lacking professional degrees, O-1 classification is a useful, flexible alternative to the H-1B program because it has no prevailing wage feature and no requirement that the worker must be treated as a salaried employee; thus, it accommodates a diverse array of work arrangements and forms of compensation. The O-1 faces no overall time limit, and no annual numerical cap, a feature that has drastically reduced the utility of H-1B classification, now unavailable to most petitioners for 51 weeks each year. While in theory, O--1 status is unavailable to foreign nationals who might also qualify for H-1B classification, in practice, peti-tioners outside the arts, athletics, and motion picture and television productions may well be able to choose between the H and O categories for the most highly qualified candidates. So long as the candidate meets the ever more challenging standards for “extraordinary ability,” the O-1 is an attractive option for those who lack a degree matching the job, those whose compensation package includes nonsalary remuneration, and those offered work in the private sector who do not wish to consign the fate of their careers to a random selection lottery.1

Statutory Authority and Scope

INA §101(a)(15)(O) defines the O-1, O-2, and O-3 classifications added by section 207 of the Immigration Act of 1990 (IMMACT90)2 as modified by sections 204, 205, and 207 of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA).3 The O-1 category is for individual “aliens of extraordinary ability” in the sciences, arts, education, business, or athletics. The O-2 category is for certain essential “support aliens” accompanying O-1 foreign nationals in the arts or athletics. The O-3 category is for dependent spouses and minor children of foreign nationals in the foregoing categories. Consultation requirements are specifically authorized by INA §214(c)(6), of which subsection (c)(6)(D) offers authority for a mandated government processing time of 14 days—honored primarily in the breach since the advent of premium processing.


The governing USCIS regulations are at 8 CFR §214.2(o), with their DOS counterparts at 22 CFR §41.55 and accompanying notes at 9 Foreign Affairs Manual (FAM) ch. 402-13, formerly 41.55.4 Chapter 33 of the USCIS Adjudicator’s Field Manual (AFM)5 covers the O classification, but will soon be eclipsed by the “Online Policy Manual,” 6 still incomplete as of this writing (April 2017).

1 INA §101(a)(15)(H)(i)(b) describes the services permissible under that subparagraph as “services (other than services described in ... subparagraph (O) or (P) ...).” But see Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 U.S. Dist. Lexis 3331 (E.D. La. Mar. 15, 2000) (legacy Immigration and Naturalization Service (INS) denial of H-1B for musician upheld on evidentiary, not statutory, grounds). Models, on the other hand, may qualify either under the H-1B or O-1 categories. See 8 CFR §214.2(h)(4)(vii). 2 Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978. 3 Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat. 1733. 4 Legacy INS published final regulations governing business persons, scientists, and educators at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing artists, athletes, and entertainers, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these activities at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding non–U.S. petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997). 5 Available at http://1.usa.gov/uscis-afm. 6 Available at www.uscis.gov/policymanual.



The “Extraordinary” Standards for O-1 Foreign Nationals

Some confusion about what constitutes “extraordinary” is understandable, as there are only two regulatory descriptions of O-1 classifications,7 under which beneficiaries in the arts, sciences, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim,” and those in motion picture and television productions must have “a demonstrated record or extraordinary achievement.” 8 However, the regulation then gives three separate definitions of what it means to be extraordinary,9 with two corresponding evidentiary standards—the same evidentiary criteria apply to arts and motion pictures, worded identically,10 but weighed differently. In science, education, business, and athletics, “extraordinary ability” means “one of the small percentage who have arisen to the very top of the field of endeavor. Foreign nationals working in motion pictures and television must show “a degree of skill and recognition significantly above that ordinarily encountered,” a standard that falls somewhere in the middle. The definition at the lowest level says “extraordinary ability in the arts means distinction.” The accomplishments of all types of O-1 beneficiaries must be “recognized in the field through extensive documentation.” 11 8 CFR §§214.2(o)(2)(ii), (iii) set out in some detail the general documentary requirements.

The subjective nature of all three standards renders them vulnerable to vague and ill-considered RFEs, NOIDs and unjustified denials. Insufficient training, varied aptitudes of adjudicators, and the absence of consistent guidance from headquarters and oversight by seasoned supervisors contribute to the problem, which starts with an absence of training on the different O-1 standards.12

Evidentiary Criteria Regarding the Beneficiary

The petitioner must establish the foreign national’s extraordinary ability or achievement, as applicable, by submitting evidence that the beneficiary is coming to the United States to continue work in the area of extraordinary ability or achievement and that he or she meets the evidentiary criteria for the applicable occupational field (summarized below).13

Scientists, Educators, Business Persons, and Athletes Scientists, educators, business persons, and athletes able to document the required level of extraordinary

ability may be admitted in O-1 classification, provided they seek entry to continue work in their area of expertise. “Extraordinary ability” in this subcategory means “a level of expertise indicating that the person is one of the small percentage who have [sic] risen to the very top of the field of endeavor.”14 Under 8 CFR §214.2(o)(3)(iii), the petitioner must prove “extraordinary ability” by providing evidence either of the beneficiary’s receipt of a “major, internationally recognized award, such as the Nobel Prize”—while perhaps insufficient on their own, nominations and placements should nonetheless be documented as well—or documentation of at least three of the following:

7 8 CFR §214.2(o)(1)(ii). 8 8 CFR §214.2(o)(1)(ii)(A)(1), (2). 9 8 CFR §214.2(o)(3)(ii). 10 Compare 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6) with 8 CFR §214.2(o)(3)(iv)(B)(1)–(B)(6). 11 INA §101(a)(15)(O)(i). 12 Aware of this problem, USCIS has tried to impose discipline on adjudicators by adopting “RFE templates,” in hopes of achieving greater uniformity and adherence to the regulations. Thus far, USCIS has published draft templates for O-1B and O-2 petitions for the motion picture and television industry, O-2 accompanying personnel, O-1B petitions in the arts, and O-1A petitions for those in the sciences, education, business, and athletics. See AILA Doc. Nos. 13012252, 13012254, 13012255, and 13012250. 13 8 CFR §214.2(o)(3)(i). 14 8 CFR §214.2(o)(3)(ii).




Receipt of nationally or internationally recognized prizes/awards for excellence in the field; Membership in associations in the field that require outstanding achievement of their members, as

judged by recognized national or international experts; Published material in professional or major trade publications or major media about the foreign nation-

al; Participation on a panel or as a judge of the work of others in the same or an allied field of specializa-

tion; Original scientific, scholarly, or business-related contributions of major significance; Authorship of scholarly articles in professional journals or other major media; Current or previous employment in a critical or essential capacity for organizations and establishments

that have a distinguished reputation; or Past or proffered high salary or other remuneration for services, evidenced by contracts or other relia-

ble evidence.15 These standards are virtually identical to those under 8 CFR §204.5(h)(3) applicable to employment-based

first-preference immigrant petitions for foreign nationals of “extraordinary ability” and quite similar to those under Schedule A, Group II for pre-certification for foreign nationals of “exceptional ability.” 16

To provide flexibility, the regulations also state that, if the foregoing standards do not “readily apply,” the petitioner can submit “comparable evidence” of eligibility. In practice, comparable evidence often means written testimony from experts in the same or a closely allied field. The testimony should include documentation of the author’s expertise, such as a résumé or curriculum vitae, an explanation of how the author knows the foreign national or knows of his or her work, and the author’s opinion, and any specific facts in support of that opinion.

A dilemma often arises whether to use an expert closely associated with the beneficiary, such as a fellow employee, project collaborator, co-author, etc., because while the unique knowledge gained by that association may be specific, detailed, and probative, its weight may be offset in the view of USCIS by the author’s presumed bias in favor of the foreign national. This presumption of bias is sometimes misplaced, so practitioners are advised to explain how the expert knows the beneficiary since the acquaintance may itself stem from the beneficiary’s renown or acclaim for work in the field. In music, the sciences, and much of academia, it is common for a professional collaboration to begin when someone else in the same field reaches out to the beneficiary based on his or her renown for a piece of already published or recorded work reviewed favorably by others, which may lead to new work.

Practitioners seeking to rely on comparable evidence are well-advised to explain why the specified criteria do not apply to the activities in question.17 However, USCIS recently sought to relax the limited utility of this alternative criterion, under both the O-1A and O-1B arts standards, by means of a draft policy memorandum,18 clarifying that a more flexible interpretation is consistent with regulatory intent, and USCIS

15 8 CFR §214.2(o)(3)(iii). 16 See 20 CFR §656.15. For a discussion of the relationship between the O-1 extraordinary ability standards, the Schedule A, Group II standards, and their permanent residence counterparts, see USCIS, Adjudicator’s Field Manual (AFM) ch 22. See also K. Koenig, A. Chehrazi, and N.E. Masliah, “Superstars of the Temporary and Permanent Variety: Nuances in the O-1 and EB-1 Categories,” Immigration & Nationality Law Handbook 87 (AILA 2007–08 Ed.) and B. Wolfsdorf and C. Rosenthal, “Schedule A, Group II – An Update,” Immigration Options for Artists & Entertainers 65 (AILA 2d Ed.). 17 While AFM ch. 22(i) by its terms applies to employment-based permanent residence petitions, its discussion of the use of “comparable evidence” (at ch. 22(i)(1)(A)) is both instructive and alarming, as it suggests that such evidence is somehow less probative and ought not to be used without an explanation why all other forms of evidence are unavailable. 18 USCIS Draft Policy Memorandum, “Comparable Evidence Provision for O Nonimmigrant visa Classifications,, PM-602-0123” AILA Doc. No. 16012132. *Comment period ended Feb. 22, 2016, and no final policy memorandum was released by USCIS, but adjudicators are clearly following the guidance in the draft memo even though it says the policy is not in effect.



will consider “comparable evidence” “whenever one or more than one criterion does not readily apply to the beneficiary’s occupation. USCIS will not disregard such evidence simply because some, but not all, of the criteria apply.… The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered. The number of criteria that do not apply is irrelevant to this analysis.” 19 However, the memo cautions that petitioners must explain why a particular criterion does not readily apply to the beneficiary’s occupation, and why the submitted evidence is “comparable” to that criterion.

As with the employment-based first-preference “extraordinary ability” category, one key to success in obtaining an O-1 is in defining the “field of endeavor” in which the individual has risen to the top. It is easier to prove that someone has reached the pinnacle of a narrowly defined field with a select membership than a general one (e.g., “professor of stochastic analysis” vs. “mathematics professor”), or “atomic physicist” versus “physicist.” However, USCIS examiners may deny a petition if the field is defined too narrowly. Petitioners should provide background on characteristics that define the beneficiary’s field of endeavor.

Scientists, educators, and business leaders may not have much difficulty identifying the appropriate types of O documentation, but those lacking three or more obvious types of documentation may find the O-1 standard daunting indeed. Applied scientists in private industry, for instance, often cannot publish or speak at conferences due to confidentiality or nondisclosure agreements, and employers’ reluctance to disclose competitive information through the patent process; thus, they face greater challenges in showing they meet the applicable O-1 standard. So too, business people associated with small enterprises or in sectors where discretion and confidentiality are industry norms, may not be able to meet the stringent documentary criteria set forth above, even when relying on “comparable evidence,” especially if they are sought not for technical expertise but primarily for their leadership skills because the O-1A evidentiary criteria are so focused on types of documentation showing renown evidenced by sources from outside the employer. Thus, an entire stratum of management expertise may be unavailable to U.S. businesses,20 at least through the O-1 category.

When facing the stringent O-1A evidentiary standard applicable to scientists, educators, business persons, and athletes, practitioners should first determine whether the activity is one that fits within the H-1B category (assuming either a cap-exempt employer or that H-1B numbers are available), then weigh the relative ease of filing an H-1B petition against the difficulty of preparing an O-1 petition, despite the greater flexibility that O-1 classification affords in other respects. The ultimate advantage is that qualifying for O-1A classification based on the highest standard means the foreign national may qualify on the same basis for lawful permanent residence in the employment-based first preference category. However, there is a “glass wall” between the nonimmigrant O-1A and the EB-1(A) immigrant extraordinary ability standards, such that qualifying for the former is only a harbinger, not a promise, of possible long-term benefits to come.

Apart from showing that beneficiaries meet the evidentiary criteria to qualify as “aliens of extraordinary ability,” O-1A petitioners may also face challenges to the nature of the offered employment, even in the most straightforward employment scenarios. Although there is no requirement for a written employment contract and regulations explicitly recognize as acceptable an unsigned contract or summary of terms of an oral agreement, ever since USCIS promulgated the agent-as-petitioner memorandum in the fall of 2009,21 adjudicators have often lost sight of the fact direct employers are not agents, and the “event” may be the agreement for temporary employment (discussed further, infra). Before 2010, adjudicators rarely sought a separate written summary of the employment agreement, where a petition was for full-time direct employment and terms were clearly detailed on I-129 forms and in the petitioner’s letter, as those items alone provided a sufficient summary of the terms agreed upon. Now, adjudicators routinely request separate written confirmation of the employment agreement, often demanding signatures on a summary of the terms of an oral

19 Id., at p. 3 20 See 56 Fed. Reg. 31553, 31554 (July 11, 1991). 21 USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classi-fications,” AILA Doc. No. 09113064.




Receipt of nationally or internationally recognized prizes/awards for excellence in the field; Membership in associations in the field that require outstanding achievement of their members, as

judged by recognized national or international experts; Published material in professional or major trade publications or major media about the foreign nation-

al; Participation on a panel or as a judge of the work of others in the same or an allied field of specializa-

tion; Original scientific, scholarly, or business-related contributions of major significance; Authorship of scholarly articles in professional journals or other major media; Current or previous employment in a critical or essential capacity for organizations and establishments

that have a distinguished reputation; or Past or proffered high salary or other remuneration for services, evidenced by contracts or other relia-

ble evidence.15 These standards are virtually identical to those under 8 CFR §204.5(h)(3) applicable to employment-based

first-preference immigrant petitions for foreign nationals of “extraordinary ability” and quite similar to those under Schedule A, Group II for pre-certification for foreign nationals of “exceptional ability.” 16

To provide flexibility, the regulations also state that, if the foregoing standards do not “readily apply,” the petitioner can submit “comparable evidence” of eligibility. In practice, comparable evidence often means written testimony from experts in the same or a closely allied field. The testimony should include documentation of the author’s expertise, such as a résumé or curriculum vitae, an explanation of how the author knows the foreign national or knows of his or her work, and the author’s opinion, and any specific facts in support of that opinion.

A dilemma often arises whether to use an expert closely associated with the beneficiary, such as a fellow employee, project collaborator, co-author, etc., because while the unique knowledge gained by that association may be specific, detailed, and probative, its weight may be offset in the view of USCIS by the author’s presumed bias in favor of the foreign national. This presumption of bias is sometimes misplaced, so practitioners are advised to explain how the expert knows the beneficiary since the acquaintance may itself stem from the beneficiary’s renown or acclaim for work in the field. In music, the sciences, and much of academia, it is common for a professional collaboration to begin when someone else in the same field reaches out to the beneficiary based on his or her renown for a piece of already published or recorded work reviewed favorably by others, which may lead to new work.

Practitioners seeking to rely on comparable evidence are well-advised to explain why the specified criteria do not apply to the activities in question.17 However, USCIS recently sought to relax the limited utility of this alternative criterion, under both the O-1A and O-1B arts standards, by means of a draft policy memorandum,18 clarifying that a more flexible interpretation is consistent with regulatory intent, and USCIS

15 8 CFR §214.2(o)(3)(iii). 16 See 20 CFR §656.15. For a discussion of the relationship between the O-1 extraordinary ability standards, the Schedule A, Group II standards, and their permanent residence counterparts, see USCIS, Adjudicator’s Field Manual (AFM) ch 22. See also K. Koenig, A. Chehrazi, and N.E. Masliah, “Superstars of the Temporary and Permanent Variety: Nuances in the O-1 and EB-1 Categories,” Immigration & Nationality Law Handbook 87 (AILA 2007–08 Ed.) and B. Wolfsdorf and C. Rosenthal, “Schedule A, Group II – An Update,” Immigration Options for Artists & Entertainers 65 (AILA 2d Ed.). 17 While AFM ch. 22(i) by its terms applies to employment-based permanent residence petitions, its discussion of the use of “comparable evidence” (at ch. 22(i)(1)(A)) is both instructive and alarming, as it suggests that such evidence is somehow less probative and ought not to be used without an explanation why all other forms of evidence are unavailable. 18 USCIS Draft Policy Memorandum, “Comparable Evidence Provision for O Nonimmigrant visa Classifications,, PM-602-0123” AILA Doc. No. 16012132. *Comment period ended Feb. 22, 2016, and no final policy memorandum was released by USCIS, but adjudicators are clearly following the guidance in the draft memo even though it says the policy is not in effect.



will consider “comparable evidence” “whenever one or more than one criterion does not readily apply to the beneficiary’s occupation. USCIS will not disregard such evidence simply because some, but not all, of the criteria apply.… The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered. The number of criteria that do not apply is irrelevant to this analysis.” 19 However, the memo cautions that petitioners must explain why a particular criterion does not readily apply to the beneficiary’s occupation, and why the submitted evidence is “comparable” to that criterion.

As with the employment-based first-preference “extraordinary ability” category, one key to success in obtaining an O-1 is in defining the “field of endeavor” in which the individual has risen to the top. It is easier to prove that someone has reached the pinnacle of a narrowly defined field with a select membership than a general one (e.g., “professor of stochastic analysis” vs. “mathematics professor”), or “atomic physicist” versus “physicist.” However, USCIS examiners may deny a petition if the field is defined too narrowly. Petitioners should provide background on characteristics that define the beneficiary’s field of endeavor.

Scientists, educators, and business leaders may not have much difficulty identifying the appropriate types of O documentation, but those lacking three or more obvious types of documentation may find the O-1 standard daunting indeed. Applied scientists in private industry, for instance, often cannot publish or speak at conferences due to confidentiality or nondisclosure agreements, and employers’ reluctance to disclose competitive information through the patent process; thus, they face greater challenges in showing they meet the applicable O-1 standard. So too, business people associated with small enterprises or in sectors where discretion and confidentiality are industry norms, may not be able to meet the stringent documentary criteria set forth above, even when relying on “comparable evidence,” especially if they are sought not for technical expertise but primarily for their leadership skills because the O-1A evidentiary criteria are so focused on types of documentation showing renown evidenced by sources from outside the employer. Thus, an entire stratum of management expertise may be unavailable to U.S. businesses,20 at least through the O-1 category.

When facing the stringent O-1A evidentiary standard applicable to scientists, educators, business persons, and athletes, practitioners should first determine whether the activity is one that fits within the H-1B category (assuming either a cap-exempt employer or that H-1B numbers are available), then weigh the relative ease of filing an H-1B petition against the difficulty of preparing an O-1 petition, despite the greater flexibility that O-1 classification affords in other respects. The ultimate advantage is that qualifying for O-1A classification based on the highest standard means the foreign national may qualify on the same basis for lawful permanent residence in the employment-based first preference category. However, there is a “glass wall” between the nonimmigrant O-1A and the EB-1(A) immigrant extraordinary ability standards, such that qualifying for the former is only a harbinger, not a promise, of possible long-term benefits to come.

Apart from showing that beneficiaries meet the evidentiary criteria to qualify as “aliens of extraordinary ability,” O-1A petitioners may also face challenges to the nature of the offered employment, even in the most straightforward employment scenarios. Although there is no requirement for a written employment contract and regulations explicitly recognize as acceptable an unsigned contract or summary of terms of an oral agreement, ever since USCIS promulgated the agent-as-petitioner memorandum in the fall of 2009,21 adjudicators have often lost sight of the fact direct employers are not agents, and the “event” may be the agreement for temporary employment (discussed further, infra). Before 2010, adjudicators rarely sought a separate written summary of the employment agreement, where a petition was for full-time direct employment and terms were clearly detailed on I-129 forms and in the petitioner’s letter, as those items alone provided a sufficient summary of the terms agreed upon. Now, adjudicators routinely request separate written confirmation of the employment agreement, often demanding signatures on a summary of the terms of an oral

19 Id., at p. 3 20 See 56 Fed. Reg. 31553, 31554 (July 11, 1991). 21 USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classi-fications,” AILA Doc. No. 09113064.




agreement, thus violating the regulatory allowance for unsigned agreements. RFEs often fail to distinguish between a petition filed by a direct employer for a full-time, onsite engagement, where there is no agency relationship at all, and one filed by an “Agent performing the function of an employer,” which is really a misnomer, as the agency scenario is more often one employer out of several, performing the function of an agent on behalf of the other employers. RFEs requesting an itinerary remain prevalent, even in scenarios where the petitioner states clearly that it is a direct employer and requests a three-year term of full-time employment onsite at its business premises.

With individual athletes, the choice practitioners face is whether to attempt to qualify the foreign national for O-1 classification as an individual of extraordinary ability, or whether instead to seek P-1 classification as an athlete who has been internationally recognized for performance in the sport, discussed below. Note that the regulations refer to “athletics,” not “athletes,” 22 so there is no reason why coaches, trainers, and certain other personnel (e.g., sail designers or automobile race mechanics) cannot qualify independently for O-1 status, if they can produce evidence of acclaim for achievements in those occupations.23 While it is common practice for competitive athletes to switch occupations within an athletic field of endeavor, practitioners framing O-1 petitions for those offered work as a coach, instructor, or broadcaster must keep in mind that evidence of success as a competitive athlete will not count as evidence of acclaim for coaching others.24 Note that petitioners may now favor the O-1A due to USCIS’s newfound enthusiasm for enforcing the regulation25 requiring sponsors of P-1 athletes to show that a sports league requires all participating athletes to be “internationally recognized,” discussed further below.

Other challenges to the nature of the offered employment may arise in either the O-1A or O-1B context, and result from poor wording of the regulation authorizing agents as petitioners, which begins, “A U.S. Agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.” 26 USCIS has not provided adjudicators with any guidance reminding them that “may” does not mean “shall,” yet RFEs claiming these three scenarios are the only permissible options are commonplace.

Artists and Entertainers (Except Those Affiliated with Motion Picture or Television Productions) Foreign nationals of extraordinary ability in this subcategory may be admitted in O-1 status to continue

work in their area of ability. Under INA §101(a)(46), for purposes of the arts, “extraordinary ability” means “distinction.” “Distinction,” in turn, means

a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.27

The term “arts” is defined as including “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.” 28 The legislative history makes clear that the term is to be defined expansively, by providing a lengthy list of examples of O-1 occupations demonstrating that O-1 status in the arts is available not only to performers but to other essential technical or creative personnel,

22 8 CFR §214.2(o)(1)(i), (3)(ii). 23 Practitioners seeking to file petitions relating to the equestrian industry should beware. There may be unpublished policy guidance on point, but it has become virtually impossible to obtain agency approval for trainers and riders in events other than thoroughbred flat racing. 24 Lee v. Ziglar, 237 F.Supp. 2d 914 (N.D. Ill. 2002). 25 8 CFR §214.2(p)(4)(ii)(B). 26 8 CFR §214.2(o)(2)(iv)(E). 27 8 CFR §214.2(o)(3)(ii). 28 Id.



such as set designers, choreographers, music coaches, and even animal trainers.29 The regulatory definition of “arts” incorporates the entire list.30

Petitioners must show that the O-1 beneficiary meets the standard of distinction, i.e., is recognized as being prominent in his or her field, either by showing that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award, an Emmy, a Grammy, or a Director’s Guild Award” (despite their inapplicability to the performing arts!), or with evidence that the beneficiary meets at least three of the following: Has performed/will perform services as a lead/starring participant in productions/events with distin-

guished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or en-dorsements

National/international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.

Has performed in a lead, starring, or critical role for organizations and establishments that have a dis-tinguished reputation evidenced by media articles, testimonials, etc.

Has a record of major commercial or critically acclaimed success Has achieved significant recognition from organizations, critics, government agencies, recognized ex-

perts Has commanded or will command a high salary/other remuneration in relation to others in the field31 Again, USCIS permits “comparable evidence” to be submitted.32 However, even when dealing with the

lowest standard of extraordinary ability, petitioners are advised to explain why they seek to rely on comparable evidence in lieu of another type of evidence that meets one of the other criteria specified. These days, when most adjudicators are wont to issue an RFE asking the petitioner to label which evidence falls within which criterion, one must take the time to explain why a stage director, for example, has achieved distinction even if there are no applicable critical reviews or publications, no media articles, no significant recognition from critics and (predictably) the salary is too low. The great challenge when dealing with the specified criteria in any of the O-1 categories is that USCIS refuses to apply them flexibly, despite the fact that, by design, a very few criteria apply to the entirety of human endeavor.

Artists and Entertainers Entering in Connection with Motion Picture or Television Productions Artists and entertainers, as well as directors, cinematographers and other essential technical and creative

personnel, seeking entry in conjunction with motion picture or television productions are subject to yet another standard, of “extraordinary achievement,” meaning:

as commonly defined in the industry ... a very high level of accomplishment in the motion pic-ture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.33

Despite the different terminology for motion picture and television artists, the same evidentiary criteria re-quired to establish “distinction” associated with non–film artists and entertainers apply, though the regula-tions do not expressly permit use of “comparable evidence” in lieu of the specified criteria. However, the leg-acy Immigration and Naturalization Service (legacy INS) stated that it would distinguish between these two subcategories of the arts by weighing the evidence differently and applying a higher standard to artists in the

29 137 Cong. Rec. Part II, S. 18247 (daily ed. Nov. 26, 1991). 30 8 CFR §214.2(o)(3)(ii). 31 8 CFR §214.2(o)(3)(iv). 32 8 CFR §214.2(o)(3)(iv)(C). 33 8 CFR §214.2(o)(3)(ii) (emphasis added).




agreement, thus violating the regulatory allowance for unsigned agreements. RFEs often fail to distinguish between a petition filed by a direct employer for a full-time, onsite engagement, where there is no agency relationship at all, and one filed by an “Agent performing the function of an employer,” which is really a misnomer, as the agency scenario is more often one employer out of several, performing the function of an agent on behalf of the other employers. RFEs requesting an itinerary remain prevalent, even in scenarios where the petitioner states clearly that it is a direct employer and requests a three-year term of full-time employment onsite at its business premises.

With individual athletes, the choice practitioners face is whether to attempt to qualify the foreign national for O-1 classification as an individual of extraordinary ability, or whether instead to seek P-1 classification as an athlete who has been internationally recognized for performance in the sport, discussed below. Note that the regulations refer to “athletics,” not “athletes,” 22 so there is no reason why coaches, trainers, and certain other personnel (e.g., sail designers or automobile race mechanics) cannot qualify independently for O-1 status, if they can produce evidence of acclaim for achievements in those occupations.23 While it is common practice for competitive athletes to switch occupations within an athletic field of endeavor, practitioners framing O-1 petitions for those offered work as a coach, instructor, or broadcaster must keep in mind that evidence of success as a competitive athlete will not count as evidence of acclaim for coaching others.24 Note that petitioners may now favor the O-1A due to USCIS’s newfound enthusiasm for enforcing the regulation25 requiring sponsors of P-1 athletes to show that a sports league requires all participating athletes to be “internationally recognized,” discussed further below.

Other challenges to the nature of the offered employment may arise in either the O-1A or O-1B context, and result from poor wording of the regulation authorizing agents as petitioners, which begins, “A U.S. Agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent.” 26 USCIS has not provided adjudicators with any guidance reminding them that “may” does not mean “shall,” yet RFEs claiming these three scenarios are the only permissible options are commonplace.

Artists and Entertainers (Except Those Affiliated with Motion Picture or Television Productions) Foreign nationals of extraordinary ability in this subcategory may be admitted in O-1 status to continue

work in their area of ability. Under INA §101(a)(46), for purposes of the arts, “extraordinary ability” means “distinction.” “Distinction,” in turn, means

a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.27

The term “arts” is defined as including “any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.” 28 The legislative history makes clear that the term is to be defined expansively, by providing a lengthy list of examples of O-1 occupations demonstrating that O-1 status in the arts is available not only to performers but to other essential technical or creative personnel,

22 8 CFR §214.2(o)(1)(i), (3)(ii). 23 Practitioners seeking to file petitions relating to the equestrian industry should beware. There may be unpublished policy guidance on point, but it has become virtually impossible to obtain agency approval for trainers and riders in events other than thoroughbred flat racing. 24 Lee v. Ziglar, 237 F.Supp. 2d 914 (N.D. Ill. 2002). 25 8 CFR §214.2(p)(4)(ii)(B). 26 8 CFR §214.2(o)(2)(iv)(E). 27 8 CFR §214.2(o)(3)(ii). 28 Id.



such as set designers, choreographers, music coaches, and even animal trainers.29 The regulatory definition of “arts” incorporates the entire list.30

Petitioners must show that the O-1 beneficiary meets the standard of distinction, i.e., is recognized as being prominent in his or her field, either by showing that the beneficiary has been nominated for or has received a significant national or international award or prize, such as an “Academy Award, an Emmy, a Grammy, or a Director’s Guild Award” (despite their inapplicability to the performing arts!), or with evidence that the beneficiary meets at least three of the following: Has performed/will perform services as a lead/starring participant in productions/events with distin-

guished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or en-dorsements

National/international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.

Has performed in a lead, starring, or critical role for organizations and establishments that have a dis-tinguished reputation evidenced by media articles, testimonials, etc.

Has a record of major commercial or critically acclaimed success Has achieved significant recognition from organizations, critics, government agencies, recognized ex-

perts Has commanded or will command a high salary/other remuneration in relation to others in the field31 Again, USCIS permits “comparable evidence” to be submitted.32 However, even when dealing with the

lowest standard of extraordinary ability, petitioners are advised to explain why they seek to rely on comparable evidence in lieu of another type of evidence that meets one of the other criteria specified. These days, when most adjudicators are wont to issue an RFE asking the petitioner to label which evidence falls within which criterion, one must take the time to explain why a stage director, for example, has achieved distinction even if there are no applicable critical reviews or publications, no media articles, no significant recognition from critics and (predictably) the salary is too low. The great challenge when dealing with the specified criteria in any of the O-1 categories is that USCIS refuses to apply them flexibly, despite the fact that, by design, a very few criteria apply to the entirety of human endeavor.

Artists and Entertainers Entering in Connection with Motion Picture or Television Productions Artists and entertainers, as well as directors, cinematographers and other essential technical and creative

personnel, seeking entry in conjunction with motion picture or television productions are subject to yet another standard, of “extraordinary achievement,” meaning:

as commonly defined in the industry ... a very high level of accomplishment in the motion pic-ture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.33

Despite the different terminology for motion picture and television artists, the same evidentiary criteria re-quired to establish “distinction” associated with non–film artists and entertainers apply, though the regula-tions do not expressly permit use of “comparable evidence” in lieu of the specified criteria. However, the leg-acy Immigration and Naturalization Service (legacy INS) stated that it would distinguish between these two subcategories of the arts by weighing the evidence differently and applying a higher standard to artists in the

29 137 Cong. Rec. Part II, S. 18247 (daily ed. Nov. 26, 1991). 30 8 CFR §214.2(o)(3)(ii). 31 8 CFR §214.2(o)(3)(iv). 32 8 CFR §214.2(o)(3)(iv)(C). 33 8 CFR §214.2(o)(3)(ii) (emphasis added).




motion picture and television industry.34 With the advent of online streaming media, YouTube channels, and original programming by Netflix, practitioners should take note that actors, directors, and other artists associ-ated with online motion-picture programming will be reviewed under the intermediate standard for motion picture and television productions. This trend is in keeping with the evolution of how filmed content is dis-tributed and viewed by the industry; even the Television Academy has evolved to award Emmys for some broadband programming. The omission of a “comparable evidence” provision seems inconsistent with a statutory scheme that requires all O-1 foreign nationals to meet the respective standard—“sustained national and international acclaim” or a “demonstrated record of extraordinary achievement”—by showing their “achievements have been recognized in the field through extensive documentation.” 35 As a practical matter, use comparable evidence if need be, but exercise caution.36

O-1 Category Practice Tips

Under former director Alejandro Mayorkas, immigration services officers’ performance review was re-structured so that 50 percent of adjudications officers’ overall performance rating was based on identifying fraud, supposedly removing the focus on quantity of production altogether and replacing it with a focus on quality of adjudications. Concerns arose that the new performance measures were not adequately explained and produced inappropriate pressures on the adjudications process.37

A foreseeable by-product of creating a formal incentive to find fraud is that USCIS officers may errone-ously conclude that a petitioner’s or whole industry’s standard, legitimate way of doing business is fraudu-lent, based on their failure to understand how that industry works. In December 2015, major modeling agen-cies were hit with dozens of NOIDs, all claiming the proposed itineraries for O-1 petitions on behalf of fash-ion models were fraudulent, because they were based on projections from past work engagements with the petitioners’ major clients—a standard practice, as end-client specific bookings for individual models normally arise with only a few days advance notice, and control over what jobs a model is assigned and what rate a model gets paid resides with the modeling agency, not with end-clients. This incident nearly brought New York Fashion Week to a halt.

Practitioners responded by referring to a nonprecedent Administrative Appeals Office (AAO) decision from 2011,38 which describes a scenario identical to the work arrangements in nearly all modeling cases. The AAO noted that when the petitioner is an agent performing the function of an employer via a management agreement that offers the beneficiary’s professional modeling services to its clients, and exercises control over the beneficiary’s terms of employment, “the regulation at 8 CFR 214.2(o)(2)(iv)(E)(2) does not obligate the petitioner to provide a complete itinerary of events with the dates of each service or engagement, and the names and addresses of the actual employers, and the names and addresses of the establishments, venues or locations where the services will be performed.” While the regulations typically require such specificity in petitions by agents where a beneficiary will work in more than one location, the AAO reasoned that a fashion model’s job is inherently peripatetic or itinerant, and because the end-clients do not exercise control, “the AAO does not consider the location of the fashion model’s bookings to be her ‘worksite’ and the petition does not require her to work in multiple locations.” In finding that 8 CFR §214.2(o)(2)(ii)(C) was satisfied in this situation, the AAO reasoned: “While all petitioners are expected to explain the nature of the event and provide specific dates for the beneficiary’s activities, the use of the non-mandatory word ‘any’ recognizes that an itinerary may not be required in all circumstances.” The AAO therefore concluded that in the fashion in-dustry, where assignments are short-term and often last-minute, it is sufficient for the petitioner to provide a

34 59 Fed. Reg. 41818, 41821 (Aug. 15, 1994). 35 INA §101(a)(15)(O)(i). 36 A comprehensive source of television and film documentation is www.imdb.com. 37 DHS Office of the Inspector General, “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Service Officers,” at pp.11–12, AILA Doc. No.12010960. 38 Matter of [name not provided], Vermont Service Center (May 18, 2011).



representative sample of bookings with clients with whom the model beneficiary may work during the three-year contract, in lieu of a fixed itinerary.

In generating that wave of NOIDs, USCIS failed to consider industry standards as well as grasp the basic principle that a projected itinerary, reasonably based on extrapolation from an extensive, well-documented history of the petitioner’s past engagements with reputable clients, is not a fraudulent itinerary. This is part of a larger pattern, whereby officers presume fraud from normal business practices, and improperly reach out to beneficiaries directly, rather than to petitioners or counsel. Certain USCIS officers have been known to call beneficiaries and end-clients directly, challenging or requesting copies of work agreements. Across all O-1 petition types, officers have been known to call project employers or experts who have provided letters in support of O-1 petitions, asking them to confirm the contents of such letters.

Part of the problem contributing to high levels of skepticism on the part of USCIS is a growing trend among certain practitioners to encourage the notion that the O-1B allows true freelancing and self-employment, when it really does not, a trend exacerbated by some attorneys doing double-duty as both attor-ney of record and petitioning agent. Such an arrangement poses significant ethical problems, as the attorney is then a party to the benefit request. To avoid overt conflicts of interest, best practice for attorneys is to choose one role and stick to it.

In this brave new world, practitioners must be aware that USCIS has an insatiable appetite for secondary evidence, such as proof of the standards, scope, and significance of any professional awards, proof of the cir-culation or distribution figures and readership demographics of each periodical in which published articles about the beneficiary appear, and so forth. A prudent attorney will research such evidence as a part of prepar-ing an O-1 petition. For background on any type of evidence, note that Wikipedia entries will not be given much weight on their own, but can function in the same way as a résumé or bibliography, i.e., as an index of facts supported by independent evidence from other sources.

For professional awards and prizes, whether they are major, international awards or lesser national ones, first look to the published entry or nomination requirements, standards, and judging criteria of the awarding entity itself, and then to external sources, such as the Gale Group’s Awards, Honors & Prizes, an international directory of awards and their donors, criteria, and significance.39

For all publications by or about the beneficiary, or about his or her work in the field of endeavor, provide copies of each article that clearly display the name of the periodical, the date of publication, and the author’s byline, if any; then, the circulation or distribution figures (distinguish between print and online editions). For peer-refereed journal articles, or editorials about the beneficiary’s work, provide the journal’s own standards of publication and its impact factor. If the beneficiary is a scientist or academic, provide the “ISI/Web of Sci-ence” or “Google Scholar” current list of citations to his or her articles, and a list of the citing articles. For hard copy trade magazines, newspapers, and general print media, circulation and readership data can be ob-tained from the periodical itself, and from the Alliance for Audited Media (formerly the Audit Bureau of Cir-culation), as well as NewBase (formerly Publicitas), helpful for establishing the size, distribution, and audi-ence demographic of foreign newspapers and magazines. For online editions of print publications and online-only magazines and blogs, figures for circulation and readership demographics often can be found in the pub-lication’s own “media kit,” which may not be up-to-date, and then by searching web traffic analytics provid-ers such as Comscore, Quantcast, Compete, and others.

With testimonial letters, whether submitted as proof of a leading role for distinguished events or organiza-tions, as proof of original contributions of major significance in the field of endeavor, or as proof of “compa-rable evidence,” it is crucial to attach the writer’s résumé, curriculum vitae, or biographic profile. It is equally critical to establish the basis for the writer’s expertise in the field of endeavor, and to explain how he or she came to know of the beneficiary’s work, and why that work is significant. AAO precedent prohibits USCIS from discarding testimony that is specific, reliable, relevant, probative, and not contradicted by other evidence in the record. USCIS may only reject or give less weight to an expert opinion letter if it conflicts with other 39 Available in a print edition, and online at http://find.galegroup.com/gdl/help/GDLeDirAHPHelp.html.




motion picture and television industry.34 With the advent of online streaming media, YouTube channels, and original programming by Netflix, practitioners should take note that actors, directors, and other artists associ-ated with online motion-picture programming will be reviewed under the intermediate standard for motion picture and television productions. This trend is in keeping with the evolution of how filmed content is dis-tributed and viewed by the industry; even the Television Academy has evolved to award Emmys for some broadband programming. The omission of a “comparable evidence” provision seems inconsistent with a statutory scheme that requires all O-1 foreign nationals to meet the respective standard—“sustained national and international acclaim” or a “demonstrated record of extraordinary achievement”—by showing their “achievements have been recognized in the field through extensive documentation.” 35 As a practical matter, use comparable evidence if need be, but exercise caution.36

O-1 Category Practice Tips

Under former director Alejandro Mayorkas, immigration services officers’ performance review was re-structured so that 50 percent of adjudications officers’ overall performance rating was based on identifying fraud, supposedly removing the focus on quantity of production altogether and replacing it with a focus on quality of adjudications. Concerns arose that the new performance measures were not adequately explained and produced inappropriate pressures on the adjudications process.37

A foreseeable by-product of creating a formal incentive to find fraud is that USCIS officers may errone-ously conclude that a petitioner’s or whole industry’s standard, legitimate way of doing business is fraudu-lent, based on their failure to understand how that industry works. In December 2015, major modeling agen-cies were hit with dozens of NOIDs, all claiming the proposed itineraries for O-1 petitions on behalf of fash-ion models were fraudulent, because they were based on projections from past work engagements with the petitioners’ major clients—a standard practice, as end-client specific bookings for individual models normally arise with only a few days advance notice, and control over what jobs a model is assigned and what rate a model gets paid resides with the modeling agency, not with end-clients. This incident nearly brought New York Fashion Week to a halt.

Practitioners responded by referring to a nonprecedent Administrative Appeals Office (AAO) decision from 2011,38 which describes a scenario identical to the work arrangements in nearly all modeling cases. The AAO noted that when the petitioner is an agent performing the function of an employer via a management agreement that offers the beneficiary’s professional modeling services to its clients, and exercises control over the beneficiary’s terms of employment, “the regulation at 8 CFR 214.2(o)(2)(iv)(E)(2) does not obligate the petitioner to provide a complete itinerary of events with the dates of each service or engagement, and the names and addresses of the actual employers, and the names and addresses of the establishments, venues or locations where the services will be performed.” While the regulations typically require such specificity in petitions by agents where a beneficiary will work in more than one location, the AAO reasoned that a fashion model’s job is inherently peripatetic or itinerant, and because the end-clients do not exercise control, “the AAO does not consider the location of the fashion model’s bookings to be her ‘worksite’ and the petition does not require her to work in multiple locations.” In finding that 8 CFR §214.2(o)(2)(ii)(C) was satisfied in this situation, the AAO reasoned: “While all petitioners are expected to explain the nature of the event and provide specific dates for the beneficiary’s activities, the use of the non-mandatory word ‘any’ recognizes that an itinerary may not be required in all circumstances.” The AAO therefore concluded that in the fashion in-dustry, where assignments are short-term and often last-minute, it is sufficient for the petitioner to provide a

34 59 Fed. Reg. 41818, 41821 (Aug. 15, 1994). 35 INA §101(a)(15)(O)(i). 36 A comprehensive source of television and film documentation is www.imdb.com. 37 DHS Office of the Inspector General, “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Service Officers,” at pp.11–12, AILA Doc. No.12010960. 38 Matter of [name not provided], Vermont Service Center (May 18, 2011).



representative sample of bookings with clients with whom the model beneficiary may work during the three-year contract, in lieu of a fixed itinerary.

In generating that wave of NOIDs, USCIS failed to consider industry standards as well as grasp the basic principle that a projected itinerary, reasonably based on extrapolation from an extensive, well-documented history of the petitioner’s past engagements with reputable clients, is not a fraudulent itinerary. This is part of a larger pattern, whereby officers presume fraud from normal business practices, and improperly reach out to beneficiaries directly, rather than to petitioners or counsel. Certain USCIS officers have been known to call beneficiaries and end-clients directly, challenging or requesting copies of work agreements. Across all O-1 petition types, officers have been known to call project employers or experts who have provided letters in support of O-1 petitions, asking them to confirm the contents of such letters.

Part of the problem contributing to high levels of skepticism on the part of USCIS is a growing trend among certain practitioners to encourage the notion that the O-1B allows true freelancing and self-employment, when it really does not, a trend exacerbated by some attorneys doing double-duty as both attor-ney of record and petitioning agent. Such an arrangement poses significant ethical problems, as the attorney is then a party to the benefit request. To avoid overt conflicts of interest, best practice for attorneys is to choose one role and stick to it.

In this brave new world, practitioners must be aware that USCIS has an insatiable appetite for secondary evidence, such as proof of the standards, scope, and significance of any professional awards, proof of the cir-culation or distribution figures and readership demographics of each periodical in which published articles about the beneficiary appear, and so forth. A prudent attorney will research such evidence as a part of prepar-ing an O-1 petition. For background on any type of evidence, note that Wikipedia entries will not be given much weight on their own, but can function in the same way as a résumé or bibliography, i.e., as an index of facts supported by independent evidence from other sources.

For professional awards and prizes, whether they are major, international awards or lesser national ones, first look to the published entry or nomination requirements, standards, and judging criteria of the awarding entity itself, and then to external sources, such as the Gale Group’s Awards, Honors & Prizes, an international directory of awards and their donors, criteria, and significance.39

For all publications by or about the beneficiary, or about his or her work in the field of endeavor, provide copies of each article that clearly display the name of the periodical, the date of publication, and the author’s byline, if any; then, the circulation or distribution figures (distinguish between print and online editions). For peer-refereed journal articles, or editorials about the beneficiary’s work, provide the journal’s own standards of publication and its impact factor. If the beneficiary is a scientist or academic, provide the “ISI/Web of Sci-ence” or “Google Scholar” current list of citations to his or her articles, and a list of the citing articles. For hard copy trade magazines, newspapers, and general print media, circulation and readership data can be ob-tained from the periodical itself, and from the Alliance for Audited Media (formerly the Audit Bureau of Cir-culation), as well as NewBase (formerly Publicitas), helpful for establishing the size, distribution, and audi-ence demographic of foreign newspapers and magazines. For online editions of print publications and online-only magazines and blogs, figures for circulation and readership demographics often can be found in the pub-lication’s own “media kit,” which may not be up-to-date, and then by searching web traffic analytics provid-ers such as Comscore, Quantcast, Compete, and others.

With testimonial letters, whether submitted as proof of a leading role for distinguished events or organiza-tions, as proof of original contributions of major significance in the field of endeavor, or as proof of “compa-rable evidence,” it is crucial to attach the writer’s résumé, curriculum vitae, or biographic profile. It is equally critical to establish the basis for the writer’s expertise in the field of endeavor, and to explain how he or she came to know of the beneficiary’s work, and why that work is significant. AAO precedent prohibits USCIS from discarding testimony that is specific, reliable, relevant, probative, and not contradicted by other evidence in the record. USCIS may only reject or give less weight to an expert opinion letter if it conflicts with other 39 Available in a print edition, and online at http://find.galegroup.com/gdl/help/GDLeDirAHPHelp.html.




information in the petition, or the credibility of the expert witness is otherwise questionable.40 In Matter of Skirball, the AAO noted the director had not questioned the experts’ credentials, did not take issue with the experts’ demonstrated knowledge of the beneficiaries’ skills and history of the relevant musical genres, nor otherwise stated a reason to doubt the veracity of their testimony; the AAO further noted that the expert tes-timony provided appeared reliable, relevant, and probative as to the specific facts in issue, and therefore could not be dismissed. Since that case, USCIS has taken to challenging expert credibility wherever the writer is personally acquainted with the beneficiary; thus, it is important for testimony to explain if the writer and ben-eficiary met as a result of the beneficiary’s acclaimed work in the field, and renown preceded the personal relationship.

A trend across industries is for O-1 RFEs to evolve as petitioners learn to respond to a theme. For exam-ple, in a June 2014 nonprecedent case at the Vermont Service Center (VSC),41 the AAO held that because of its International Olympic Committee designation, intensely athletic training regimen, competitive nature of the discipline, and use of the term “DanceSport,” ballroom dance is a sport and therefore must be held to the higher O-1A standard, rather than an art held to the O-1B standard. Since practitioners began proffering coun-ter-arguments to that case, USCIS has changed tack and now focuses on the amount of time since a dancer received an award in competition, seeking a “sustained” record of national competitive excellence up to the time of filing. Where the duties include dance instruction, USCIS may call the dancers “educators” in order to apply the O-1A standard.

One type of challenge common to all O-1 evidentiary criteria occurs where USCIS dismisses any evidence acquired during a period when the beneficiary was in F-1 student status, J-1 exchange visitor status, or work-ing in a position whose job title included “intern,” “junior,” or “assistant.” There is no such restriction in the statute or regulations, and one would be counterintuitive: such challenges presume that all evidence of a per-son’s extraordinary ability manifests suddenly upon promotion to a senior role. While practitioners must dis-cern whether an award or press article recognizes professional achievement, rather than an achievement lim-ited by its terms to students, USCIS needs to recognize, for example, that if a researcher had an article pub-lished in Nature while still completing a Master’s degree, that is an impressive, peer-reviewed professional publication made even more impressive by the author’s youth.

O-2 Category: Accompanying Foreign Nationals

This category is confined to foreign nationals seeking to accompany and assist O-1 foreign nationals in the arts, motion picture and television productions, and athletics. There is no corresponding statutory provision for foreign nationals to accompany scientists, educators, or business people. O-2 foreign nationals cannot work separate and apart from the O-1 foreign national in question and “must be petitioned for in conjunction with the services of the O-1 alien.” 42 In other words, an O-2 petition cannot be filed as a stand-alone, without a previously or simultaneously filed O-1 petition. While the O-2 support personnel need not be petitioned or paid by the same petitioner as the O-1 principal, it is advisable to submit the O-1 and O-2 petitions together, marked clearly as related petitions so they are not separated.43

Basic Criteria Foreign nationals seeking admission to accompany O-1 foreign nationals must: (a) enter solely for the

purpose of assisting in the O-1’s performance; (b) be an integral part of the actual performance; (c) have critical skills and experience with the O-1 foreign national, not of a general nature and that cannot be performed by U.S. workers; and (d) have a foreign residence they do not intend to abandon. The term “actual” in regard to a performance does not impose additional requirements. No specific amount of prior

40 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (May 15, 2012). 41 Matter of [name not provided], AILA Doc. No. 14121644. 42 8 CFR §214.2(o)(4)(i). 43 See AILA Practice Pointer, “Different Petitioners for O-1 and Accompanying O-2 Petitions,” AILA Doc. No. 15121405.



experience with the O-1 is required, and because no labor certification involved, there is no need to show that U.S. workers cannot perform the job.44

Beyond these generalities, there is no limit to the functions an O-2 can perform. Accordingly, an O-2 petition in combination with an O-1 can be a useful alternative to a P-1 and P-2 petition, discussed below, allowing a music group or entire orchestra, including support personnel and administrators, to accompany an O-1 singer or conductor, for instance, or an entire theater group, including cast and crew, to accompany a director or lead actor.

These days, petitioners should describe the O-2 beneficiary’s relationship and importance to the associated O-1 beneficiary with particularity. Do not rely on an adjudicator to understand why the skills of a lighting director, for instance, are critical to the O-1’s performance, though the proposition may be perfectly obvious. Also, it has become increasingly important to provide reliable, extrinsic evidence of the relationship between the O-1 and O-2 beneficiaries. Even detailed explanations by the O-1 may be insufficient.

Special Rule for O-2 Foreign Nationals in Motion Picture and TV Productions 8 CFR §214.2(o)(4)(ii)(B) enunciates a special rule for foreign nationals accompanying motion picture

and television artists. The O-2 foreign national must have skills and experience with the O-1 foreign national: (a) not of a general nature; (b) that are critical either based on a preexisting, long-standing working relationship; or (c) with respect to the specific production, because significant production (including pre– and post-production work) will occur both inside and outside the United States, and the continuing participation of the foreign national is essential to successful completion of the production. Evidence respecting a production’s continuity often is a key to successful petitions for production personnel. As with other types of O-2 personnel, there are no other limits on the types of services such O-2 foreign nationals can perform. Notably, actors in key supporting roles may be classified as O-2 essential support personnel to one of the O-1 lead performers in a production, if their essentiality can be documented under provisions (b) or (c ) described above.

Other Considerations

Petition An I-129 petition with the O supplement must be filed in duplicate to request O-1 or O-2 status.45 An O-1

petition can include only one beneficiary, but O-2 noncitizens can be grouped together on a separate petition.46 Multiple beneficiaries may be listed on the special “Attachment-1” form provided with the I-129 package, or petitioners may create their own spreadsheet. Petitions may be filed up to a year in advance of the need for the noncitizen’s services.47 Be sure to reconfirm the applicable filing fee at time of filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries.

Jurisdiction Petitions must be filed directly with whichever service center has jurisdiction over the location where the

temporary employment is to occur.48 Petitions calling for services to be rendered in “more than one location must include an itinerary with the dates and locations of work” and must be filed at the service center with

44 8 CFR §214.2(o)(4)(ii)(A). 45 The current Form I-129 instructions specify that O-1A classification is for “aliens … who have extraordinary ability in the sciences, education, business, or athletics.” O-1B classification is for “aliens … who have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry,” without noting that the latter are held to two different standards. USCIS Form I-129 Instructions (Rev. Jan. 17, 2017) at 17. Actual machine-readable O-1 visas do not make a distinction between O-1A and O-1B. 46 8 CFR §214.2(o)(2)(iv)(F). 47 8 CFR §214.2(o)(2)(i). 48 8 CFR §214.2(o)(2)(i). See www.uscis.gov/i-129-addresses.




information in the petition, or the credibility of the expert witness is otherwise questionable.40 In Matter of Skirball, the AAO noted the director had not questioned the experts’ credentials, did not take issue with the experts’ demonstrated knowledge of the beneficiaries’ skills and history of the relevant musical genres, nor otherwise stated a reason to doubt the veracity of their testimony; the AAO further noted that the expert tes-timony provided appeared reliable, relevant, and probative as to the specific facts in issue, and therefore could not be dismissed. Since that case, USCIS has taken to challenging expert credibility wherever the writer is personally acquainted with the beneficiary; thus, it is important for testimony to explain if the writer and ben-eficiary met as a result of the beneficiary’s acclaimed work in the field, and renown preceded the personal relationship.

A trend across industries is for O-1 RFEs to evolve as petitioners learn to respond to a theme. For exam-ple, in a June 2014 nonprecedent case at the Vermont Service Center (VSC),41 the AAO held that because of its International Olympic Committee designation, intensely athletic training regimen, competitive nature of the discipline, and use of the term “DanceSport,” ballroom dance is a sport and therefore must be held to the higher O-1A standard, rather than an art held to the O-1B standard. Since practitioners began proffering coun-ter-arguments to that case, USCIS has changed tack and now focuses on the amount of time since a dancer received an award in competition, seeking a “sustained” record of national competitive excellence up to the time of filing. Where the duties include dance instruction, USCIS may call the dancers “educators” in order to apply the O-1A standard.

One type of challenge common to all O-1 evidentiary criteria occurs where USCIS dismisses any evidence acquired during a period when the beneficiary was in F-1 student status, J-1 exchange visitor status, or work-ing in a position whose job title included “intern,” “junior,” or “assistant.” There is no such restriction in the statute or regulations, and one would be counterintuitive: such challenges presume that all evidence of a per-son’s extraordinary ability manifests suddenly upon promotion to a senior role. While practitioners must dis-cern whether an award or press article recognizes professional achievement, rather than an achievement lim-ited by its terms to students, USCIS needs to recognize, for example, that if a researcher had an article pub-lished in Nature while still completing a Master’s degree, that is an impressive, peer-reviewed professional publication made even more impressive by the author’s youth.

O-2 Category: Accompanying Foreign Nationals

This category is confined to foreign nationals seeking to accompany and assist O-1 foreign nationals in the arts, motion picture and television productions, and athletics. There is no corresponding statutory provision for foreign nationals to accompany scientists, educators, or business people. O-2 foreign nationals cannot work separate and apart from the O-1 foreign national in question and “must be petitioned for in conjunction with the services of the O-1 alien.” 42 In other words, an O-2 petition cannot be filed as a stand-alone, without a previously or simultaneously filed O-1 petition. While the O-2 support personnel need not be petitioned or paid by the same petitioner as the O-1 principal, it is advisable to submit the O-1 and O-2 petitions together, marked clearly as related petitions so they are not separated.43

Basic Criteria Foreign nationals seeking admission to accompany O-1 foreign nationals must: (a) enter solely for the

purpose of assisting in the O-1’s performance; (b) be an integral part of the actual performance; (c) have critical skills and experience with the O-1 foreign national, not of a general nature and that cannot be performed by U.S. workers; and (d) have a foreign residence they do not intend to abandon. The term “actual” in regard to a performance does not impose additional requirements. No specific amount of prior

40 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (May 15, 2012). 41 Matter of [name not provided], AILA Doc. No. 14121644. 42 8 CFR §214.2(o)(4)(i). 43 See AILA Practice Pointer, “Different Petitioners for O-1 and Accompanying O-2 Petitions,” AILA Doc. No. 15121405.



experience with the O-1 is required, and because no labor certification involved, there is no need to show that U.S. workers cannot perform the job.44

Beyond these generalities, there is no limit to the functions an O-2 can perform. Accordingly, an O-2 petition in combination with an O-1 can be a useful alternative to a P-1 and P-2 petition, discussed below, allowing a music group or entire orchestra, including support personnel and administrators, to accompany an O-1 singer or conductor, for instance, or an entire theater group, including cast and crew, to accompany a director or lead actor.

These days, petitioners should describe the O-2 beneficiary’s relationship and importance to the associated O-1 beneficiary with particularity. Do not rely on an adjudicator to understand why the skills of a lighting director, for instance, are critical to the O-1’s performance, though the proposition may be perfectly obvious. Also, it has become increasingly important to provide reliable, extrinsic evidence of the relationship between the O-1 and O-2 beneficiaries. Even detailed explanations by the O-1 may be insufficient.

Special Rule for O-2 Foreign Nationals in Motion Picture and TV Productions 8 CFR §214.2(o)(4)(ii)(B) enunciates a special rule for foreign nationals accompanying motion picture

and television artists. The O-2 foreign national must have skills and experience with the O-1 foreign national: (a) not of a general nature; (b) that are critical either based on a preexisting, long-standing working relationship; or (c) with respect to the specific production, because significant production (including pre– and post-production work) will occur both inside and outside the United States, and the continuing participation of the foreign national is essential to successful completion of the production. Evidence respecting a production’s continuity often is a key to successful petitions for production personnel. As with other types of O-2 personnel, there are no other limits on the types of services such O-2 foreign nationals can perform. Notably, actors in key supporting roles may be classified as O-2 essential support personnel to one of the O-1 lead performers in a production, if their essentiality can be documented under provisions (b) or (c ) described above.


Petition An I-129 petition with the O supplement must be filed in duplicate to request O-1 or O-2 status.45 An O-1

petition can include only one beneficiary, but O-2 noncitizens can be grouped together on a separate petition.46 Multiple beneficiaries may be listed on the special “Attachment-1” form provided with the I-129 package, or petitioners may create their own spreadsheet. Petitions may be filed up to a year in advance of the need for the noncitizen’s services.47 Be sure to reconfirm the applicable filing fee at time of filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries.

Jurisdiction Petitions must be filed directly with whichever service center has jurisdiction over the location where the

temporary employment is to occur.48 Petitions calling for services to be rendered in “more than one location must include an itinerary with the dates and locations of work” and must be filed at the service center with

44 8 CFR §214.2(o)(4)(ii)(A). 45 The current Form I-129 instructions specify that O-1A classification is for “aliens … who have extraordinary ability in the sciences, education, business, or athletics.” O-1B classification is for “aliens … who have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry,” without noting that the latter are held to two different standards. USCIS Form I-129 Instructions (Rev. Jan. 17, 2017) at 17. Actual machine-readable O-1 visas do not make a distinction between O-1A and O-1B. 46 8 CFR §214.2(o)(2)(iv)(F). 47 8 CFR §214.2(o)(2)(i). 48 8 CFR §214.2(o)(2)(i). See www.uscis.gov/i-129-addresses.




jurisdiction over the petitioner’s location.49 The service centers interpret the phrase “more than one location” literally, such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.” 50 This means USCIS intends to use the petitioner’s headquarters, or office address, as the address that determines service center jurisdiction over a petition submitted with an itinerary, i.e., where work is to be performed in more than one location; but in practice, wherever the petitioner has more than one office address, it serves as an invitation to alert petitioners with additional means to forum shop between the California and Vermont service centers (CSC or VSC), at least in certain circumstances.51

Nature of Petitioner Foreign nationals may work for more than one employer at a time but will require separate petitions filed

with the service center having jurisdiction over the location where the particular services will be rendered, unless “an established agent” files the petition.52 In practice, any agent, as discussed further below, would appear to meet this standard. If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.53 Amended petitions must be filed with the service center of original jurisdiction (CSC or VSC) to reflect “material changes” in the terms and conditions of employ or the beneficiary’s eligibility, though petitioners for O-1 workers in the arts may add additional performances or engagements during the original petition validity period without amendment. (Note that this provision does not extend to O-1 workers in business, education, sciences, or athletics or to those in motion pictures and television).54 The regulations do not address the question, but DOS bars substitutions of all O-2 personnel, even those associated with motion picture and television productions.55

Only U.S. employers and agents may serve as petitioners.56 The definition of agent includes individuals or entities in the United States authorized by a foreign employer (often the self-employed beneficiary) to file the I-129 petition and accept service of process on the foreign employer’s behalf in proceedings under INA §274A. Also, any petitioner can petition on behalf of others seeking the beneficiary’s services if those others authorize the petitioner to do so. In other words, agents need not be traditional management or booking agents; rather, their authority derives from traditional agency principles.57 Traditional management and booking agents and the 49 8 CFR §214.2(o)(2)(iv)(A). 50 Id. 51 The VSC receives a disproportionate share of O filings, perhaps because of its reputation for greater reliability and consistency of adjudication. Recent VSC increases in requests for evidence (RFEs), Notices of Intent to Deny (NOIDs), and denial rates, though, appear to have eliminated any perceived advantage to filing there. In other words, both service centers are equally unreliable. 52 8 CFR §214.2(o)(2)(iv)(B). 53 8 CFR §214.2(o)(2)(iv)(C). 54 8 CFR §214.2(o)(2)(iv)(D). 55 9 FAM §402.13-07. 56 8 CFR §214.2(o)(2)(i). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its agent. While the regulation still permits individuals to serve as agents, because the statute generally refers to a sponsoring employer, O-1 petitioners can expect an RFE if they do not have a Federal Employer Identification Number. 57 See USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064. This memorandum clarifies that O petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. In theory, even duly authorized immigration counsel can serve as a foreign employer’s agent for this limited purpose, though in light of the potential conflict, the practice is inadvisable, if not unethical. The memorandum is problematic: it is written in a convoluted fashion and suggests an unhealthy obsession with irrelevant distinctions among the differing kinds of relationships between petitioners and beneficiaries. The arts



like are subject to more explicit disclosure requirements respecting applicable contractual arrangements, and those filing petitions involving multiple employers must include a complete itinerary.58

O-1s cannot self-petition, though in theory nothing prevents them from establishing a limited liability corporation or other entity in the United States to serve as petitioner.59 Even so, both service centers have issued numerous RFEs asserting that beneficiaries, in effect, are self-petitioning because they are sole owners of the U.S. entities that filed the petition, thus ignoring their existence as separate legal entities. The USCIS Executive Summary of the March 24, 2011, Stakeholder Teleconference on Agents as Petitioners,60 sheds little light on this subject, as it simply asserts that the petitioning entity must be a bona fide U.S. employer, the petition cannot be based on speculative employment, and that the terms and conditions of actual employment must qualify for O classification. There is no reason why U.S. entities wholly owned by a beneficiary cannot meet these criteria. Bear in mind that, while agents (including limited liability corporations) may petition for beneficiaries in both the H-1B and O-1 classifications, a key difference between the two classifications is that foreign nationals in O classification are not required to have W-2, control-based employer-employee relationships with their U.S. petitioners.

Consultation Because the O provisions of MTINA reflect a political compromise between the performing arts and

organized labor engrafted onto existing statutory provisions for business persons, scientists, educators, and foreign nationals of extraordinary achievement, the statute and regulations are rife with ambiguous references to “peer groups which may be collective bargaining representatives,” “letters of no objection,” and the like. In practice, the impenetrable language of the statute and regulations becomes fairly straightforward when applied to petitions for O classification: in a field where a labor union has jurisdiction via a collective bargaining agreement, such as in the performing arts, that union must be consulted; if a union is willing to consult, that union should be consulted; if the peer group is not a labor union, then the O-1 petitioner is free to seek an advisory opinion from any individual or organization with appropriate expertise.

Neither the statute nor the regulations quite achieve the desired clarity. Instead, they state that consultations are required from an “appropriate U.S. peer group (which could include a person or person with expertise in the field), labor and/or management organization …” 61 Herein lies a problem, for the written advisory opinions may consist either of the author’s opinion regarding the nature of the proposed work and the extraordinariness of the foreign national’s qualifications or a simple letter of no objection, offering no specifics. If the author (whether a union, management organization, or other expert in the field) objects, the opinion is supposed to contain a “specific statement of facts which supports the conclusion reached.” 62

On the other hand, nonlabor organizations (or individuals) contacted by the petitioner have no conceivable basis to object. Because they, too, can simply to respond with a no-objection letter, what is the point of such consultations? To inform USCIS that yet another expert or organization fails to object? Even so, an increasing number of RFEs from both service centers seem to suggest this meaningless exercise is required. Practitioners and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or how to make them. The endless barrage of RFEs obsessed with the particulars of these relationships reveals ongoing confusion at USCIS on this topic. See also the “USCIS Executive Summary, ‘O Nonimmigrant Visas—Agents as Petitioners: Stakeholder Teleconference,’ ” AILA Doc No. 11030437. 58 8 CFR §§214.2(o)(2)(iv)(E)(1), (2). 59 8 CFR §214.2(o)(2)(i).. 60 AILA Doc. No. 11030437. 61 INA §214(c)(6). Compare 8 CFR §§214.2(o)(5)(i)(A), (B) with (F). Usually, the petitioner’s assertion that no appropriate labor organization exists suffices for purposes of obtaining a waiver under 8 CFR §214.2(o)(5)(i)(G). There is no reason not to include consultations from nonunion sources, such as from individual experts or associations, either separately or as part of the evidence of extraordinary ability or achievement, because these still constitute favorable evidence. They may be the only peer advisory consultations available in fields where no labor union has jurisdiction. 62 8 CFR §§214.2(o)(5)(ii)(A), (iii), and (iv).




jurisdiction over the petitioner’s location.49 The service centers interpret the phrase “more than one location” literally, such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.” 50 This means USCIS intends to use the petitioner’s headquarters, or office address, as the address that determines service center jurisdiction over a petition submitted with an itinerary, i.e., where work is to be performed in more than one location; but in practice, wherever the petitioner has more than one office address, it serves as an invitation to alert petitioners with additional means to forum shop between the California and Vermont service centers (CSC or VSC), at least in certain circumstances.51

Nature of Petitioner Foreign nationals may work for more than one employer at a time but will require separate petitions filed

with the service center having jurisdiction over the location where the particular services will be rendered, unless “an established agent” files the petition.52 In practice, any agent, as discussed further below, would appear to meet this standard. If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.53 Amended petitions must be filed with the service center of original jurisdiction (CSC or VSC) to reflect “material changes” in the terms and conditions of employ or the beneficiary’s eligibility, though petitioners for O-1 workers in the arts may add additional performances or engagements during the original petition validity period without amendment. (Note that this provision does not extend to O-1 workers in business, education, sciences, or athletics or to those in motion pictures and television).54 The regulations do not address the question, but DOS bars substitutions of all O-2 personnel, even those associated with motion picture and television productions.55

Only U.S. employers and agents may serve as petitioners.56 The definition of agent includes individuals or entities in the United States authorized by a foreign employer (often the self-employed beneficiary) to file the I-129 petition and accept service of process on the foreign employer’s behalf in proceedings under INA §274A. Also, any petitioner can petition on behalf of others seeking the beneficiary’s services if those others authorize the petitioner to do so. In other words, agents need not be traditional management or booking agents; rather, their authority derives from traditional agency principles.57 Traditional management and booking agents and the 49 8 CFR §214.2(o)(2)(iv)(A). 50 Id. 51 The VSC receives a disproportionate share of O filings, perhaps because of its reputation for greater reliability and consistency of adjudication. Recent VSC increases in requests for evidence (RFEs), Notices of Intent to Deny (NOIDs), and denial rates, though, appear to have eliminated any perceived advantage to filing there. In other words, both service centers are equally unreliable. 52 8 CFR §214.2(o)(2)(iv)(B). 53 8 CFR §214.2(o)(2)(iv)(C). 54 8 CFR §214.2(o)(2)(iv)(D). 55 9 FAM §402.13-07. 56 8 CFR §214.2(o)(2)(i). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its agent. While the regulation still permits individuals to serve as agents, because the statute generally refers to a sponsoring employer, O-1 petitioners can expect an RFE if they do not have a Federal Employer Identification Number. 57 See USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064. This memorandum clarifies that O petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. In theory, even duly authorized immigration counsel can serve as a foreign employer’s agent for this limited purpose, though in light of the potential conflict, the practice is inadvisable, if not unethical. The memorandum is problematic: it is written in a convoluted fashion and suggests an unhealthy obsession with irrelevant distinctions among the differing kinds of relationships between petitioners and beneficiaries. The arts



like are subject to more explicit disclosure requirements respecting applicable contractual arrangements, and those filing petitions involving multiple employers must include a complete itinerary.58

O-1s cannot self-petition, though in theory nothing prevents them from establishing a limited liability corporation or other entity in the United States to serve as petitioner.59 Even so, both service centers have issued numerous RFEs asserting that beneficiaries, in effect, are self-petitioning because they are sole owners of the U.S. entities that filed the petition, thus ignoring their existence as separate legal entities. The USCIS Executive Summary of the March 24, 2011, Stakeholder Teleconference on Agents as Petitioners,60 sheds little light on this subject, as it simply asserts that the petitioning entity must be a bona fide U.S. employer, the petition cannot be based on speculative employment, and that the terms and conditions of actual employment must qualify for O classification. There is no reason why U.S. entities wholly owned by a beneficiary cannot meet these criteria. Bear in mind that, while agents (including limited liability corporations) may petition for beneficiaries in both the H-1B and O-1 classifications, a key difference between the two classifications is that foreign nationals in O classification are not required to have W-2, control-based employer-employee relationships with their U.S. petitioners.

Consultation Because the O provisions of MTINA reflect a political compromise between the performing arts and

organized labor engrafted onto existing statutory provisions for business persons, scientists, educators, and foreign nationals of extraordinary achievement, the statute and regulations are rife with ambiguous references to “peer groups which may be collective bargaining representatives,” “letters of no objection,” and the like. In practice, the impenetrable language of the statute and regulations becomes fairly straightforward when applied to petitions for O classification: in a field where a labor union has jurisdiction via a collective bargaining agreement, such as in the performing arts, that union must be consulted; if a union is willing to consult, that union should be consulted; if the peer group is not a labor union, then the O-1 petitioner is free to seek an advisory opinion from any individual or organization with appropriate expertise.

Neither the statute nor the regulations quite achieve the desired clarity. Instead, they state that consultations are required from an “appropriate U.S. peer group (which could include a person or person with expertise in the field), labor and/or management organization …” 61 Herein lies a problem, for the written advisory opinions may consist either of the author’s opinion regarding the nature of the proposed work and the extraordinariness of the foreign national’s qualifications or a simple letter of no objection, offering no specifics. If the author (whether a union, management organization, or other expert in the field) objects, the opinion is supposed to contain a “specific statement of facts which supports the conclusion reached.” 62

On the other hand, nonlabor organizations (or individuals) contacted by the petitioner have no conceivable basis to object. Because they, too, can simply to respond with a no-objection letter, what is the point of such consultations? To inform USCIS that yet another expert or organization fails to object? Even so, an increasing number of RFEs from both service centers seem to suggest this meaningless exercise is required. Practitioners and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or how to make them. The endless barrage of RFEs obsessed with the particulars of these relationships reveals ongoing confusion at USCIS on this topic. See also the “USCIS Executive Summary, ‘O Nonimmigrant Visas—Agents as Petitioners: Stakeholder Teleconference,’ ” AILA Doc No. 11030437. 58 8 CFR §§214.2(o)(2)(iv)(E)(1), (2). 59 8 CFR §214.2(o)(2)(i).. 60 AILA Doc. No. 11030437. 61 INA §214(c)(6). Compare 8 CFR §§214.2(o)(5)(i)(A), (B) with (F). Usually, the petitioner’s assertion that no appropriate labor organization exists suffices for purposes of obtaining a waiver under 8 CFR §214.2(o)(5)(i)(G). There is no reason not to include consultations from nonunion sources, such as from individual experts or associations, either separately or as part of the evidence of extraordinary ability or achievement, because these still constitute favorable evidence. They may be the only peer advisory consultations available in fields where no labor union has jurisdiction. 62 8 CFR §§214.2(o)(5)(ii)(A), (iii), and (iv).




using nonlabor consultations are advised to seek written advisory opinions that specifically acknowledge the beneficiary’s acclaim for extraordinary ability in the field and also state no objection to the offered employment. Practitioners have reported receiving RFEs—and even denials—in fields where no labor union has jurisdiction, such as graphic arts, for having provided a peer advisory opinion that was not from the organization the adjudicator felt was most appropriate.

Note that, whatever their source, consultations are defined by regulation as “advisory” only and “not binding” on USCIS.63 This further diminishes the value of a nonlabor no-objection letter.

Petitioners should request a consultation well in advance of filing, by sending the appropriate union a copy of the proposed petition and, except for Actors’ Equity Association (AE), selected portions of supporting documentation. Use discretion, as not every last scrap of evidence is useful, and take care to abide by any instructions the consulting organization may have posted.

The vast majority of petitions requiring union consultations are for artists, entertainers, and athletes, and their accompanying personnel. Appendix 1 (p. 217 infra) lists most of the relevant consultation organizations for the arts, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has a list at Appendix 33-1 of the AFM.64

In the arts, entertainment, or athletics, if USCIS decides a petition merits expeditious handling, and the petition does not already include an advisory opinion, USCIS ostensibly will contact the union directly for an expedited consultation. The union has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion. The union has another five working days to supply a written advisory opinion.65 Reliance on this procedure is ill-advised, because it requires more work on the part of USCIS and thus presents more opportunity for something to go awry. Note that USCIS does not forward consulting fees to the unions (discussed below); thus, the unions regard use of this procedure as an attempt to avoid paying their consultation fees.

For “routine processing” of O-1 petitions not accompanied by union consultations, the regulations provide that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.66 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies and, in any event, it will adjudicate if there is no timely response.67 Again, reliance on this procedure is a bad idea, because the more work USCIS must perform, the slower and riskier the outcome. On the other hand, consider using this approach if on a tight budget, as USCIS will not pay the union its consulting fee (discussed above). As a result, the union likely will refuse to respond, yet USCIS theoretically must adjudicate even if the union fails to do so within 15 days.68

Petitions for O-1 foreign nationals of extraordinary achievement in motion picture and television productions require two advisory letters, one from a union and one from a management organization.69 The management organization that provides virtually all consultations in this area is the Association of Motion Picture and Television Producers (AMPTP). The AMPTP, by virtue of its effective monopoly in this area, has 63 8 CFR §214.2(o)(5)(i)(D). 64 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 185, concerning AFM Appendix 33-1. 65 INA §214(c)(6)(B); 8 CFR §214.2(o)(5)(i)(E). 66 Again, one wonders why USCIS would insist on having nonunion consultations if it is only required to contact unions in this situation. 67 8 CFR §214.2(o)(5)(i)(F). 68 Id. The regulation also provides that USCIS must adjudicate within 14 days; however, because the corresponding statutory provision, INA §214(c)(6)(D), does not impose a penalty for noncompliance, USCIS has treated it as precatory. To their considerable credit, though, both USCIS service centers have tried hard to reduce their standard processing times to within 14 days. In many cases, they succeed. 69 8 CFR §214.2(o)(5)(iii).



succeeded in implementing an ultra vires requirement that petitioners must provide signed deal memos in support of any petition in the motion picture or television field; however, AMPTP will accept contracts or deal memoranda that bear only DocuSign e-signatures. They have managed to implement this extra-regulatory requirement in practice, despite regulatory language governing all O-1 petitions, which states explicitly that a written contract is not required, much less a signed one.70 Practitioners and petitioners must keep abreast of AMPTP’s increasingly picayune demands, which specify precisely the right way to submit consultation requests.71

The consultation requirement for O-1 foreign nationals of extraordinary ability in the arts (but not motion pictures and television) is waived where the foreign national seeks readmission to perform similar services within two years of a prior consultation for similar services.72

With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded local employees. However, their responsiveness comes at a price: the American Guild of Musical Artists, for instance, charges $500 per expedited consultation. If unsure which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or when the beneficiary is a member. Where two unions share jurisdiction over the offered employment, one may defer to the other in covering some types of work. For O-2 petitions with multiple beneficiaries, consultations from more than one union may well be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States to avoid multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties and engagements on the U.S. itinerary with care, and with union jurisdiction in mind.

Special Rule for Traded Professional O-1 Athletes A professional O-1 athlete traded from one organization to another automatically is entitled to work for 30

days after acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete is authorized to continue work until the new petition is adjudicated.73

Dual Intent By statute, there is no foreign-residence requirement for O-1 beneficiaries, who, along with their

dependents, may thus seek permanent residence without jeopardizing their ability to maintain, extend, or reacquire their status. O-2 beneficiaries, on the other hand, must be coming to the United States temporarily and maintain a residence abroad they do not intend to abandon.74 While approval of an immigrant visa petition poses no impediment to approval of an O-1 extension or visa application, O-1 workers still do not enjoy the travel privileges for pending adjustment applicants without advance parole, accorded only to H and L visa holders.75

70 8 CFR §214.2(o)(2)(ii)(B). 71 Best practice is to check for the most up-to-date guidelines on their website, at http://amptp.org/immigration.html. 72 8 CFR §214.2(o)(5)(ii)(B). 73 8 CFR §214.2(o)(2)(iv)(G). 74 INA §101(a)(15)(O)(i) defines the O-1 classification without imposing a foreign-residence requirement, whereas subsection (O)(ii) includes the requirement for the O-2 classification. See 8 CFR §214.2(o)(13); 9 FAM 402.13-5(C) (formerly 9 FAM 41.55 N5.1–5.3). Despite the absence of a foreign residence requirement, and in contrast to its treatment of H-1B and L-1A noncitizens, USCIS has never seen fit to allow O-1 noncitizens to maintain nonimmigrant status and travel on the valid visa while adjusting to permanent residence. Travel by an O-1 worker without Advance Parole abandons a pending I-485 application. Therefore, artists and entertainers with frequent global travel commitments are forced to acquire permanent residence via consular processing. 75 8 CFR §245.2(c )(4).




using nonlabor consultations are advised to seek written advisory opinions that specifically acknowledge the beneficiary’s acclaim for extraordinary ability in the field and also state no objection to the offered employment. Practitioners have reported receiving RFEs—and even denials—in fields where no labor union has jurisdiction, such as graphic arts, for having provided a peer advisory opinion that was not from the organization the adjudicator felt was most appropriate.

Note that, whatever their source, consultations are defined by regulation as “advisory” only and “not binding” on USCIS.63 This further diminishes the value of a nonlabor no-objection letter.

Petitioners should request a consultation well in advance of filing, by sending the appropriate union a copy of the proposed petition and, except for Actors’ Equity Association (AE), selected portions of supporting documentation. Use discretion, as not every last scrap of evidence is useful, and take care to abide by any instructions the consulting organization may have posted.

The vast majority of petitions requiring union consultations are for artists, entertainers, and athletes, and their accompanying personnel. Appendix 1 (p. 217 infra) lists most of the relevant consultation organizations for the arts, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has a list at Appendix 33-1 of the AFM.64

In the arts, entertainment, or athletics, if USCIS decides a petition merits expeditious handling, and the petition does not already include an advisory opinion, USCIS ostensibly will contact the union directly for an expedited consultation. The union has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion. The union has another five working days to supply a written advisory opinion.65 Reliance on this procedure is ill-advised, because it requires more work on the part of USCIS and thus presents more opportunity for something to go awry. Note that USCIS does not forward consulting fees to the unions (discussed below); thus, the unions regard use of this procedure as an attempt to avoid paying their consultation fees.

For “routine processing” of O-1 petitions not accompanied by union consultations, the regulations provide that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.66 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies and, in any event, it will adjudicate if there is no timely response.67 Again, reliance on this procedure is a bad idea, because the more work USCIS must perform, the slower and riskier the outcome. On the other hand, consider using this approach if on a tight budget, as USCIS will not pay the union its consulting fee (discussed above). As a result, the union likely will refuse to respond, yet USCIS theoretically must adjudicate even if the union fails to do so within 15 days.68

Petitions for O-1 foreign nationals of extraordinary achievement in motion picture and television productions require two advisory letters, one from a union and one from a management organization.69 The management organization that provides virtually all consultations in this area is the Association of Motion Picture and Television Producers (AMPTP). The AMPTP, by virtue of its effective monopoly in this area, has 63 8 CFR §214.2(o)(5)(i)(D). 64 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 185, concerning AFM Appendix 33-1. 65 INA §214(c)(6)(B); 8 CFR §214.2(o)(5)(i)(E). 66 Again, one wonders why USCIS would insist on having nonunion consultations if it is only required to contact unions in this situation. 67 8 CFR §214.2(o)(5)(i)(F). 68 Id. The regulation also provides that USCIS must adjudicate within 14 days; however, because the corresponding statutory provision, INA §214(c)(6)(D), does not impose a penalty for noncompliance, USCIS has treated it as precatory. To their considerable credit, though, both USCIS service centers have tried hard to reduce their standard processing times to within 14 days. In many cases, they succeed. 69 8 CFR §214.2(o)(5)(iii).



succeeded in implementing an ultra vires requirement that petitioners must provide signed deal memos in support of any petition in the motion picture or television field; however, AMPTP will accept contracts or deal memoranda that bear only DocuSign e-signatures. They have managed to implement this extra-regulatory requirement in practice, despite regulatory language governing all O-1 petitions, which states explicitly that a written contract is not required, much less a signed one.70 Practitioners and petitioners must keep abreast of AMPTP’s increasingly picayune demands, which specify precisely the right way to submit consultation requests.71

The consultation requirement for O-1 foreign nationals of extraordinary ability in the arts (but not motion pictures and television) is waived where the foreign national seeks readmission to perform similar services within two years of a prior consultation for similar services.72

With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded local employees. However, their responsiveness comes at a price: the American Guild of Musical Artists, for instance, charges $500 per expedited consultation. If unsure which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or when the beneficiary is a member. Where two unions share jurisdiction over the offered employment, one may defer to the other in covering some types of work. For O-2 petitions with multiple beneficiaries, consultations from more than one union may well be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States to avoid multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties and engagements on the U.S. itinerary with care, and with union jurisdiction in mind.

Special Rule for Traded Professional O-1 Athletes A professional O-1 athlete traded from one organization to another automatically is entitled to work for 30

days after acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete is authorized to continue work until the new petition is adjudicated.73

Dual Intent By statute, there is no foreign-residence requirement for O-1 beneficiaries, who, along with their

dependents, may thus seek permanent residence without jeopardizing their ability to maintain, extend, or reacquire their status. O-2 beneficiaries, on the other hand, must be coming to the United States temporarily and maintain a residence abroad they do not intend to abandon.74 While approval of an immigrant visa petition poses no impediment to approval of an O-1 extension or visa application, O-1 workers still do not enjoy the travel privileges for pending adjustment applicants without advance parole, accorded only to H and L visa holders.75

70 8 CFR §214.2(o)(2)(ii)(B). 71 Best practice is to check for the most up-to-date guidelines on their website, at http://amptp.org/immigration.html. 72 8 CFR §214.2(o)(5)(ii)(B). 73 8 CFR §214.2(o)(2)(iv)(G). 74 INA §101(a)(15)(O)(i) defines the O-1 classification without imposing a foreign-residence requirement, whereas subsection (O)(ii) includes the requirement for the O-2 classification. See 8 CFR §214.2(o)(13); 9 FAM 402.13-5(C) (formerly 9 FAM 41.55 N5.1–5.3). Despite the absence of a foreign residence requirement, and in contrast to its treatment of H-1B and L-1A noncitizens, USCIS has never seen fit to allow O-1 noncitizens to maintain nonimmigrant status and travel on the valid visa while adjusting to permanent residence. Travel by an O-1 worker without Advance Parole abandons a pending I-485 application. Therefore, artists and entertainers with frequent global travel commitments are forced to acquire permanent residence via consular processing. 75 8 CFR §245.2(c )(4).




Period of Admission The statute imposes no limit on the length of admission for an O-1 foreign national, except that it

authorizes admission for the period of the “event” in question. Nevertheless, USCIS settled on an initial validity period of three years to complete the event or activity in question for O-1 and O-2 foreign nationals.76 Extensions to continue/complete the same event may be obtained for up to one year at a time.77 Foreign nationals may be admitted up to 10 days prior to the validity period and/or may remain 10 days thereafter (but only if in fact admitted for that time as per the I-94, so as a practical matter this is determined by U.S. Customs and Border Protection (CBP) at the time of admission), though they are not permitted to work during these 10-day periods.78 However, as of the effective date of the High-Skilled Worker Rule79 on January 17, 2017, O-1 nonimmigrants are included in the classes of employment-based nonimmigrants now accorded a 60-day grace period within their approved period of admission if terminated early by the petitioner, during which time the foreign national may lawfully seek a new employer and file for a change of status or extension of status with a new employer.80

Definition of Event The regulations adopt a broad definition of “event.” Event means “an activity such as, but not limited to, a

scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are related and/or incidental to the event. In the case of an O-1 athlete, the event could be the alien’s contract.” 81 A group of related activities, such as a performing artist’s itinerary, can also be considered an event, as can a single contract or engagement for a prolonged period.

Chapter 33.4(e)(2) of the AFM acknowledges that “[t]here is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a ‘new event’ ” Further, “[t]here is no requirement for a ‘single event’ in the statute. Rather, the focus is on whether the foreign national will work in the area of extraordinary ability.” Nonetheless, this same section cautions against “speculative employment and/or freelancing,” asserting that petitions must establish, and either document or describe, actual events or activities. Indeed, the whole notion of speculative employment—or, rather, irrational fear of it—seems to be at the root of many an RFE demanding more and more proof of specific employment arrangements.

If the activities disclosed on an itinerary fall within the beneficiary’s area of extraordinary ability, they will be considered a single event no matter the gap between U.S. engagements.82 Despite this language, the odds of either service center issuing an RFE respecting itinerary gaps increase as the gaps between engagements exceed 45 days. Accordingly, where possible, petitioners are well-advised to provide evidence of proposed travel and activities abroad to “document the gap.”

76 8 CFR §214.2(o)(6)(iii). 77 8 CFR §214.2(o)(12)(ii). However, extensions of stay for up to three years may be granted for petitions by new employers and petitions by the existing employer for a new event or activity. ISD Teleconference, AILA Doc. No. 02110470. In general, the service centers seem amenable to petition extensions of three years based on a petition by the existing employer that contains a new itinerary of engagements, provided no extension of stay is involved. When seeking more than a one-year extension of a petition by the existing petitioner, provide new, or newly extended, contracts, and otherwise emphasize that the proposed activities are new ones, not merely extensions of existing ones. 78 8 CFR §214.2(o)(10). 79 81 FR 82398 (Nov. 18, 2016) 80 Id., at 82436-82438. 81 8 CFR §214.2(o)(3)(ii) (emphasis added). 82 AFM ch. 33.4(e)(2).



Further clarity on this point was provided in a USCIS policy memorandum in July 2010,83 which noted:

In certain cases where there has been a significant “gap” between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event.… There is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. The regulations speak in terms of tours and multiple appearances as meeting the “event” definition.… In addition, a job which may not have a specific engagement or project may also fall under this definition, if the job is the “activity” within the alien’s area of extraordinary ability.

The AAO then addressed the ongoing employment-contract aspect of the definition of “event,” which is critical to business, academic, and science O-1A petitions. The CSC had denied an O-1A petition for a research engineer on the theory that merely coming to the United States to perform day-to-day job duties as an engineer for a three-year offer of employment lacked “an intended purpose,” and thus failed to qualify as an event because there was no itinerary and the asserted “event” was not “finite.” The AAO reversed, stating:

The definition of event must be interpreted broadly, as the visa classification is expected to en-compass a diverse array of occupations spanning the professions, athletics, and the arts and en-tertainment fields. Given that the regulations allow for an initial three-year period of stay, con-sistent with other nonimmigrant visa classifications such as the H-1B and L-1 categories, it is reasonable to believe that the “engagement” included in the regulatory definition of “event” may include a three-year offer of employment in the alien’s area of extraordinary ability, including the “normal” duties of one’s profession.

The AAO noted that the CSC’s approach “would essentially prohibit private-sector employers from hiring O-1 scientists, engineers, and business leaders.” 84

Though the regulations state that an individual may be granted extensions of O-1 stay in one-year increments to continue or complete the same event/activity, USCIS may grant extensions of stay of up to three years for individuals changing O-1 petitioners to engage in new employment in the same or similar type of activity, or where the petitioner offers a new three-year employment contract.

Return Transportation For foreign nationals entering the United States in O status whose employment terminates for reasons other

than voluntary resignation, the employer whose offer underlies the O status, and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad—meaning the beneficiary’s last place of residence prior to entry. As written, the regulations do not apply to foreign nationals changing to O status after entry.85 There are no enforcement mechanisms established for this provision,86 although the I-129 O/P Supplement now asks all petitioners (including those seeking a change to, or extension of, O-1 status) to sign an acknowledgement that they are aware of the return transportation obligation.

Revocation Petitioners who no longer “employ” the beneficiary must write the applicable service center to that effect,

and USCIS may, following notice, revoke the petition even after its expiration.87 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of

83 USCIS Memorandum, “Clarifying Guidance on O Petition Validity Period,” PM-602-0003 (July 20, 2010), updating the AFM at chapter 33.4(e). 84 Matter of [name not provided], WAC 10 018 51674 (AAO Oct. 1, 2010), AILA Doc. No. 11022363. 85 8 CFR §214.2(o)(16). 86 As of the Nov. 23, 2010, revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that the petitioner is aware of the return transportation provision. The author questions the necessity of a separate signature for this unenforceable provision. 87 8 CFR §§214.2(o)(8)(i), (iii).




Period of Admission The statute imposes no limit on the length of admission for an O-1 foreign national, except that it

authorizes admission for the period of the “event” in question. Nevertheless, USCIS settled on an initial validity period of three years to complete the event or activity in question for O-1 and O-2 foreign nationals.76 Extensions to continue/complete the same event may be obtained for up to one year at a time.77 Foreign nationals may be admitted up to 10 days prior to the validity period and/or may remain 10 days thereafter (but only if in fact admitted for that time as per the I-94, so as a practical matter this is determined by U.S. Customs and Border Protection (CBP) at the time of admission), though they are not permitted to work during these 10-day periods.78 However, as of the effective date of the High-Skilled Worker Rule79 on January 17, 2017, O-1 nonimmigrants are included in the classes of employment-based nonimmigrants now accorded a 60-day grace period within their approved period of admission if terminated early by the petitioner, during which time the foreign national may lawfully seek a new employer and file for a change of status or extension of status with a new employer.80

Definition of Event The regulations adopt a broad definition of “event.” Event means “an activity such as, but not limited to, a

scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are related and/or incidental to the event. In the case of an O-1 athlete, the event could be the alien’s contract.” 81 A group of related activities, such as a performing artist’s itinerary, can also be considered an event, as can a single contract or engagement for a prolonged period.

Chapter 33.4(e)(2) of the AFM acknowledges that “[t]here is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a ‘new event’ ” Further, “[t]here is no requirement for a ‘single event’ in the statute. Rather, the focus is on whether the foreign national will work in the area of extraordinary ability.” Nonetheless, this same section cautions against “speculative employment and/or freelancing,” asserting that petitions must establish, and either document or describe, actual events or activities. Indeed, the whole notion of speculative employment—or, rather, irrational fear of it—seems to be at the root of many an RFE demanding more and more proof of specific employment arrangements.

If the activities disclosed on an itinerary fall within the beneficiary’s area of extraordinary ability, they will be considered a single event no matter the gap between U.S. engagements.82 Despite this language, the odds of either service center issuing an RFE respecting itinerary gaps increase as the gaps between engagements exceed 45 days. Accordingly, where possible, petitioners are well-advised to provide evidence of proposed travel and activities abroad to “document the gap.”

76 8 CFR §214.2(o)(6)(iii). 77 8 CFR §214.2(o)(12)(ii). However, extensions of stay for up to three years may be granted for petitions by new employers and petitions by the existing employer for a new event or activity. ISD Teleconference, AILA Doc. No. 02110470. In general, the service centers seem amenable to petition extensions of three years based on a petition by the existing employer that contains a new itinerary of engagements, provided no extension of stay is involved. When seeking more than a one-year extension of a petition by the existing petitioner, provide new, or newly extended, contracts, and otherwise emphasize that the proposed activities are new ones, not merely extensions of existing ones. 78 8 CFR §214.2(o)(10). 79 81 FR 82398 (Nov. 18, 2016) 80 Id., at 82436-82438. 81 8 CFR §214.2(o)(3)(ii) (emphasis added). 82 AFM ch. 33.4(e)(2).



Further clarity on this point was provided in a USCIS policy memorandum in July 2010,83 which noted:

In certain cases where there has been a significant “gap” between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event.… There is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. The regulations speak in terms of tours and multiple appearances as meeting the “event” definition.… In addition, a job which may not have a specific engagement or project may also fall under this definition, if the job is the “activity” within the alien’s area of extraordinary ability.

The AAO then addressed the ongoing employment-contract aspect of the definition of “event,” which is critical to business, academic, and science O-1A petitions. The CSC had denied an O-1A petition for a research engineer on the theory that merely coming to the United States to perform day-to-day job duties as an engineer for a three-year offer of employment lacked “an intended purpose,” and thus failed to qualify as an event because there was no itinerary and the asserted “event” was not “finite.” The AAO reversed, stating:

The definition of event must be interpreted broadly, as the visa classification is expected to en-compass a diverse array of occupations spanning the professions, athletics, and the arts and en-tertainment fields. Given that the regulations allow for an initial three-year period of stay, con-sistent with other nonimmigrant visa classifications such as the H-1B and L-1 categories, it is reasonable to believe that the “engagement” included in the regulatory definition of “event” may include a three-year offer of employment in the alien’s area of extraordinary ability, including the “normal” duties of one’s profession.

The AAO noted that the CSC’s approach “would essentially prohibit private-sector employers from hiring O-1 scientists, engineers, and business leaders.” 84

Though the regulations state that an individual may be granted extensions of O-1 stay in one-year increments to continue or complete the same event/activity, USCIS may grant extensions of stay of up to three years for individuals changing O-1 petitioners to engage in new employment in the same or similar type of activity, or where the petitioner offers a new three-year employment contract.

Return Transportation For foreign nationals entering the United States in O status whose employment terminates for reasons other

than voluntary resignation, the employer whose offer underlies the O status, and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad—meaning the beneficiary’s last place of residence prior to entry. As written, the regulations do not apply to foreign nationals changing to O status after entry.85 There are no enforcement mechanisms established for this provision,86 although the I-129 O/P Supplement now asks all petitioners (including those seeking a change to, or extension of, O-1 status) to sign an acknowledgement that they are aware of the return transportation obligation.


and USCIS may, following notice, revoke the petition even after its expiration.87 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of

83 USCIS Memorandum, “Clarifying Guidance on O Petition Validity Period,” PM-602-0003 (July 20, 2010), updating the AFM at chapter 33.4(e). 84 Matter of [name not provided], WAC 10 018 51674 (AAO Oct. 1, 2010), AILA Doc. No. 11022363. 85 8 CFR §214.2(o)(16). 86 As of the Nov. 23, 2010, revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that the petitioner is aware of the return transportation provision. The author questions the necessity of a separate signature for this unenforceable provision. 87 8 CFR §§214.2(o)(8)(i), (iii).




business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the underlying employment remains viable.88

Expedited Processing The details of how and when to request premium-processing service89 are beyond the scope of this article.

Suffice it to say that practitioners may find they have no choice but to pay the extra $1,225 (or $2,450 if an O-2 petition is involved) in return for a predictable response time and enhanced communications. For a long time, USCIS tried hard to meet the statutory processing deadline of 15 days, as per INA §214(c)(6)(D), for regularly filed O (and P) petitions. It may not always meet this goal, but its commitment saved O (and P) peti-tioners (often nonprofits) untold sums in premium-processing fees. Recently, this commitment has faded, and non-premium cases may now take anywhere from three weeks to upwards of four months.

However, the existence of premium processing combined with service center efforts to process regular cases expeditiously has relegated the “traditional expedite” process to the scrap heap. In the preamble to the premium processing service regulations, legacy INS stated that it was continuing its existing procedures for requesting expeditious processing, without additional fee, for “petitions that are filed by petitioners des-ignated as nonprofit by the Internal Revenue Service….” 90 According to its current expedite criteria, USCIS may, in its discretion, expedite a petition without an additional fee, if the petitioner meets one or more of the following criteria:91 Severe financial loss to company or individual Extreme emergent situation Humanitarian situation Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United

States U.S. Department of Defense (DoD) or national interest situation (Note: Request must come from an of-

ficial U.S. government entity and state that delay will be detrimental to our government.) USCIS error Compelling interest of USCIS Useful in theory, practical considerations diminish the value of the traditional expedite procedure. If the

petition already is filed, petitioners are supposed to contact the National Customer Service Center (NCSC), which will forward a “service request” to the service center. In the past, however, efforts to include 501(c)(3) documentation and an explanation of the emergency in the initial filings often were met with no response. Petitioners then contacting NCSC sometimes were asked to supply that same information in support of the service request. The net result has always been somewhat indifferent treatment to traditional expedite requests.

Consular Readjudications Obtaining an O-1 petition approval from USCIS is no longer a solid end point, as consular officers

worldwide increasingly tend to ignore DOS’s own guidance,92 which states that petition approval by USCIS is prima facie evidence of entitlement to O-1 classification. Officers are required to verify petition approval

88 8 CFR §214.2(o)(8)(ii). 89 8 CFR §103.2(f). 90 66 Fed. Reg. 29682, 29683 (June 1, 2001). 91 See www.uscis.gov/forms/expedite-criteria. 92 9 FAM 402.13-5(B) (formerly 9 FAM 41.55 N.8.4) ends with the precaution, “Disagreement with DHS interpretations of the law or facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition.” At present, this rule is observed largely in the breach.



through either the Petition Information Management System (PIMS) or the Person-Centric Query System (PCQS). However, the information in these databases, particularly copies of supporting documentation in PIMS, is often incomplete, as the Kentucky Consular Center (KCC) is known to exclude whole categories of supporting documents, such as press articles and house programs, from what they scan and upload. Anecdotal reports suggest that what gets uploaded by KCC is approximately 30 pages, now barely enough to include the I-129 forms and cover letter. Consular officers are supposed to request revocation of a petition approved by USCIS only in cases where they have identified specific new information unavailable to USCIS when the petition was adjudicated, and state grounds for revocation based on material misrepresentation. However, there have been numerous and increasing reports from around the world that consular officers often seek revocation of O-1 petitions because they have Googled the beneficiary, and do not personally believe he or she is famous enough, and stated as much to the beneficiary at the visa interview. Consular officers are not required to be familiar with the evidentiary criteria in 8 CFR §214.2(o) or (p), and, as noted above, may not have access to all petition documents.

P NONIMMIGRANTS: Performing Groups, Athletes, and Culturally Unique Performers, Teachers, and Coaches

Introduction

In general, P-1 classification is available to established entertainment groups, individual athletes, and ath-letic teams. The little-used P-2 category can be very convenient for those few eligible individual and group artists. The P-3 category should be the first option for culturally unique artists (groups or individual), teach-ers, and coaches. As the O and P categories can sometimes overlap, practitioners must on occasion weigh the pros and cons of choosing one over the other.

Statutory Authority

INA §101(a)(15)(P) defines the P-1, P-2, P-3, and P-4 classifications, as added by section 207(a) of IMMACT90 and modified by sections 202, 203, 204, 206, and 207 of MTINA. P-1 status generally is available to internationally known athletes, individually or as part of a group or team, and entertainment groups. P-2 noncitizens are performing artists under the auspices of a bilateral reciprocal exchange program. P-3 noncitizens are culturally unique entertainers, teachers, or coaches, whether individually or in a group. All three classifications include accompanying personnel. The P-4 category is for spouses and dependents of noncitizens in the foregoing categories. As for the O visas, statutory authority for the peer advisory consultation requirement for P visas is found at INA §214(c)(6).


The governing USCIS regulations are found at 8 CFR §214.2(p), with their DOS counterparts at 22 CFR §41.56 and notes thereto at 9 FAM §402.14 (formerly 9 FAM 41.56).93 Chapter 33 of the AFM covers the P classification.

Substantive Requirements for P-1 Classification

Individual athletes, athletic teams, and entertainment groups generally must meet the basic standard of international recognition—meaning “a high level of achievement in the field evidenced by a degree of skill

93 Legacy INS published final regulations governing P-2 reciprocal exchange artists at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing the P-1 and P-3 categories, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these classifications at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding foreign employers from serving as petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997).




business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the underlying employment remains viable.88

Expedited Processing The details of how and when to request premium-processing service89 are beyond the scope of this article.

Suffice it to say that practitioners may find they have no choice but to pay the extra $1,225 (or $2,450 if an O-2 petition is involved) in return for a predictable response time and enhanced communications. For a long time, USCIS tried hard to meet the statutory processing deadline of 15 days, as per INA §214(c)(6)(D), for regularly filed O (and P) petitions. It may not always meet this goal, but its commitment saved O (and P) peti-tioners (often nonprofits) untold sums in premium-processing fees. Recently, this commitment has faded, and non-premium cases may now take anywhere from three weeks to upwards of four months.

However, the existence of premium processing combined with service center efforts to process regular cases expeditiously has relegated the “traditional expedite” process to the scrap heap. In the preamble to the premium processing service regulations, legacy INS stated that it was continuing its existing procedures for requesting expeditious processing, without additional fee, for “petitions that are filed by petitioners des-ignated as nonprofit by the Internal Revenue Service….” 90 According to its current expedite criteria, USCIS may, in its discretion, expedite a petition without an additional fee, if the petitioner meets one or more of the following criteria:91 Severe financial loss to company or individual Extreme emergent situation Humanitarian situation Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United

States U.S. Department of Defense (DoD) or national interest situation (Note: Request must come from an of-

ficial U.S. government entity and state that delay will be detrimental to our government.) USCIS error Compelling interest of USCIS Useful in theory, practical considerations diminish the value of the traditional expedite procedure. If the

petition already is filed, petitioners are supposed to contact the National Customer Service Center (NCSC), which will forward a “service request” to the service center. In the past, however, efforts to include 501(c)(3) documentation and an explanation of the emergency in the initial filings often were met with no response. Petitioners then contacting NCSC sometimes were asked to supply that same information in support of the service request. The net result has always been somewhat indifferent treatment to traditional expedite requests.

Consular Readjudications Obtaining an O-1 petition approval from USCIS is no longer a solid end point, as consular officers

worldwide increasingly tend to ignore DOS’s own guidance,92 which states that petition approval by USCIS is prima facie evidence of entitlement to O-1 classification. Officers are required to verify petition approval

88 8 CFR §214.2(o)(8)(ii). 89 8 CFR §103.2(f). 90 66 Fed. Reg. 29682, 29683 (June 1, 2001). 91 See www.uscis.gov/forms/expedite-criteria. 92 9 FAM 402.13-5(B) (formerly 9 FAM 41.55 N.8.4) ends with the precaution, “Disagreement with DHS interpretations of the law or facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition.” At present, this rule is observed largely in the breach.



through either the Petition Information Management System (PIMS) or the Person-Centric Query System (PCQS). However, the information in these databases, particularly copies of supporting documentation in PIMS, is often incomplete, as the Kentucky Consular Center (KCC) is known to exclude whole categories of supporting documents, such as press articles and house programs, from what they scan and upload. Anecdotal reports suggest that what gets uploaded by KCC is approximately 30 pages, now barely enough to include the I-129 forms and cover letter. Consular officers are supposed to request revocation of a petition approved by USCIS only in cases where they have identified specific new information unavailable to USCIS when the petition was adjudicated, and state grounds for revocation based on material misrepresentation. However, there have been numerous and increasing reports from around the world that consular officers often seek revocation of O-1 petitions because they have Googled the beneficiary, and do not personally believe he or she is famous enough, and stated as much to the beneficiary at the visa interview. Consular officers are not required to be familiar with the evidentiary criteria in 8 CFR §214.2(o) or (p), and, as noted above, may not have access to all petition documents.

P NONIMMIGRANTS: Performing Groups, Athletes, and Culturally Unique Performers, Teachers, and Coaches

Introduction

In general, P-1 classification is available to established entertainment groups, individual athletes, and ath-letic teams. The little-used P-2 category can be very convenient for those few eligible individual and group artists. The P-3 category should be the first option for culturally unique artists (groups or individual), teach-ers, and coaches. As the O and P categories can sometimes overlap, practitioners must on occasion weigh the pros and cons of choosing one over the other.

Statutory Authority

INA §101(a)(15)(P) defines the P-1, P-2, P-3, and P-4 classifications, as added by section 207(a) of IMMACT90 and modified by sections 202, 203, 204, 206, and 207 of MTINA. P-1 status generally is available to internationally known athletes, individually or as part of a group or team, and entertainment groups. P-2 noncitizens are performing artists under the auspices of a bilateral reciprocal exchange program. P-3 noncitizens are culturally unique entertainers, teachers, or coaches, whether individually or in a group. All three classifications include accompanying personnel. The P-4 category is for spouses and dependents of noncitizens in the foregoing categories. As for the O visas, statutory authority for the peer advisory consultation requirement for P visas is found at INA §214(c)(6).


The governing USCIS regulations are found at 8 CFR §214.2(p), with their DOS counterparts at 22 CFR §41.56 and notes thereto at 9 FAM §402.14 (formerly 9 FAM 41.56).93 Chapter 33 of the AFM covers the P classification.


Individual athletes, athletic teams, and entertainment groups generally must meet the basic standard of international recognition—meaning “a high level of achievement in the field evidenced by a degree of skill

93 Legacy INS published final regulations governing P-2 reciprocal exchange artists at 56 Fed. Reg. 61111 (Dec. 2, 1991). Following interim final regulations governing the P-1 and P-3 categories, 57 Fed. Reg. 12179 (Apr. 9, 1992), legacy INS published final regulations for these classifications at 59 Fed. Reg. 41818 (Aug. 15, 1994), followed by corrections at 59 Fed. Reg. 55910 (Nov. 9, 1994), and a further final rule precluding foreign employers from serving as petitioners. 62 Fed. Reg. 18508 (Apr. 16, 1997).




and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.” 94

Athletes Foreign nationals performing as athletes at “an internationally recognized” level may be admitted in P-1A

status.95 P-1 classification may be granted to an internationally recognized athlete based on his or her individual reputation and achievements.96 This is a lower standard than that for O-1 noncitizens in athletics, who must have “sustained national or international acclaim,” but a narrower one in that it encompasses only competing athletes, not others involved in athletics, such as coaches and trainers. Athletic teams must be recognized internationally as outstanding in the discipline and must be coming to perform services that require such recognition. Team members may not perform services independently of the team.97

The regulatory rule that the offered employment must require the services of an internationally recognized athlete was not enforced for over 20 years because USCIS knew it was not supported by law, which is why a similar requirement98 was struck from the O-1 regulations in 1994. In its Final Rule amending the H, O, and P regulations, legacy INS remarked, “After careful consideration, the Service agrees that there is no statutory support for the requirement that an O-1 alien be coming to perform services requiring an alien of O-1 caliber. As a result, this paragraph was deleted from the final rule. The alien, however, must be coming to perform services in the area of extraordinary ability, as is required in the statutory definition of the classification.” 99 Regrettably, legacy INS failed to strike out nearly identical language in the P regulations,100 which is equally lacking in statutory support, since the provision of law used to justify the P-1A rule101 refers only to the level at which the athlete performs, and not to any recognition requirements enforced by a U.S. employer. No sports league or tour has such a requirement as a threshold for participation, yet in 2013, USCIS began apply-ing this regulation, which has no support in the law, to deny otherwise approvable P-1 petitions.

In individual sports, USCIS began drawing an arbitrary line below the largest or oldest one or two leagues, and denying everything below that line. For example, in golf, they will approve a petition for a golfer with a Professional Golfers Association contract, but not one for the Web.com tour. With an itinerary of the annual competition events, from a tour or league of a sufficient caliber for USCIS to acknowledge it as “internation-ally recognized,” and a letter from the tour stating that competition schedule repeats in substantially the same manner annually, a five-year P petition can, and should, be approved.102 In team sports, it is imperative to get a contract from the highest league possible (i.e., Major League Baseball, the National Hockey League, etc.), and then the major league can relegate the beneficiary to a minor league team.

The COMPETE Act of 2006 expanded somewhat the foreign nationals eligible for P-1 classification to include: (1) individual professional athletes employed by teams (including affiliated minor league teams) belonging to an association of six or more professional sports teams with combined revenues exceeding $10 million annually, where the association governs its members’ conduct and regulates the competition; (2) individual coaches or athletes performing with teams or franchises in the United States that are part of an 94 8 CFR §214.2(p)(3). 95 INA §214(c)(4)(A)(i). 96 8 CFR §214.2(p)(4)(i)(A). This regulation also requires that the foreign national be coming to perform services that “require an internationally recognized athlete,” but the statute contains no such requirement and USCIS does not require separate evidence on point. 97 8 CFR §214.2(p)(4)(i)(B). 98 Previously at 8 CFR §214.2(o)(3)(iii). 99 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). 100 8 CFR §214.2(p)(4)(ii)(B). 101 INA §214(c)(4)(A)(i)(I). “[P]erforms as an athlete, individually or as part of a group or team, at an internationally recog-nized level of performance.” 102 All major league sports petitions are adjudicated at the VSC, per the Nov. 9, 2009 USCIS Memorandum on Agents and Sponsors.



international league/association with at least 15 amateur sports teams, under certain circumstances; and (3) amateur or professional skaters performing individually or as part of a group in theatrical skating productions/tours.103

Individual athletes and athletic teams must include with their petition a tendered contract with a major U.S. sports league or team, or a tendered contract with an individual sport “commensurate with international recognition in that sport, if such contracts are normally executed in the sport,” 104 and evidence and/or documentation of at least two of the following: Significant participation in a prior U.S. major league season Participation in international competition with a national team Significant participation in a prior U.S. college/university season in intercollegiate competition Written statement from a major U.S. sports league or official of the sport’s governing body detailing

the foreign national’s or team’s international recognition Written statement from the sports media or a recognized expert respecting international recognition International ranking Significant honors/awards in the sport105

Entertainers P-1B classification may be accorded to foreign nationals who belong to an entertainment group that has

been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each member must have had a sustained and substantial relationship with the group ordinarily for at least a year (with exceptions discussed below).106 P-1B status is granted on the basis of the group’s international reputation, not on the basis of individual achievement.

A petition for P-1 classification for members of an entertainment group must be accompanied by: Evidence that the group has been established and performing regularly for a period of a least one year; A statement from the petitioner listing each member of the group and the exact date for which each

member has been employed on a regular basis by the group; and Evidence that the group has been internationally recognized in the discipline for a sustained and sub-

stantial period of time.107

International recognition may be shown either by evidence of the group’s nomination for or receipt of sig-nificant international awards or prizes for outstanding achievement in the field, or by evidence that the group has achieved three of the following: Has and will perform as a starring or leading entertainment group in productions/events with distin-

guished reputations International recognition and acclaim for outstanding achievements

103 INA §§214(c)(4)(A), (F), (G) and (H). The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)—Admission as P-1 Nonimmigrant (HQ 70/6.2.19),” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. Petitioners should be able to include more than one professional athlete on a P-1 petition for a U.S. team. 104 8 CFR §214.2(p)(4)(ii)(B)(1). 105 8 CFR §214.2(p)(4)(ii)(B). 106 INA §214(c)(4)(B). The regulatory requirement at 8 CFR §214.2(p)(4)(i)(B) that the proposed services themselves require an internationally recognized entertainment group has no basis in the statute, and, in practice, USCIS thus far has not required proof respecting this issue, except via the occasional RFE. 107 8 CFR §214.2(p)(4)(iii)(B).




and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.” 94

Athletes Foreign nationals performing as athletes at “an internationally recognized” level may be admitted in P-1A

status.95 P-1 classification may be granted to an internationally recognized athlete based on his or her individual reputation and achievements.96 This is a lower standard than that for O-1 noncitizens in athletics, who must have “sustained national or international acclaim,” but a narrower one in that it encompasses only competing athletes, not others involved in athletics, such as coaches and trainers. Athletic teams must be recognized internationally as outstanding in the discipline and must be coming to perform services that require such recognition. Team members may not perform services independently of the team.97

The regulatory rule that the offered employment must require the services of an internationally recognized athlete was not enforced for over 20 years because USCIS knew it was not supported by law, which is why a similar requirement98 was struck from the O-1 regulations in 1994. In its Final Rule amending the H, O, and P regulations, legacy INS remarked, “After careful consideration, the Service agrees that there is no statutory support for the requirement that an O-1 alien be coming to perform services requiring an alien of O-1 caliber. As a result, this paragraph was deleted from the final rule. The alien, however, must be coming to perform services in the area of extraordinary ability, as is required in the statutory definition of the classification.” 99 Regrettably, legacy INS failed to strike out nearly identical language in the P regulations,100 which is equally lacking in statutory support, since the provision of law used to justify the P-1A rule101 refers only to the level at which the athlete performs, and not to any recognition requirements enforced by a U.S. employer. No sports league or tour has such a requirement as a threshold for participation, yet in 2013, USCIS began apply-ing this regulation, which has no support in the law, to deny otherwise approvable P-1 petitions.

In individual sports, USCIS began drawing an arbitrary line below the largest or oldest one or two leagues, and denying everything below that line. For example, in golf, they will approve a petition for a golfer with a Professional Golfers Association contract, but not one for the Web.com tour. With an itinerary of the annual competition events, from a tour or league of a sufficient caliber for USCIS to acknowledge it as “internation-ally recognized,” and a letter from the tour stating that competition schedule repeats in substantially the same manner annually, a five-year P petition can, and should, be approved.102 In team sports, it is imperative to get a contract from the highest league possible (i.e., Major League Baseball, the National Hockey League, etc.), and then the major league can relegate the beneficiary to a minor league team.

The COMPETE Act of 2006 expanded somewhat the foreign nationals eligible for P-1 classification to include: (1) individual professional athletes employed by teams (including affiliated minor league teams) belonging to an association of six or more professional sports teams with combined revenues exceeding $10 million annually, where the association governs its members’ conduct and regulates the competition; (2) individual coaches or athletes performing with teams or franchises in the United States that are part of an 94 8 CFR §214.2(p)(3). 95 INA §214(c)(4)(A)(i). 96 8 CFR §214.2(p)(4)(i)(A). This regulation also requires that the foreign national be coming to perform services that “require an internationally recognized athlete,” but the statute contains no such requirement and USCIS does not require separate evidence on point. 97 8 CFR §214.2(p)(4)(i)(B). 98 Previously at 8 CFR §214.2(o)(3)(iii). 99 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). 100 8 CFR §214.2(p)(4)(ii)(B). 101 INA §214(c)(4)(A)(i)(I). “[P]erforms as an athlete, individually or as part of a group or team, at an internationally recog-nized level of performance.” 102 All major league sports petitions are adjudicated at the VSC, per the Nov. 9, 2009 USCIS Memorandum on Agents and Sponsors.



international league/association with at least 15 amateur sports teams, under certain circumstances; and (3) amateur or professional skaters performing individually or as part of a group in theatrical skating productions/tours.103

Individual athletes and athletic teams must include with their petition a tendered contract with a major U.S. sports league or team, or a tendered contract with an individual sport “commensurate with international recognition in that sport, if such contracts are normally executed in the sport,” 104 and evidence and/or documentation of at least two of the following: Significant participation in a prior U.S. major league season Participation in international competition with a national team Significant participation in a prior U.S. college/university season in intercollegiate competition Written statement from a major U.S. sports league or official of the sport’s governing body detailing

the foreign national’s or team’s international recognition Written statement from the sports media or a recognized expert respecting international recognition International ranking Significant honors/awards in the sport105

Entertainers P-1B classification may be accorded to foreign nationals who belong to an entertainment group that has

been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each member must have had a sustained and substantial relationship with the group ordinarily for at least a year (with exceptions discussed below).106 P-1B status is granted on the basis of the group’s international reputation, not on the basis of individual achievement.

A petition for P-1 classification for members of an entertainment group must be accompanied by: Evidence that the group has been established and performing regularly for a period of a least one year; A statement from the petitioner listing each member of the group and the exact date for which each

member has been employed on a regular basis by the group; and Evidence that the group has been internationally recognized in the discipline for a sustained and sub-

stantial period of time.107

International recognition may be shown either by evidence of the group’s nomination for or receipt of sig-nificant international awards or prizes for outstanding achievement in the field, or by evidence that the group has achieved three of the following: Has and will perform as a starring or leading entertainment group in productions/events with distin-

guished reputations International recognition and acclaim for outstanding achievements

103 INA §§214(c)(4)(A), (F), (G) and (H). The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)—Admission as P-1 Nonimmigrant (HQ 70/6.2.19),” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. Petitioners should be able to include more than one professional athlete on a P-1 petition for a U.S. team. 104 8 CFR §214.2(p)(4)(ii)(B)(1). 105 8 CFR §214.2(p)(4)(ii)(B). 106 INA §214(c)(4)(B). The regulatory requirement at 8 CFR §214.2(p)(4)(i)(B) that the proposed services themselves require an internationally recognized entertainment group has no basis in the statute, and, in practice, USCIS thus far has not required proof respecting this issue, except via the occasional RFE. 107 8 CFR §214.2(p)(4)(iii)(B).




Has and will perform services as a leading or starring group for organizations and establishments with a distinguished reputation

Record of major commercial or critically acclaimed successes Significant recognition for achievements from organizations, critics, government agencies, or other

recognized experts Has commanded or will command a high salary or other substantial remuneration comparable to others

similarly situated108

Exceptions 75 Percent Rule—Only 75 percent of the group members performing must have had a sustained and

substantial relationship with the group for at least a year.109 Thus, 25 percent of the P-1 performers or entertainers need not have had such a relationship. In addition, USCIS may waive the one-year rela-tionship requirement “for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by per-forming a critical role,” 110 but USCIS is typically stingy with the “exigent circumstances” exception. There is no statutory or regulatory support for requiring essential support personnel to meet the 75 per-cent rule, but some adjudicators misread the regulation111 requiring a statement describing the support alien’s “prior essentiality, critical skills and experience with the principal alien(s)” as justifying that in-terpretation. Such prior experience supporting the P-1 principal(s) need not be for one year, but must be detailed in the petition.

National vs. International Reputation—USCIS may waive the international recognition requirement for entertainment groups “recognized nationally as being outstanding in [their] discipline for a sus-tained and substantial period of time in consideration of special circumstances.” An example would be entertainment groups that have difficulty showing recognition in more than one country because of lim-ited access to news media or geographical considerations.112 However, petitioners may be challenged on whether members of a P-1B entertainment group who are not the members prominently covered in the media are “integral or essential” to the group’s performances.

Circus Personnel—The one-year membership requirement does not apply to noncitizen circus person-nel performing as part of a circus or circus group or who are integral and essential, provided the per-sonnel are entering as part of, or are coming to join, a circus with national recognition as outstanding for a sustained and substantial time.113

Group May Be Foreign or U.S.-Based—USCIS at long last conceded that the statute does not require a P-1 group to be foreign-based. Accordingly, it issued a policy memorandum revising the AFM, ac-

108 Id. 109 8 CFR §214.2(p)(4)(i)(B) & (p)(4)(iii)(A). The “sustained and substantial” standard is nowhere defined, leaving room for interpretation as to number and frequency of prior performances together. Certainly, the relationship may be less than full-time employment, for instance. 110 8 CFR §214.2(p)(4)(iii)(C)(3). If the facts do not fit, practitioners should consider filing an O-1 petition for a single group member, and an O-2 petition for all other group members. This, indeed, is how film production petitions work, because such productions are by definition not entertainment groups, and in any event they never meet the 75 percent rule. Instead, whichever production member, whether an actor, director, or other, has the strongest documentable credentials serves as the O-1 beneficiary, and all others involved in the production become O-2 beneficiaries. 111 8 CFR §214.2(p)(4)(iv), requiring description of support persons’ prior essentiality, critical skills and experience with the group. 112 8 CFR §214.2(p)(4)(iii)(C)(2). Canadian entertainment groups, for instance, often can gain their international reputation only by access to U.S. media. 113 8 CFR §214.2(p)(4)(iii)(C)(1).



knowledging that individual entertainers may come to the U.S. in P-1 classification to join any group, foreign– or U.S.-based, meeting the P-1 criteria.114

In these cases, the petitioner should describe the group in question but identify only the beneficiary or beneficiaries needing P-1 classification.115

Unfortunately, and entirely arbitrarily, USCIS decided not to extend this same interpretation to essential support workers, thereby placing U.S.-based groups that otherwise meet the P-1 requirements at a disadvantage in terms of their access to essential support personnel, who, after all, often are experts in a particular technique or technolo-gy.116


P-2 classification is reserved for artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more U.S. organizations and one or more such organizations in another country that provides for the temporary exchange of artists and entertainers. There are no other criteria pertaining to these organizations, though labor unions must be involved in establishing the exchange program or at least concur with it.117 The exchange must be similar in terms of caliber of artists or entertainers, terms and conditions of employment, and numbers of noncitizens involved in the exchange—though individual-for-group exchanges are not precluded, and the individuals subject to the exchange must have “comparable skills.” 118 Despite their potential, the only active P-2 programs at the moment are those established and operated by AE (with its British, Canadian, Australian, and New Zealand counterparts), the American Federation of Musicians (AFM) (with its Canadian counterpart), and, it appears, the International Council of Air Shows and the Canadian Air Show Association.119


P-3 classification is accorded to culturally unique artists and entertainers, individually or as a group, coming to the United States to develop, interpret, represent, coach, or teach their particular art or discipline. “Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” 120 This broad definition allows the enterprising practitioner to devise a P-3 petition for many different types of artists—especially in this age of increasing multiculturalism in the arts, and even for coaches of culturally unique athletic activity. P-3 activities may be conducted in the context of commercial or noncommercial programs.

In keeping with liberal statutory standards for this category and the legislative history,121 the evidentiary criteria for P-3 petitions require:

114 Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952. 115 Legacy INS Memorandum, “P-1 Petitions for Professional Sports Leagues,” AILA Doc. No. 04110466. The COMPETE Act adopts this policy for the foreign nationals it covers. Note: Individual circus performers (or support personnel) may be beneficiaries of a P-1 petition if coming to join a U.S. circus. Legacy INS General Counsel Opinion 94-16 (Mar. 3, 1994) (unpublished). 116 See Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952, at n.1. 117 USCIS Memorandum, D. Neufeld, “Clarifying Guidance on Adjudicating Reciprocal Exchange Agreements,” AILA Doc. No. 10031663, amends AFM Ch. 33.6(d) by clarifying that service centers need not contact headquarters if they encounter a reciprocal exchange agreement not previously approved. 118 8 CFR §214.2(p)(5)(ii)(D). 119 P-2 beneficiaries must be nationals or permanent residents of the reciprocating country. 120 8 CFR §214.2(p)(3). 121 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991).




Has and will perform services as a leading or starring group for organizations and establishments with a distinguished reputation

Record of major commercial or critically acclaimed successes Significant recognition for achievements from organizations, critics, government agencies, or other

recognized experts Has commanded or will command a high salary or other substantial remuneration comparable to others

similarly situated108

Exceptions 75 Percent Rule—Only 75 percent of the group members performing must have had a sustained and

substantial relationship with the group for at least a year.109 Thus, 25 percent of the P-1 performers or entertainers need not have had such a relationship. In addition, USCIS may waive the one-year rela-tionship requirement “for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by per-forming a critical role,” 110 but USCIS is typically stingy with the “exigent circumstances” exception. There is no statutory or regulatory support for requiring essential support personnel to meet the 75 per-cent rule, but some adjudicators misread the regulation111 requiring a statement describing the support alien’s “prior essentiality, critical skills and experience with the principal alien(s)” as justifying that in-terpretation. Such prior experience supporting the P-1 principal(s) need not be for one year, but must be detailed in the petition.

National vs. International Reputation—USCIS may waive the international recognition requirement for entertainment groups “recognized nationally as being outstanding in [their] discipline for a sus-tained and substantial period of time in consideration of special circumstances.” An example would be entertainment groups that have difficulty showing recognition in more than one country because of lim-ited access to news media or geographical considerations.112 However, petitioners may be challenged on whether members of a P-1B entertainment group who are not the members prominently covered in the media are “integral or essential” to the group’s performances.

Circus Personnel—The one-year membership requirement does not apply to noncitizen circus person-nel performing as part of a circus or circus group or who are integral and essential, provided the per-sonnel are entering as part of, or are coming to join, a circus with national recognition as outstanding for a sustained and substantial time.113

Group May Be Foreign or U.S.-Based—USCIS at long last conceded that the statute does not require a P-1 group to be foreign-based. Accordingly, it issued a policy memorandum revising the AFM, ac-

108 Id. 109 8 CFR §214.2(p)(4)(i)(B) & (p)(4)(iii)(A). The “sustained and substantial” standard is nowhere defined, leaving room for interpretation as to number and frequency of prior performances together. Certainly, the relationship may be less than full-time employment, for instance. 110 8 CFR §214.2(p)(4)(iii)(C)(3). If the facts do not fit, practitioners should consider filing an O-1 petition for a single group member, and an O-2 petition for all other group members. This, indeed, is how film production petitions work, because such productions are by definition not entertainment groups, and in any event they never meet the 75 percent rule. Instead, whichever production member, whether an actor, director, or other, has the strongest documentable credentials serves as the O-1 beneficiary, and all others involved in the production become O-2 beneficiaries. 111 8 CFR §214.2(p)(4)(iv), requiring description of support persons’ prior essentiality, critical skills and experience with the group. 112 8 CFR §214.2(p)(4)(iii)(C)(2). Canadian entertainment groups, for instance, often can gain their international reputation only by access to U.S. media. 113 8 CFR §214.2(p)(4)(iii)(C)(1).



knowledging that individual entertainers may come to the U.S. in P-1 classification to join any group, foreign– or U.S.-based, meeting the P-1 criteria.114

In these cases, the petitioner should describe the group in question but identify only the beneficiary or beneficiaries needing P-1 classification.115

Unfortunately, and entirely arbitrarily, USCIS decided not to extend this same interpretation to essential support workers, thereby placing U.S.-based groups that otherwise meet the P-1 requirements at a disadvantage in terms of their access to essential support personnel, who, after all, often are experts in a particular technique or technolo-gy.116


P-2 classification is reserved for artists and entertainers who perform individually or as part of a group, pursuant to a reciprocal exchange program between one or more U.S. organizations and one or more such organizations in another country that provides for the temporary exchange of artists and entertainers. There are no other criteria pertaining to these organizations, though labor unions must be involved in establishing the exchange program or at least concur with it.117 The exchange must be similar in terms of caliber of artists or entertainers, terms and conditions of employment, and numbers of noncitizens involved in the exchange—though individual-for-group exchanges are not precluded, and the individuals subject to the exchange must have “comparable skills.” 118 Despite their potential, the only active P-2 programs at the moment are those established and operated by AE (with its British, Canadian, Australian, and New Zealand counterparts), the American Federation of Musicians (AFM) (with its Canadian counterpart), and, it appears, the International Council of Air Shows and the Canadian Air Show Association.119


P-3 classification is accorded to culturally unique artists and entertainers, individually or as a group, coming to the United States to develop, interpret, represent, coach, or teach their particular art or discipline. “Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” 120 This broad definition allows the enterprising practitioner to devise a P-3 petition for many different types of artists—especially in this age of increasing multiculturalism in the arts, and even for coaches of culturally unique athletic activity. P-3 activities may be conducted in the context of commercial or noncommercial programs.

In keeping with liberal statutory standards for this category and the legislative history,121 the evidentiary criteria for P-3 petitions require:

114 Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952. 115 Legacy INS Memorandum, “P-1 Petitions for Professional Sports Leagues,” AILA Doc. No. 04110466. The COMPETE Act adopts this policy for the foreign nationals it covers. Note: Individual circus performers (or support personnel) may be beneficiaries of a P-1 petition if coming to join a U.S. circus. Legacy INS General Counsel Opinion 94-16 (Mar. 3, 1994) (unpublished). 116 See Policy Memorandum, “Clarifying Guidance on Definition of Internationally Recognized for the P-1 Classification; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 33.5(a) AFM Update AD 11-03,” AILA Doc. No. 12070952, at n.1. 117 USCIS Memorandum, D. Neufeld, “Clarifying Guidance on Adjudicating Reciprocal Exchange Agreements,” AILA Doc. No. 10031663, amends AFM Ch. 33.6(d) by clarifying that service centers need not contact headquarters if they encounter a reciprocal exchange agreement not previously approved. 118 8 CFR §214.2(p)(5)(ii)(D). 119 P-2 beneficiaries must be nationals or permanent residents of the reciprocating country. 120 8 CFR §214.2(p)(3). 121 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991).




Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the nonciti-zen’s or the group’s skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert—including the basis of his or her knowledge of the noncitizen’s or group’s skill, or

Documentation that the performance of the noncitizen or group is culturally unique, as evidenced by reviews in newspapers, journals, or other published materials; and

Evidence that all of the performances or presentations will be culturally unique events.122 Liberal statutory standards intended to preserve the flexibility of the O and P categories have not consistently

filtered down to the service centers. The CSC, in particular, was prone to issuing RFEs for P-3 petitions not in-volving patently traditional activity, especially those proposing to combine more than one cultural motif or tradi-tion, evidently on the theory that the resulting cultural hybrid strands could no longer be unique. To resolve the problem, the AAO, on USCIS’s own motion, reopened an earlier decision for the express purpose of issuing a precedent decision establishing that art forms need not be “traditional” to be culturally unique. Indeed, it is now clear that distinctive artistic expression derived from hybrid or fusion of artistic styles or traditions, from multi-ple cultures or regions, qualifies for P-3 treatment.123 That case also resulted in specific guidance on the regula-tory standard for expert testimonial letters submitted in support of P-3 petitions, noting they should be: (a) from a recognized expert, and accompanied by a detailed curriculum vitae or résumé; (b) attest to the authenticity of the group or individual beneficiary’s skills, explaining why they are skillful or knowledgeable about that par-ticular culture; and (c) speak to the unique or traditional nature of the art form, describing it in detail.124

Accompanying Personnel

All P categories allow for “essential support” personnel.125 An essential support person is defined as “a highly skilled, essential person” who is an “integral part” of the performance of the P principal because she or he performs support services that cannot readily be performed by a U.S. worker and that are essential to the success of the performance.126 In other words, essential support personnel are those who are not performing. Such personnel must have appropriate qualifications to perform the services, critical knowledge of the specific services required, and experience in providing such support to the P noncitizen.127 The latter requirement finds no support in the statute, and at least for the P-1 category, is contravened by the legislative history.128 Though the regulations do not expressly address the question, P essential support personnel cannot work separate and apart from their P principal(s) and must be petitioned for in conjunction with the services of their P principal(s). A P petition for essential support personnel cannot be filed without a previously or simultaneously filed P petition for the principal performers or athletes. USCIS designates the P classifications for support personnel as P-1S, P-2S and P-3S.

Purpose of Admission

Admission in all P categories is limited to a specific competition, event, or performance—defined as an activity such as an athletic competition or season, tournament, tour, exhibit, project, entertainment event, or engagement.129 To avoid unnecessary paperwork, the regulations provide that such activities may include

122 8 CFR §214.2(p)(6)(ii). 123 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO May 15, 2012). 124 AILA Practice Pointer, “AAO Endorses Cross-Cultural P-3 Petitions: Matter of Skirball Cultural Center,” AILA Doc. No. 12071248. 125 8 CFR §214.2(p)(3). 126 Id. 127 Id. 128 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991). 129 8 CFR §214.2(p)(3).



short vacations, promotional appearances, and stopovers incidental and/or related to the underlying activity. This definition should be sufficient to enable noncitizens to receive outside income from endorsement activi-ty. USCIS notes that an athletic or entertainment event could include an entire season of performances. A group of related activities can also be considered an event.130 Nevertheless, it appears that athletes entering in the P-1 category must do so in conjunction with a specific athletic competition and thus cannot enter primari-ly to teach or coach,131 in contrast to P-3 culturally unique performers who explicitly may do so. In general, all principal P noncitizens must be entering to engage in the skill, art, or activity for which they achieved recognition.

As many entertainment-related P petitions involve itineraries, beware of petitions that include gaps of more than 45 days between engagements. Despite the absence of any regulation, policy memoranda, or other publicly available guidance concerning gaps in P itineraries, both the CSC and the VSC target such gaps by issuing RFEs for additional itinerary documentation. Wherever possible, petitioners should provide evidence of proposed activities and travel abroad to “document the gap.”


Petition An I-129 petition with the P supplement must be filed in duplicate to request P-1, P-2, or P-3 status.132

Petitions may be filed up to a year in advance of the need for the noncitizen’s services.133 Be sure to reconfirm the currently accepted version of Form I-129, O/P Supplement, and applicable filing fee at www.uscis.gov/i-129 prior to filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries. A separate I-129, supplement and petition filing fee is required for essential support personnel.

Jurisdiction Petitions must be filed directly with either the CSC or the VSC, whichever has jurisdiction over the

location where the temporary employment is to occur.134 However, under a special agreement with USCIS, detailed in AFM 33.10,135 all O-1A & P-1A petitions for NHL hockey players and Major League Baseball players must be filed with the Nebraska Service Center. Petitions calling for services to be rendered in “more than one location (e.g., a tour) must include an itinerary with the dates and locations of work” 136 and must be filed at the service center with jurisdiction over the petitioner’s location. “More than one location” means literally that such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical address locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.” 137 Other than as an invitation to forum shop, it is difficult to explain the presence of this clause; however, this language

130 Id. 131 Except as provided in INA §214(c)(4)(A)(i)(III). Bear in mind the COMPETE Act provisions at INA §§214(c)(4)(A), (F), (G) and (H), which do permit coaches to qualify for P-1 classification in certain circumstances. The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “ ‘Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)’—Admission as P-1 Nonimmigrant,” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. It appears that petitioners will be able to include more than one professional athlete on a P-1 petition for a U.S. team. 132 The current Form I-129 instructions (rev. Jan. 17, 2017) specify that P-1A classification is for individual or team athletes, and P-1B for entertainers. Support personnel are denoted as P-1S, P-2S, or P-3S. The associated visas remain denoted simply as P-1, P-2, or P-3 for principals and support personnel. 133 8 CFR §214.2(p)(2)(i). 134 8 CFR §214.2(p)(2)(i). See www.uscis.gov/i-129-addresses. 135 Available at http://bit.ly/AFM_33-10. 136 8 CFR §214.2(p)(2)(iv)(A). 137 Id.




Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the nonciti-zen’s or the group’s skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert—including the basis of his or her knowledge of the noncitizen’s or group’s skill, or

Documentation that the performance of the noncitizen or group is culturally unique, as evidenced by reviews in newspapers, journals, or other published materials; and

Evidence that all of the performances or presentations will be culturally unique events.122 Liberal statutory standards intended to preserve the flexibility of the O and P categories have not consistently

filtered down to the service centers. The CSC, in particular, was prone to issuing RFEs for P-3 petitions not in-volving patently traditional activity, especially those proposing to combine more than one cultural motif or tradi-tion, evidently on the theory that the resulting cultural hybrid strands could no longer be unique. To resolve the problem, the AAO, on USCIS’s own motion, reopened an earlier decision for the express purpose of issuing a precedent decision establishing that art forms need not be “traditional” to be culturally unique. Indeed, it is now clear that distinctive artistic expression derived from hybrid or fusion of artistic styles or traditions, from multi-ple cultures or regions, qualifies for P-3 treatment.123 That case also resulted in specific guidance on the regula-tory standard for expert testimonial letters submitted in support of P-3 petitions, noting they should be: (a) from a recognized expert, and accompanied by a detailed curriculum vitae or résumé; (b) attest to the authenticity of the group or individual beneficiary’s skills, explaining why they are skillful or knowledgeable about that par-ticular culture; and (c) speak to the unique or traditional nature of the art form, describing it in detail.124

Accompanying Personnel

All P categories allow for “essential support” personnel.125 An essential support person is defined as “a highly skilled, essential person” who is an “integral part” of the performance of the P principal because she or he performs support services that cannot readily be performed by a U.S. worker and that are essential to the success of the performance.126 In other words, essential support personnel are those who are not performing. Such personnel must have appropriate qualifications to perform the services, critical knowledge of the specific services required, and experience in providing such support to the P noncitizen.127 The latter requirement finds no support in the statute, and at least for the P-1 category, is contravened by the legislative history.128 Though the regulations do not expressly address the question, P essential support personnel cannot work separate and apart from their P principal(s) and must be petitioned for in conjunction with the services of their P principal(s). A P petition for essential support personnel cannot be filed without a previously or simultaneously filed P petition for the principal performers or athletes. USCIS designates the P classifications for support personnel as P-1S, P-2S and P-3S.

Purpose of Admission

Admission in all P categories is limited to a specific competition, event, or performance—defined as an activity such as an athletic competition or season, tournament, tour, exhibit, project, entertainment event, or engagement.129 To avoid unnecessary paperwork, the regulations provide that such activities may include

122 8 CFR §214.2(p)(6)(ii). 123 Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO May 15, 2012). 124 AILA Practice Pointer, “AAO Endorses Cross-Cultural P-3 Petitions: Matter of Skirball Cultural Center,” AILA Doc. No. 12071248. 125 8 CFR §214.2(p)(3). 126 Id. 127 Id. 128 See S. 18247, 137 Cong. Rec. Part II (daily ed. Nov. 26. 1991). 129 8 CFR §214.2(p)(3).



short vacations, promotional appearances, and stopovers incidental and/or related to the underlying activity. This definition should be sufficient to enable noncitizens to receive outside income from endorsement activi-ty. USCIS notes that an athletic or entertainment event could include an entire season of performances. A group of related activities can also be considered an event.130 Nevertheless, it appears that athletes entering in the P-1 category must do so in conjunction with a specific athletic competition and thus cannot enter primari-ly to teach or coach,131 in contrast to P-3 culturally unique performers who explicitly may do so. In general, all principal P noncitizens must be entering to engage in the skill, art, or activity for which they achieved recognition.

As many entertainment-related P petitions involve itineraries, beware of petitions that include gaps of more than 45 days between engagements. Despite the absence of any regulation, policy memoranda, or other publicly available guidance concerning gaps in P itineraries, both the CSC and the VSC target such gaps by issuing RFEs for additional itinerary documentation. Wherever possible, petitioners should provide evidence of proposed activities and travel abroad to “document the gap.”


Petition An I-129 petition with the P supplement must be filed in duplicate to request P-1, P-2, or P-3 status.132

Petitions may be filed up to a year in advance of the need for the noncitizen’s services.133 Be sure to reconfirm the currently accepted version of Form I-129, O/P Supplement, and applicable filing fee at www.uscis.gov/i-129 prior to filing, but it will be a single fee per petition, irrespective of the action requested or number of beneficiaries. A separate I-129, supplement and petition filing fee is required for essential support personnel.

Jurisdiction Petitions must be filed directly with either the CSC or the VSC, whichever has jurisdiction over the

location where the temporary employment is to occur.134 However, under a special agreement with USCIS, detailed in AFM 33.10,135 all O-1A & P-1A petitions for NHL hockey players and Major League Baseball players must be filed with the Nebraska Service Center. Petitions calling for services to be rendered in “more than one location (e.g., a tour) must include an itinerary with the dates and locations of work” 136 and must be filed at the service center with jurisdiction over the petitioner’s location. “More than one location” means literally that such that jurisdiction will be determined by the petitioner’s location even if the beneficiary or beneficiaries perform services under the same contract but at two different physical address locations next door to one another. Curiously, the regulations state that “[t]he address which the petitioner specifies as its location on the petition shall be where the petitioner is located for purposes of this paragraph.” 137 Other than as an invitation to forum shop, it is difficult to explain the presence of this clause; however, this language

130 Id. 131 Except as provided in INA §214(c)(4)(A)(i)(III). Bear in mind the COMPETE Act provisions at INA §§214(c)(4)(A), (F), (G) and (H), which do permit coaches to qualify for P-1 classification in certain circumstances. The only official guidance thus far concerning the COMPETE Act appears in USCIS Memorandum, M. Aytes, “ ‘Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry Act of 2006 (COMPETE Act of 2006)’—Admission as P-1 Nonimmigrant,” AILA Doc. No. 07010865. USCIS has treated the Act as effective on signing, but there are no regulations yet. It appears that petitioners will be able to include more than one professional athlete on a P-1 petition for a U.S. team. 132 The current Form I-129 instructions (rev. Jan. 17, 2017) specify that P-1A classification is for individual or team athletes, and P-1B for entertainers. Support personnel are denoted as P-1S, P-2S, or P-3S. The associated visas remain denoted simply as P-1, P-2, or P-3 for principals and support personnel. 133 8 CFR §214.2(p)(2)(i). 134 8 CFR §214.2(p)(2)(i). See www.uscis.gov/i-129-addresses. 135 Available at http://bit.ly/AFM_33-10. 136 8 CFR §214.2(p)(2)(iv)(A). 137 Id.




should provide alert petitioners with additional means to choose between CSC and VSC, if the petitioner has more than one location.138

Foreign nationals may work for more than one employer at a time but will require separate petitions filed with the service center having jurisdiction over where the particular services will be rendered, unless an agent files the petition.139 If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.140 Amended petitions must be filed with the service center of original jurisdiction to reflect any “material changes” in the terms and conditions of employ or the beneficiary’s eligibility, but petitioners may add additional “similar or comparable” performances, engagements, or competitions during the original petition validity period without amendment.141

Nature of Petitioner Though the regulations are somewhat garbled on this point, in practice, permissible petitioners include

U.S. employers or sponsors, U.S. agents, or foreign employers (including the self-employed) through designated U.S. agents. For this latter purpose, the definition of “agent” includes, in addition to traditional management and booking agents, any agent authorized by a foreign employer to file a P petition and accept service of process in proceedings under INA §274A on the employer’s behalf.142 In other words, if duly authorized, any U.S. entity or competent individual can serve as agent under traditional agency principles, on behalf of all those seeking the services of the beneficiary or beneficiaries.143 P beneficiaries may not self-petition, but athletes in solo sports may be petitioned by a commercial sponsor, which is neither an employer nor is it an agent.

Agents in the agency business who serve as petitioners are subject to certain additional requirements.144 While copies of contracts are not required except in “questionable cases,” including them in all P petitions helps. Agents “performing the function of an employer” must specify the wage offered and the other terms and conditions of employment.145 USCIS has defined “contract” to mean the written agreement between the peti-

138 VSC receives a disproportionate share of P filings, but recent VSC increases in RFE, NOID, and denial rates appear to have eliminated any perceived advantage to filing there. In other words, both service centers are equally unpredictable. 139 8 CFR §214.2(p)(2)(iv)(B). 140 8 CFR §214.2(o)(2)(iv)(C). 141 8 CFR §214.2(p)(2)(iv)(D). 142 8 CFR §§214.2(p)(2)(i), (iv)(E). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A regarding control of noncitizen employment. While foreign employers have always been responsible for complying with employer sanction provisions, the rule was amended to ensure that the employer can be served with process via its agent. 143 The discussion in USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064, of the requirements for agents and sponsors in the P classification is confusing and needs to be read skeptically. Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its U.S. agent. The Memorandum attempts to clarify that P (and O) petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. In theory, even duly authorized immigration counsel can serve as a foreign employer’s agent for this limited purpose, though in light of the potential conflict, the practice is inadvisable, if not unethical. The problem with the memorandum is that it is written in a highly convoluted fashion and suggests an unhealthy obsession with irrelevant distinctions in the differing kinds of relationships between petitioners and beneficiaries. The arts and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or meaningful, much less how to make them. The continued onslaught of RFEs obsessed with the particulars of these relationships is evidence of ongoing confusion on this topic within USCIS. 144 8 CFR §214.2(p)(2)(iv)(E). 145 8 CFR §214.2(p)(2)(iv)(E)(1).



tioner and beneficiary, describing the terms and conditions of employment, including the required services, wages, hours, working conditions, and “any fringe benefits.” 146

Other Considerations More than one beneficiary may be included in petitions for group members and essential support

personnel. Essential support personnel may not be included on the petition for the principal P beneficiary—a separate petition is required.147 Multiple beneficiaries may be listed on the special “Attachment-1” form provided with the I-129 package, but petitioners may create their own alphabetized spreadsheet, and are better off doing so. Be sure to reconfirm the applicable filing fee at the time of filing, but it will be a single fee per petition (for example, one fee for the P-1 petition, and one for the accompanying P-1S petition for support personnel), irrespective of the action requested or the number of beneficiaries.

The regulations permit principal beneficiaries to be substituted on all P petitions involving multiple beneficiaries, but no substitutions of essential support personnel.148 The ban on substitution of support personnel is entirely inappropriate, which is one reason why DOS, until recently, affirmatively permitted such substitutions.149 To request a substitution, petitioners should provide the substituting visa applicant (or applicant for entry) with a letter explaining the problem, asking for the substitution, and asserting that the new applicant is equally qualified for the position, together with a copy of the underlying approval notice, for submission to the appropriate U.S. consulate. As of this writing it is extremely unlikely that support personnel substitutions would be allowed by CBP at a port of entry.

Specific requirements for supporting documentation apply to each P category.150 For instance, P-1 athlete petitions must be accompanied by a tendered contract with a team, major sports league, or sponsor, and at least two types of evidence of the athlete or team’s recognition, international ranking, or prior participation in the sport at an internationally recognized level,151 and P-1 entertainment group petitions must be accompanied by a statement listing each group member and that member’s exact dates of employment on a regular basis, together with evidence that the group has been established and performing regularly for at least a year.152 P-2 petitions must include a copy of the formal reciprocal exchange agreement and a statement from the sponsoring organization relating the particular exchange to the underlying agreement.153 P-3 petitions must be accompanied by expert affidavits or testimonials or documentation of cultural uniqueness, and evidence that all performances will be culturally unique.154

Finally, petitions for P essential support personnel should include any contracts or summaries of oral agreements and “a statement describing the [alien’s or aliens’] prior essentiality, critical skills, and experience

146 8 CFR §214.2(p)(3). Also, petitioners should be sure to include documentation of some form of agent appointment or agreement, where appropriate. 147 8 CFR §214.2(p)(2)(i). 148 8 CFR §214.2(p)(2)(iv)(H). 149 8 CFR §214.2(p)(2)(iv)(H)—unaccountably—bars substitution of essential support personnel. On Oct. 4, 2010, the State Department did, too. 9 FAM 402.14-7(F). The effects of this ill-considered restriction are widespread. The ban is illogical because only P-1 principals, and not support personnel, need have had a prior relationship with the group, under the 75 percent rule. There is no such requirement for P-1 support personnel nor any other P support personnel. The ban is harmful precisely because many P support personnel have expertise in the particular equipment, technology, or type of production. Failing to permit substitutions in these circumstances can only harm the performances themselves. 150 See generally 8 CFR §§214.2(p)(4)–(6). 151 8 CFR §214.2(p)(4)(ii). 152 8 CFR §214.2(p)(4)(iii)(B). Because this requirement stems from the one-year relationship rule, in practice it is sufficient to provide the month and year of employment, or even just the year. 153 8 CFR §214.2(p)(5)(ii). The American Federation of Musicians insists on filing its own P-2 petitions, whereas Actors’ Equity Association does not. 154 8 CFR §214.2(p)(6)(ii).




should provide alert petitioners with additional means to choose between CSC and VSC, if the petitioner has more than one location.138

Foreign nationals may work for more than one employer at a time but will require separate petitions filed with the service center having jurisdiction over where the particular services will be rendered, unless an agent files the petition.139 If the beneficiary changes employers, the new employer or petitioning agent, as the case may be, must file both a petition and an extension of stay.140 Amended petitions must be filed with the service center of original jurisdiction to reflect any “material changes” in the terms and conditions of employ or the beneficiary’s eligibility, but petitioners may add additional “similar or comparable” performances, engagements, or competitions during the original petition validity period without amendment.141

Nature of Petitioner Though the regulations are somewhat garbled on this point, in practice, permissible petitioners include

U.S. employers or sponsors, U.S. agents, or foreign employers (including the self-employed) through designated U.S. agents. For this latter purpose, the definition of “agent” includes, in addition to traditional management and booking agents, any agent authorized by a foreign employer to file a P petition and accept service of process in proceedings under INA §274A on the employer’s behalf.142 In other words, if duly authorized, any U.S. entity or competent individual can serve as agent under traditional agency principles, on behalf of all those seeking the services of the beneficiary or beneficiaries.143 P beneficiaries may not self-petition, but athletes in solo sports may be petitioned by a commercial sponsor, which is neither an employer nor is it an agent.

Agents in the agency business who serve as petitioners are subject to certain additional requirements.144 While copies of contracts are not required except in “questionable cases,” including them in all P petitions helps. Agents “performing the function of an employer” must specify the wage offered and the other terms and conditions of employment.145 USCIS has defined “contract” to mean the written agreement between the peti-

138 VSC receives a disproportionate share of P filings, but recent VSC increases in RFE, NOID, and denial rates appear to have eliminated any perceived advantage to filing there. In other words, both service centers are equally unpredictable. 139 8 CFR §214.2(p)(2)(iv)(B). 140 8 CFR §214.2(o)(2)(iv)(C). 141 8 CFR §214.2(p)(2)(iv)(D). 142 8 CFR §§214.2(p)(2)(i), (iv)(E). Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A regarding control of noncitizen employment. While foreign employers have always been responsible for complying with employer sanction provisions, the rule was amended to ensure that the employer can be served with process via its agent. 143 The discussion in USCIS Memorandum, D. Neufeld, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” AILA Doc. No. 09113064, of the requirements for agents and sponsors in the P classification is confusing and needs to be read skeptically. Foreign employers are precluded from filing without an agent to ensure enforcement of INA §274A, regarding control of employment of noncitizens. While foreign employers have always been responsible for complying with employer sanction provisions, the rule has been amended to ensure that the employer can be served with process via its U.S. agent. The Memorandum attempts to clarify that P (and O) petitioners need not be “in business as an agent.” Rather, any petitioner can file in the petitioner’s own right and/or on behalf of others seeking the beneficiary’s services, provided the petition includes documentation of some form of agency agreement. In theory, even duly authorized immigration counsel can serve as a foreign employer’s agent for this limited purpose, though in light of the potential conflict, the practice is inadvisable, if not unethical. The problem with the memorandum is that it is written in a highly convoluted fashion and suggests an unhealthy obsession with irrelevant distinctions in the differing kinds of relationships between petitioners and beneficiaries. The arts and entertainment industry in particular presents an enormous spectrum of such relationships ill-suited to taxonomy. When all it has to do is explain basic agency principles, USCIS has instead left individual adjudicators little useful guidance why such distinctions are appropriate or meaningful, much less how to make them. The continued onslaught of RFEs obsessed with the particulars of these relationships is evidence of ongoing confusion on this topic within USCIS. 144 8 CFR §214.2(p)(2)(iv)(E). 145 8 CFR §214.2(p)(2)(iv)(E)(1).



tioner and beneficiary, describing the terms and conditions of employment, including the required services, wages, hours, working conditions, and “any fringe benefits.” 146

Other Considerations More than one beneficiary may be included in petitions for group members and essential support

personnel. Essential support personnel may not be included on the petition for the principal P beneficiary—a separate petition is required.147 Multiple beneficiaries may be listed on the special “Attachment-1” form provided with the I-129 package, but petitioners may create their own alphabetized spreadsheet, and are better off doing so. Be sure to reconfirm the applicable filing fee at the time of filing, but it will be a single fee per petition (for example, one fee for the P-1 petition, and one for the accompanying P-1S petition for support personnel), irrespective of the action requested or the number of beneficiaries.

The regulations permit principal beneficiaries to be substituted on all P petitions involving multiple beneficiaries, but no substitutions of essential support personnel.148 The ban on substitution of support personnel is entirely inappropriate, which is one reason why DOS, until recently, affirmatively permitted such substitutions.149 To request a substitution, petitioners should provide the substituting visa applicant (or applicant for entry) with a letter explaining the problem, asking for the substitution, and asserting that the new applicant is equally qualified for the position, together with a copy of the underlying approval notice, for submission to the appropriate U.S. consulate. As of this writing it is extremely unlikely that support personnel substitutions would be allowed by CBP at a port of entry.

Specific requirements for supporting documentation apply to each P category.150 For instance, P-1 athlete petitions must be accompanied by a tendered contract with a team, major sports league, or sponsor, and at least two types of evidence of the athlete or team’s recognition, international ranking, or prior participation in the sport at an internationally recognized level,151 and P-1 entertainment group petitions must be accompanied by a statement listing each group member and that member’s exact dates of employment on a regular basis, together with evidence that the group has been established and performing regularly for at least a year.152 P-2 petitions must include a copy of the formal reciprocal exchange agreement and a statement from the sponsoring organization relating the particular exchange to the underlying agreement.153 P-3 petitions must be accompanied by expert affidavits or testimonials or documentation of cultural uniqueness, and evidence that all performances will be culturally unique.154

Finally, petitions for P essential support personnel should include any contracts or summaries of oral agreements and “a statement describing the [alien’s or aliens’] prior essentiality, critical skills, and experience

146 8 CFR §214.2(p)(3). Also, petitioners should be sure to include documentation of some form of agent appointment or agreement, where appropriate. 147 8 CFR §214.2(p)(2)(i). 148 8 CFR §214.2(p)(2)(iv)(H). 149 8 CFR §214.2(p)(2)(iv)(H)—unaccountably—bars substitution of essential support personnel. On Oct. 4, 2010, the State Department did, too. 9 FAM 402.14-7(F). The effects of this ill-considered restriction are widespread. The ban is illogical because only P-1 principals, and not support personnel, need have had a prior relationship with the group, under the 75 percent rule. There is no such requirement for P-1 support personnel nor any other P support personnel. The ban is harmful precisely because many P support personnel have expertise in the particular equipment, technology, or type of production. Failing to permit substitutions in these circumstances can only harm the performances themselves. 150 See generally 8 CFR §§214.2(p)(4)–(6). 151 8 CFR §214.2(p)(4)(ii). 152 8 CFR §214.2(p)(4)(iii)(B). Because this requirement stems from the one-year relationship rule, in practice it is sufficient to provide the month and year of employment, or even just the year. 153 8 CFR §214.2(p)(5)(ii). The American Federation of Musicians insists on filing its own P-2 petitions, whereas Actors’ Equity Association does not. 154 8 CFR §214.2(p)(6)(ii).




with the principal alien(s).” 155 To avoid the occasional unnecessary request for evidence, prudent practitioners will provide a job title for each essential support beneficiary and a brief description of the job demonstrating why it is essential in the supporting documentation. A sentence or two traditionally has sufficed, as will lumping together essential support personnel with the same job title.156

Consultation Consultation with the national office of an appropriate labor union “regarding the nature of the work to be

done and the alien’s qualifications is mandatory” before any P petition can be approved, except if the petitioner demonstrates that no appropriate labor organization exists.157 There is no reference to collective bargaining representatives in the P context, so the appropriate labor organization, if any, will be one claiming expertise in the field. Except in emergency circumstances, the consultation must consist of a written advisory opinion containing a specific statement of facts supporting its conclusion. The consultation is not binding on USCIS. Petitioners should obtain the requisite advisory opinions prior to filing the petition.158

Appendix 1 (p. 217 infra) lists most of the relevant labor organizations for the arts and provides additional consultation guidance. USCIS also has a list at Appendix 33-1 of the AFM.159 Labor organizations will expect to receive a copy of the petition and, except for AE, supporting documents together with the consultation request. (Use discretion, as not every scrap of evidence is helpful.) Multiple consultations may be required if the activities of different group beneficiaries, whether principals or support personnel, fall under the purview of more than one labor organization. In the case of a single beneficiary whose activities fall under the “jurisdiction” of more than one labor organization, consult with that organization having jurisdiction over the beneficiary’s primary activity.

The regulations provide that if USCIS determines that a petition “merits expeditious handling” and it does not already include a labor consultation, USCIS is to contact the labor organization for an expedited consultation.160 That organization has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion.161 The organization then has another five working days to submit a written advisory opinion.162 It is not advisable to rely on this procedure, because it creates more work for USCIS and thus presents more opportunities for something to go awry. Note that USCIS does not forward consulting fees to the unions.

For routine processing of P-1 and P-3 petitions not accompanied by union consultations, the statute, but not the regulations (unlike the O regulations), provides that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.163 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies, and in any event it will adjudicate if there is no timely response.164 Apart from its absence in the regulations, reliance on this procedure is a bad idea, because the more work USCIS must perform, the potentially slower the outcome, and when a labor union is deprived of its ability to extract fees from a petitioner for the labor advisory opinion, the resulting opinion is rarely favorable.

155 8 CFR §§214.2(p)(4)(iv)(B), (5)(iii)(B), and (6)(iii)(B). 156 Alas, this effort may be unavailing, as both VSC and CSC have tendency to issue tedious RFEs requesting in-depth proof of “essentiality.” 157 8 CFR §§214.2(p)(7)(i)(A), (F). 158 8 CFR §214.2(p)(7)(i)(C). 159 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 185, concerning AFM Appendix 33-1. 160 8 CFR §214.2(p)(7)(i)(E). 161 Id. 162 Id. 163 INA §214(c)(6)(B). 164 INA §214(c)(6)(D).



With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded employees. However, many unions charge steep fees, such as the American Guild of Musical Artists’ $500 per expedited consultation. If unsure with which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or if the beneficiary is an individual member. For petitions with multiple beneficiaries, it is entirely possible that consultations from more than one union will be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States, thus avoiding multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties with care.

P-1 Consultations The regulations require that the union evaluate and/or describe the foreign national’s or group’s ability and

achievements in the field of endeavor; comment on whether the foreign national or group is internationally recognized; and state whether the services to be performed are appropriate to an internationally recognized athlete or entertainment group. Alternatively, a union may respond with a “no objection” letter in lieu of a full-blown opinion. Negative advisory opinions must contain a specific statement of the facts on which their conclusion is based.165 Slightly different language, but to the same effect, applies to circus consultations.166

P-2 Consultations Though a labor consultation is needed, the substantive requirements are minimal. The initial documentary

requirements for a P-2 petition include evidence that an appropriate union has been “involved in negotiating, or has concurred with” the reciprocal exchange.167 Thus, the advisory opinion need only verify the existence of a “viable exchange program,” by commenting on the bona fides of the program and whether it meets the substantive P-2 criteria.168 If the union involved in the P-2 program serves as petitioner in the P-2 context, a separate consultation opinion is not required.169

P-3 Consultations The union need only evaluate whether the foreign national’s skills are culturally unique, whether the

events are cultural in nature, and whether the events are appropriate for the P-3 classification. “No objection” letters are acceptable. A specific statement of the reasons supporting any negative opinion is required.170

Support Personnel Consultations Unions with expertise in the skill area involved must opine on all P petitions involving essential support

personnel. This may mean consulting with more than one union respecting a single petition for more than one beneficiary. Except in a no-objection letter, the advisory opinion must address the noncitizen’s essentiality to and working relationship with the principal and state whether U.S. workers are available who can perform the support services, though no test of the U.S. labor market is required.171

165 8 CFR §214.2(p)(7)(ii). 166 8 CFR §214.2(p)(7)(iii). 167 8 CFR §214.2(p)(7)(iv). 168 Id. 169 The Canadian branch of the American Federation of Musicians serves as P-2 petitioner in all cases for a $50 fee. However, Canada AFM often confines the requested classification period to the immediate engagement(s) in question, thus limiting the utility of the P-2 option. 170 8 CFR §214.2(p)(7)(v). 171 8 CFR §214.2(p)(7)(vi).




with the principal alien(s).” 155 To avoid the occasional unnecessary request for evidence, prudent practitioners will provide a job title for each essential support beneficiary and a brief description of the job demonstrating why it is essential in the supporting documentation. A sentence or two traditionally has sufficed, as will lumping together essential support personnel with the same job title.156

Consultation Consultation with the national office of an appropriate labor union “regarding the nature of the work to be

done and the alien’s qualifications is mandatory” before any P petition can be approved, except if the petitioner demonstrates that no appropriate labor organization exists.157 There is no reference to collective bargaining representatives in the P context, so the appropriate labor organization, if any, will be one claiming expertise in the field. Except in emergency circumstances, the consultation must consist of a written advisory opinion containing a specific statement of facts supporting its conclusion. The consultation is not binding on USCIS. Petitioners should obtain the requisite advisory opinions prior to filing the petition.158

Appendix 1 (p. 217 infra) lists most of the relevant labor organizations for the arts and provides additional consultation guidance. USCIS also has a list at Appendix 33-1 of the AFM.159 Labor organizations will expect to receive a copy of the petition and, except for AE, supporting documents together with the consultation request. (Use discretion, as not every scrap of evidence is helpful.) Multiple consultations may be required if the activities of different group beneficiaries, whether principals or support personnel, fall under the purview of more than one labor organization. In the case of a single beneficiary whose activities fall under the “jurisdiction” of more than one labor organization, consult with that organization having jurisdiction over the beneficiary’s primary activity.

The regulations provide that if USCIS determines that a petition “merits expeditious handling” and it does not already include a labor consultation, USCIS is to contact the labor organization for an expedited consultation.160 That organization has 24 hours to respond by phone or USCIS will adjudicate without the advisory opinion.161 The organization then has another five working days to submit a written advisory opinion.162 It is not advisable to rely on this procedure, because it creates more work for USCIS and thus presents more opportunities for something to go awry. Note that USCIS does not forward consulting fees to the unions.

For routine processing of P-1 and P-3 petitions not accompanied by union consultations, the statute, but not the regulations (unlike the O regulations), provides that USCIS will forward a copy of the petition and supporting documents to the appropriate union within five days of receipt or to the collective bargaining representative, if one exists.163 The union must then respond within 15 days of receipt. USCIS may shorten this time in emergencies, and in any event it will adjudicate if there is no timely response.164 Apart from its absence in the regulations, reliance on this procedure is a bad idea, because the more work USCIS must perform, the potentially slower the outcome, and when a labor union is deprived of its ability to extract fees from a petitioner for the labor advisory opinion, the resulting opinion is rarely favorable.

155 8 CFR §§214.2(p)(4)(iv)(B), (5)(iii)(B), and (6)(iii)(B). 156 Alas, this effort may be unavailing, as both VSC and CSC have tendency to issue tedious RFEs requesting in-depth proof of “essentiality.” 157 8 CFR §§214.2(p)(7)(i)(A), (F). 158 8 CFR §214.2(p)(7)(i)(C). 159 Actually, there are two USCIS lists on the Web. See discussion in Appendix 1, fn 185, concerning AFM Appendix 33-1. 160 8 CFR §214.2(p)(7)(i)(E). 161 Id. 162 Id. 163 INA §214(c)(6)(B). 164 INA §214(c)(6)(D).



With notable exceptions, most unions that regularly provide consultations do so relatively quickly, and without demanding a quid pro quo such as the hiring of unneeded employees. However, many unions charge steep fees, such as the American Guild of Musical Artists’ $500 per expedited consultation. If unsure with which union to consult, call in advance for guidance to avoid unnecessary delays. Unions may waive the fees in some cases, such as when there is a collective bargaining agreement in place with the petitioner, or if the beneficiary is an individual member. For petitions with multiple beneficiaries, it is entirely possible that consultations from more than one union will be required, depending on the job categories involved. In general, consult with the union that best reflects the foreign national’s primary purpose in working in the United States, thus avoiding multiple consultations for the same beneficiary. Petitioners should select job titles and describe the associated duties with care.

P-1 Consultations The regulations require that the union evaluate and/or describe the foreign national’s or group’s ability and

achievements in the field of endeavor; comment on whether the foreign national or group is internationally recognized; and state whether the services to be performed are appropriate to an internationally recognized athlete or entertainment group. Alternatively, a union may respond with a “no objection” letter in lieu of a full-blown opinion. Negative advisory opinions must contain a specific statement of the facts on which their conclusion is based.165 Slightly different language, but to the same effect, applies to circus consultations.166

P-2 Consultations Though a labor consultation is needed, the substantive requirements are minimal. The initial documentary

requirements for a P-2 petition include evidence that an appropriate union has been “involved in negotiating, or has concurred with” the reciprocal exchange.167 Thus, the advisory opinion need only verify the existence of a “viable exchange program,” by commenting on the bona fides of the program and whether it meets the substantive P-2 criteria.168 If the union involved in the P-2 program serves as petitioner in the P-2 context, a separate consultation opinion is not required.169

P-3 Consultations The union need only evaluate whether the foreign national’s skills are culturally unique, whether the

events are cultural in nature, and whether the events are appropriate for the P-3 classification. “No objection” letters are acceptable. A specific statement of the reasons supporting any negative opinion is required.170

Support Personnel Consultations Unions with expertise in the skill area involved must opine on all P petitions involving essential support

personnel. This may mean consulting with more than one union respecting a single petition for more than one beneficiary. Except in a no-objection letter, the advisory opinion must address the noncitizen’s essentiality to and working relationship with the principal and state whether U.S. workers are available who can perform the support services, though no test of the U.S. labor market is required.171

165 8 CFR §214.2(p)(7)(ii). 166 8 CFR §214.2(p)(7)(iii). 167 8 CFR §214.2(p)(7)(iv). 168 Id. 169 The Canadian branch of the American Federation of Musicians serves as P-2 petitioner in all cases for a $50 fee. However, Canada AFM often confines the requested classification period to the immediate engagement(s) in question, thus limiting the utility of the P-2 option. 170 8 CFR §214.2(p)(7)(v). 171 8 CFR §214.2(p)(7)(vi).




Special Rule for Traded Professional P-1 Athletes A professional P-1 athlete traded from one organization to another is automatically entitled to work for 30

days from acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete continues to be employment authorized until the new petition is adjudicated.172

No Dual Intent In general, all P beneficiaries must maintain a foreign residence that they do not intend to abandon.173

Consular officers at high-fraud posts are more likely to deny P visa applications based on this statutory requirement. However, under 8 CFR §214.2(p)(15), P principals, but not their essential support personnel, may seek lawful permanent residence without jeopardizing their P status.174

Period of Admission Initial P-1 petitions for individual athletes may be valid for up to five years.175 P-1 petitions for athletic

teams or entertainment groups are valid for the time needed to complete the competition, event, or performance, up to one year.176 The same rule applies to P-2 and P-3 petitions.177 All petitions for P essential support personnel may be granted for up to one year as well.178 Noncitizens may be admitted up to 10 days prior to the validity period and may remain 10 days thereafter (but only if in fact admitted for that time as per the admission stamp and/or I-94!), although they are not permitted to work during these 10-day periods.179

Extensions may be granted to P visa holders for up to one year at a time to continue or complete the activity for which they were admitted.180 Extensions of up to a second five-year period may be granted to individual P-1 athletes, for a total stay not to exceed 10 years. Thereafter, a P-1 athlete and any P-1S support personnel may obtain a new five-year classification period by departing the U.S. and reapplying for admission.181

Return Transportation For those entering the United States in P status whose employment terminates for reasons other than

voluntary resignation, the employer whose offer underlies the P status and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad, meaning last place of residence prior to entry. As written, the regulations do not apply to those changing to P status after entry.182

172 8 CFR §214.2(p)(2)(iv)(C)(2). 173 INA §101(a)(15)(P). 174 See 9 FAM 402.14-10(C), which clarifies that P principals must nonetheless meet the residence-abroad requirement. 175 8 CFR §214.2(p)(8)(iii)(A). 176 8 CFR §§214.2(p)(8)(iii)(A), (B). 177 8 CFR §214.2(p)(8)(iii)(C). 178 8 CFR §214.2(p)(8)(iii)(E). 179 8 CFR §214.2(p)(12). 180 8 CFR §214.2(p)(14)(ii). 181 USCIS published two memoranda on this subject, the first dealing with P-1 athletes and the second with their support personnel. See USCIS Memorandum, D. Neufeld, “Procedures for Apply the Period of Authorized Stay for P-1 Nonimmigrant Individual Athletes,” AILA Doc. No. 09030967, and USCIS Memorandum, D. Neufeld, “Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes’ Essential Support Personnel,” AILA Doc. No. 09071660. 182 INA §214(c)(5)(B); 8 CFR §214.2(p)(18). Here again, arises an example of the kind of oddly unconstructive, disjointed attention USCIS has paid the O and P classifications. As of the Nov. 23, 2010 revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that it is aware of the return transportation provision. Why is this unenforced and unenforceable provision so worthy of the petitioner’s particular consciousness that it warrants a separate signature? Because it is unenforceable? In the future, might USCIS require petitioners to sign more certifications signifying their awareness of other regulatory provisions? Why are H-1B petitioners not required to certify their awareness of the comparable provision at 8 CFR §214.2(h)(4)(iii)(E)? Perhaps the I-129 will some day have a separate, omnibus signature page. In the meantime, assume service center mailrooms will return filings lacking this signature on the O/P Supplement.




and USCIS may, following notice, revoke the petition even after its expiration.183 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the employer remains viable.184

Expedited Processing See the section on “Expedited Processing” (p. 203, supra) under “O Nonimmigrants.”

CONCLUSION

Ever-evolving USCIS interpretations of the 30-year-old regulatory framework for O and P visas continue to evade the reach of the Administrative Procedures Act. Practitioners have learned from experience not to rely too long on well-settled agency practice, lest it change at the drop of a policy memorandum. USCIS has shown a penchant for announcing policy reversals in sub-regulatory authority, or not announcing them at all and simply issuing a slew of surprising RFEs and denials. This happened with the O-1 model cases in late 2015 where they suddenly demanded end-client contracts in an industry where those do not exist, and again with sudden across-the-board adherence to the ultra vires P-1 requirement that sports leagues must require “international recognition” of all competitors. This means the practice of law for O & P nonimmigrants and their U.S. petitioners requires vigilant attention to USCIS announcements, memos, AAO decisions, and news from other practitioners about current adjudication patterns and trends.

183 8 CFR §§214.2(p)(10)(i), (iii). 184 8 CFR §214.2(p)(10)(ii).




Special Rule for Traded Professional P-1 Athletes A professional P-1 athlete traded from one organization to another is automatically entitled to work for 30

days from acquisition, provided the new I-129 is filed within that period. Once the I-129 is filed, the athlete continues to be employment authorized until the new petition is adjudicated.172

No Dual Intent In general, all P beneficiaries must maintain a foreign residence that they do not intend to abandon.173

Consular officers at high-fraud posts are more likely to deny P visa applications based on this statutory requirement. However, under 8 CFR §214.2(p)(15), P principals, but not their essential support personnel, may seek lawful permanent residence without jeopardizing their P status.174

Period of Admission Initial P-1 petitions for individual athletes may be valid for up to five years.175 P-1 petitions for athletic

teams or entertainment groups are valid for the time needed to complete the competition, event, or performance, up to one year.176 The same rule applies to P-2 and P-3 petitions.177 All petitions for P essential support personnel may be granted for up to one year as well.178 Noncitizens may be admitted up to 10 days prior to the validity period and may remain 10 days thereafter (but only if in fact admitted for that time as per the admission stamp and/or I-94!), although they are not permitted to work during these 10-day periods.179

Extensions may be granted to P visa holders for up to one year at a time to continue or complete the activity for which they were admitted.180 Extensions of up to a second five-year period may be granted to individual P-1 athletes, for a total stay not to exceed 10 years. Thereafter, a P-1 athlete and any P-1S support personnel may obtain a new five-year classification period by departing the U.S. and reapplying for admission.181

Return Transportation For those entering the United States in P status whose employment terminates for reasons other than

voluntary resignation, the employer whose offer underlies the P status and the petitioner, if separate, are jointly and severally liable for the reasonable cost of return transportation abroad, meaning last place of residence prior to entry. As written, the regulations do not apply to those changing to P status after entry.182

172 8 CFR §214.2(p)(2)(iv)(C)(2). 173 INA §101(a)(15)(P). 174 See 9 FAM 402.14-10(C), which clarifies that P principals must nonetheless meet the residence-abroad requirement. 175 8 CFR §214.2(p)(8)(iii)(A). 176 8 CFR §§214.2(p)(8)(iii)(A), (B). 177 8 CFR §214.2(p)(8)(iii)(C). 178 8 CFR §214.2(p)(8)(iii)(E). 179 8 CFR §214.2(p)(12). 180 8 CFR §214.2(p)(14)(ii). 181 USCIS published two memoranda on this subject, the first dealing with P-1 athletes and the second with their support personnel. See USCIS Memorandum, D. Neufeld, “Procedures for Apply the Period of Authorized Stay for P-1 Nonimmigrant Individual Athletes,” AILA Doc. No. 09030967, and USCIS Memorandum, D. Neufeld, “Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes’ Essential Support Personnel,” AILA Doc. No. 09071660. 182 INA §214(c)(5)(B); 8 CFR §214.2(p)(18). Here again, arises an example of the kind of oddly unconstructive, disjointed attention USCIS has paid the O and P classifications. As of the Nov. 23, 2010 revision, the O and P Classification Supplement to Form I-129, at Section 2, requires the petitioner’s signed certification that it is aware of the return transportation provision. Why is this unenforced and unenforceable provision so worthy of the petitioner’s particular consciousness that it warrants a separate signature? Because it is unenforceable? In the future, might USCIS require petitioners to sign more certifications signifying their awareness of other regulatory provisions? Why are H-1B petitioners not required to certify their awareness of the comparable provision at 8 CFR §214.2(h)(4)(iii)(E)? Perhaps the I-129 will some day have a separate, omnibus signature page. In the meantime, assume service center mailrooms will return filings lacking this signature on the O/P Supplement.




and USCIS may, following notice, revoke the petition even after its expiration.183 Automatic revocation of an unexpired petition will occur if the petitioner or employer named in a petition filed by an agent goes out of business, files a written withdrawal, or notifies USCIS that the beneficiary is no longer employed by that petitioner. Valid petitions filed by an agent acting on behalf of an employer are not automatically revoked if the petitioning agent goes out of business so long as the employer remains viable.184

Expedited Processing See the section on “Expedited Processing” (p. 203, supra) under “O Nonimmigrants.”

CONCLUSION

Ever-evolving USCIS interpretations of the 30-year-old regulatory framework for O and P visas continue to evade the reach of the Administrative Procedures Act. Practitioners have learned from experience not to rely too long on well-settled agency practice, lest it change at the drop of a policy memorandum. USCIS has shown a penchant for announcing policy reversals in sub-regulatory authority, or not announcing them at all and simply issuing a slew of surprising RFEs and denials. This happened with the O-1 model cases in late 2015 where they suddenly demanded end-client contracts in an industry where those do not exist, and again with sudden across-the-board adherence to the ultra vires P-1 requirement that sports leagues must require “international recognition” of all competitors. This means the practice of law for O & P nonimmigrants and their U.S. petitioners requires vigilant attention to USCIS announcements, memos, AAO decisions, and news from other practitioners about current adjudication patterns and trends.

183 8 CFR §§214.2(p)(10)(i), (iii). 184 8 CFR §214.2(p)(10)(ii).




Appendix 1: Arts Consultation Organizations

GENERAL NOTES

Contact unions in advance to confirm whether new fees have been imposed, or old ones changed, and for fee waivers if petitioner is a collective bargaining signatory or beneficiary is a member. Be sure to check the websites of all consulting organizations for updates concerning their respective procedures and requirements. Remember that in a field that has no labor union, any individual or organization with expertise may provide the advisory consultation, so petitioners are not bound by USCIS’s choice of consulting organization if it is not a union.

If any individual/organization fails to respond to a consultation request in 15 days, USCIS “must” adjudicate based on existing record, so submit proof of request to USCIS with request that it proceed on the record, citing 8 CFR §§214.2(o)(5)(i)(F) or (p)(7)(i)(E).

At issue is whether beneficiary meets the applicable O/P standard, not whether a U.S. worker is available, prevailing wage considerations, or other policy/political matters. Consultations not providing facts supporting conclusion that beneficiary fails to meet applicable standard are effectively “no objection” letters by definition.

Union “jurisdictions” can overlap for consultation purposes. If uncertain, contact the union directly. There may be activities over which no union asserts “jurisdiction,” e.g., fight masters, choreologists, and dramaturges. If so, petitioner should exhaust possibilities, explain effort to USCIS and request consultation waiver. Consultation requirement also waived for “management” (including administrative) positions over which unions by definition cannot assert “jurisdiction,” but it is prudent to see whether a union will cover.

Extraordinary-achievement cases (movies/TV) require both union and management consultations; otherwise, union consultation is the only requirement, unless no union has jurisdiction. In such a case, another organization, or an individual with expertise, can provide advisory opinion/no-objection letter. Sample optional management consultation organizations are listed after unions below.

8 CFR §214.2(o)(5)(i)(F) requires USCIS to obtain union consult in O-1 cases if petition includes non-labor consultation. This risks delay in adjudication, so avoid if possible; if not, highlight request to USCIS. Advantage to this procedure is that no union consult fees are required because USCIS will not pay them. Opera petitioners for historical reasons rely on this process more frequently.

AFM Appendix 33-1

This Appendix lists most of the relevant consultation organizations for the arts, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has a list at Appendix 33-1 of the Adjudicator’s Field Manual.185 The USCIS list published in the online AFM is updated quarterly, but provides no information about the fees charged for advisory opinions, nor does it distinguish between labor unions, from which consultation is re-quired, and other types of peer groups, in lieu of which the regulations explicitly allow opinions from indi-viduals with expertise in the field. Their list, combined with the vague regulatory language at 8 CFR §214.2(o)(5)(i)(A)–(C) and overzealous RFE templates, means some adjudicators do not distinguish between

185 Actually, there seems to be two lists available. There is a list from June 2000, entitled “Appendix 33-1: List of Organizations which Provide Consultations for O and P Petitions,” available at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/ 0-0-0-32447.html. However, from the home page of the redacted online version of the AFM (http://1.usa.gov/uscis-afm), clicking on the Appendices section, and then 33-1, yields a quarterly updated page entitled “Address Index for I-129 O and P Consultation Letters” (directly available at www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters). This list does not refer to itself as AFM Appendix 33-1.



a petition for work governed by a union (e.g., dance) and a petition for work in a field where there is no union (e.g., graphic design). Many seem unaware that use of the word “Guild” in an organization’s name does not automatically make it a union. This has occasionally resulted in ultra vires RFEs demanding costly consulta-tion from a specific named organization on the USCIS list, even in fields where regulation allows any group or individual with relevant expertise to provide the peer advisory opinion.

LABOR CONSULTATIONS

Concert and Solo Singers, Dancers, Choreographers, Stage/Assistant Stage Managers, Stage and Assistant Stage Directors, and Narrators in Concert, Recital, Oratorio, Opera and Dance:

The American Guild of Musical Artists (AGMA) 1430 Broadway, 14th Floor; New York, NY 10018 Tel: (212) 265-3687 / Fax: (212) 262-9088 Contact: Susan Davison ([email protected]) $300 per petition or $500 per petition for expedites (payable to “AGMA” & mark envelope “EXPEDITED SERVICE”) Check www.musicalartists.org/membership/visa-consultation

Look to AGMA for consults on any combination of dance, music, and/or song, musicians who also sing, groups with singers onstage/musicians in pit, etc. AGMA will consult on any matter on which AGVA will consult, and shares jurisdiction for certain musical performers/groups with AFM. AGMA serves as default peer organization in case of doubt, and will consult on “mixed” groups containing fewer than 50 percent musicians (may be flexible on the percentage), but is unpredictable on support roles, which it asserts should be reserved for U.S. workers. AGMA will not fax or email consultation letter unless you paid for expedited processing.

All Instrumental Musicians, Conductors, and Music Librarians:

The American Federation of Musicians (AFM) 1501 Broadway, Suite 600; New York, NY 10036 Tel: (212) 869-1330 / Fax: (212) 764-6134 Contacts: O Visas: Raymond Hair, x212 or Theresa Naglieri, x218; P Visas: Michael Manley, x231; Elizabeth Blake, x259; George Fiddler, x230. [email protected] $250 per petition, $350 per petition for expedites (address package to “AFM Immigration Processing”)

Questionnaire required (See current version at www.afm.org/wp-content/uploads/2017/02/ Visa-Form-Edited-per-SS.pdf) AFM requires a list of each individual’s instrument & proposed repertoire for the performances, written contracts for the engagement & itinerary. Unless musi-cians comprise at least 50 percent of the group, AFM will not provide consultation.

Other Performers and Stage Managers in Live Format Presentations:

Actors Equity Association (AE) Attn: Immigration 165 West 46th Street; New York, NY 10036 Tel: (212) 869-8530 / Fax: (212) 719-9815 $250 per petition

For P-3 petitions, the two most crucial items are cover letter and I-129 form. AE objects to near-ly all English and French-language productions outside the P-2 context, and to any O-1 or P-1 production not under an AE contract. Also, AE refuses to provide consultations with respect to any petitions that include multiple engagements.




Appendix 1: Arts Consultation Organizations

GENERAL NOTES

Contact unions in advance to confirm whether new fees have been imposed, or old ones changed, and for fee waivers if petitioner is a collective bargaining signatory or beneficiary is a member. Be sure to check the websites of all consulting organizations for updates concerning their respective procedures and requirements. Remember that in a field that has no labor union, any individual or organization with expertise may provide the advisory consultation, so petitioners are not bound by USCIS’s choice of consulting organization if it is not a union.

If any individual/organization fails to respond to a consultation request in 15 days, USCIS “must” adjudicate based on existing record, so submit proof of request to USCIS with request that it proceed on the record, citing 8 CFR §§214.2(o)(5)(i)(F) or (p)(7)(i)(E).

At issue is whether beneficiary meets the applicable O/P standard, not whether a U.S. worker is available, prevailing wage considerations, or other policy/political matters. Consultations not providing facts supporting conclusion that beneficiary fails to meet applicable standard are effectively “no objection” letters by definition.

Union “jurisdictions” can overlap for consultation purposes. If uncertain, contact the union directly. There may be activities over which no union asserts “jurisdiction,” e.g., fight masters, choreologists, and dramaturges. If so, petitioner should exhaust possibilities, explain effort to USCIS and request consultation waiver. Consultation requirement also waived for “management” (including administrative) positions over which unions by definition cannot assert “jurisdiction,” but it is prudent to see whether a union will cover.

Extraordinary-achievement cases (movies/TV) require both union and management consultations; otherwise, union consultation is the only requirement, unless no union has jurisdiction. In such a case, another organization, or an individual with expertise, can provide advisory opinion/no-objection letter. Sample optional management consultation organizations are listed after unions below.

8 CFR §214.2(o)(5)(i)(F) requires USCIS to obtain union consult in O-1 cases if petition includes non-labor consultation. This risks delay in adjudication, so avoid if possible; if not, highlight request to USCIS. Advantage to this procedure is that no union consult fees are required because USCIS will not pay them. Opera petitioners for historical reasons rely on this process more frequently.

AFM Appendix 33-1

This Appendix lists most of the relevant consultation organizations for the arts, and provides additional consultation guidance. The addresses listed are those of the unions’ national offices, as union locals do not provide consultations. USCIS also has a list at Appendix 33-1 of the Adjudicator’s Field Manual.185 The USCIS list published in the online AFM is updated quarterly, but provides no information about the fees charged for advisory opinions, nor does it distinguish between labor unions, from which consultation is re-quired, and other types of peer groups, in lieu of which the regulations explicitly allow opinions from indi-viduals with expertise in the field. Their list, combined with the vague regulatory language at 8 CFR §214.2(o)(5)(i)(A)–(C) and overzealous RFE templates, means some adjudicators do not distinguish between

185 Actually, there seems to be two lists available. There is a list from June 2000, entitled “Appendix 33-1: List of Organizations which Provide Consultations for O and P Petitions,” available at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/ 0-0-0-32447.html. However, from the home page of the redacted online version of the AFM (http://1.usa.gov/uscis-afm), clicking on the Appendices section, and then 33-1, yields a quarterly updated page entitled “Address Index for I-129 O and P Consultation Letters” (directly available at www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters). This list does not refer to itself as AFM Appendix 33-1.



a petition for work governed by a union (e.g., dance) and a petition for work in a field where there is no union (e.g., graphic design). Many seem unaware that use of the word “Guild” in an organization’s name does not automatically make it a union. This has occasionally resulted in ultra vires RFEs demanding costly consulta-tion from a specific named organization on the USCIS list, even in fields where regulation allows any group or individual with relevant expertise to provide the peer advisory opinion.

LABOR CONSULTATIONS

Concert and Solo Singers, Dancers, Choreographers, Stage/Assistant Stage Managers, Stage and Assistant Stage Directors, and Narrators in Concert, Recital, Oratorio, Opera and Dance:

The American Guild of Musical Artists (AGMA) 1430 Broadway, 14th Floor; New York, NY 10018 Tel: (212) 265-3687 / Fax: (212) 262-9088 Contact: Susan Davison ([email protected]) $300 per petition or $500 per petition for expedites (payable to “AGMA” & mark envelope “EXPEDITED SERVICE”) Check www.musicalartists.org/membership/visa-consultation

Look to AGMA for consults on any combination of dance, music, and/or song, musicians who also sing, groups with singers onstage/musicians in pit, etc. AGMA will consult on any matter on which AGVA will consult, and shares jurisdiction for certain musical performers/groups with AFM. AGMA serves as default peer organization in case of doubt, and will consult on “mixed” groups containing fewer than 50 percent musicians (may be flexible on the percentage), but is unpredictable on support roles, which it asserts should be reserved for U.S. workers. AGMA will not fax or email consultation letter unless you paid for expedited processing.

All Instrumental Musicians, Conductors, and Music Librarians:

The American Federation of Musicians (AFM) 1501 Broadway, Suite 600; New York, NY 10036 Tel: (212) 869-1330 / Fax: (212) 764-6134 Contacts: O Visas: Raymond Hair, x212 or Theresa Naglieri, x218; P Visas: Michael Manley, x231; Elizabeth Blake, x259; George Fiddler, x230. [email protected] $250 per petition, $350 per petition for expedites (address package to “AFM Immigration Processing”)

Questionnaire required (See current version at www.afm.org/wp-content/uploads/2017/02/ Visa-Form-Edited-per-SS.pdf) AFM requires a list of each individual’s instrument & proposed repertoire for the performances, written contracts for the engagement & itinerary. Unless musi-cians comprise at least 50 percent of the group, AFM will not provide consultation.

Other Performers and Stage Managers in Live Format Presentations:

Actors Equity Association (AE) Attn: Immigration 165 West 46th Street; New York, NY 10036 Tel: (212) 869-8530 / Fax: (212) 719-9815 $250 per petition

For P-3 petitions, the two most crucial items are cover letter and I-129 form. AE objects to near-ly all English and French-language productions outside the P-2 context, and to any O-1 or P-1 production not under an AE contract. Also, AE refuses to provide consultations with respect to any petitions that include multiple engagements.




For storytellers in live format presentations:

National Storytelling Network (NSN) 132 Boone Street, Suite #5; Jonesborough, TN 37659 Tel: 1-800-525-4514 / (423) 913-8201 [email protected]

Other Stage Directors and Choreographers in Live Format Presentations:

Stage Directors and Choreographers Society (SDC) Attn: Immigration 321 West 44th Street, Suite 804; New York, NY 10036 Tel: 1-800-541-5204, (212) 391-1070 / Fax: (212) 302-6195, [email protected] $500 per petition

Typical turn-around: Three weeks

Live performers in Nightclubs, Burlesque, and Circuses:

American Guild of Variety Artists (AGVA) Attn: Immigration Consultation 363 Seventh Avenue, 17th Floor, New York, NY 10001 Tel: (212) 675-1003; [email protected] $250 per petition, certified check or money order, no expedites! Turnaround is 10 business days

AGVA is eccentric on consultation matters, and refuses phone calls and faxes. It also refuses to use FedEx because it is “anti-union.” Note that variety/cabaret artists who sing are covered by AGMA.

Press Agents/Publicists and Managers (General, Company, Tour):

Association of Theatrical Press Agents and Managers (ATPAM) 14 Pennsylvania Plaza #1703, New York, NY 10122 Tel: (212) 719-3667 / Fax: (212) 302-1585 Contact: Tito Sanchez ([email protected]) $250 per petition

ATPAM covers tour managers, not managers otherwise exempt from consultation requirements because they are management, not labor. Same-day service promised.

Performers in Film, TV, Radio and Electronic Media (Audio and Visual):

Screen Actors Guild—American Federation of Television and Radio Artists (SAG-AFTRA) 5757 Wilshire Blvd., 7th Floor, Los Angeles, CA 90036 Tel: (323) 549-6632 / Fax: (323) 549-6624 Contact: Steve Otroshkin ([email protected]); Spanish Contact: Herta Suarez: [email protected] $250 per petition. Must include countersigned deal memo & all supporting documentation.

SAG-AFTRA covers O-1, O-2, P-1, P-2 & P-3 petitions in TV, radio, voice-over, & audio re-cordings.



All Directors of Photography (Cinematographers), Technical and Craft Personnel:

International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (IATSE) 207 West 25th St., 4th Floor; New York, NY 10001 Tel: (212) 730-1770 / Fax: (212) 730-7809 (dir.) or (212) 921-7699 (main) Contact: Jessica Valero $250 per petition or $450 per petition for expedites (24–48 hours). 100-page limit

IATSE covers crew, technical and lighting directors, hair and makeup for stage productions & film, will also cover still photographers.

United Scenic Artists 29 West 38th Street, 15th Floor, New York, NY 10018 Tel: (212) 581-0300 / Fax: (212) 977-2011 Contact: Michael McBride Members: free. If the theater is a collective bargaining signatory: $100. If neither: $200.

Permanent Makeup/Micropigmentation artists:

Society of Permanent Cosmetic Professionals 69 N. Broadway St, Des Plaines, IL 60016 Tel: (847) 635-1330, [email protected] Contact: Kate Ciampi, Executive Director

Animators:

The Animation Guild 1105 N. Hollywood Way; Burbank, CA 91505 Tel: (818) 845-7500 Contact: Steven Hulett, Business Representative ([email protected]) Guild or IATSE signatories free; nonsignatories: $250. See www.animationguild.org/advisory-opinion for required consultation materials.

Motion Picture and Television Producers:

Producers Guild of America (PGA) 8530 Wilshire Blvd., #450, Beverly Hills, CA 90211 Tel: (310) 358-9020 x100 / Fax: (310) 358-9520 Contact: O-1 to Scott Bengtsen ([email protected]), O-2 to JoAnn West, Members: free; nonmembers (24-48 hours): $500, reduced fee of $300 for AMPTP members Single fee if the O-1 & O-2 are for the same project. Covers work in film, TV & new media.

Association of Independent Commercial Producers 3 West 18th Street, 5th Floor, New York, NY 10010 Tel: (212) 929-3000 / Fax: (212) 929-3359 Contact: Matt Miller, President If production company a member: free; nonmembers: no service.




For storytellers in live format presentations:

National Storytelling Network (NSN) 132 Boone Street, Suite #5; Jonesborough, TN 37659 Tel: 1-800-525-4514 / (423) 913-8201 [email protected]

Other Stage Directors and Choreographers in Live Format Presentations:

Stage Directors and Choreographers Society (SDC) Attn: Immigration 321 West 44th Street, Suite 804; New York, NY 10036 Tel: 1-800-541-5204, (212) 391-1070 / Fax: (212) 302-6195, [email protected] $500 per petition

Typical turn-around: Three weeks

Live performers in Nightclubs, Burlesque, and Circuses:

American Guild of Variety Artists (AGVA) Attn: Immigration Consultation 363 Seventh Avenue, 17th Floor, New York, NY 10001 Tel: (212) 675-1003; [email protected] $250 per petition, certified check or money order, no expedites! Turnaround is 10 business days

AGVA is eccentric on consultation matters, and refuses phone calls and faxes. It also refuses to use FedEx because it is “anti-union.” Note that variety/cabaret artists who sing are covered by AGMA.

Press Agents/Publicists and Managers (General, Company, Tour):

Association of Theatrical Press Agents and Managers (ATPAM) 14 Pennsylvania Plaza #1703, New York, NY 10122 Tel: (212) 719-3667 / Fax: (212) 302-1585 Contact: Tito Sanchez ([email protected]) $250 per petition

ATPAM covers tour managers, not managers otherwise exempt from consultation requirements because they are management, not labor. Same-day service promised.

Performers in Film, TV, Radio and Electronic Media (Audio and Visual):

Screen Actors Guild—American Federation of Television and Radio Artists (SAG-AFTRA) 5757 Wilshire Blvd., 7th Floor, Los Angeles, CA 90036 Tel: (323) 549-6632 / Fax: (323) 549-6624 Contact: Steve Otroshkin ([email protected]); Spanish Contact: Herta Suarez: [email protected] $250 per petition. Must include countersigned deal memo & all supporting documentation.

SAG-AFTRA covers O-1, O-2, P-1, P-2 & P-3 petitions in TV, radio, voice-over, & audio re-cordings.



All Directors of Photography (Cinematographers), Technical and Craft Personnel:

International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (IATSE) 207 West 25th St., 4th Floor; New York, NY 10001 Tel: (212) 730-1770 / Fax: (212) 730-7809 (dir.) or (212) 921-7699 (main) Contact: Jessica Valero $250 per petition or $450 per petition for expedites (24–48 hours). 100-page limit

IATSE covers crew, technical and lighting directors, hair and makeup for stage productions & film, will also cover still photographers.

United Scenic Artists 29 West 38th Street, 15th Floor, New York, NY 10018 Tel: (212) 581-0300 / Fax: (212) 977-2011 Contact: Michael McBride Members: free. If the theater is a collective bargaining signatory: $100. If neither: $200.

Permanent Makeup/Micropigmentation artists:

Society of Permanent Cosmetic Professionals 69 N. Broadway St, Des Plaines, IL 60016 Tel: (847) 635-1330, [email protected] Contact: Kate Ciampi, Executive Director

Animators:

The Animation Guild 1105 N. Hollywood Way; Burbank, CA 91505 Tel: (818) 845-7500 Contact: Steven Hulett, Business Representative ([email protected]) Guild or IATSE signatories free; nonsignatories: $250. See www.animationguild.org/advisory-opinion for required consultation materials.

Motion Picture and Television Producers:

Producers Guild of America (PGA) 8530 Wilshire Blvd., #450, Beverly Hills, CA 90211 Tel: (310) 358-9020 x100 / Fax: (310) 358-9520 Contact: O-1 to Scott Bengtsen ([email protected]), O-2 to JoAnn West, Members: free; nonmembers (24-48 hours): $500, reduced fee of $300 for AMPTP members Single fee if the O-1 & O-2 are for the same project. Covers work in film, TV & new media.

Association of Independent Commercial Producers 3 West 18th Street, 5th Floor, New York, NY 10010 Tel: (212) 929-3000 / Fax: (212) 929-3359 Contact: Matt Miller, President If production company a member: free; nonmembers: no service.




Motion Picture and Television Directors:

Directors Guild of America (West) (DGA) 7920 Sunset Blvd., Los Angeles, CA 90046 Tel: (310) 289-2017 / (310) 289-2000 (main) / Fax: (310) 289-2024 Contact: Sonja Renz ([email protected])

Directors Guild of America (East) (DGA) 110 West 57th Street, 2nd Floor, New York, NY 10019 Tel: (212) 581-0370 / Fax: (212) 581-1441 Contact: Mike Ryan

Writers in Film, Television, and News (Audio and Visual):

Productions East of the Mississippi: Writers Guild of America—East 250 Hudson St., New York, NY 10013 Tel: (212) 767-7800 / Fax: (212) 582-1909 Contact: Ann Burdick, Senior Legal Counsel ([email protected])

Productions West of the Mississippi: Writers Guild of America—West 7000 West 3rd Street, Los Angeles, CA 90048 Tel: 1-800-548-4532 / Fax: (323) 782-4800 Contact: Jane Nefeldt

Freelance (including technical) writers in all media (except film, screenplays, graphic arts):

National Writers Union 238 West 38th Street, #703, New York, NY 10018 Tel: (212) 254-0279 / Fax: (212) 254-0673 Contact: Larry Goldbetter, President, ext. 14 ([email protected]) $500 per petition. Send full copy of filing. Five business-day turnaround, but request expedite if needed.

For journalists:

The Newspaper Guild 501 Third Street NW, Washington, DC 20001 Tel: (202) 434-7177 / Fax: (202) 434-1472 Contact: Bernie Lunzer, President ([email protected]) $400 per petition for three– to-four-week turnaround; $550 for two-week turnaround. Email all requests to [email protected] or send hard copies to Bernie Lunzer.

MANAGEMENT CONSULTATIONS

Foreign Nationals of Extraordinary Achievement/Support Personnel:

Alliance of Motion Picture and TV Producers (AMPTP) Attn: Immigration 15301 Ventura Blvd., Building E, Sherman Oaks, CA 91403 Tel: (818) 995-3600 / Fax: (818) 285-4450 ([email protected]) Check for updated instructions: at http://amptp.org/files/immigration.pdf



Members: free; nonmembers: $250 per petition. AMPTP has a Web page devoted to its specifications for O-1 and O-2 consultation requests: www.amptp.org/immigration.html

Beware, AMPTP takes its consulting role seriously. In particular, its insistence on signed deal memos for all work on itinerary can cause serious delays, as can its 50-page limit.

Commercial Producers:

Association of Independent Commercial Producers 3 West 18th Street, 5th Floor, New York, NY 10010 Tel: (212) 929-3000 / Fax: (212) 929-3359 Contact: Matt Miller, President If production company is a member: free; nonmembers: no service.

Opera related petitions:

Opera America 330 7th Avenue, 16th Floor, New York, NY 10001 Tel: (212) 796-8620 / Fax: (212) 796-8631 Contact: Trish Ferrell Wileman Consultations free to members; nonmembers: $250.

Symphony orchestras and classical musicians:

League of American Orchestras 910 17th Street NW, Suite 800, Washington, DC 20006 Tel: (202) 776-0215 / Fax: (202) 776-0224

Track & Field athletes:

USA Track & Field (USATF) 132 E. Washington Street, Ste. 800, Indianapolis, IN 46204 Tel: (317) 713-4653/ Fax: (317) 261-0481 Contact: Sarah Austin, Manager, Legal Affairs, [email protected]

Equestrian sports, including horse trainers and riders:

United States Equestrian Federation (USEF) 4047 Iron Works Parkway, Lexington, KY 40511 Tel: (859) 225-2022 or (859) 258-2472 (main) / Fax: (859) 231-6662 Contact: Sara Gilbert ([email protected]) Contact Sara to determine specific department to issue consultation (i.e., Show Jumping, Dressage, Event-ing, etc.). USEF will issue consultation based on draft of petitioner’s letter and beneficiary’s résumé.

Advertising, graphic design, interactive media, broadcast design, typography, packaging, environmen-tal design, photography, illustration and related:

Visual Effects Society 4121 Redwood Avenue, Suite 101, Los Angeles, CA 90066 Tel: (310) 822-9181 / Fax: (310) 822-2391 Contact: Alan Chu, Director of Operations Consultation free to members; nonmembers: $100. Call Alan Chu ahead of time to let him know that you are sending a consultation package.




Motion Picture and Television Directors:

Directors Guild of America (West) (DGA) 7920 Sunset Blvd., Los Angeles, CA 90046 Tel: (310) 289-2017 / (310) 289-2000 (main) / Fax: (310) 289-2024 Contact: Sonja Renz ([email protected])

Directors Guild of America (East) (DGA) 110 West 57th Street, 2nd Floor, New York, NY 10019 Tel: (212) 581-0370 / Fax: (212) 581-1441 Contact: Mike Ryan

Writers in Film, Television, and News (Audio and Visual):

Productions East of the Mississippi: Writers Guild of America—East 250 Hudson St., New York, NY 10013 Tel: (212) 767-7800 / Fax: (212) 582-1909 Contact: Ann Burdick, Senior Legal Counsel ([email protected])

Productions West of the Mississippi: Writers Guild of America—West 7000 West 3rd Street, Los Angeles, CA 90048 Tel: 1-800-548-4532 / Fax: (323) 782-4800 Contact: Jane Nefeldt

Freelance (including technical) writers in all media (except film, screenplays, graphic arts):

National Writers Union 238 West 38th Street, #703, New York, NY 10018 Tel: (212) 254-0279 / Fax: (212) 254-0673 Contact: Larry Goldbetter, President, ext. 14 ([email protected]) $500 per petition. Send full copy of filing. Five business-day turnaround, but request expedite if needed.

For journalists:

The Newspaper Guild 501 Third Street NW, Washington, DC 20001 Tel: (202) 434-7177 / Fax: (202) 434-1472 Contact: Bernie Lunzer, President ([email protected]) $400 per petition for three– to-four-week turnaround; $550 for two-week turnaround. Email all requests to [email protected] or send hard copies to Bernie Lunzer.

MANAGEMENT CONSULTATIONS

Foreign Nationals of Extraordinary Achievement/Support Personnel:

Alliance of Motion Picture and TV Producers (AMPTP) Attn: Immigration 15301 Ventura Blvd., Building E, Sherman Oaks, CA 91403 Tel: (818) 995-3600 / Fax: (818) 285-4450 ([email protected]) Check for updated instructions: at http://amptp.org/files/immigration.pdf



Members: free; nonmembers: $250 per petition. AMPTP has a Web page devoted to its specifications for O-1 and O-2 consultation requests: www.amptp.org/immigration.html

Beware, AMPTP takes its consulting role seriously. In particular, its insistence on signed deal memos for all work on itinerary can cause serious delays, as can its 50-page limit.

Commercial Producers:

Association of Independent Commercial Producers 3 West 18th Street, 5th Floor, New York, NY 10010 Tel: (212) 929-3000 / Fax: (212) 929-3359 Contact: Matt Miller, President If production company is a member: free; nonmembers: no service.

Opera related petitions:

Opera America 330 7th Avenue, 16th Floor, New York, NY 10001 Tel: (212) 796-8620 / Fax: (212) 796-8631 Contact: Trish Ferrell Wileman Consultations free to members; nonmembers: $250.

Symphony orchestras and classical musicians:

League of American Orchestras 910 17th Street NW, Suite 800, Washington, DC 20006 Tel: (202) 776-0215 / Fax: (202) 776-0224

Track & Field athletes:

USA Track & Field (USATF) 132 E. Washington Street, Ste. 800, Indianapolis, IN 46204 Tel: (317) 713-4653/ Fax: (317) 261-0481 Contact: Sarah Austin, Manager, Legal Affairs, [email protected]

Equestrian sports, including horse trainers and riders:

United States Equestrian Federation (USEF) 4047 Iron Works Parkway, Lexington, KY 40511 Tel: (859) 225-2022 or (859) 258-2472 (main) / Fax: (859) 231-6662 Contact: Sara Gilbert ([email protected]) Contact Sara to determine specific department to issue consultation (i.e., Show Jumping, Dressage, Event-ing, etc.). USEF will issue consultation based on draft of petitioner’s letter and beneficiary’s résumé.

Advertising, graphic design, interactive media, broadcast design, typography, packaging, environmen-tal design, photography, illustration and related:

Visual Effects Society 4121 Redwood Avenue, Suite 101, Los Angeles, CA 90066 Tel: (310) 822-9181 / Fax: (310) 822-2391 Contact: Alan Chu, Director of Operations Consultation free to members; nonmembers: $100. Call Alan Chu ahead of time to let him know that you are sending a consultation package.




The Art Directors Club 106 West 29th Street, New York, NY 10001 Tel: (212) 643-1440 Contact: Nora Fussner, Assistant to the Executive Director.

Graphic Artists Guild 32 Broadway, Suite 1114, New York, NY 10004 Tel. (212) 791-3400 / Fax: (212) 791-0333 Contact: Tamara Hall, Administrative Director ([email protected])

For management consultations for computer game developers and artists:

International Game Developers Association 870 Market Street, Suite 1181, San Francisco, CA 94102-3002 Tel: (415) 738-2137 / Fax: (415) 738-2178 Contact: Rudy Geronimo, Membership Assistant ([email protected])

Information Technology executives:

Corporate Executive Board Working Council on Chief Information Officers; 2000 Pennsylvania Ave NW, Washington, DC 20006 Tel: (202) 777-5587 Contact: Mr. Jamie Capella, Managing Director ([email protected])

Arts administration educators:

Association of Arts Administration Educators 4222 Oakland Drive, Kalamazoo, MI 49008 Tel: (608) 263-4161

Other peer group consultations for O-1 artists:

Fractured Atlas 248 West 35th Street, Suite 1202, New York, NY 10001-2505 Tel: (212) 277-8020 (main) Contact: Adam J. Natale, Director of Member Services, x203 ([email protected])

Fractured Atlas is not a union, but can provide peer consultations for O-1 petitions. Fax, email, or messenger I-129 forms and petitioner’s letter to Adam’s attention. Consult letter will be emailed within one business day. One year of free membership is offered to those who use Frac-tured Atlas.




The Art Directors Club 106 West 29th Street, New York, NY 10001 Tel: (212) 643-1440 Contact: Nora Fussner, Assistant to the Executive Director.

Graphic Artists Guild 32 Broadway, Suite 1114, New York, NY 10004 Tel. (212) 791-3400 / Fax: (212) 791-0333 Contact: Tamara Hall, Administrative Director ([email protected])

For management consultations for computer game developers and artists:

International Game Developers Association 870 Market Street, Suite 1181, San Francisco, CA 94102-3002 Tel: (415) 738-2137 / Fax: (415) 738-2178 Contact: Rudy Geronimo, Membership Assistant ([email protected])

Information Technology executives:

Corporate Executive Board Working Council on Chief Information Officers; 2000 Pennsylvania Ave NW, Washington, DC 20006 Tel: (202) 777-5587 Contact: Mr. Jamie Capella, Managing Director ([email protected])

Arts administration educators:

Association of Arts Administration Educators 4222 Oakland Drive, Kalamazoo, MI 49008 Tel: (608) 263-4161

Other peer group consultations for O-1 artists:

Fractured Atlas 248 West 35th Street, Suite 1202, New York, NY 10001-2505 Tel: (212) 277-8020 (main) Contact: Adam J. Natale, Director of Member Services, x203 ([email protected])

Fractured Atlas is not a union, but can provide peer consultations for O-1 petitions. Fax, email, or messenger I-129 forms and petitioner’s letter to Adam’s attention. Consult letter will be emailed within one business day. One year of free membership is offered to those who use Frac-tured Atlas.

10:15 IS THE DOCTOR IN? NON-IMMIGRANT AND IMMIGRANT VISA OPTIONS FOR FOREIGN MEDICAL GRADUATES Elizabeth L.A. Garvish, Garvish Immigration Law Group LLC, Atlanta


Copyright © 2017, American Immigration Lawyers Association. Reprinted, with permission, from Immigration Practice Pointers (2017–18 Ed.), AILA Education and Resources, http://agora.aila.org.

275

Copyright © 2017, American Immigration Lawyers Association (AILA).

Physician National Interest Waiver vs. PERM for Clinical International Medical Graduates by AILA Healthcare Professionals Committee

**********

Representing International Medical Graduates (IMG) is a specialized practice area of immigration law. Doctors face unique credentialing requirements and are eligible for immigration programs specific to the practice of medicine. For permanent residence, a lesser known option for many clinical IMGs is the Physician National Interest Waiver (PNIW) which provides a permanent residence pathway for clinicians who work in federally designated underserved areas or at a VA facility. This practice advisory reviews the PNIW process and contrasts it against the PERM process so that practitioners can provide the best advice to clinical IMGs seeking permanent resident status. PHYSICIAN NATIONAL INTEREST WAIVER (PNIW) The Nursing Relief for Disadvantaged Areas Act of 1999 (the Nursing Relief Act) established a national interest waiver (NIW) exclusively for IMGs who agree to provide full-time clinical medical care for at least five years in an area(s) designated by the U.S. Department of Health and Human Services as a Federally-Designated Medically Underserved Area or Health Professional Shortage Area, or at a Veterans Affairs (VA) facility.1 The policy rational behind the PNIW is that clinical medical care in our neediest and underserved areas serves important U.S. national interests to the extent that it outweighs the need to test the U.S. labor market. As such, IMGs who receive a PNIW can bypass entirely the permanent labor certification (PERM) process and instead immediately file an Immigrant Petition for Alien Worker (Form I-140) directly with the United States Citizenship and Immigration Services (USCIS). If immigrant visa numbers are available, the IMG can also concurrently file an Application to Register Permanent Residence (Form I-485) to adjust to permanent resident status – even during a three year, J-1 waiver service period.2 Finally, the physician can self-sponsor the PNIW which means that self-employed IMGs, or IMGs working for employers not wanting to pursue a PERM, can sponsor themselves for permanent residence so long as the rest of the PNIW requirements are met. The PNIW strategy is governed by statute, federal regulation, and the 2007 Aytes policy memorandum,3 and is available to both primary care and specialty physicians.4 A PNIW requires that an IMG:

1 INA §203(b)(2)(B)(ii). 2 8 CFR §204.12(e). 3 USCIS Memorandum, M. Aytes, “Interim guidance for adjudicating national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically underserved areas in light of Schneider v. Chertoff, 450 F.2d 944 (9th Cir. 2006)("Schneider Decision")," HQ 70/6.2, AD06 46 (Jan. 23, 2007), AILA Doc. No. 07021262, available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/ schneiderintrm012307.pdf,

276 2017 AILA Immigration Practice Pointers


1. Work full-time, for five years, in a federally designated underserved area or a VA

facility;5 and, 2. A federal agency or state public health department determine that the IMG’s work is in

the public interest.6 The PNIW ordinarily involves three steps:

Step 1: Attestation from the State Department of Health. An IMG must obtain an attestation from the appropriate State Department of Health that the clinical work in a federally designated underserved area is in the public interest, dated within six months of the PNIW filing to USCIS.7 IMGs can count any time worked in an underserved area, in any status other than J-1, so long as the State Department of Health will issue this attestation. States are split on whether to issue this attestation for time spent in medical residency or fellowship training, so it is critical to always check with the State prior to advising clients on whether prior employment qualifies. This includes time spent working in an underserved area prior to filing the PNIW with USCIS. Step 2: Immigrant Petition for Alien Worker (Form I-140). PNIW regulations permit the IMG to self-petition so long as the IMG can show it will work a total of five years in a federally designated underserved area. IMGs can count any prior time worked in federally designated underserved areas but will need to execute an addendum to the current employment contract so that the employment contract is dated within six months of filing the PNIW with USCIS. The PNIW approval permits the IMG to file for an extension of H-1B status past the six-year limit, should this be required.8 USCIS still does not permit the premium processing option for PNIWs. This is unfortunate, as approval of the petition for an IMG in a backlogged immigrant category allows the spouse to apply for a work permit (EAD). Note that the PNIW falls under the Employment-based Second (EB 2) category, making it less than ideal in some situations for IMG’s chargeable to India or China (see discussion below regarding adjustment of status), who face long immigrant visa backlogs.9 Step 3: Application to Register Permanent Residence (Form I-485). Because this is a PNIW, a IMG can file an I-485 during the three-year J-1 waiver service obligation although USCIS will not adjudicate the I-485 until the IMG fulfills the five-year service obligation. Of course, there must be an immigrant visa number available at the time of filing the I-485, which means that persons chargeable to India or China ordinarily are not

4Id.; See also, Matter of H–V–-P, Feb. 9, 2016, available at www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2016/FEB092016_01B5203.pdf 5 INA §203(b)(2)(B)(ii). 6 Id. 7 8 CFR §204.12(c)(3). 8 The American Competitiveness in the 21st Century Act (AC 21). 9 An immigrant is “chargeable” to the immigration quota of either the country where he/she was born, or the country where his/her spouse was born. Current citizenship is irrelevant to a determination of chargeability. See, INA § 202(b)(2).



275


Physician National Interest Waiver vs. PERM for Clinical International Medical Graduates by AILA Healthcare Professionals Committee

**********

Representing International Medical Graduates (IMG) is a specialized practice area of immigration law. Doctors face unique credentialing requirements and are eligible for immigration programs specific to the practice of medicine. For permanent residence, a lesser known option for many clinical IMGs is the Physician National Interest Waiver (PNIW) which provides a permanent residence pathway for clinicians who work in federally designated underserved areas or at a VA facility. This practice advisory reviews the PNIW process and contrasts it against the PERM process so that practitioners can provide the best advice to clinical IMGs seeking permanent resident status. PHYSICIAN NATIONAL INTEREST WAIVER (PNIW) The Nursing Relief for Disadvantaged Areas Act of 1999 (the Nursing Relief Act) established a national interest waiver (NIW) exclusively for IMGs who agree to provide full-time clinical medical care for at least five years in an area(s) designated by the U.S. Department of Health and Human Services as a Federally-Designated Medically Underserved Area or Health Professional Shortage Area, or at a Veterans Affairs (VA) facility.1 The policy rational behind the PNIW is that clinical medical care in our neediest and underserved areas serves important U.S. national interests to the extent that it outweighs the need to test the U.S. labor market. As such, IMGs who receive a PNIW can bypass entirely the permanent labor certification (PERM) process and instead immediately file an Immigrant Petition for Alien Worker (Form I-140) directly with the United States Citizenship and Immigration Services (USCIS). If immigrant visa numbers are available, the IMG can also concurrently file an Application to Register Permanent Residence (Form I-485) to adjust to permanent resident status – even during a three year, J-1 waiver service period.2 Finally, the physician can self-sponsor the PNIW which means that self-employed IMGs, or IMGs working for employers not wanting to pursue a PERM, can sponsor themselves for permanent residence so long as the rest of the PNIW requirements are met. The PNIW strategy is governed by statute, federal regulation, and the 2007 Aytes policy memorandum,3 and is available to both primary care and specialty physicians.4 A PNIW requires that an IMG:

1 INA §203(b)(2)(B)(ii). 2 8 CFR §204.12(e). 3 USCIS Memorandum, M. Aytes, “Interim guidance for adjudicating national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically underserved areas in light of Schneider v. Chertoff, 450 F.2d 944 (9th Cir. 2006)("Schneider Decision")," HQ 70/6.2, AD06 46 (Jan. 23, 2007), AILA Doc. No. 07021262, available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/ schneiderintrm012307.pdf,



1. Work full-time, for five years, in a federally designated underserved area or a VA

facility;5 and, 2. A federal agency or state public health department determine that the IMG’s work is in

the public interest.6 The PNIW ordinarily involves three steps:

Step 1: Attestation from the State Department of Health. An IMG must obtain an attestation from the appropriate State Department of Health that the clinical work in a federally designated underserved area is in the public interest, dated within six months of the PNIW filing to USCIS.7 IMGs can count any time worked in an underserved area, in any status other than J-1, so long as the State Department of Health will issue this attestation. States are split on whether to issue this attestation for time spent in medical residency or fellowship training, so it is critical to always check with the State prior to advising clients on whether prior employment qualifies. This includes time spent working in an underserved area prior to filing the PNIW with USCIS. Step 2: Immigrant Petition for Alien Worker (Form I-140). PNIW regulations permit the IMG to self-petition so long as the IMG can show it will work a total of five years in a federally designated underserved area. IMGs can count any prior time worked in federally designated underserved areas but will need to execute an addendum to the current employment contract so that the employment contract is dated within six months of filing the PNIW with USCIS. The PNIW approval permits the IMG to file for an extension of H-1B status past the six-year limit, should this be required.8 USCIS still does not permit the premium processing option for PNIWs. This is unfortunate, as approval of the petition for an IMG in a backlogged immigrant category allows the spouse to apply for a work permit (EAD). Note that the PNIW falls under the Employment-based Second (EB 2) category, making it less than ideal in some situations for IMG’s chargeable to India or China (see discussion below regarding adjustment of status), who face long immigrant visa backlogs.9 Step 3: Application to Register Permanent Residence (Form I-485). Because this is a PNIW, a IMG can file an I-485 during the three-year J-1 waiver service obligation although USCIS will not adjudicate the I-485 until the IMG fulfills the five-year service obligation. Of course, there must be an immigrant visa number available at the time of filing the I-485, which means that persons chargeable to India or China ordinarily are not

4Id.; See also, Matter of H–V–-P, Feb. 9, 2016, available at www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2016/FEB092016_01B5203.pdf 5 INA §203(b)(2)(B)(ii). 6 Id. 7 8 CFR §204.12(c)(3). 8 The American Competitiveness in the 21st Century Act (AC 21). 9 An immigrant is “chargeable” to the immigration quota of either the country where he/she was born, or the country where his/her spouse was born. Current citizenship is irrelevant to a determination of chargeability. See, INA § 202(b)(2).


Physician National Interest Waiver v. PERM for Clinical IMGs 277


able to concurrently file. The filing of the I-485 brings huge benefits to the IMG and dependents: work and travel permits. This means the IMG may now moonlight freely (unless still within the J-1 three-year service requirement, during which H-1B status must be maintained), though he/she must still log 40 hours per week in the PNIW location(s). Moreover, the IMG and family can travel freely without concern about visa issuance hassles or delays. There are two mandatory compliance reporting obligations that attach after filing the I-485: 1) 120 days after the second-year anniversary of the I-140 approval; and, 120 days after the sixth year, however, this most commonly means that IMGs submit evidence immediately upon completion of the five-year obligation.10 It may take several months or longer after a physician fulfills the five-year obligation for USCIS to approve the application for permanent resident status. The ability to file for adjustment of status during the three-year service obligation period, unlike other routes to PR, is one of the great advantages of this category for IMG’s and families who find it difficult to obtain speedy visa reissuance abroad (e.g., Syrians, Iranians), who simply don’t want the hassle of visa issuance or who need unrestricted work permits.

LABOR CERTIFICATION APPLICATION PROCESS (PERM) The permanent labor certification (commonly referred to as PERM), is an employer-driven process. Section 212(a)(5)(A) of the Immigration and Naturalization Act (INA)11 requires the employer show that there are not sufficient U.S. workers who are able, willing and, qualified and available for the proposed employment and that hiring the foreign national worker will not adversely affect wages and working conditions of similarly employed U.S. workers. For IMGs who teach at a medical school, the test is that the IMG is better qualified than any U.S. worker applicant. This process is referred to as “Labor Certification Application” (L/C) because the employer is asking the U.S. Department of Labor (DOL) to “certify” both these facts about the job. The labor certification application process broadly includes four steps.

Step 1: Prevailing Wage Determination. An employer must obtain from the Department of Labor an occupation- and location-specific wage determination confirming that the offered salary meets or exceeds the weighted mean wage for the geographic area (note: if there is no wage information for the area for certain highly compensated professional occupations, the wage is automatically defaulted to $90/hour).12 Step 2: Recruitment. The employer must advertise twice in a local Sunday newspaper, select and use three other recruitment methods from a list of 10 found in DOL regulations, place a job order with the state of employment, and post a Notice of Filing (NOF) for ten business days. If the application is for a teaching position in a medical school, the employer need only place one ad in a national professional journal and post a NOF. It must then find that the foreign national beneficiary is the only person able, willing and qualified to perform the job (as per the exact terms of the PERM application)

10 8 CFR §1245.18(g). 11 12 See, www.foreignlaborcert.doleta.gov/pdf/H1B_H1B1_E3_Round3FAQs.pdf, last visited January 23, 2017.



or, if teaching in a medical school, that the foreign national is more qualified than any U.S. worker applicant. Step 2: Application for Alien Employment Certification (ETA Form 9089). After the employer obtains the required wage determination, recruits, and can confirm that there were no minimally qualified U.S. applicants (or better qualified, for an academician), it submits the application to the DOL, Office of Foreign Labor Certification, via an electronic portal (manual filing also available, but not recommended). Step 3: Immigrant Petition for Alien Worker (Form I-140). Assuming the labor certification application is approved by the DOL, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). The immigrant visa petition documents the job offer and establishes the IMG’s qualifications for the position. Step 4: Application to Register Permanent Residence or Adjust Status (Form I-485). To file this application, the IMG must first fulfill any three year, J-1 waiver service obligation which is the result of a Conrad J-1 waiver. There must also be available an immigrant visa number. See discussion of this issue above.

The PERM process not only requires employer sponsorship, the process is employer-specific, job specific, and location-specific. This means that should the job change significantly, or the job site move outside the metropolitan statistical area (MSA) for which the PERM was granted, the entire process must begin again, though the priority date is retained if the I-140 was approved. The PERM process also requires the employer to pay for all costs associated with the PERM process, including advertising costs and lawyer fees. The latter requirement is usually a non-issue for IMGs. WHY WOULD AN IMG CHOOSE A PNIW OVER A PERM? In analyzing a physician case for permanent residence, it is important to evaluate not only the legal options, but also familial issues to ensure you are providing the best, most comprehensive legal solution. We have highlighted most of the pros and cons of each in this practice advisory. What follows is a summary chart comparing the PNIW with the PERM process:

PERM

PNIW

Must Employer sponsor? Requires employer sponsorship

Self-petition (either with an employer or self-employment qualifies) that requires support from state DOH

Who Pays?

The employer must pay for all costs associated with the PERM, including advertising costs and attorney fees

Either employer or employee can pay




able to concurrently file. The filing of the I-485 brings huge benefits to the IMG and dependents: work and travel permits. This means the IMG may now moonlight freely (unless still within the J-1 three-year service requirement, during which H-1B status must be maintained), though he/she must still log 40 hours per week in the PNIW location(s). Moreover, the IMG and family can travel freely without concern about visa issuance hassles or delays. There are two mandatory compliance reporting obligations that attach after filing the I-485: 1) 120 days after the second-year anniversary of the I-140 approval; and, 120 days after the sixth year, however, this most commonly means that IMGs submit evidence immediately upon completion of the five-year obligation.10 It may take several months or longer after a physician fulfills the five-year obligation for USCIS to approve the application for permanent resident status. The ability to file for adjustment of status during the three-year service obligation period, unlike other routes to PR, is one of the great advantages of this category for IMG’s and families who find it difficult to obtain speedy visa reissuance abroad (e.g., Syrians, Iranians), who simply don’t want the hassle of visa issuance or who need unrestricted work permits.

LABOR CERTIFICATION APPLICATION PROCESS (PERM) The permanent labor certification (commonly referred to as PERM), is an employer-driven process. Section 212(a)(5)(A) of the Immigration and Naturalization Act (INA)11 requires the employer show that there are not sufficient U.S. workers who are able, willing and, qualified and available for the proposed employment and that hiring the foreign national worker will not adversely affect wages and working conditions of similarly employed U.S. workers. For IMGs who teach at a medical school, the test is that the IMG is better qualified than any U.S. worker applicant. This process is referred to as “Labor Certification Application” (L/C) because the employer is asking the U.S. Department of Labor (DOL) to “certify” both these facts about the job. The labor certification application process broadly includes four steps.

Step 1: Prevailing Wage Determination. An employer must obtain from the Department of Labor an occupation- and location-specific wage determination confirming that the offered salary meets or exceeds the weighted mean wage for the geographic area (note: if there is no wage information for the area for certain highly compensated professional occupations, the wage is automatically defaulted to $90/hour).12 Step 2: Recruitment. The employer must advertise twice in a local Sunday newspaper, select and use three other recruitment methods from a list of 10 found in DOL regulations, place a job order with the state of employment, and post a Notice of Filing (NOF) for ten business days. If the application is for a teaching position in a medical school, the employer need only place one ad in a national professional journal and post a NOF. It must then find that the foreign national beneficiary is the only person able, willing and qualified to perform the job (as per the exact terms of the PERM application)

10 8 CFR §1245.18(g). 11 12 See, www.foreignlaborcert.doleta.gov/pdf/H1B_H1B1_E3_Round3FAQs.pdf, last visited January 23, 2017.



or, if teaching in a medical school, that the foreign national is more qualified than any U.S. worker applicant. Step 2: Application for Alien Employment Certification (ETA Form 9089). After the employer obtains the required wage determination, recruits, and can confirm that there were no minimally qualified U.S. applicants (or better qualified, for an academician), it submits the application to the DOL, Office of Foreign Labor Certification, via an electronic portal (manual filing also available, but not recommended). Step 3: Immigrant Petition for Alien Worker (Form I-140). Assuming the labor certification application is approved by the DOL, the employer files an immigrant visa petition (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). The immigrant visa petition documents the job offer and establishes the IMG’s qualifications for the position. Step 4: Application to Register Permanent Residence or Adjust Status (Form I-485). To file this application, the IMG must first fulfill any three year, J-1 waiver service obligation which is the result of a Conrad J-1 waiver. There must also be available an immigrant visa number. See discussion of this issue above.

The PERM process not only requires employer sponsorship, the process is employer-specific, job specific, and location-specific. This means that should the job change significantly, or the job site move outside the metropolitan statistical area (MSA) for which the PERM was granted, the entire process must begin again, though the priority date is retained if the I-140 was approved. The PERM process also requires the employer to pay for all costs associated with the PERM process, including advertising costs and lawyer fees. The latter requirement is usually a non-issue for IMGs. WHY WOULD AN IMG CHOOSE A PNIW OVER A PERM? In analyzing a physician case for permanent residence, it is important to evaluate not only the legal options, but also familial issues to ensure you are providing the best, most comprehensive legal solution. We have highlighted most of the pros and cons of each in this practice advisory. What follows is a summary chart comparing the PNIW with the PERM process:

PERM

PNIW

Must Employer sponsor? Requires employer sponsorship

Self-petition (either with an employer or self-employment qualifies) that requires support from state DOH

Who Pays?

The employer must pay for all costs associated with the PERM, including advertising costs and attorney fees

Either employer or employee can pay




Is a contract required?

No contract required but employer must conduct extensive recruitment campaign; job must be “permanent” and FT

Aggregate of 5-year contract required in most cases, dated within six months of filing the PNIW

Change in employers? Change of location or job?

New PERM and I-140 required when IMG changes employers, location or job

Likely requires a new PNIW petition

When Can Physician file I-485?

Can file PERM/I-140 during 3-year commitment but cannot file I-485 until 3 years completed

Can file I-485 and I-140 concurrently during 3-year commitment if PD is current, but I-485 won’t be adjudicated until 5 years complete

Can a dependent spouse work?

No pathway for spouse to work until I-140 approved and then file and receive approval of an H-4 EAD

EAD/AP for spouse with filing I-485

Can I file during training?

In most cases, cannot be filed before IMG completes training to comply with minimum qualification requirements, unless for a future position

State by state analysis whether training counts towards 5 years, and, not before IMG obtains a Conrad J- waiver

Can IMG Premium Process?

Can premium process the I-140, but not 485, nor PERM. Takes at least a year to get PERM filed and certified

Cannot premium process the I-140, but can often get to the I-140 filing quickly to set the priority date

Can IMG transfer underlying I-485 to new basis?

May transfer a PERM-based I-485 to support a PNIW.

May transfer the basis of a PNIW-based I-485 to a subsequently approved immigrant petition only if the physician was either never subject to a three-year J-1 waiver commitment under INA §214(l) or had already completed that commitment at the time the PNIW-based I-485 application was filed.

CONCLUSION



There are benefits and downfalls of either the PNIW or PERM process for an IMG. Careful analysis of all the facts will ensure that you are helping your client select the best pathway for personal and professional success.




Is a contract required?

No contract required but employer must conduct extensive recruitment campaign; job must be “permanent” and FT

Aggregate of 5-year contract required in most cases, dated within six months of filing the PNIW

Change in employers? Change of location or job?

New PERM and I-140 required when IMG changes employers, location or job

Likely requires a new PNIW petition

When Can Physician file I-485?

Can file PERM/I-140 during 3-year commitment but cannot file I-485 until 3 years completed

Can file I-485 and I-140 concurrently during 3-year commitment if PD is current, but I-485 won’t be adjudicated until 5 years complete

Can a dependent spouse work?

No pathway for spouse to work until I-140 approved and then file and receive approval of an H-4 EAD

EAD/AP for spouse with filing I-485

Can I file during training?

In most cases, cannot be filed before IMG completes training to comply with minimum qualification requirements, unless for a future position

State by state analysis whether training counts towards 5 years, and, not before IMG obtains a Conrad J- waiver

Can IMG Premium Process?

Can premium process the I-140, but not 485, nor PERM. Takes at least a year to get PERM filed and certified

Cannot premium process the I-140, but can often get to the I-140 filing quickly to set the priority date

Can IMG transfer underlying I-485 to new basis?

May transfer a PERM-based I-485 to support a PNIW.

May transfer the basis of a PNIW-based I-485 to a subsequently approved immigrant petition only if the physician was either never subject to a three-year J-1 waiver commitment under INA §214(l) or had already completed that commitment at the time the PNIW-based I-485 application was filed.

CONCLUSION



There are benefits and downfalls of either the PNIW or PERM process for an IMG. Careful analysis of all the facts will ensure that you are helping your client select the best pathway for personal and professional success.



281


International Medical Graduates by Mahsa Khanbabai

Mahsa Khanbabai is the principal attorney at Khanbabai Immigration Law in North Easton, MA. She has dedicated her legal career to immigration and naturalization issues, representing individual, nonprofit, educational and business clients. She assists clients with employment visas, asylum cases, family petitions, and citizenship applications, as well as other immigration-related matters. A significant part of her practice is devoted to assisting foreign dental students, international medical graduates with J-1 waiver issues, as well as other employment-related work visa matters. Ms. Khanbabai has been an active AILA member for over 16 years, and currently serves as secretary of the AILA New England Chapter. Ms. Khanbabai is an active member of the International Medical Graduate Taskforce, an association of immigration attorneys specializing in physician-related immigration.

********** INTRODUCTION International medical graduates (IMGs) have long been coming to the United States to obtain medical training on the J-1 visa. This practice advisory will cover the implications of obtaining a J-1 visa, particularly the two-year home residency requirement and the waiver of that requirement. Also to be discussed are the visa process once the J-1 training period is over, and the two visa categories most often used: the O-1 and the H-1B. THE H-1B VISA FOR INTERNATIONAL MEDICAL GRADUATES IN RESIDENCY TRAINING Beginning in 1991, IMGs became eligible for entry on the H-1 to practice medicine, thanks to the Miscellaneous and Technical Immigration and Naturalization Amendment of 1991. Prior to that date, the J-1 visa was the only mainstream avenue available. In 1995, the final rule extended the H-1 availability to cover residency programs.1 However, most hospitals are extremely reluctant to sponsor international medical graduates as residents on H-1B visas and, therefore, most obtain the J-1 visa. An IMG must meet certain conditions to qualify for the H-1B. If the physician is coming to perform research, he or she must have an invitation from a public or nonprofit, private educational or research institution to teach or conduct research. Incidental patient care is accepted. If an IMG is coming to provide health-care services, he or she must have passed either the Federal Licensing Examination (FLEX) or the U.S. Medical Licensing Exam (USMLE), which includes steps one, two, and three of the National Board of Medical Examiners. The IMG must also possess a state medical license to practice medicine. An exception exists if the IMG can establish that the only delay in obtaining a medical license is the need for a social security number. Since September 11, 2001, the Social Security Administration has passed regulations 1 60 Fed. Reg. 62,021–22 (Dec. 4, 1995).



restricting the category of persons who may apply for social security numbers. This has primarily affected physicians who did not previously have J-1 visas, which does entitle them to apply for social security numbers. Once the H-1B is issued and a social security number is secured, the state medical license will be granted.

Practice Pointer: When applying for the H-1B, be sure to note in the cover letter to the U.S. Citizenship and Immigration Services (USCIS) that the IMG has completed their licensing application and all that remains in order for a medical license to be issued is a social security number.

There are several categories of foreign physicians who need not have passed the USMLE exams to obtain an H-1B. Physicians of international or national renown are not considered international medical graduates and are exempt according to §101(a)(41) of the Immigration and Naturalization Act of 1952 (INA).2 The same holds true for physicians who are not coming to perform services as a member of the medical profession but in another capacity not involving direct patient care, as stated in INA §101(1)(15)(H)(i)(b). And lastly, physicians who graduated from U.S. medical schools are not required to take the USMLE exams.3 However, it should be noted that obtaining a medical license in most states now requires passage of all the USMLE exams. If the IMG is pursuing a residency program with the H-1B visa, the teaching hospital must sponsor the petition and meet the prevailing wage requirements. Passage of USMLE Steps 1, 2, and 3 are required, along with the required medical license per state rules for the state the graduate intends to train in. Typically, ECFMG certification is needed, as well. THE J-1 VISA FOR IMGs AND THE TWO-YEAR HOME RESIDENCY REQUIREMENT The J-1 visa program is administered through the Educational Commission on Foreign Medical Graduates (ECFMG). It is the only program sponsor that is authorized to issue Form DS 2019 (previously called Form IAP-66) to the IMG, entitling him or her to enter his or her residency program to obtain “graduate medical education or training.” The J-1 visa for physicians in training programs is valid for a maximum of seven years. Extensions of the J-1 visa can be obtained if the physician is within the maximum period of duration, even if he or she has a waiver application pending. However, once the IMG has received confirmation from the U.S. Department of State (DOS) that he or she has received a favorable recommendation and USCIS has been notified, he or she is no longer eligible for an extension of the DS 2019. The IMG is entitled to complete his or her program for the duration of the DS 2019 validity period. The J-1 visa for international medical graduates enrolling in a graduate medical education or training program subjects the physician to the two-year home residency rule, as required by INA 2 Pub. L. No. 82-414, 66 Stat. 163. 3 8 CFR §214.2(h)(4)(viii)(B)(2).



281


International Medical Graduates by Mahsa Khanbabai

Mahsa Khanbabai is the principal attorney at Khanbabai Immigration Law in North Easton, MA. She has dedicated her legal career to immigration and naturalization issues, representing individual, nonprofit, educational and business clients. She assists clients with employment visas, asylum cases, family petitions, and citizenship applications, as well as other immigration-related matters. A significant part of her practice is devoted to assisting foreign dental students, international medical graduates with J-1 waiver issues, as well as other employment-related work visa matters. Ms. Khanbabai has been an active AILA member for over 16 years, and currently serves as secretary of the AILA New England Chapter. Ms. Khanbabai is an active member of the International Medical Graduate Taskforce, an association of immigration attorneys specializing in physician-related immigration.

********** INTRODUCTION International medical graduates (IMGs) have long been coming to the United States to obtain medical training on the J-1 visa. This practice advisory will cover the implications of obtaining a J-1 visa, particularly the two-year home residency requirement and the waiver of that requirement. Also to be discussed are the visa process once the J-1 training period is over, and the two visa categories most often used: the O-1 and the H-1B. THE H-1B VISA FOR INTERNATIONAL MEDICAL GRADUATES IN RESIDENCY TRAINING Beginning in 1991, IMGs became eligible for entry on the H-1 to practice medicine, thanks to the Miscellaneous and Technical Immigration and Naturalization Amendment of 1991. Prior to that date, the J-1 visa was the only mainstream avenue available. In 1995, the final rule extended the H-1 availability to cover residency programs.1 However, most hospitals are extremely reluctant to sponsor international medical graduates as residents on H-1B visas and, therefore, most obtain the J-1 visa. An IMG must meet certain conditions to qualify for the H-1B. If the physician is coming to perform research, he or she must have an invitation from a public or nonprofit, private educational or research institution to teach or conduct research. Incidental patient care is accepted. If an IMG is coming to provide health-care services, he or she must have passed either the Federal Licensing Examination (FLEX) or the U.S. Medical Licensing Exam (USMLE), which includes steps one, two, and three of the National Board of Medical Examiners. The IMG must also possess a state medical license to practice medicine. An exception exists if the IMG can establish that the only delay in obtaining a medical license is the need for a social security number. Since September 11, 2001, the Social Security Administration has passed regulations 1 60 Fed. Reg. 62,021–22 (Dec. 4, 1995).



restricting the category of persons who may apply for social security numbers. This has primarily affected physicians who did not previously have J-1 visas, which does entitle them to apply for social security numbers. Once the H-1B is issued and a social security number is secured, the state medical license will be granted.

Practice Pointer: When applying for the H-1B, be sure to note in the cover letter to the U.S. Citizenship and Immigration Services (USCIS) that the IMG has completed their licensing application and all that remains in order for a medical license to be issued is a social security number.

There are several categories of foreign physicians who need not have passed the USMLE exams to obtain an H-1B. Physicians of international or national renown are not considered international medical graduates and are exempt according to §101(a)(41) of the Immigration and Naturalization Act of 1952 (INA).2 The same holds true for physicians who are not coming to perform services as a member of the medical profession but in another capacity not involving direct patient care, as stated in INA §101(1)(15)(H)(i)(b). And lastly, physicians who graduated from U.S. medical schools are not required to take the USMLE exams.3 However, it should be noted that obtaining a medical license in most states now requires passage of all the USMLE exams. If the IMG is pursuing a residency program with the H-1B visa, the teaching hospital must sponsor the petition and meet the prevailing wage requirements. Passage of USMLE Steps 1, 2, and 3 are required, along with the required medical license per state rules for the state the graduate intends to train in. Typically, ECFMG certification is needed, as well. THE J-1 VISA FOR IMGs AND THE TWO-YEAR HOME RESIDENCY REQUIREMENT The J-1 visa program is administered through the Educational Commission on Foreign Medical Graduates (ECFMG). It is the only program sponsor that is authorized to issue Form DS 2019 (previously called Form IAP-66) to the IMG, entitling him or her to enter his or her residency program to obtain “graduate medical education or training.” The J-1 visa for physicians in training programs is valid for a maximum of seven years. Extensions of the J-1 visa can be obtained if the physician is within the maximum period of duration, even if he or she has a waiver application pending. However, once the IMG has received confirmation from the U.S. Department of State (DOS) that he or she has received a favorable recommendation and USCIS has been notified, he or she is no longer eligible for an extension of the DS 2019. The IMG is entitled to complete his or her program for the duration of the DS 2019 validity period. The J-1 visa for international medical graduates enrolling in a graduate medical education or training program subjects the physician to the two-year home residency rule, as required by INA 2 Pub. L. No. 82-414, 66 Stat. 163. 3 8 CFR §214.2(h)(4)(viii)(B)(2).


International Medical Graduates 283


§212(e). This means that the exchange visitor physician must return to his or her country of last permanent residence or home country for a two-year period before he or she is eligible to acquire permanent residence or an H or L visa. He or she is also precluded from changing status to any other nonimmigrant visa, except the A or G. However, he or she is not barred from applying for other nonimmigrant visas, such as the B, E, F, M, O, or TN. Of course, as is the nature of immigration law, there are certain exceptions: in this case, mainly the ability to secure a waiver of the two-year home residency requirement. Obtaining a waiver of the two-year home residency requirement can be accomplished in several ways; however, this chapter will only address waivers obtained through sponsorship by an interested government agency (IGA). Note that hardship waivers are available for international medical graduates, as well as for persecution on account of the IMG’s race, religion, or political opinion. J-1 physicians cannot obtain waivers solely via no-objection letters by the home government. OBTAINING WAIVERS OF THE HOME RESIDENCY REQUIREMENT BY IGA SPONSORSHIP State Public Health Department Requests: The “Conrad 30” Program Public Law 103-416 was enacted in 1994, availing foreign medical graduates the ability to apply for waivers based upon sponsorship by a state public health department; corresponding regulations can be found at 8 CFR §212.7(c)(9). The law as it currently exists is set to expire in April 2017. The goal behind the program is to provide rural and other medically underserved areas with needed health-care services. The foreign physician must provide health-care services in the underserved area in exchange for a waiver of the two-year home residency requirement. Each state’s department of public health (DPH) can sponsor up to thirty physicians a year for a waiver recommendation if the IMG agrees to provide medical care in areas designated by the Secretary of Health and Human Services as Medically Underserved Areas (MUA) or Health Professional Shortage Areas (HPSA). Individual states must enact legislation to implement the program and each DPH sets it own guidelines and eligibility requirements. For example, some states only accept service in HPSAs and not in MUAs, while other states give preference to HPSAs but will consider MUAs. Note that some states have instituted the FLEX 10 program, wherein ten of the thirty slots may be granted to a physician who can document that he or she serves patients from a designated HPSA or MUA even though the office location is not physically in a designated area. The DPH reviews the application pool and once they have selected the physicians to be sponsored, it makes a request for a waiver to DOS. DOS then, in turn, makes a recommendation for a waiver to the USCIS. It is USCIS that makes the ultimate decision to grant the waiver. However, the USCIS typically grants the waiver if DOS makes a recommendation. Once USCIS approves the waiver, the physician may be granted a change of nonimmigrant status from the J-1 to the H 1B, and J-2 dependents are eligible for the H-4.



Application Procedure When an IMG makes the decision to pursue a waiver, he or she begins the process by applying for a waiver number with DOS. The IMG can accomplish this by completing a data sheet online from the DOS website at www.cbp.gov/xp/cgov/travel/id_visa/esta. The data sheet asks for the exchange visitor to indicate the basis for the waiver application, program information, and other personal data. The application is submitted online but a copy is mailed, along with a $120 filing fee and two self-addressed and stamped envelopes, to a lock box address at: U.S. Department of State, PO Box 952137, St. Louis, MO 63195-2137. Once accepted, DOS will create a file and waiver number for the IMG and will forward further application instructions. Later, once the IMG receives acknowledgement that he or she has received IGA sponsorship, he or she must then send any additional documents, if required, to DOS. Typically, the IGA sends the supporting documents to DOS. Processing times, statistics, and case information can be found on the DOS website. Conrad and IGA waivers are processed six to eight weeks from the date all application materials are submitted.

Practice Pointer: The IMG should only submit the data sheet and application fee to the lock box when applying for the waiver number. The lock box is only a fee-processing center and materials can be misplaced or lost. Once the IMG has secured public health department sponsorship, he or she can be assured that all the supporting materials—such as copies of the curriculum vitae, Education Commission for Foreign Medical Graduates (ECFMG) certificates, DS 2019 forms, etc.—will be submitted by the sponsoring IGA.

According to 8 CFR §212.7(c)(9)(i), there are several basic requirements needed to qualify for the Conrad waiver. The IMG must have entered as a J-1 or obtained J-1 status prior to 2017. Second, the physician must establish they have an offer for full-time employment of forty hours a week for a period of three years to practice medicine with a medical facility in a designated underserved area. There are no restrictions on the type of health-care facility except that the physician cannot sponsor himself or herself as a solo practitioner but must be employed by another entity. The physician must be willing to begin employment within ninety days of receiving the waiver, and he or she must present a written statement indicating his or her willingness.

Practice Pointer: Include specific language in the employment contract regarding the physician’s obligation to begin employment within ninety days of obtaining the waiver. Some states seek language regarding the facility’s willingness to inform the DPH within a certain number of days if and when the physician is no longer employed by the sponsoring facility.

Careful research must be done with each state’s DPH to learn the criteria they consider in determining which physicians will be sponsored. Attorneys must remember that the program was enacted with the goal of alleviating the lack of primary care physicians for poor and rural communities. Internists, pediatricians, obstetricians and gynecologists, and psychiatrists were




§212(e). This means that the exchange visitor physician must return to his or her country of last permanent residence or home country for a two-year period before he or she is eligible to acquire permanent residence or an H or L visa. He or she is also precluded from changing status to any other nonimmigrant visa, except the A or G. However, he or she is not barred from applying for other nonimmigrant visas, such as the B, E, F, M, O, or TN. Of course, as is the nature of immigration law, there are certain exceptions: in this case, mainly the ability to secure a waiver of the two-year home residency requirement. Obtaining a waiver of the two-year home residency requirement can be accomplished in several ways; however, this chapter will only address waivers obtained through sponsorship by an interested government agency (IGA). Note that hardship waivers are available for international medical graduates, as well as for persecution on account of the IMG’s race, religion, or political opinion. J-1 physicians cannot obtain waivers solely via no-objection letters by the home government. OBTAINING WAIVERS OF THE HOME RESIDENCY REQUIREMENT BY IGA SPONSORSHIP State Public Health Department Requests: The “Conrad 30” Program Public Law 103-416 was enacted in 1994, availing foreign medical graduates the ability to apply for waivers based upon sponsorship by a state public health department; corresponding regulations can be found at 8 CFR §212.7(c)(9). The law as it currently exists is set to expire in April 2017. The goal behind the program is to provide rural and other medically underserved areas with needed health-care services. The foreign physician must provide health-care services in the underserved area in exchange for a waiver of the two-year home residency requirement. Each state’s department of public health (DPH) can sponsor up to thirty physicians a year for a waiver recommendation if the IMG agrees to provide medical care in areas designated by the Secretary of Health and Human Services as Medically Underserved Areas (MUA) or Health Professional Shortage Areas (HPSA). Individual states must enact legislation to implement the program and each DPH sets it own guidelines and eligibility requirements. For example, some states only accept service in HPSAs and not in MUAs, while other states give preference to HPSAs but will consider MUAs. Note that some states have instituted the FLEX 10 program, wherein ten of the thirty slots may be granted to a physician who can document that he or she serves patients from a designated HPSA or MUA even though the office location is not physically in a designated area. The DPH reviews the application pool and once they have selected the physicians to be sponsored, it makes a request for a waiver to DOS. DOS then, in turn, makes a recommendation for a waiver to the USCIS. It is USCIS that makes the ultimate decision to grant the waiver. However, the USCIS typically grants the waiver if DOS makes a recommendation. Once USCIS approves the waiver, the physician may be granted a change of nonimmigrant status from the J-1 to the H 1B, and J-2 dependents are eligible for the H-4.



Application Procedure When an IMG makes the decision to pursue a waiver, he or she begins the process by applying for a waiver number with DOS. The IMG can accomplish this by completing a data sheet online from the DOS website at www.cbp.gov/xp/cgov/travel/id_visa/esta. The data sheet asks for the exchange visitor to indicate the basis for the waiver application, program information, and other personal data. The application is submitted online but a copy is mailed, along with a $120 filing fee and two self-addressed and stamped envelopes, to a lock box address at: U.S. Department of State, PO Box 952137, St. Louis, MO 63195-2137. Once accepted, DOS will create a file and waiver number for the IMG and will forward further application instructions. Later, once the IMG receives acknowledgement that he or she has received IGA sponsorship, he or she must then send any additional documents, if required, to DOS. Typically, the IGA sends the supporting documents to DOS. Processing times, statistics, and case information can be found on the DOS website. Conrad and IGA waivers are processed six to eight weeks from the date all application materials are submitted.

Practice Pointer: The IMG should only submit the data sheet and application fee to the lock box when applying for the waiver number. The lock box is only a fee-processing center and materials can be misplaced or lost. Once the IMG has secured public health department sponsorship, he or she can be assured that all the supporting materials—such as copies of the curriculum vitae, Education Commission for Foreign Medical Graduates (ECFMG) certificates, DS 2019 forms, etc.—will be submitted by the sponsoring IGA.

According to 8 CFR §212.7(c)(9)(i), there are several basic requirements needed to qualify for the Conrad waiver. The IMG must have entered as a J-1 or obtained J-1 status prior to 2017. Second, the physician must establish they have an offer for full-time employment of forty hours a week for a period of three years to practice medicine with a medical facility in a designated underserved area. There are no restrictions on the type of health-care facility except that the physician cannot sponsor himself or herself as a solo practitioner but must be employed by another entity. The physician must be willing to begin employment within ninety days of receiving the waiver, and he or she must present a written statement indicating his or her willingness.

Practice Pointer: Include specific language in the employment contract regarding the physician’s obligation to begin employment within ninety days of obtaining the waiver. Some states seek language regarding the facility’s willingness to inform the DPH within a certain number of days if and when the physician is no longer employed by the sponsoring facility.

Careful research must be done with each state’s DPH to learn the criteria they consider in determining which physicians will be sponsored. Attorneys must remember that the program was enacted with the goal of alleviating the lack of primary care physicians for poor and rural communities. Internists, pediatricians, obstetricians and gynecologists, and psychiatrists were




sorely needed. Thus, some states have decided to restrict their sponsorship to these primary care providers, while others will consider specialists but only if certain conditions are met. Many states require the employer to post a sliding scale fee program and want data regarding the percentage of Medicaid, Medicare, and uninsured patients expected to be seen by the physician. Some require evidence of recruitment efforts undertaken to locate a physician.

Practice Pointer: Check each states guidelines and policy to determine if copies of ads are required.

The timing in submitting applications to state public health departments is also crucial. Most state public health departments require a physician to attest that he or she has only one application filed with a state public health department; a physician cannot have multiple applications pending. Each state is free to establish its own filing requirements and often times they may overlap with another state’s filing deadline. Therefore, the physician must carefully consider his or her chances of obtaining sponsorship before filing an application.

Practice Pointer: Some DPH change their policy rules and deadlines, even within an application cycle. It is critical to check their website throughout the process to catch any changes.

Once the DPH has determined which physicians it is willing to sponsor, it sends a letter requesting a waiver to DOS indicating that it is in the public’s interest that a waiver is granted. HEALTH AND HUMAN SERVICES J-1 WAIVER SPONSORSHIP On June 12, 2003, the U.S. Department of Health and Human Services (HHS) announced that it would sponsor foreign medical graduates who agree to work in designated underserved areas for waivers of the two-year home residency requirement. The program is limited to physicians who will practice primary care or general psychiatry. The sponsoring entity must be a private or nonfederal institution or agency or a component agency of the HHS. The foreign medical graduate cannot apply him- or herself. HHS will consider several criteria when reviewing applications.

First, the foreign graduate must have completed their primary care or psychiatry residency program. Primary care physicians are defined as physicians practicing general internal medicine, pediatrics, family practice, or obstetrics, or gynecology. General psychiatrists are also eligible for waivers in mental health HPSAs. However, the program is restricted to those who have completed their residency program no more than twelve months before the date of commencing their employment.

Second, the petitioning health-care facility must demonstrate that it has actively recruited for U.S. physicians in the recent past but has been unsuccessful in its efforts.



Third, the petitioning health-care facility head must submit a statement attesting to the fact that the facility is located in a specific MUA or HPSA and that it accepts patients on Medicare or Medicaid as well as uninsured indigent patients.

Fourth, the foreign medical graduate must execute a statement indicating that he or she does not have any other waiver petitions pending nor will he or she file other waiver petitions while the HHS petition is pending.

Fifth, a signed employment contract must be submitted with specific language stating that the IMG will work for a period of three years for forty hours a week in a specified HPSA or MUA. It must state the primary care area of practice and that termination of the contract can only occur for cause and not by mutual agreement. No compete clauses are not permitted. The contract may only be assigned to another employer with HHS approval and must meet USCIS and U.S. Department of Labor requirements.

Applications will be processed in the order received by the HHS. Unlike the state “Conrad 30” program, there are no limits to the number of physicians that can be sponsored. This is helpful, as many state Conrad programs have become extremely competitive due to the limited number of positions available.

Practice Pointer: Only FQHC with a HPSA score of 7 or higher will be considered. HHS does not always send a copy of the waiver recommendation to the attorney of record. A copy should be obtained from the employer.

DEPARTMENT OF STATE’S TWO-YEAR WAIVER RECOMMENDATION AND APPROVAL NOTICE Once an IGA, such as the HHS or a DPH, has made a decision and recommendation to sponsor an international medical graduate, DOS has the responsibility to make a decision as to whether a favorable recommendation will be made to the USCIS on the waiver application. The Waiver Review Division of the Visa Office reviews the cases and makes the decision to recommend a waiver or not. Typically, DOS will issue a favorable decision on behalf of the applicant citing that it has found it to be in the public interest to grant the waiver, as long as certain conditions are met. First, the Waiver Review Division reviews the application package to ensure that there is a bona fide offer of employment for a full three-year period. Specific language regarding forty hours a week for three years is required and DOS has been known to request such language be included, if it is not already present in the contract. Second, proof that the physician will be practicing in a designated underserved location should also be included. A printout from the HRSA website listing underserved areas is often sufficient. Third, if the physician is contractually obligated to return to his or her home country, he or she must obtain a written statement from the home government that it has no objection to the waiver. However, a no-objection statement from the home government is not enough, by itself, to obtain a waiver for the FMG. DOS also confirms that the physician has been engaged in the training program for which he or she was issued the J visa by reviewing all DS 2019 forms (previously IAP 66 forms). The




sorely needed. Thus, some states have decided to restrict their sponsorship to these primary care providers, while others will consider specialists but only if certain conditions are met. Many states require the employer to post a sliding scale fee program and want data regarding the percentage of Medicaid, Medicare, and uninsured patients expected to be seen by the physician. Some require evidence of recruitment efforts undertaken to locate a physician.

Practice Pointer: Check each states guidelines and policy to determine if copies of ads are required.

The timing in submitting applications to state public health departments is also crucial. Most state public health departments require a physician to attest that he or she has only one application filed with a state public health department; a physician cannot have multiple applications pending. Each state is free to establish its own filing requirements and often times they may overlap with another state’s filing deadline. Therefore, the physician must carefully consider his or her chances of obtaining sponsorship before filing an application.

Practice Pointer: Some DPH change their policy rules and deadlines, even within an application cycle. It is critical to check their website throughout the process to catch any changes.

Once the DPH has determined which physicians it is willing to sponsor, it sends a letter requesting a waiver to DOS indicating that it is in the public’s interest that a waiver is granted. HEALTH AND HUMAN SERVICES J-1 WAIVER SPONSORSHIP On June 12, 2003, the U.S. Department of Health and Human Services (HHS) announced that it would sponsor foreign medical graduates who agree to work in designated underserved areas for waivers of the two-year home residency requirement. The program is limited to physicians who will practice primary care or general psychiatry. The sponsoring entity must be a private or nonfederal institution or agency or a component agency of the HHS. The foreign medical graduate cannot apply him- or herself. HHS will consider several criteria when reviewing applications.

First, the foreign graduate must have completed their primary care or psychiatry residency program. Primary care physicians are defined as physicians practicing general internal medicine, pediatrics, family practice, or obstetrics, or gynecology. General psychiatrists are also eligible for waivers in mental health HPSAs. However, the program is restricted to those who have completed their residency program no more than twelve months before the date of commencing their employment.

Second, the petitioning health-care facility must demonstrate that it has actively recruited for U.S. physicians in the recent past but has been unsuccessful in its efforts.



Third, the petitioning health-care facility head must submit a statement attesting to the fact that the facility is located in a specific MUA or HPSA and that it accepts patients on Medicare or Medicaid as well as uninsured indigent patients.

Fourth, the foreign medical graduate must execute a statement indicating that he or she does not have any other waiver petitions pending nor will he or she file other waiver petitions while the HHS petition is pending.

Fifth, a signed employment contract must be submitted with specific language stating that the IMG will work for a period of three years for forty hours a week in a specified HPSA or MUA. It must state the primary care area of practice and that termination of the contract can only occur for cause and not by mutual agreement. No compete clauses are not permitted. The contract may only be assigned to another employer with HHS approval and must meet USCIS and U.S. Department of Labor requirements.

Applications will be processed in the order received by the HHS. Unlike the state “Conrad 30” program, there are no limits to the number of physicians that can be sponsored. This is helpful, as many state Conrad programs have become extremely competitive due to the limited number of positions available.

Practice Pointer: Only FQHC with a HPSA score of 7 or higher will be considered. HHS does not always send a copy of the waiver recommendation to the attorney of record. A copy should be obtained from the employer.

DEPARTMENT OF STATE’S TWO-YEAR WAIVER RECOMMENDATION AND APPROVAL NOTICE Once an IGA, such as the HHS or a DPH, has made a decision and recommendation to sponsor an international medical graduate, DOS has the responsibility to make a decision as to whether a favorable recommendation will be made to the USCIS on the waiver application. The Waiver Review Division of the Visa Office reviews the cases and makes the decision to recommend a waiver or not. Typically, DOS will issue a favorable decision on behalf of the applicant citing that it has found it to be in the public interest to grant the waiver, as long as certain conditions are met. First, the Waiver Review Division reviews the application package to ensure that there is a bona fide offer of employment for a full three-year period. Specific language regarding forty hours a week for three years is required and DOS has been known to request such language be included, if it is not already present in the contract. Second, proof that the physician will be practicing in a designated underserved location should also be included. A printout from the HRSA website listing underserved areas is often sufficient. Third, if the physician is contractually obligated to return to his or her home country, he or she must obtain a written statement from the home government that it has no objection to the waiver. However, a no-objection statement from the home government is not enough, by itself, to obtain a waiver for the FMG. DOS also confirms that the physician has been engaged in the training program for which he or she was issued the J visa by reviewing all DS 2019 forms (previously IAP 66 forms). The




physician must submit a personal statement regarding the reasons for not wishing to fulfill the two-year home residency requirement. Lastly, a letter from the employing facility indicating its desire to hire the physician is required. A security check on each IMG applicant is completed by DOS, and only a few instances of delays have occurred in the last few years for men from Middle Eastern or Muslim nations in particular.

Practice Pointer: The case number must be written on all supporting documents and on any envelopes sent to the waiver review branch.

Once the application review is complete and a favorable decision made, DOS will prepare a letter of recommendation to waive the two-year home residency requirement and forward it to the USCIS. There is no need for the attorney to make a request for the letter to be sent to USCIS. A copy of the waiver recommendation will also be sent to the IMG, the attorney of record, the sponsoring employer, and the sponsoring DPH.

Practice Pointer: There have been many instances wherein the attorney has not received the recommendation letter from DOS, even if a G-28 has been submitted. Contact the employer or DOS to obtain a copy for the file.

Once the USCIS receives the DOS recommendation, an I-612 application to waive foreign residence requirement will be generated. No affirmative I-612 waiver application must be filed with the USCIS. After the USCIS makes a decision on the waiver, an I-797 notice approving the waiver will be issued. It will include the specifics of the waiver grant, including the fact that the waiver is valid only for employment for the petitioning employer in the designated city and state. Furthermore, the notice states that the physician is required to begin work at the facility within ninety days of the notice and that the waiver remains valid as long as the physician fulfills the three-year contract with the petitioning facility in H-1B status. If the conditions are not satisfied, the waiver applicant again becomes subject to the three-year requirement according to 8 CFR §212.7(c)(9)(iv), (vi)(D).

Practice Pointer: Once DOS grants the waiver, the physician may apply for the H-1B without receiving the I-612 waiver from the USCIS. The service centers have acknowledged that they will process and approve H-1Bs and adjudicate the I-612 at the same time. No affirmative I-612 application is required, unlike hardship waiver or persecution cases.

Applying for the H-1B Once the IMG has successfully obtained a waiver of the two-year home residency requirement, he or she may have the employing facility apply for the H-1B visa. The standard H-1B eligibility criteria must be met, such as bona fide offer, notice requirements, and prevailing wage issues, in addition to a number of additional requirements specific to J-1 waiver physicians. First, the employment contract between the IMG and the facility must specifically include language stating that the employment term is for a period of three years at 40 hours a week. The



physician must work 40 hours a week in a designated underserved area. Any additional hours of work over the 40 hours for the same employer but in a non-designated area will not affect the J waiver or H-1B application as long as the IMG has followed standard H-1B procedures. However, moonlighting for a different employer is not permitted without a separate H-1B petition approval. Second, the facility must attest that it will notify the USCIS if the physician is no longer employed. If the physician does not complete the three-year service in an underserved area, the two-year home residency requirement will be reinstated. Third, the physician must have completed and passed all three steps of the USMLE. It is critical to consider the validity dates for the period of stated employment on the I-129 application to ensure that a full three years of service is covered. One day short of the three-year requirement is not acceptable to USCIS. Therefore, careful timing is needed when filing the H-1B application. In the event that a case is filed traditionally, a sufficient cushion period is needed in the event that the USCIS takes many months to process the application; otherwise, a second I-129 application is needed to fulfill the full three years of service. Timing issues are somewhat less critical when using premium processing because of the general success in having the case adjudicated within the two-week window. It is often safer to apply for an extension of the H 1B status beyond the three years because an attorney would otherwise have to be prepared for the risk of filing an adjustment application on the same day that the original H 1B status expires. In the event that the adjustment application is not accepted, the physician will have fallen out of status. Furthermore, the IMG will need to file for an employment authorization document and at least three months will be needed to process the application.

Practice Pointer: Use premium processing or expedited processing when possible as the timing issues of the J-1 waiver process are often very complicated. The physician must serve a full three years to satisfy their J1 waiver terms. Time off for maternity leave or other issues must be made up to accumulate a full three years.

CONCLUSION IMGs have limited options when it comes to the positions and visas available after their training is over. The process is a very intricate and detail-oriented one and therefore regular reviews of regulations and agency memoranda are critical. International medical graduates with specialty training have little choice but to obtain sponsorship from a “Conrad 30” state department of public health. With the program set to expire again in 2017, efforts to extend the program indefinitely continue. Once the three years of J-1 waiver service are completed in the H-1B status, the physician can seek to apply for adjustment of status.




physician must submit a personal statement regarding the reasons for not wishing to fulfill the two-year home residency requirement. Lastly, a letter from the employing facility indicating its desire to hire the physician is required. A security check on each IMG applicant is completed by DOS, and only a few instances of delays have occurred in the last few years for men from Middle Eastern or Muslim nations in particular.

Practice Pointer: The case number must be written on all supporting documents and on any envelopes sent to the waiver review branch.

Once the application review is complete and a favorable decision made, DOS will prepare a letter of recommendation to waive the two-year home residency requirement and forward it to the USCIS. There is no need for the attorney to make a request for the letter to be sent to USCIS. A copy of the waiver recommendation will also be sent to the IMG, the attorney of record, the sponsoring employer, and the sponsoring DPH.

Practice Pointer: There have been many instances wherein the attorney has not received the recommendation letter from DOS, even if a G-28 has been submitted. Contact the employer or DOS to obtain a copy for the file.

Once the USCIS receives the DOS recommendation, an I-612 application to waive foreign residence requirement will be generated. No affirmative I-612 waiver application must be filed with the USCIS. After the USCIS makes a decision on the waiver, an I-797 notice approving the waiver will be issued. It will include the specifics of the waiver grant, including the fact that the waiver is valid only for employment for the petitioning employer in the designated city and state. Furthermore, the notice states that the physician is required to begin work at the facility within ninety days of the notice and that the waiver remains valid as long as the physician fulfills the three-year contract with the petitioning facility in H-1B status. If the conditions are not satisfied, the waiver applicant again becomes subject to the three-year requirement according to 8 CFR §212.7(c)(9)(iv), (vi)(D).

Practice Pointer: Once DOS grants the waiver, the physician may apply for the H-1B without receiving the I-612 waiver from the USCIS. The service centers have acknowledged that they will process and approve H-1Bs and adjudicate the I-612 at the same time. No affirmative I-612 application is required, unlike hardship waiver or persecution cases.

Applying for the H-1B Once the IMG has successfully obtained a waiver of the two-year home residency requirement, he or she may have the employing facility apply for the H-1B visa. The standard H-1B eligibility criteria must be met, such as bona fide offer, notice requirements, and prevailing wage issues, in addition to a number of additional requirements specific to J-1 waiver physicians. First, the employment contract between the IMG and the facility must specifically include language stating that the employment term is for a period of three years at 40 hours a week. The



physician must work 40 hours a week in a designated underserved area. Any additional hours of work over the 40 hours for the same employer but in a non-designated area will not affect the J waiver or H-1B application as long as the IMG has followed standard H-1B procedures. However, moonlighting for a different employer is not permitted without a separate H-1B petition approval. Second, the facility must attest that it will notify the USCIS if the physician is no longer employed. If the physician does not complete the three-year service in an underserved area, the two-year home residency requirement will be reinstated. Third, the physician must have completed and passed all three steps of the USMLE. It is critical to consider the validity dates for the period of stated employment on the I-129 application to ensure that a full three years of service is covered. One day short of the three-year requirement is not acceptable to USCIS. Therefore, careful timing is needed when filing the H-1B application. In the event that a case is filed traditionally, a sufficient cushion period is needed in the event that the USCIS takes many months to process the application; otherwise, a second I-129 application is needed to fulfill the full three years of service. Timing issues are somewhat less critical when using premium processing because of the general success in having the case adjudicated within the two-week window. It is often safer to apply for an extension of the H 1B status beyond the three years because an attorney would otherwise have to be prepared for the risk of filing an adjustment application on the same day that the original H 1B status expires. In the event that the adjustment application is not accepted, the physician will have fallen out of status. Furthermore, the IMG will need to file for an employment authorization document and at least three months will be needed to process the application.

Practice Pointer: Use premium processing or expedited processing when possible as the timing issues of the J-1 waiver process are often very complicated. The physician must serve a full three years to satisfy their J1 waiver terms. Time off for maternity leave or other issues must be made up to accumulate a full three years.

CONCLUSION IMGs have limited options when it comes to the positions and visas available after their training is over. The process is a very intricate and detail-oriented one and therefore regular reviews of regulations and agency memoranda are critical. International medical graduates with specialty training have little choice but to obtain sponsorship from a “Conrad 30” state department of public health. With the program set to expire again in 2017, efforts to extend the program indefinitely continue. Once the three years of J-1 waiver service are completed in the H-1B status, the physician can seek to apply for adjustment of status.



289


Visa Options for Foreign National Residents and Fellows by Naveen Rahman Bhora and Greg Siskind

Naveen Rahman Bhora is a partner at Wolfsdorf Rosenthal LLP and manages the firm's New York office. She has been praised by Who's Who Legal for her "excellent" work at the firm. Ms. Bhora is an active member of the American Immigration Lawyers Association (AILA) and the International Medical Graduate Taskforce. She is the former treasurer of the Southern California chapter of the AILA and served two terms on AILA's Vermont Service Center liaison committee. Ms. Bhora has written extensively on various advanced immigration law topics and continues to present to local and national audiences, including physician groups and universities. Greg Siskind is a founding partner of Siskind Susser and an AILA member for more than 25 years. He has written five books on various legal topics and has written numerous chapters for AILA publications, served on dozens of AILA CLE panels, and been a member/chair of a many AILA committees. He now serves on the AILA Board of Governors, as an executive committee member of the International Bar Association’s Immigration and Nationality Law Committee and the Chair of the IMG Taskforce. In 1994, he created the first immigration law website and in 1998, he created the world’s first law blog.

********** Foreign national physicians seeking to engage in graduate medical education (GME) or clinical training programs in the United States primarily grapple with two visa options – the J-1 and the H-1B. While most would prefer to stay clear of the J-1 visa due to the two-year home residence requirement, both visa categories have their pros and cons.1 Regardless of visa category, the Accreditation Council for Graduate Medical Education (ACGME) requires International Medical Graduates (IMGs) who enter ACGME-accredited programs to be certified by The Educational Commission on Foreign Medical Graduates (ECFMG) before they enter U.S. graduate medical education. ECFMG partners with the National Board of Medical Examiners to ECFMG to administer the Step 2 Clinical Skills (CS) component of United States Medical Licensing Examination (USMLE), a requirement for IMGs and for graduates of U.S. and Canadian medical schools who wish to be licensed in the United States or Canada. ECFMG is also the sole sponsor of J-1 visas for graduate medical education (i.e. clinical training including residency and fellowships).2 J-1 The majority of foreign national physicians complete residency in J-1 status. In 2014, ECFMG sponsored over 9,200 J-1 physicians for clinical training in residency and fellowship programs.3 Once foreign national physicians match into a residency or fellowship program, they can apply for J-1 visa sponsorship from ECFMG. In addition to completing an online application, physicians must provide the following to ECFMG:

1. Successfully completion of examinations administered by ECFMG that measure command of English and the medical sciences [USMLE Steps 1 & 2 (Clinical Skills (CS) component and Clinical Knowledge (CK) component]

1 INA §212(e); 9 FAM 402.5-6(L). 2 9 FAM 402.5-6(E)(1). 3 ECFMG 2015 Annual Report, www.ecfmg.org/resources/ECFMG-2015-annual-report.pdf



2. Statement of Need from the Ministry of Health of the country of most recent legal permanent residence;4 and,

3. A signed contract from an accredited U.S. medical school or affiliated teaching hospital for accredited graduate medical education.

ECFMG will issue the Form DS-2019 for the duration of the contract, which is typically for one year. Upon receiving Form DS-2019, the exchange visitor physician can apply for the J-1 visa stamp at the U.S. consulate in their home country; or if they are in the United States in valid nonimmigrant status, seek to change status by submitting Form I-539. Requesting a change of status within the United States may not be practical because the processing time for Form I-539 can take more than six months and the physician would not be able to start the residency program on time.5 Applying for the J-1 visa at a consulate has risks as well. J-1 physicians must demonstrate their commitment to return to their home country upon completing their clinical training program.6 Foreign nationals from predominantly Muslim countries should also consider lengthy delays due to security checks and must apply for their J-1 visas as early as possible. The J-1 program is highly regulated. J-1 physicians are expected to advance through progressive levels of training. Physicians who match in preliminary positions and are only guaranteed residency for the post-graduate year one (PGY-1), can find themselves in a predicament if they do not secure a second year (PGY-2) position or categorical position where they can complete the training program. Furthermore, J-1 physicians may once, within the first two years of J-1 sponsorship, change their designated medical specialty. If after completing the first year or two years of training, the physician decides to switch tracts or cannot match into the following year position, a J-1 physician would not be able to secure ECFMG sponsorship for a new training program. The duration for ECFMG sponsorship for clinical training is limited to the time “typically required to complete a program,” as defined by the Accreditation Council for Graduate Medical Education (ACGME) and/or one of the specialty boards of the American Board of Medical Specialties (ABMS). The maximum duration may not exceed more than seven years. Seven years is sufficient time for most physicians. However, those pursuing more extensive training, such as cardio-thoracic surgery, which requires 8 or 9 years of training, can file a formal extension request for J-1 sponsorship beyond the seven years by demonstrating that the country to which the physician will return has an exceptional need for an individual with such additional qualification.7 The physician must submit letters of recommendation from their current and proposed program directors attesting to the benefits of the proposed training and potential added qualification(s); a Statement of Educational Objectives detailing the benefits of the proposed training and anticipated professional activities upon return to the home country; and a letter of “Exceptional Need” from the Home Country Ambassador to the United States or the home country’s Minister of Health. 4 The Statement of Need must have precise wording; be printed on official letterhead; placed in a sealed Ministry of Health envelope and mailed directly to ECFMG. 22 CFR §62.27. 5 While the California Service Center is currently reporting 3 months processing times for J -1 change of status petitions, the Vermont Service Center is reporting 5 to 6 months for processing. https://egov.uscis.gov/cris/ processingTimesDisplay.do;jsessionid=abcVyib-uYYSH5TncwBTv. 6 9 FAM 402.5-6(F). 722CFR§62.27(e)(2).



289


Visa Options for Foreign National Residents and Fellows by Naveen Rahman Bhora and Greg Siskind

Naveen Rahman Bhora is a partner at Wolfsdorf Rosenthal LLP and manages the firm's New York office. She has been praised by Who's Who Legal for her "excellent" work at the firm. Ms. Bhora is an active member of the American Immigration Lawyers Association (AILA) and the International Medical Graduate Taskforce. She is the former treasurer of the Southern California chapter of the AILA and served two terms on AILA's Vermont Service Center liaison committee. Ms. Bhora has written extensively on various advanced immigration law topics and continues to present to local and national audiences, including physician groups and universities. Greg Siskind is a founding partner of Siskind Susser and an AILA member for more than 25 years. He has written five books on various legal topics and has written numerous chapters for AILA publications, served on dozens of AILA CLE panels, and been a member/chair of a many AILA committees. He now serves on the AILA Board of Governors, as an executive committee member of the International Bar Association’s Immigration and Nationality Law Committee and the Chair of the IMG Taskforce. In 1994, he created the first immigration law website and in 1998, he created the world’s first law blog.

********** Foreign national physicians seeking to engage in graduate medical education (GME) or clinical training programs in the United States primarily grapple with two visa options – the J-1 and the H-1B. While most would prefer to stay clear of the J-1 visa due to the two-year home residence requirement, both visa categories have their pros and cons.1 Regardless of visa category, the Accreditation Council for Graduate Medical Education (ACGME) requires International Medical Graduates (IMGs) who enter ACGME-accredited programs to be certified by The Educational Commission on Foreign Medical Graduates (ECFMG) before they enter U.S. graduate medical education. ECFMG partners with the National Board of Medical Examiners to ECFMG to administer the Step 2 Clinical Skills (CS) component of United States Medical Licensing Examination (USMLE), a requirement for IMGs and for graduates of U.S. and Canadian medical schools who wish to be licensed in the United States or Canada. ECFMG is also the sole sponsor of J-1 visas for graduate medical education (i.e. clinical training including residency and fellowships).2 J-1 The majority of foreign national physicians complete residency in J-1 status. In 2014, ECFMG sponsored over 9,200 J-1 physicians for clinical training in residency and fellowship programs.3 Once foreign national physicians match into a residency or fellowship program, they can apply for J-1 visa sponsorship from ECFMG. In addition to completing an online application, physicians must provide the following to ECFMG:

1. Successfully completion of examinations administered by ECFMG that measure command of English and the medical sciences [USMLE Steps 1 & 2 (Clinical Skills (CS) component and Clinical Knowledge (CK) component]

1 INA §212(e); 9 FAM 402.5-6(L). 2 9 FAM 402.5-6(E)(1). 3 ECFMG 2015 Annual Report, www.ecfmg.org/resources/ECFMG-2015-annual-report.pdf



2. Statement of Need from the Ministry of Health of the country of most recent legal permanent residence;4 and,

3. A signed contract from an accredited U.S. medical school or affiliated teaching hospital for accredited graduate medical education.

ECFMG will issue the Form DS-2019 for the duration of the contract, which is typically for one year. Upon receiving Form DS-2019, the exchange visitor physician can apply for the J-1 visa stamp at the U.S. consulate in their home country; or if they are in the United States in valid nonimmigrant status, seek to change status by submitting Form I-539. Requesting a change of status within the United States may not be practical because the processing time for Form I-539 can take more than six months and the physician would not be able to start the residency program on time.5 Applying for the J-1 visa at a consulate has risks as well. J-1 physicians must demonstrate their commitment to return to their home country upon completing their clinical training program.6 Foreign nationals from predominantly Muslim countries should also consider lengthy delays due to security checks and must apply for their J-1 visas as early as possible. The J-1 program is highly regulated. J-1 physicians are expected to advance through progressive levels of training. Physicians who match in preliminary positions and are only guaranteed residency for the post-graduate year one (PGY-1), can find themselves in a predicament if they do not secure a second year (PGY-2) position or categorical position where they can complete the training program. Furthermore, J-1 physicians may once, within the first two years of J-1 sponsorship, change their designated medical specialty. If after completing the first year or two years of training, the physician decides to switch tracts or cannot match into the following year position, a J-1 physician would not be able to secure ECFMG sponsorship for a new training program. The duration for ECFMG sponsorship for clinical training is limited to the time “typically required to complete a program,” as defined by the Accreditation Council for Graduate Medical Education (ACGME) and/or one of the specialty boards of the American Board of Medical Specialties (ABMS). The maximum duration may not exceed more than seven years. Seven years is sufficient time for most physicians. However, those pursuing more extensive training, such as cardio-thoracic surgery, which requires 8 or 9 years of training, can file a formal extension request for J-1 sponsorship beyond the seven years by demonstrating that the country to which the physician will return has an exceptional need for an individual with such additional qualification.7 The physician must submit letters of recommendation from their current and proposed program directors attesting to the benefits of the proposed training and potential added qualification(s); a Statement of Educational Objectives detailing the benefits of the proposed training and anticipated professional activities upon return to the home country; and a letter of “Exceptional Need” from the Home Country Ambassador to the United States or the home country’s Minister of Health. 4 The Statement of Need must have precise wording; be printed on official letterhead; placed in a sealed Ministry of Health envelope and mailed directly to ECFMG. 22 CFR §62.27. 5 While the California Service Center is currently reporting 3 months processing times for J -1 change of status petitions, the Vermont Service Center is reporting 5 to 6 months for processing. https://egov.uscis.gov/cris/ processingTimesDisplay.do;jsessionid=abcVyib-uYYSH5TncwBTv. 6 9 FAM 402.5-6(F). 722CFR§62.27(e)(2).


Visa Options for Foreign National Residents and Fellows 291


J-2 DEPENDENTS ECFMG will issue Form DS-2019 with J-2 designation to the accompanying spouse and minor children. The J-2 spouse and minor children can obtain employment authorization documents (EAD) by filing Form I-765 with USCIS. The J-2 nonimmigrant must show the J-1 physician has sufficient income or financial resources to support the family and the income from the J-2 dependent’s employment may be used to support the family's customary recreational and cultural activities and related travel, among other things.”8 The J-2 EAD is a significant benefit compared to spouses who are accompanying on H-4 status and do not qualify for employment authorization. J-1 and J-2 physician couples can take advantage of this benefit whereby the J-2 spouse may have sufficient time to finish a shorter residency program on the J-2 EAD. Caution, if the J-2 spouse’s residency will finish after the J-1 principal’s training program, the J-2 may not be able to complete the program because the EAD will only be valid for the duration of the J-1’s training program. The J-2 spouse ineligible to acquire H-1B status and may also ineligible to switch to J-1 status as the Department of State is reviewing whether J-1 sponsorship in the “physician” category is permissible immediately following a period in J-2 status.

The J-1 physician and accompanying J-2 family members become subject to the two-year home residency requirement pursuant to INA §212(e), whereby they cannot obtain H or L visa status or permanent residency until they have returned to the country designated on their Form DS-2019 for two years.9 H-1B To avoid the two-year home residence requirement, foreign national physicians prefer to complete their clinical training in H-1B status and a handful of teaching hospitals will support an H-1B visa petition for a resident or fellow. Graduate medical training is considered a specialty occupation because a medical degree or equivalent is a minimum education requirement.10 Because of the six-year limit of H classification11, the H-1B visa is only recommended for physicians who only intend to complete three-year training programs such as internal medicine or family medicine. Physicians who have already used a year or two as researchers on H-1B status or who plan to specialize and complete additional training (fellowships) in oncology or cardiology may find their H-1B time will soon be exhausted and will need to change status to J-1 or initiate a permanent residency application before completing their fellowship.

To qualify for the H-1B for residency, the foreign national physician must provide:

1. Examination: Successful completion of Step 1, Step 2 (CS & CK), and Step 3 of the United

States Medical Licensing Examination (USMLE) OR Part I, Part II, and Part III of the examinations of the National Board of Osteopathic Medical Examiners (NBOME)

88 CFR §214.2(j)(1)(v). 99 FAM 402.5-6(L)(1). 10 8 CFR §214.2(h)(4)(iii)(A). 11 8 CFR §214.2(h)(13)(iii).



2. License: License to practice medicine in the state of intended employment. Some states like New York, do not require medical license for residents.12

3. Medical Degree: While an ECFMG Certificate should be sufficient evidence the IMG’s medical education credentials are equivalent to a U.S. medical degree, it may be prudent to also obtain an additional degree evaluation from an education evaluation company.

Additionally, the H-1B petitioner must meet the prevailing wage requirements for the Labor Condition Applications (ETA Form 9035). Finding a suitable prevailing wage report can be challenging because the Foreign Labor Certification Data Center does not have a separate Standard Occupational Classification (SOC) for medical residents and only lists wages for fully trained physicians who hold attending positions. As an alternative, the Department of Labor has accepted the residency wage surveys published by the ACGME.13 Since GME programs are conducted at teaching hospitals that are affiliated with medical schools, H-1B petitioners for medical residents should qualify as cap-exempt employers.14 With a request for premium processing, the H-1B petitions for residents can be adjudicated within two weeks. However, with the temporary suspension of premium processing H-1B effective April 3, 2017, it is unlikely the physicians who matched into residency programs in March will have sufficient time to have their H-1B petitions adjudicated before the residency program start date of July 1.15 O-1

Foreign national physicians who decide to subspecialize and have either reached their six-year limit of H-1B time or completed their training on J-1 status and are subject to the two-year home residence requirement, may consider the O-1 visa as scientists of extraordinary ability. As with all O-1 scientists, the physician must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise.16 The physician will need significant publications, citations and conference presentations. Reference letters from experts can be used to explain the physician’s original contributions and/or critical role on distinguished research initiatives or lab. To meet the criteria for judging the works of others, the physician should also review article submissions for journals. Adjudications of cases are subjective and attorney evaluation is essential to determine potential qualification. O-1 visa petitions are typically very “document-heavy” productions. The timeline for completing and filing such petitions heavily depends upon how effective the physician is at collecting and providing all of the necessary evidentiary documentation. Such documentation may include, but is not limited to: all publications, citation record of published work, evidence of any awards or grants won, record of speaking engagements, record of original contribution to the field (records of patents or noteworthy original studies), etc. Once filed, petitions can be adjudicated within 2 12 New York State Education Law, Article 31, §6526. Exempt persons. The following persons under the following limitations may practice medicine within the state without a license:

1. Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;

13 www.aamc.org/download/471828/data/2016stipendsurveyreportfinal.pdf 14 8 CFR §214.2(h)(19)(iii)(B). 15 www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions. 16 8 CFR §214.2(o)




J-2 DEPENDENTS ECFMG will issue Form DS-2019 with J-2 designation to the accompanying spouse and minor children. The J-2 spouse and minor children can obtain employment authorization documents (EAD) by filing Form I-765 with USCIS. The J-2 nonimmigrant must show the J-1 physician has sufficient income or financial resources to support the family and the income from the J-2 dependent’s employment may be used to support the family's customary recreational and cultural activities and related travel, among other things.”8 The J-2 EAD is a significant benefit compared to spouses who are accompanying on H-4 status and do not qualify for employment authorization. J-1 and J-2 physician couples can take advantage of this benefit whereby the J-2 spouse may have sufficient time to finish a shorter residency program on the J-2 EAD. Caution, if the J-2 spouse’s residency will finish after the J-1 principal’s training program, the J-2 may not be able to complete the program because the EAD will only be valid for the duration of the J-1’s training program. The J-2 spouse ineligible to acquire H-1B status and may also ineligible to switch to J-1 status as the Department of State is reviewing whether J-1 sponsorship in the “physician” category is permissible immediately following a period in J-2 status.

The J-1 physician and accompanying J-2 family members become subject to the two-year home residency requirement pursuant to INA §212(e), whereby they cannot obtain H or L visa status or permanent residency until they have returned to the country designated on their Form DS-2019 for two years.9 H-1B To avoid the two-year home residence requirement, foreign national physicians prefer to complete their clinical training in H-1B status and a handful of teaching hospitals will support an H-1B visa petition for a resident or fellow. Graduate medical training is considered a specialty occupation because a medical degree or equivalent is a minimum education requirement.10 Because of the six-year limit of H classification11, the H-1B visa is only recommended for physicians who only intend to complete three-year training programs such as internal medicine or family medicine. Physicians who have already used a year or two as researchers on H-1B status or who plan to specialize and complete additional training (fellowships) in oncology or cardiology may find their H-1B time will soon be exhausted and will need to change status to J-1 or initiate a permanent residency application before completing their fellowship.

To qualify for the H-1B for residency, the foreign national physician must provide:

1. Examination: Successful completion of Step 1, Step 2 (CS & CK), and Step 3 of the United

States Medical Licensing Examination (USMLE) OR Part I, Part II, and Part III of the examinations of the National Board of Osteopathic Medical Examiners (NBOME)

88 CFR §214.2(j)(1)(v). 99 FAM 402.5-6(L)(1). 10 8 CFR §214.2(h)(4)(iii)(A). 11 8 CFR §214.2(h)(13)(iii).



2. License: License to practice medicine in the state of intended employment. Some states like New York, do not require medical license for residents.12

3. Medical Degree: While an ECFMG Certificate should be sufficient evidence the IMG’s medical education credentials are equivalent to a U.S. medical degree, it may be prudent to also obtain an additional degree evaluation from an education evaluation company.

Additionally, the H-1B petitioner must meet the prevailing wage requirements for the Labor Condition Applications (ETA Form 9035). Finding a suitable prevailing wage report can be challenging because the Foreign Labor Certification Data Center does not have a separate Standard Occupational Classification (SOC) for medical residents and only lists wages for fully trained physicians who hold attending positions. As an alternative, the Department of Labor has accepted the residency wage surveys published by the ACGME.13 Since GME programs are conducted at teaching hospitals that are affiliated with medical schools, H-1B petitioners for medical residents should qualify as cap-exempt employers.14 With a request for premium processing, the H-1B petitions for residents can be adjudicated within two weeks. However, with the temporary suspension of premium processing H-1B effective April 3, 2017, it is unlikely the physicians who matched into residency programs in March will have sufficient time to have their H-1B petitions adjudicated before the residency program start date of July 1.15 O-1

Foreign national physicians who decide to subspecialize and have either reached their six-year limit of H-1B time or completed their training on J-1 status and are subject to the two-year home residence requirement, may consider the O-1 visa as scientists of extraordinary ability. As with all O-1 scientists, the physician must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise.16 The physician will need significant publications, citations and conference presentations. Reference letters from experts can be used to explain the physician’s original contributions and/or critical role on distinguished research initiatives or lab. To meet the criteria for judging the works of others, the physician should also review article submissions for journals. Adjudications of cases are subjective and attorney evaluation is essential to determine potential qualification. O-1 visa petitions are typically very “document-heavy” productions. The timeline for completing and filing such petitions heavily depends upon how effective the physician is at collecting and providing all of the necessary evidentiary documentation. Such documentation may include, but is not limited to: all publications, citation record of published work, evidence of any awards or grants won, record of speaking engagements, record of original contribution to the field (records of patents or noteworthy original studies), etc. Once filed, petitions can be adjudicated within 2 12 New York State Education Law, Article 31, §6526. Exempt persons. The following persons under the following limitations may practice medicine within the state without a license:

1. Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;

13 www.aamc.org/download/471828/data/2016stipendsurveyreportfinal.pdf 14 8 CFR §214.2(h)(19)(iii)(B). 15 www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions. 16 8 CFR §214.2(o)




weeks by using USCIS’s Premium Processing Services. Without the Premium Processing Service, petitions will be adjudicated between two weeks and up to two months. O-1 visas are valid for an initial period of up to three years, and may be renewed in one-year (or sometimes three-year) increments. There are no limits to how many extensions an O-1 visa holder may apply for and receive. E-3 The E-3 visa which has the same criteria as H-1B visas but are reserved for Australian can be very effective visa strategies for physicians who are starting residency or transition to fellowship and are either subject to INA §212(e) or has exhausted their time in H classification.



PHYSICIAN IMMIGRATION ALPHABET SOUP: A GLOSSARY OF TERMS17 Physician immigration requires a knowledge of immigration law and then understanding of a variety of additional concepts relating to the health care system. The following is a list of terms that immigration lawyers handling physician cases need to know.

AAMC—Association of American Medical Colleges – The AAMC is responsible for

administering the Electronic Residency Application Service (“the Match”), which facilitates medical students applying to residency programs in the United States.

ABMS—American Board of Medical Specialties – The ABMS works with 24 specialty Member Boards to maintain the standards for physician certification.

ACGME—Accreditation Council on Graduate Medical Education – The ACGME is a private, nonprofit organization that reviews and accredits graduate medical education (residency and fellowship) programs and the institutions that sponsor them in the United States.

AMA—American Medical Association – The AMA is the largest association of physicians in the United States.

ARC—Appalachian Regional Commission – The ARC is a regional economic development agency that is a partnership between 13 Appalachian states and the federal government. It has a federal co-chair and each state’s governor is also a member. The agency runs a J-1 waiver program for primary-care physicians.

CK—U.S. Medical Licensing Examination (USMLE) Step 2 Clinical Knowledge – the USMLE Step 2 Clinical Knowledge is a one-day examination testing a physician’s ability to apply medical knowledge, skills, and understanding of clinical science essential for the provision of patient care.

CS—USMLE Step 2 Clinical Skills – USMLE Step 2 Clinical Skills uses standardized patients to test medical students and graduates on their ability to gather information from patients, perform physical examinations, and communicate their findings to patients and colleagues.

DRA—Delta Regional Authority – A DRA is a regional economic development agency that is a partnership between eight states in the Mississippi Delta region and the federal government. It has a federal co-chair and each state’s governor is a member. The agency runs a J-1 waiver program for primary-care and specialty physicians.

ECFMG—Educational Commission on Foreign Medical Graduates – ECFMG is an organization charged with assessing the readiness of International Medical Graduates (IMGs) to enter residency or fellowship programs in the United States. It certifies the equivalency of foreign medical degrees to those offered in the United States, acts as the designated Dean’s office for IMGs seeking to enter the annual graduate medical education “Match,” and is the solely designated J-1 program in the United States for IMGs in residency and fellowship programs.

ERAS—Electronic Residency Application Service – ERAS is the centralized online service used to transmit applications to medical residency programs.

EVNet—Educational Commission on Foreign Medical Graduates’ (ECFMG) Exchange Visitor Network – EVNet is the ECFMG’s online J-1 visa application system.

17 This glossary is excerpted from the Physician Immigration Handbook by Greg Siskind (Alan House 2016), pp. 333-340.




weeks by using USCIS’s Premium Processing Services. Without the Premium Processing Service, petitions will be adjudicated between two weeks and up to two months. O-1 visas are valid for an initial period of up to three years, and may be renewed in one-year (or sometimes three-year) increments. There are no limits to how many extensions an O-1 visa holder may apply for and receive. E-3 The E-3 visa which has the same criteria as H-1B visas but are reserved for Australian can be very effective visa strategies for physicians who are starting residency or transition to fellowship and are either subject to INA §212(e) or has exhausted their time in H classification.



PHYSICIAN IMMIGRATION ALPHABET SOUP: A GLOSSARY OF TERMS17 Physician immigration requires a knowledge of immigration law and then understanding of a variety of additional concepts relating to the health care system. The following is a list of terms that immigration lawyers handling physician cases need to know.

AAMC—Association of American Medical Colleges – The AAMC is responsible for

administering the Electronic Residency Application Service (“the Match”), which facilitates medical students applying to residency programs in the United States.

ABMS—American Board of Medical Specialties – The ABMS works with 24 specialty Member Boards to maintain the standards for physician certification.

ACGME—Accreditation Council on Graduate Medical Education – The ACGME is a private, nonprofit organization that reviews and accredits graduate medical education (residency and fellowship) programs and the institutions that sponsor them in the United States.

AMA—American Medical Association – The AMA is the largest association of physicians in the United States.

ARC—Appalachian Regional Commission – The ARC is a regional economic development agency that is a partnership between 13 Appalachian states and the federal government. It has a federal co-chair and each state’s governor is also a member. The agency runs a J-1 waiver program for primary-care physicians.

CK—U.S. Medical Licensing Examination (USMLE) Step 2 Clinical Knowledge – the USMLE Step 2 Clinical Knowledge is a one-day examination testing a physician’s ability to apply medical knowledge, skills, and understanding of clinical science essential for the provision of patient care.

CS—USMLE Step 2 Clinical Skills – USMLE Step 2 Clinical Skills uses standardized patients to test medical students and graduates on their ability to gather information from patients, perform physical examinations, and communicate their findings to patients and colleagues.

DRA—Delta Regional Authority – A DRA is a regional economic development agency that is a partnership between eight states in the Mississippi Delta region and the federal government. It has a federal co-chair and each state’s governor is a member. The agency runs a J-1 waiver program for primary-care and specialty physicians.

ECFMG—Educational Commission on Foreign Medical Graduates – ECFMG is an organization charged with assessing the readiness of International Medical Graduates (IMGs) to enter residency or fellowship programs in the United States. It certifies the equivalency of foreign medical degrees to those offered in the United States, acts as the designated Dean’s office for IMGs seeking to enter the annual graduate medical education “Match,” and is the solely designated J-1 program in the United States for IMGs in residency and fellowship programs.

ERAS—Electronic Residency Application Service – ERAS is the centralized online service used to transmit applications to medical residency programs.

EVNet—Educational Commission on Foreign Medical Graduates’ (ECFMG) Exchange Visitor Network – EVNet is the ECFMG’s online J-1 visa application system.

17 This glossary is excerpted from the Physician Immigration Handbook by Greg Siskind (Alan House 2016), pp. 333-340.




EVWRB—Exchange Visitor Waiver Review Board – The EVWRB is the U.S. Department of Health and Human Services’ board comprising scientific experts who review the facts presented in J-1 research-based waiver applications.

FIPS—Federal Information Processing Standards – FIPS were developed by the U.S. government for use in computer systems by non-military government agencies as well as government contractors.

FMGEMS— Foreign Medical Graduate Examination in Medical Sciences – Administered from 1984 to 1993, the FMGEMS was considered equivalent to other examinations such as USMLE for purposes of demonstrating eligibility to enter the United States under §212 of the Immigration and Nationality Act.

FQHC—Federally Qualified Health Center – An FQHC is a reimbursement designation under Section 330 of the Public Health Service Act (PHS) from the Bureau of Primary Health Care and the Center for Medicare and Medicaid Services of the U.S. Department of Health and Human Services. FQHCs must serve an underserved area or population.

FSMB—Federation of State Medical Boards – The FSMB represents the 70 state medical boards within the United States, its territories, and the District of Columbia.

GME—Graduate Medical Education – GME refers to hospital-sponsored or hospital-based training pursued after receiving a medical degree. GME includes internship, residency, subspecialty, and fellowship programs leading to state licensure and board certification.

HHS—Department of Health and Human Services – A presidential Cabinet agency that regulates the health care system. HHS administers two J-1 waiver programs and also designates physician-shortage areas.

HPSAs—Health Professional Shortage Areas – Any of the following that HHS determines has a shortage of health professional(s): (1) An urban or rural area (which need not conform to the geographic boundaries of a political subdivision and which is a rational area for the delivery of health services); (2) a population group; or (3) a public or nonprofit private medical facility.

HRC—VA Health Resource Center – The HRC is an agency within the Department of Veterans Affairs that receives J-1 waiver applications from local Department of Veterans Affairs (VA) hospitals (through a Veterans Integrated Service Network). The HRC performs an initial review of the application and then submits to the Workforce Management and Consulting Office before being forwarded to the VA’s Undersecretary of Health for final approval.

HRSA—Health Resources and Services Administration – The HRSA is an agency of the U.S. Department of Health and Human Services that focuses on improving access to health care. It maintains the shortage-area databases used in the physician J-1 waiver and National Interest Waiver programs.

IGA—Interested Government Agency – IGAs are federal or state health agencies that sponsor J-1 nonimmigrants for waivers of the requirement to return to the applicant’s home country for two years. IGAs also sponsor physicians working in underserved areas for National Interest Waiver–based permanent-residency applications.

IMED—International Medical Education Directory – IMED is a database of medical schools around the world published jointly by ECFMG and the Foundation for Advancement of International Medical Education and Research.

IMG—International Medical Graduate – An IMG is a graduate of a medical school outside the United States. IMGs can refer to both Americans who go to medical schools outside the United States as well as foreign nationals. For purposes of this book, IMG refers to the latter.



IWA—Interactive Web Application – IWA is the ECFMG’s web-based application service that allows applicants to apply for ECFMG Certification, USMLE Step1, USMLE Step 2 CK, and USMLE Step 2 CS, as well as access a Step 2 CS visa letter.

LCME—Liaison Committee on Medical Education – The LCME is an accrediting body for medical schools in the United States and Canada. The LCME is jointly administered by AAMC and the AMA.

MAVNI—Military Accessions Vital to the National Interest – MAVNI is a recruiting program of the U.S. Armed Forces that allows legally present noncitizens with in-demand skills to join the U.S. Army or other branches of the U.S. Armed Forces in exchange for U.S. citizenship. Many types of physicians are permitted to participate in MAVNI (though the program is currently suspended).

MGMA—Medical Group Management Association – The MGMA is an association for medical practice administrators and health care executives that is also known for regularly publishing salary surveys of physicians across the United States.

MHPSA—Mental Health Professional Shortage Areas – MHPSA is an HRSA physician-shortage designation database focused exclusively on psychiatrists. The current psychiatrist-to-population ratio needed to be designated an MHPSA is 1:30,000.

MSPE—Medical Student Performance Evaluation – MSPE is an evaluation of a medical student’s performance that includes an assessment of both the student’s academic performance and professional attributes. Formerly called the “Dean’s Letter,” IMGs seeking entry to U.S. GME programs would submit this document from their medical schools to ECFMG through ECFMG’s OASIS system.

MUAs—Medically Underserved Areas – A MUA is an HRSA physician-shortage designation that may be a whole county or group of contiguous counties, a group of county or civil divisions, or a group of urban census tracts in which residents have a shortage of personal health services.

MUPs—Medically Underserved Populations – A MUP is an HRSA physician-shortage designation that may include groups of persons who face economic, cultural, or linguistic barriers to health care.

NBME—National Board of Medical Examiners – NBME is the U.S. examination board that administers the U.S. Medical Licensing Examination.

NHSC—National Health Service Corps – The NHSC is a program administered by the HHS that recruits physicians to provide primary health services in underserved areas in exchange for either loan repayment or scholarships throughout their medical education.

NIH—National Institutes of Health – The NIH is an agency of the HHS that is the major medical research organization in the U.S. government. NIH assists in the review of HHS J-1 researcher waivers.

NPDB—National Practitioner Data Bank – The NPDB is a federal database that collects negative information on physicians, including malpractice awards, the loss of a medical license, or exclusion from the Medicare and Medicaid programs.

NRMP—National Resident Matching Program – The NRMP places applicants for postgraduate medical training positions into residency programs at teaching hospitals throughout the United States.

OASIS—Online Applicant Status and Information System – OASIS is a web-based information service for ECFMG applicants that can be used to check general information as well as the status of items related to ECFMG Certification. OASIS also can be used to make




EVWRB—Exchange Visitor Waiver Review Board – The EVWRB is the U.S. Department of Health and Human Services’ board comprising scientific experts who review the facts presented in J-1 research-based waiver applications.

FIPS—Federal Information Processing Standards – FIPS were developed by the U.S. government for use in computer systems by non-military government agencies as well as government contractors.

FMGEMS— Foreign Medical Graduate Examination in Medical Sciences – Administered from 1984 to 1993, the FMGEMS was considered equivalent to other examinations such as USMLE for purposes of demonstrating eligibility to enter the United States under §212 of the Immigration and Nationality Act.

FQHC—Federally Qualified Health Center – An FQHC is a reimbursement designation under Section 330 of the Public Health Service Act (PHS) from the Bureau of Primary Health Care and the Center for Medicare and Medicaid Services of the U.S. Department of Health and Human Services. FQHCs must serve an underserved area or population.

FSMB—Federation of State Medical Boards – The FSMB represents the 70 state medical boards within the United States, its territories, and the District of Columbia.

GME—Graduate Medical Education – GME refers to hospital-sponsored or hospital-based training pursued after receiving a medical degree. GME includes internship, residency, subspecialty, and fellowship programs leading to state licensure and board certification.

HHS—Department of Health and Human Services – A presidential Cabinet agency that regulates the health care system. HHS administers two J-1 waiver programs and also designates physician-shortage areas.

HPSAs—Health Professional Shortage Areas – Any of the following that HHS determines has a shortage of health professional(s): (1) An urban or rural area (which need not conform to the geographic boundaries of a political subdivision and which is a rational area for the delivery of health services); (2) a population group; or (3) a public or nonprofit private medical facility.

HRC—VA Health Resource Center – The HRC is an agency within the Department of Veterans Affairs that receives J-1 waiver applications from local Department of Veterans Affairs (VA) hospitals (through a Veterans Integrated Service Network). The HRC performs an initial review of the application and then submits to the Workforce Management and Consulting Office before being forwarded to the VA’s Undersecretary of Health for final approval.

HRSA—Health Resources and Services Administration – The HRSA is an agency of the U.S. Department of Health and Human Services that focuses on improving access to health care. It maintains the shortage-area databases used in the physician J-1 waiver and National Interest Waiver programs.

IGA—Interested Government Agency – IGAs are federal or state health agencies that sponsor J-1 nonimmigrants for waivers of the requirement to return to the applicant’s home country for two years. IGAs also sponsor physicians working in underserved areas for National Interest Waiver–based permanent-residency applications.

IMED—International Medical Education Directory – IMED is a database of medical schools around the world published jointly by ECFMG and the Foundation for Advancement of International Medical Education and Research.

IMG—International Medical Graduate – An IMG is a graduate of a medical school outside the United States. IMGs can refer to both Americans who go to medical schools outside the United States as well as foreign nationals. For purposes of this book, IMG refers to the latter.



IWA—Interactive Web Application – IWA is the ECFMG’s web-based application service that allows applicants to apply for ECFMG Certification, USMLE Step1, USMLE Step 2 CK, and USMLE Step 2 CS, as well as access a Step 2 CS visa letter.

LCME—Liaison Committee on Medical Education – The LCME is an accrediting body for medical schools in the United States and Canada. The LCME is jointly administered by AAMC and the AMA.

MAVNI—Military Accessions Vital to the National Interest – MAVNI is a recruiting program of the U.S. Armed Forces that allows legally present noncitizens with in-demand skills to join the U.S. Army or other branches of the U.S. Armed Forces in exchange for U.S. citizenship. Many types of physicians are permitted to participate in MAVNI (though the program is currently suspended).

MGMA—Medical Group Management Association – The MGMA is an association for medical practice administrators and health care executives that is also known for regularly publishing salary surveys of physicians across the United States.

MHPSA—Mental Health Professional Shortage Areas – MHPSA is an HRSA physician-shortage designation database focused exclusively on psychiatrists. The current psychiatrist-to-population ratio needed to be designated an MHPSA is 1:30,000.

MSPE—Medical Student Performance Evaluation – MSPE is an evaluation of a medical student’s performance that includes an assessment of both the student’s academic performance and professional attributes. Formerly called the “Dean’s Letter,” IMGs seeking entry to U.S. GME programs would submit this document from their medical schools to ECFMG through ECFMG’s OASIS system.

MUAs—Medically Underserved Areas – A MUA is an HRSA physician-shortage designation that may be a whole county or group of contiguous counties, a group of county or civil divisions, or a group of urban census tracts in which residents have a shortage of personal health services.

MUPs—Medically Underserved Populations – A MUP is an HRSA physician-shortage designation that may include groups of persons who face economic, cultural, or linguistic barriers to health care.

NBME—National Board of Medical Examiners – NBME is the U.S. examination board that administers the U.S. Medical Licensing Examination.

NHSC—National Health Service Corps – The NHSC is a program administered by the HHS that recruits physicians to provide primary health services in underserved areas in exchange for either loan repayment or scholarships throughout their medical education.

NIH—National Institutes of Health – The NIH is an agency of the HHS that is the major medical research organization in the U.S. government. NIH assists in the review of HHS J-1 researcher waivers.

NPDB—National Practitioner Data Bank – The NPDB is a federal database that collects negative information on physicians, including malpractice awards, the loss of a medical license, or exclusion from the Medicare and Medicaid programs.

NRMP—National Resident Matching Program – The NRMP places applicants for postgraduate medical training positions into residency programs at teaching hospitals throughout the United States.

OASIS—Online Applicant Status and Information System – OASIS is a web-based information service for ECFMG applicants that can be used to check general information as well as the status of items related to ECFMG Certification. OASIS also can be used to make




payments, update contact information, access exam results, and perform certain transactions related to ERAS.

PNIW—Physician National Interest Waiver – The PNIW is the subset of the EB-2 NIW immigrant visa category that allows physicians to seek NIW-based permanent residency if they work five years or more in a shortage area and garner the support of an IGA.

PTAL—Postgraduate Training Authorization Letter – A PTAL is for physicians seeking admission to residency and fellowship programs in California; the Medical Board of California requires this additional document to be submitted to ECFMG.

S-CHIP—State Children’s Health Insurance Program – The S-CHIP is a partnership between the federal and state government that provides health coverage to uninsured children whose families earn too much to qualify for Medicaid but too little to afford private insurance coverage.

SEVIS—Student and Exchange Visitor Information System – SEVIS is an online program administered by U.S. Immigration and Customs Enforcement, which monitors students and exchange visitors in F, M, or J visa status.

SMSA—Standard Metropolitan Statistical Area – SMSAs are geographic areas designated by the Office of Management and Budget (OMB) for use by federal statistical agencies in collecting, tabulating, and publishing federal statistics. MSAs are areas with at least 50,000 or more people and include one or more counties containing the core urban area and adjacent counties that have a high degree of social and economic integration with the urban core.

SOAP—Supplemental Offer and Acceptance Program – Physicians unable to obtain residency slots in “The Match” can participate in this program to try and obtain an unfilled residency position in a GME program that did not fill all of its available GME positions.

USMLE—U.S. Medical Licensing Examination – the multi-part professional examination administered by the National Board of Medical Examiners and the Federation of State Medical Boards. Passage of USMLE examinations are necessary for both licensing and qualifying for certain visa categories.

VA—Department of Veterans Affairs – a presidential Cabinet agency responsible for providing patient care and federal benefits to veterans and their dependents. The VA has a J-1 waiver program for physicians practicing in VA Hospitals.

VISN—Veterans Integrated Service Network – The VA’s Veterans Health Administration is divided into 21 areas called VISNs. In VA J-1 waivers, the local VA hospital administrator submits the J-1 waiver application to the VISN director for the particular region.

VQE— Visa Qualifying Examination – The VQE is a predecessor examination to the FMGEMS, and it can still be submitted in some cases to qualify for certain visas to the United States.

WMCO—Workforce Management and Consulting Office – The WMCO is one of the several offices within the VA responsible for reviewing J-1 waiver applications for physicians. The WMCO is the last office to receive an application before being submitted for final approval by the VA’s Undersecretary of Health.

WRD—Waiver Review Division – The WRD is an office within the DOS Bureau of Consular Affairs responsible for recommending waivers of the J-1 home-residency requirement.




payments, update contact information, access exam results, and perform certain transactions related to ERAS.

PNIW—Physician National Interest Waiver – The PNIW is the subset of the EB-2 NIW immigrant visa category that allows physicians to seek NIW-based permanent residency if they work five years or more in a shortage area and garner the support of an IGA.

PTAL—Postgraduate Training Authorization Letter – A PTAL is for physicians seeking admission to residency and fellowship programs in California; the Medical Board of California requires this additional document to be submitted to ECFMG.

S-CHIP—State Children’s Health Insurance Program – The S-CHIP is a partnership between the federal and state government that provides health coverage to uninsured children whose families earn too much to qualify for Medicaid but too little to afford private insurance coverage.

SEVIS—Student and Exchange Visitor Information System – SEVIS is an online program administered by U.S. Immigration and Customs Enforcement, which monitors students and exchange visitors in F, M, or J visa status.

SMSA—Standard Metropolitan Statistical Area – SMSAs are geographic areas designated by the Office of Management and Budget (OMB) for use by federal statistical agencies in collecting, tabulating, and publishing federal statistics. MSAs are areas with at least 50,000 or more people and include one or more counties containing the core urban area and adjacent counties that have a high degree of social and economic integration with the urban core.

SOAP—Supplemental Offer and Acceptance Program – Physicians unable to obtain residency slots in “The Match” can participate in this program to try and obtain an unfilled residency position in a GME program that did not fill all of its available GME positions.

USMLE—U.S. Medical Licensing Examination – the multi-part professional examination administered by the National Board of Medical Examiners and the Federation of State Medical Boards. Passage of USMLE examinations are necessary for both licensing and qualifying for certain visa categories.

VA—Department of Veterans Affairs – a presidential Cabinet agency responsible for providing patient care and federal benefits to veterans and their dependents. The VA has a J-1 waiver program for physicians practicing in VA Hospitals.

VISN—Veterans Integrated Service Network – The VA’s Veterans Health Administration is divided into 21 areas called VISNs. In VA J-1 waivers, the local VA hospital administrator submits the J-1 waiver application to the VISN director for the particular region.

VQE— Visa Qualifying Examination – The VQE is a predecessor examination to the FMGEMS, and it can still be submitted in some cases to qualify for certain visas to the United States.

WMCO—Workforce Management and Consulting Office – The WMCO is one of the several offices within the VA responsible for reviewing J-1 waiver applications for physicians. The WMCO is the last office to receive an application before being submitted for final approval by the VA’s Undersecretary of Health.

WRD—Waiver Review Division – The WRD is an office within the DOS Bureau of Consular Affairs responsible for recommending waivers of the J-1 home-residency requirement.

11:15 COMPLIANCE IN THE WORKPLACE: RECORDS TO BE MAINTAINED WHEN FOREIGN WORKERS ARE ON STAFF; BEING PREPARED FOR AN AUDIT (WHETHER BY THE DOL, USCIS OR ICE) Layli Eskandari Deal, Freeman Mathis & Gary LLP, Atlanta


COMPLIANCE IN THE WORKPLACE: RECORDS TO BE MAINTAINED WHEN FOREIGN WORKERS

ARE ON STAFF; BEING PREPARED FOR AN AUDIT (WHETHER BY THE DOL, USCIS, OR ICE)

By: Layli Eskandari Deal Freeman, Mathis & Gary LLP

Atlanta, GA

Page 1 of 13

Employment Eligibility Verification Better Known as Form I-9

I. I-9 General Concepts

In 1986, Congress passed the Immigration Reform and Control Act of 1986 (IRCA) that reformed U.S. immigration laws. As a results new provisions were added to the Immigration and Nationality Act that requires all employers to hire only individuals who may work legally in the United States. To comply with this law, employers are required to verify the identity and employment authorization of each person they hire and complete and retain a Form I-9, Employment Eligibility Verification. As part of this law, Congress also prohibited employment discrimination based on citizenship, immigration status and national origin.

Who is subject to verification?

1. All employees hired after November 6, 1986 2. Rehired employees must complete a new Form I-9 if rehired more than 3 years after

the original hire date, or if employment authorization expired within the 3-year period.

Who is NOT subject to verification?

1. Persons not yet offered employment 2. Employed for casual domestic work in a private home on a sporadic, irregular or

intermittent basis 3. Independent Contractors 4. Employees of Independent Contractors 5. Employees hired prior to November 7, 1986 6. Volunteers 7. Persons not working on U.S. soil

What Must an Employer Do?

Generally, an Employer must review the Employee’s documents and attest under penalty of perjury on Form I-9 that the documents establishing both employment authorization and identity were produced. The review must be by the person signing the attestation and that individual must see the Employee with his/her documents. Employer must examine originals of employment and identity documents (a certified copy of a birth certificate is acceptable) and verify those documents on the Form I-9 within 3 business days of hire. The attestation must be either in writing or electronic signature.

Please note that Department of Homeland Security takes the position that if a company is operational over the weekends, those days are considered business days and counted in the 3 days to complete the I-9 process.


COMPLIANCE IN THE WORKPLACE: RECORDS TO BE MAINTAINED WHEN FOREIGN WORKERS

ARE ON STAFF; BEING PREPARED FOR AN AUDIT (WHETHER BY THE DOL, USCIS, OR ICE)

By: Layli Eskandari Deal Freeman, Mathis & Gary LLP

Atlanta, GA

Page 1 of 13

Employment Eligibility Verification Better Known as Form I-9

I. I-9 General Concepts

In 1986, Congress passed the Immigration Reform and Control Act of 1986 (IRCA) that reformed U.S. immigration laws. As a results new provisions were added to the Immigration and Nationality Act that requires all employers to hire only individuals who may work legally in the United States. To comply with this law, employers are required to verify the identity and employment authorization of each person they hire and complete and retain a Form I-9, Employment Eligibility Verification. As part of this law, Congress also prohibited employment discrimination based on citizenship, immigration status and national origin.

Who is subject to verification?

1. All employees hired after November 6, 1986 2. Rehired employees must complete a new Form I-9 if rehired more than 3 years after

the original hire date, or if employment authorization expired within the 3-year period.

Who is NOT subject to verification?

1. Persons not yet offered employment 2. Employed for casual domestic work in a private home on a sporadic, irregular or

intermittent basis 3. Independent Contractors 4. Employees of Independent Contractors 5. Employees hired prior to November 7, 1986 6. Volunteers 7. Persons not working on U.S. soil

What Must an Employer Do?

Generally, an Employer must review the Employee’s documents and attest under penalty of perjury on Form I-9 that the documents establishing both employment authorization and identity were produced. The review must be by the person signing the attestation and that individual must see the Employee with his/her documents. Employer must examine originals of employment and identity documents (a certified copy of a birth certificate is acceptable) and verify those documents on the Form I-9 within 3 business days of hire. The attestation must be either in writing or electronic signature.

Please note that Department of Homeland Security takes the position that if a company is operational over the weekends, those days are considered business days and counted in the 3 days to complete the I-9 process.


Page 2 of 13

II. Completing Form I-9

Section 1 of the Form

Have the newly hired Employee complete Section 1 of the Form on the first day of hire. Please ensure that the Employee fully completes and signs Section 1. Even if it will take the employee time to produce the identity and employment eligibility documents, Section 1 must be completed on day one.

A preparer and/or translator may help the Employee complete this section. The Preparer must read and/or translate the questions to the Employee and assist the Employee in completing the section. The preparer or translator must complete the Preparer and/or Translator Certification block.

Note that the Employer, not the Employee, is responsible for any defects on the Form.

The Employer MAY NOT ask an individual who has not accepted a job offer to complete this section


The Employer has 3 business days from the date of hire to complete section 2 and inspect Employee’s identity and employment eligibility documents.

Form I-9 has a list of acceptable documents or combination of documents. The Employee must be able to choose which document(s) to present the Employer. The Employer CANNOT specify which documents should be presented.

The Employer must examine each document and accept the document if it is facially genuine and relates to the Employee. Enter the document title, issuing authority, number, and expiration date (if any) in Section 2. The Employer may choose to keep copies but is not required to do so by law. If the Employer chooses to keep copies of the documents, it must do so for every employee otherwise the Employer may be in violation of anti-discrimination laws.

The Employer may designate or contract with someone to complete Form I-9 on its behalf. Whoever the Employer designates or contracts with must then carryout the full responsibilities of completing Form I-9. Please note that the Employer remains liable for any violations or defects on the Form I-9 completed by its designee.

Future Expiration Dates on Documents

Some documents issued by U.S. Citizenship & Immigration Services, such as Employment Authorization Documents, Permanent Resident (“Green”) cards, may have a future expiration date. Existence of a future expiration date does not mean that subsequent authorization will not be given or preclude continuous employment authorization. Please note that considering a future expiration date in determining whether an individual is qualified for a job may result in employment discrimination.

Page 3 of 13

Failure of an Employee to Present Acceptable Documents

The Employer may terminate any employee that fails to present acceptable document(s).


Section 3 of the Form I-9 is reserved for:

a. Reverification of employment authorization for current employees b. Reverifying or updating employment authorization for rehired employees c. Recording name change or other identity information for current employees

Completing the form for minors (individuals under the age of 18) and individuals with disabilities

A parent or guardian or in cases with individuals with disabilities – a representative, must complete Form I-9. In the block for Signature, make the notation “Individual Under Age 18” or “Special Placement”

Parent/Guardian/Representative then completes Preparer/Translator block.

The Employer Completes Section 2 of the Form.

Under the documents list for List B, Employer may enter notation “Individual Under Age 18” or “Special Placement” since the Employee may not be able to present any documents accepted under List B.

III. Electronic I-9 Systems

Employer may complete and electronically store Form I-9s. The electronic system used must have an audit trail. When inspecting the audit trail, the auditor/inspector “must request the name of the software product being used and any internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated Form I-9s.”

The Employer should also be able to provide indexing system demonstrating how the system is linked to each individual.

IV. Mergers & Acquisitions

Employers who have acquired or merged with another company have 2 options:

1. Treat all acquired employees as new hires and complete a new Form I-9 for each acquired employee; or

2. Treat all acquired employees as employees continuing employment and retain all previous owner’s Form I-9 for each acquired employee. Please note that if this


Page 2 of 13

II. Completing Form I-9


Have the newly hired Employee complete Section 1 of the Form on the first day of hire. Please ensure that the Employee fully completes and signs Section 1. Even if it will take the employee time to produce the identity and employment eligibility documents, Section 1 must be completed on day one.

A preparer and/or translator may help the Employee complete this section. The Preparer must read and/or translate the questions to the Employee and assist the Employee in completing the section. The preparer or translator must complete the Preparer and/or Translator Certification block.

Note that the Employer, not the Employee, is responsible for any defects on the Form.

The Employer MAY NOT ask an individual who has not accepted a job offer to complete this section


The Employer has 3 business days from the date of hire to complete section 2 and inspect Employee’s identity and employment eligibility documents.

Form I-9 has a list of acceptable documents or combination of documents. The Employee must be able to choose which document(s) to present the Employer. The Employer CANNOT specify which documents should be presented.

The Employer must examine each document and accept the document if it is facially genuine and relates to the Employee. Enter the document title, issuing authority, number, and expiration date (if any) in Section 2. The Employer may choose to keep copies but is not required to do so by law. If the Employer chooses to keep copies of the documents, it must do so for every employee otherwise the Employer may be in violation of anti-discrimination laws.

The Employer may designate or contract with someone to complete Form I-9 on its behalf. Whoever the Employer designates or contracts with must then carryout the full responsibilities of completing Form I-9. Please note that the Employer remains liable for any violations or defects on the Form I-9 completed by its designee.

Future Expiration Dates on Documents

Some documents issued by U.S. Citizenship & Immigration Services, such as Employment Authorization Documents, Permanent Resident (“Green”) cards, may have a future expiration date. Existence of a future expiration date does not mean that subsequent authorization will not be given or preclude continuous employment authorization. Please note that considering a future expiration date in determining whether an individual is qualified for a job may result in employment discrimination.

Page 3 of 13

Failure of an Employee to Present Acceptable Documents

The Employer may terminate any employee that fails to present acceptable document(s).


Section 3 of the Form I-9 is reserved for:

a. Reverification of employment authorization for current employees b. Reverifying or updating employment authorization for rehired employees c. Recording name change or other identity information for current employees

Completing the form for minors (individuals under the age of 18) and individuals with disabilities

A parent or guardian or in cases with individuals with disabilities – a representative, must complete Form I-9. In the block for Signature, make the notation “Individual Under Age 18” or “Special Placement”

Parent/Guardian/Representative then completes Preparer/Translator block.

The Employer Completes Section 2 of the Form.

Under the documents list for List B, Employer may enter notation “Individual Under Age 18” or “Special Placement” since the Employee may not be able to present any documents accepted under List B.

III. Electronic I-9 Systems

Employer may complete and electronically store Form I-9s. The electronic system used must have an audit trail. When inspecting the audit trail, the auditor/inspector “must request the name of the software product being used and any internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated Form I-9s.”

The Employer should also be able to provide indexing system demonstrating how the system is linked to each individual.

IV. Mergers & Acquisitions

Employers who have acquired or merged with another company have 2 options:

1. Treat all acquired employees as new hires and complete a new Form I-9 for each acquired employee; or

2. Treat all acquired employees as employees continuing employment and retain all previous owner’s Form I-9 for each acquired employee. Please note that if this


Page 4 of 13

option is chosen, the new Employer assumes all responsibilities with regard to the Form I-9s previously completed and becomes liable for any defects on the Forms.

V. Correcting Form I-9

Section 1 Errors Employer may not make any corrections in Section 1. The Employer may ask the Employee to correct errors or enter missing information in this Section. The Employee may draw a line through the incorrect information, enter the correct or omitted information and initial and date the correction. The Employee may have a preparer or translator assist in this process. It is recommended that the new information be entered on the Form in a different color ink.

If the Employee is no longer working for the Employer, the Employer should attach a signed and dated statement to the exiting Form, identifying the error or omission and explain why correction could not be made.

Section 2 and # Errors The Employer may correct these errors or omissions by drawing a line through the incorrect information, enter the correct or omitted information and initial and date the correction. It is recommended that the new information be entered on the Form in a different color ink.

Do Not Conceal and Do Not Backdate If the errors and omissions are too many on the Form, the Employer can complete a new form and attach it to the old form. If the Form I-9 is missing or not completed for an Employee, the Employer should complete a new Form I-9 for that Employee and sign and date the form as of the date of completion. It is recommended in the case of missing or not completed Form I-9 that a signed and dated statement from the Employer explaining the reasons for completing a new Form I-9 for the Employee be attached to the Form I-9.

VI. Retention of Form I-9

An Employer is required to retain one Form I-9 for each employee hired. The Form I-9 must be retained for the duration of employment.

Once employment terminates, the Employer is required to keep the Form I-9 for either:

a. 3 years after the date of hire, or b. One year after the date of termination

Whichever is later.

Page 5 of 13

1. Enter date employee began work for pay: ________ Add three years to Line 1 A. ________

2. Termination date: ________ Add one year to Line 2 B. ________

Which date is later: A or B?

Enter the later date here. C. ________ Store Form I-9 until this date.

VII. Electronic Verification Program - E-Verify

E-Verify is an internet-based verification system that compares information from the Employee’s Form I-9 to data from Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

The E-Verify Employer Registration requires the Employer to:

1. Sign a Memorandum of Understanding with USCIS’s Verification Division that explains the terms and conditions of using E-Verify;

2. Complete a mandatory tutorial on how to use E-Verify; and 3. Submit Employer Business information.

In order to use E-Verify, Employer is required to obtain and record the Employee’s Social Security Number, secure a List B document with a photograph and create a new case for each newly hired Employee. If the Employee refuses to provide a social security number or a List B document, the Employer may choose to terminate the Employee.

Federal Contractors

On June 6, 2008, President Bush signed an Executive Order requiring all federal contractors to use electronic verification as a condition of their contracts. Secretary of the Department of Homeland Security designated the E-verify system as the electronic verification system for federal contractors.

State Laws

Many States now have laws that require public and/or private employers to be E-Verify Compliant.

VIII. Security Considerations

In an era where data and security breeches are common, employers will need to put into place some practices to safeguard the Personally Identifiable Information (PII) of their Employees provided on the Form I-9. In addition to federal I-9 requirements, there are various state laws that need to be considered.


Page 4 of 13

option is chosen, the new Employer assumes all responsibilities with regard to the Form I-9s previously completed and becomes liable for any defects on the Forms.

V. Correcting Form I-9

Section 1 Errors Employer may not make any corrections in Section 1. The Employer may ask the Employee to correct errors or enter missing information in this Section. The Employee may draw a line through the incorrect information, enter the correct or omitted information and initial and date the correction. The Employee may have a preparer or translator assist in this process. It is recommended that the new information be entered on the Form in a different color ink.

If the Employee is no longer working for the Employer, the Employer should attach a signed and dated statement to the exiting Form, identifying the error or omission and explain why correction could not be made.

Section 2 and # Errors The Employer may correct these errors or omissions by drawing a line through the incorrect information, enter the correct or omitted information and initial and date the correction. It is recommended that the new information be entered on the Form in a different color ink.

Do Not Conceal and Do Not Backdate If the errors and omissions are too many on the Form, the Employer can complete a new form and attach it to the old form. If the Form I-9 is missing or not completed for an Employee, the Employer should complete a new Form I-9 for that Employee and sign and date the form as of the date of completion. It is recommended in the case of missing or not completed Form I-9 that a signed and dated statement from the Employer explaining the reasons for completing a new Form I-9 for the Employee be attached to the Form I-9.

VI. Retention of Form I-9

An Employer is required to retain one Form I-9 for each employee hired. The Form I-9 must be retained for the duration of employment.

Once employment terminates, the Employer is required to keep the Form I-9 for either:

a. 3 years after the date of hire, or b. One year after the date of termination

Whichever is later.

Page 5 of 13

1. Enter date employee began work for pay: ________ Add three years to Line 1 A. ________

2. Termination date: ________ Add one year to Line 2 B. ________

Which date is later: A or B?

Enter the later date here. C. ________ Store Form I-9 until this date.

VII. Electronic Verification Program - E-Verify

E-Verify is an internet-based verification system that compares information from the Employee’s Form I-9 to data from Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

The E-Verify Employer Registration requires the Employer to:

1. Sign a Memorandum of Understanding with USCIS’s Verification Division that explains the terms and conditions of using E-Verify;

2. Complete a mandatory tutorial on how to use E-Verify; and 3. Submit Employer Business information.

In order to use E-Verify, Employer is required to obtain and record the Employee’s Social Security Number, secure a List B document with a photograph and create a new case for each newly hired Employee. If the Employee refuses to provide a social security number or a List B document, the Employer may choose to terminate the Employee.

Federal Contractors

On June 6, 2008, President Bush signed an Executive Order requiring all federal contractors to use electronic verification as a condition of their contracts. Secretary of the Department of Homeland Security designated the E-verify system as the electronic verification system for federal contractors.

State Laws

Many States now have laws that require public and/or private employers to be E-Verify Compliant.

VIII. Security Considerations

In an era where data and security breeches are common, employers will need to put into place some practices to safeguard the Personally Identifiable Information (PII) of their Employees provided on the Form I-9. In addition to federal I-9 requirements, there are various state laws that need to be considered.


Page 6 of 13

When an Employee completed Section 1 of the Form I-9, they are providing their Employer what can be considered PII. A breach of the person’s first and last name along with their social security number generally constitutes a PII. If the Employee provides an Alien Registration number, an I-94 entry document number or a foreign passport number and Country of issuance, that can be considered a PII.

As a best practice for Employers to safeguard their Employee’s information, Employers should:

1. Store the Form I-9s in a secure and locked location or make sure electronic access is password protected;

2. Store the Form I-9 separately from any other HR or personnel files to limit access; 3. Properly destroy or purge Form I-9s that have passed the retention period.

For electronic Form I-9 storage, USCIS advises the following:

1. Ensure that only authorized personnel have access to electronic records 2. Provide a backup and recovery of records to protect against information loss 3. Train authorized employees to minimize the risk of unauthorized or accidental

alterations or erasure of the electronic records, and 4. Ensures that whenever an individual creates, completes, updates, modifies, alters, or

corrects an electronic record, the system creates a secure and permanent record that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken

Please note that if an Employer creates Form I-9 records and later it is missing or lost, it is necessary to engage data privacy experts to identify what steps the employer must take

IX. Social Security No-Match System

The No-Match system was established by the Social Security Administration to advise employers that the Employee information provided on the IRS Form W-2 or other payroll and tax forms submitted by the Employer do not match the person in their system. The Social Security Administration has been sending Employers letters advising of this mismatch information.

The position of Department of Homeland Security currently is that the no-match letters do not necessarily, by itself, provide notice to the Employer that the Employee is working without authorization.

X. Employer Violation

Generally, the Employer violates the law if

1. it knowingly employs individuals who are not employment authorized. To prove violation of knowingly hiring an unauthorized person, it must be proven that the Employer knew at the time of hiring that individual; or

Page 7 of 13

2. Employer continues to employ an induvial knowing the Employee has become unauthorized.

XI. I-9 Audits

Generally, Immigration and Customs Enforcement (ICE), Department of Labor (DOL) and/or Office of Special Counsel (OSC) can inspect employer I-9 files.

ICE must provide at least 3 day-notice (includes weekends if the business is open on those days) to the employer prior to inspection.

ICE must serve the employer with a Notice of Inspection (NOI) containing advisories regarding employer’s rights.

In the Notice of Inspection, ICE will generally ask for:

1. I-9s 2. Printout or listing of current and terminated employees with hire and

termination dates 3. Copies of quarterly wage and hour reports or payroll data 4. Quarterly tax statements (IRS Form 941) 5. Corporate documents, such as business registration, articles of

incorporation, business licenses, EIN, TIN, and/or social security numbers 6. Correspondence with the Social Security Administration regarding “no-

match” letters 7. Participation in E-Verify

ICE can also issue a subpoena and can compel attendance and production of documents. If a subpoena is issued, an employer can challenge its reasonableness in district court before compliance.

Without a warrant ICE officers have no right to enter premises and speak to employees. ICE officer conduct is governed by the 4th Amendment.

Action Subsequent to Audit

Common Notices After an Audit:

1. Notice of Inspection Results/Compliance Letter – Employer is in compliance. 2. Notice of Suspect Documents – advises the Employer that an employee’s

documents are not evidence of employment authorization and of possible civil and criminal penalties for continuing to employ the worker. Employer and Employee are provided an opportunity to provide additional documents.

3. Notice of Discrepancies – advisal that there are discrepancies between the Form I-9 and the documents and ICE is unable to determine employment eligibility. Employer and Employee are provided an opportunity to provide additional documents.

4. Notice of Technical or Procedural Failure – ICE identifies technical problems during the Audit and provides Employer 10 days to correct them.

5. Warning Notice – ICE advises Employer of substantial violation but circumstances do not warrant a monetary penalty.


Page 6 of 13

When an Employee completed Section 1 of the Form I-9, they are providing their Employer what can be considered PII. A breach of the person’s first and last name along with their social security number generally constitutes a PII. If the Employee provides an Alien Registration number, an I-94 entry document number or a foreign passport number and Country of issuance, that can be considered a PII.

As a best practice for Employers to safeguard their Employee’s information, Employers should:

1. Store the Form I-9s in a secure and locked location or make sure electronic access is password protected;

2. Store the Form I-9 separately from any other HR or personnel files to limit access; 3. Properly destroy or purge Form I-9s that have passed the retention period.

For electronic Form I-9 storage, USCIS advises the following:

1. Ensure that only authorized personnel have access to electronic records 2. Provide a backup and recovery of records to protect against information loss 3. Train authorized employees to minimize the risk of unauthorized or accidental

alterations or erasure of the electronic records, and 4. Ensures that whenever an individual creates, completes, updates, modifies, alters, or

corrects an electronic record, the system creates a secure and permanent record that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken

Please note that if an Employer creates Form I-9 records and later it is missing or lost, it is necessary to engage data privacy experts to identify what steps the employer must take

IX. Social Security No-Match System

The No-Match system was established by the Social Security Administration to advise employers that the Employee information provided on the IRS Form W-2 or other payroll and tax forms submitted by the Employer do not match the person in their system. The Social Security Administration has been sending Employers letters advising of this mismatch information.

The position of Department of Homeland Security currently is that the no-match letters do not necessarily, by itself, provide notice to the Employer that the Employee is working without authorization.

X. Employer Violation

Generally, the Employer violates the law if

1. it knowingly employs individuals who are not employment authorized. To prove violation of knowingly hiring an unauthorized person, it must be proven that the Employer knew at the time of hiring that individual; or

Page 7 of 13

2. Employer continues to employ an induvial knowing the Employee has become unauthorized.

XI. I-9 Audits

Generally, Immigration and Customs Enforcement (ICE), Department of Labor (DOL) and/or Office of Special Counsel (OSC) can inspect employer I-9 files.

ICE must provide at least 3 day-notice (includes weekends if the business is open on those days) to the employer prior to inspection.

ICE must serve the employer with a Notice of Inspection (NOI) containing advisories regarding employer’s rights.

In the Notice of Inspection, ICE will generally ask for:

1. I-9s 2. Printout or listing of current and terminated employees with hire and

termination dates 3. Copies of quarterly wage and hour reports or payroll data 4. Quarterly tax statements (IRS Form 941) 5. Corporate documents, such as business registration, articles of

incorporation, business licenses, EIN, TIN, and/or social security numbers 6. Correspondence with the Social Security Administration regarding “no-

match” letters 7. Participation in E-Verify

ICE can also issue a subpoena and can compel attendance and production of documents. If a subpoena is issued, an employer can challenge its reasonableness in district court before compliance.

Without a warrant ICE officers have no right to enter premises and speak to employees. ICE officer conduct is governed by the 4th Amendment.

Action Subsequent to Audit

Common Notices After an Audit:

1. Notice of Inspection Results/Compliance Letter – Employer is in compliance. 2. Notice of Suspect Documents – advises the Employer that an employee’s

documents are not evidence of employment authorization and of possible civil and criminal penalties for continuing to employ the worker. Employer and Employee are provided an opportunity to provide additional documents.

3. Notice of Discrepancies – advisal that there are discrepancies between the Form I-9 and the documents and ICE is unable to determine employment eligibility. Employer and Employee are provided an opportunity to provide additional documents.

4. Notice of Technical or Procedural Failure – ICE identifies technical problems during the Audit and provides Employer 10 days to correct them.

5. Warning Notice – ICE advises Employer of substantial violation but circumstances do not warrant a monetary penalty.


Page 8 of 13

Notice of Intent to Fine (FIN)

The FIN contains the basis for the notice, provides a designation of charges, the sections of law that have been violated and the penalty imposed. The Employer has a right to a hearing before an Administrative Law Judge if a written request is submitted within 30 days of the FIN. If no request for hearing is filed, the FIN becomes final and, non-appealable order. No Motion to Reopen is permitted.

Affirmative Defense:

1. Good Faith Defense to Unauthorized Hiring – documents were facially valid or there is a referral from a government agency. Standard of review: reasonableness.

2. Good Faith Defense to Paperwork Violations / Technical or Substantive Violations.

What Should Employers Do to Protect Themselves?

1. Retain counsel to perform an audit of the company’s I-9s and human resource records;

2. Correct any technical/procedural mistakes that are identified in the audit performed; 3. Implement training on immigration compliance; and 4. Know your rights and be prepared in case of an audit.

XII. Discrimination Laws

The anti-discrimination provision of the Immigration and Nationality Act (INA), as amended, prohibits four types of unlawful conduct:

1. Unfair documentary practices during the Form I-9 and E-Verify process; 2. Citizenship or immigration status discrimination; 3. National origin discrimination; 4. Retaliation or intimidation

The Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), enforces this law.

Title VII of the Civil Rights Act of 1964 (Title VII) and other federal laws prohibit employment discrimination based on race, color, national origin, religion, sex, age, disability and genetic information. The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws.

Page 9 of 13

Unfair Documentation Practices

USCIS provides the following guidelines:

The law prohibits discriminatory documentary practices related to verifying the employment authorization and identity of employees during the Form I-9 and E-Verify processes. Unfair documentary practices generally occur when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify processes, or any other process an employer may use that verifies employment eligibility. Unfair documentary practices can be broadly categorized into four types of conduct:

1. Requesting that an individual produce more or different documents than are required by Form I-9 to establish the individual’s identity and employment authorization;

2. Requesting that individuals present a particular document, such as a “Green Card,” to establish identity and/or employment authorization;

3. Rejecting documents that reasonably appear to be genuine and to relate to the individuals presenting them; and

4. Treating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or sound “foreign” to present particular documents the employer does not require other individuals to present.

These practices may constitute unfair documentary practices if they are committed based on citizenship or immigration status, or national origin, and should be avoided when verifying employment authorization.

Treat every Employee equally. Do not:

• Have different rules or requirements for individuals because of their national origin, citizenship, or immigration status. For example, you cannot demand that non-U.S. citizens present DHS issued documents. Each individual must be allowed to choose the documents that they will present from the lists of acceptable Form I-9 documents. For example, both citizens and other employment authorized individuals may present a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment authorization. However, you must reject documents that do not reasonably appear to be genuine or to relate to the individual presenting them.

• Request to see employment eligibility verification documents before hire and completion of Form I-9 because an individual looks or sounds “foreign,” or because the individual states that they are not a U.S. citizen.

• Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

• Request specific documents from individuals to run an E-Verify case or based on an E-Verify tentative non-confirmation.

• Request that an individual run a Self-Check case and/or present documents showing the individual cleared Self Check.


Page 8 of 13

Notice of Intent to Fine (FIN)

The FIN contains the basis for the notice, provides a designation of charges, the sections of law that have been violated and the penalty imposed. The Employer has a right to a hearing before an Administrative Law Judge if a written request is submitted within 30 days of the FIN. If no request for hearing is filed, the FIN becomes final and, non-appealable order. No Motion to Reopen is permitted.

Affirmative Defense:

1. Good Faith Defense to Unauthorized Hiring – documents were facially valid or there is a referral from a government agency. Standard of review: reasonableness.

2. Good Faith Defense to Paperwork Violations / Technical or Substantive Violations.

What Should Employers Do to Protect Themselves?

1. Retain counsel to perform an audit of the company’s I-9s and human resource records;

2. Correct any technical/procedural mistakes that are identified in the audit performed; 3. Implement training on immigration compliance; and 4. Know your rights and be prepared in case of an audit.

XII. Discrimination Laws

The anti-discrimination provision of the Immigration and Nationality Act (INA), as amended, prohibits four types of unlawful conduct:

1. Unfair documentary practices during the Form I-9 and E-Verify process; 2. Citizenship or immigration status discrimination; 3. National origin discrimination; 4. Retaliation or intimidation

The Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), enforces this law.

Title VII of the Civil Rights Act of 1964 (Title VII) and other federal laws prohibit employment discrimination based on race, color, national origin, religion, sex, age, disability and genetic information. The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws.

Page 9 of 13

Unfair Documentation Practices

USCIS provides the following guidelines:

The law prohibits discriminatory documentary practices related to verifying the employment authorization and identity of employees during the Form I-9 and E-Verify processes. Unfair documentary practices generally occur when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify processes, or any other process an employer may use that verifies employment eligibility. Unfair documentary practices can be broadly categorized into four types of conduct:

1. Requesting that an individual produce more or different documents than are required by Form I-9 to establish the individual’s identity and employment authorization;

2. Requesting that individuals present a particular document, such as a “Green Card,” to establish identity and/or employment authorization;

3. Rejecting documents that reasonably appear to be genuine and to relate to the individuals presenting them; and

4. Treating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or sound “foreign” to present particular documents the employer does not require other individuals to present.

These practices may constitute unfair documentary practices if they are committed based on citizenship or immigration status, or national origin, and should be avoided when verifying employment authorization.

Treat every Employee equally. Do not:

• Have different rules or requirements for individuals because of their national origin, citizenship, or immigration status. For example, you cannot demand that non-U.S. citizens present DHS issued documents. Each individual must be allowed to choose the documents that they will present from the lists of acceptable Form I-9 documents. For example, both citizens and other employment authorized individuals may present a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment authorization. However, you must reject documents that do not reasonably appear to be genuine or to relate to the individual presenting them.

• Request to see employment eligibility verification documents before hire and completion of Form I-9 because an individual looks or sounds “foreign,” or because the individual states that they are not a U.S. citizen.

• Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

• Request specific documents from individuals to run an E-Verify case or based on an E-Verify tentative non-confirmation.

• Request that an individual run a Self-Check case and/or present documents showing the individual cleared Self Check.


Page 10 of 13

• Request that an employee who presented an unexpired Permanent Resident Card present a new document when the Permanent Resident Card expires.

• Request specific documents for reverification. For Example, an employee who presented an unexpired Employment Authorization Document (Form I-766) during initial verification should be requested to present any document of their choosing from either from List A or from List C during reverification.

• Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.

Page 11 of 13

Labor Condition Application

Generally, before an H-1B visa can be filed, the employer must obtain certification of an Labor Condition Application (LCA) from the Department of Labor. The LCA contains the number of workers sought by the Employer, the occupational classification, the prevailing wage and method of determining it, the wage rate and working conditions. The Employer must make the LCA available for public inspection within one day of filing it with the Department of Labor.

The LCA is electronically filed with the Department of Labor. Once certification is issued, the Employer must print the certified form, sign it and must:

1. Maintain a copy in Employer files 2. Maintain a copy in the Public Access File 3. Provide a copy to the Employee 4. Submit an originally signed copy with H-1B filing with USCIS

Public Access File

The Employer must maintain a public file available for inspection by interested and aggrieved parties. The Public Access File must be available at either employer’s principal place of business or at the worksite where the Employee is. 20 CFR §655.760(a). The Public Access File must be available within one day after the LCA is filed with the following supporting documentation:

1. Signed Copy of the Certified LCA and cover pages; 2. Documentation which provides the wage rate to be paid; 3. Documentation on how the actual wage was set by the Employer; 4. Documentation establishing the prevailing wage; 5. Copy of notice given to union/employees; 6. Summary of benefits offered to U.S. workers in the same occupational classification

and if there are differences, a statement as to how differentiation in benefits is made. 20 CFR §655.731(c)(3);

7. If Employer goes through a change in corporate structure, a sworn statement by the responsible official of he new employing entity that is accepts all obligations, liabilities and undertakings under the LCA filed by the predecessor employer together with a list of each affected LCA, the certification date and description of the actual wage system and FEIN of the new employer. This statement must be completed before the Employee in H-1B status is employed by the new entity. 20 CFR §655.730(e)(1);

8. Where the employer utilizes the definition of “single employer” in the Internal Revenue Code, a list of any entities included as part of the single employer in making the H-1B determinations. 20 CFR §655.736(d)(7);

9. Where the Employer is H-1B dependent or a willful violator and it indicates an employee is exempt under 20 CFR §655.737, a list of exempt H-1B Employees;

10. Where the Employer is H-1B defendant or willful violator, a summary of recruitment methods used and the time frames or recruitment of U.S. workers. 20 CFR §655.739(i)(4).


Page 10 of 13

• Request that an employee who presented an unexpired Permanent Resident Card present a new document when the Permanent Resident Card expires.

• Request specific documents for reverification. For Example, an employee who presented an unexpired Employment Authorization Document (Form I-766) during initial verification should be requested to present any document of their choosing from either from List A or from List C during reverification.

• Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.

Page 11 of 13

Labor Condition Application

Generally, before an H-1B visa can be filed, the employer must obtain certification of an Labor Condition Application (LCA) from the Department of Labor. The LCA contains the number of workers sought by the Employer, the occupational classification, the prevailing wage and method of determining it, the wage rate and working conditions. The Employer must make the LCA available for public inspection within one day of filing it with the Department of Labor.

The LCA is electronically filed with the Department of Labor. Once certification is issued, the Employer must print the certified form, sign it and must:

1. Maintain a copy in Employer files 2. Maintain a copy in the Public Access File 3. Provide a copy to the Employee 4. Submit an originally signed copy with H-1B filing with USCIS

Public Access File

The Employer must maintain a public file available for inspection by interested and aggrieved parties. The Public Access File must be available at either employer’s principal place of business or at the worksite where the Employee is. 20 CFR §655.760(a). The Public Access File must be available within one day after the LCA is filed with the following supporting documentation:

1. Signed Copy of the Certified LCA and cover pages; 2. Documentation which provides the wage rate to be paid; 3. Documentation on how the actual wage was set by the Employer; 4. Documentation establishing the prevailing wage; 5. Copy of notice given to union/employees; 6. Summary of benefits offered to U.S. workers in the same occupational classification

and if there are differences, a statement as to how differentiation in benefits is made. 20 CFR §655.731(c)(3);

7. If Employer goes through a change in corporate structure, a sworn statement by the responsible official of he new employing entity that is accepts all obligations, liabilities and undertakings under the LCA filed by the predecessor employer together with a list of each affected LCA, the certification date and description of the actual wage system and FEIN of the new employer. This statement must be completed before the Employee in H-1B status is employed by the new entity. 20 CFR §655.730(e)(1);

8. Where the employer utilizes the definition of “single employer” in the Internal Revenue Code, a list of any entities included as part of the single employer in making the H-1B determinations. 20 CFR §655.736(d)(7);

9. Where the Employer is H-1B dependent or a willful violator and it indicates an employee is exempt under 20 CFR §655.737, a list of exempt H-1B Employees;

10. Where the Employer is H-1B defendant or willful violator, a summary of recruitment methods used and the time frames or recruitment of U.S. workers. 20 CFR §655.739(i)(4).


Page 12 of 13

Retention of Records by Employer

All records must be retained by the Employer for one year beyond the later of the last date an H-1B nonimmigrant is employed pursuant to the LCA or the expiration of the LCA period.

If a complaint is filed, the records must be kept until the complaint is resolved.

Page 13 of 13

Document Retention - Labor Certification under PERM (Program Electronic Review Management System)

The Employer must retain copy of the filed application and all supporting documentation, including:

1. Evidence of all recruitment efforts; 2. The recruitment summary report; 3. Copies of all resumes received and any communication/interview notes with each

candidate; 4. Prevailing Wage Determination; 5. Business Necessity documentation in certain circumstances; 6. Employer documents, such as: creation documents and possibly corporate tax

returns, financial statements, annual reports and other secondary financial information.

7. Sponsored Employee documents, such as: educational documents and if needed credentials evaluation, resume, employment verification letters

For 5 years from the date of the filing of the labor certification application. 20 CFR §656.10(f).

Department of Labor may request these documents in the event of an audit. 20 CFR §656.17(a)(3).

The Employer must maintain these documents, however, attorneys can assist in preparing the file for the employer before the labor certification is filed. Department of Labor has not provided any particular guidance on how these files should be retained, just that the Employer bears the “burden of establishing the validity of the documentation provided in support of the labor certification application” and reminding the employers of “the responsibility for producing valid and defensible documentation in the event it is requested by a certifying officer.” DOL Website – Frequently Asked Questions.

Therefore, the Employer has the option of retaining the documents physically and/or electronically.

The Employer should take into consideration the following when deciding which method to use and take precautions:

Physical Documents can be: 1. lost 2. destroyed 3. time consuming to obtain if offsite

Electronic Documents can be: 1. susceptible to server malfunctions and loss 2. maybe difficult to adequately scan and retain recruitment documents such as

newspaper tear sheets

It is advisable that the attorney assist in preparing all documents before the labor certification application is filed so that in the event of an audit only updated documents may need to be gathered.


Page 12 of 13

Retention of Records by Employer

All records must be retained by the Employer for one year beyond the later of the last date an H-1B nonimmigrant is employed pursuant to the LCA or the expiration of the LCA period.

If a complaint is filed, the records must be kept until the complaint is resolved.

Page 13 of 13

Document Retention - Labor Certification under PERM (Program Electronic Review Management System)

The Employer must retain copy of the filed application and all supporting documentation, including:

1. Evidence of all recruitment efforts; 2. The recruitment summary report; 3. Copies of all resumes received and any communication/interview notes with each

candidate; 4. Prevailing Wage Determination; 5. Business Necessity documentation in certain circumstances; 6. Employer documents, such as: creation documents and possibly corporate tax

returns, financial statements, annual reports and other secondary financial information.

7. Sponsored Employee documents, such as: educational documents and if needed credentials evaluation, resume, employment verification letters

For 5 years from the date of the filing of the labor certification application. 20 CFR §656.10(f).

Department of Labor may request these documents in the event of an audit. 20 CFR §656.17(a)(3).

The Employer must maintain these documents, however, attorneys can assist in preparing the file for the employer before the labor certification is filed. Department of Labor has not provided any particular guidance on how these files should be retained, just that the Employer bears the “burden of establishing the validity of the documentation provided in support of the labor certification application” and reminding the employers of “the responsibility for producing valid and defensible documentation in the event it is requested by a certifying officer.” DOL Website – Frequently Asked Questions.

Therefore, the Employer has the option of retaining the documents physically and/or electronically.

The Employer should take into consideration the following when deciding which method to use and take precautions:

Physical Documents can be: 1. lost 2. destroyed 3. time consuming to obtain if offsite

Electronic Documents can be: 1. susceptible to server malfunctions and loss 2. maybe difficult to adequately scan and retain recruitment documents such as

newspaper tear sheets

It is advisable that the attorney assist in preparing all documents before the labor certification application is filed so that in the event of an audit only updated documents may need to be gathered.













12:45 PERM LABOR CERTIFICATION: THE JOB DESCRIPTION, MINIMUM REQUIREMENTS AND RECRUITMENT STRATEGIES; AND PERM TO I-140 ADJUDICATION: DEGREE EQUIVALENCY AND OTHER ISSUES Erin Elliott Ustaoglu, Elliot Immigration Law LLC, Atlanta Danielle M. Claffey, Kuck Immigration Partners LLC, Atlanta


Title: PERM: Job Description, Minimum Requirements and Strategies for Recruitment Author: Erin Elliott (Ustaoglu)

1

PERM: Job Description, Minimum Requirements and Strategies for Recruitment

By Erin Elliott (Ustaoglu) Erin Elliott is the managing attorney of Elliott Immigration Law LLC. She focuses her practice 100% on immigration law and represents individuals and businesses. Erin is an active member of the American Immigration Lawyers Association (“AILA”) and currently serves as Vice Chair on the USCIS Liaison Committee for the GA/AL AILA Chapter and previously served as Chair for the New Members Division for the GA/AL AILA Chapter.

I. Introduction The labor certification process requires that the employer test the U.S. labor market to confirm that there are no U.S. workers who are qualified, willing, able and available for the offered position.1 The program was designed to protect the interest of U.S. workers and to assist employers with a legitimate business to bring in foreign workers when no U.S. workers are available.2 The Program Electronic Review Management system (“PERM”) went into effect on March 28, 2005 and is an electronic filing system created by the U.S. Department of Labor (“DOL”) to make the process of labor certification more efficient.

II. Job Description & Minimum Requirements

The preparation of the job description for the offered position is probably the most critical step in the PERM process. The employer should be warned early on that a “PERM job description” is very different from a “real world” job description. The PERM process attempts to remove all subjective reasoning for rejection of an applicant, as an employer may only reject a U.S. applicant for lawful job-related reasons, such as the worker is unwilling, unable or unqualified for the position. Thus, it is important for the practitioner and employer to finalize the job description and the employer’s minimum requirements at the onset, prior to beginning the later phases in this process, such as recruitment. To begin drafting the job description, the employer and practitioner will need to start with the employer’s own “real world” job description and the O*NET OnLine, the database of job summaries sponsored by the DOL.

a. O*NET, Job Zone, SVP & Business Necessity Each O*NET job summary contains a list of duties, a Job Zone and the applicable SVP (see definition below). The job requirements for the offered position must be reasonably related to the corresponding O*NET job summary and should not exceed the SVP provided in the O*NET job summary. An O*Net Job Zone “is a group of occupations that are similar in: how much education people need to do the work, how much related experience people need to do the work, and how much on-

1 72 Fed. Reg. 27904 (May 17, 2007). 2 72 Fed. Reg. 27904 (May 17, 2007).


Title: PERM: Job Description, Minimum Requirements and Strategies for Recruitment Author: Erin Elliott (Ustaoglu)

1

PERM: Job Description, Minimum Requirements and Strategies for Recruitment

By Erin Elliott (Ustaoglu) Erin Elliott is the managing attorney of Elliott Immigration Law LLC. She focuses her practice 100% on immigration law and represents individuals and businesses. Erin is an active member of the American Immigration Lawyers Association (“AILA”) and currently serves as Vice Chair on the USCIS Liaison Committee for the GA/AL AILA Chapter and previously served as Chair for the New Members Division for the GA/AL AILA Chapter.

I. Introduction The labor certification process requires that the employer test the U.S. labor market to confirm that there are no U.S. workers who are qualified, willing, able and available for the offered position.1 The program was designed to protect the interest of U.S. workers and to assist employers with a legitimate business to bring in foreign workers when no U.S. workers are available.2 The Program Electronic Review Management system (“PERM”) went into effect on March 28, 2005 and is an electronic filing system created by the U.S. Department of Labor (“DOL”) to make the process of labor certification more efficient.

II. Job Description & Minimum Requirements

The preparation of the job description for the offered position is probably the most critical step in the PERM process. The employer should be warned early on that a “PERM job description” is very different from a “real world” job description. The PERM process attempts to remove all subjective reasoning for rejection of an applicant, as an employer may only reject a U.S. applicant for lawful job-related reasons, such as the worker is unwilling, unable or unqualified for the position. Thus, it is important for the practitioner and employer to finalize the job description and the employer’s minimum requirements at the onset, prior to beginning the later phases in this process, such as recruitment. To begin drafting the job description, the employer and practitioner will need to start with the employer’s own “real world” job description and the O*NET OnLine, the database of job summaries sponsored by the DOL.

a. O*NET, Job Zone, SVP & Business Necessity Each O*NET job summary contains a list of duties, a Job Zone and the applicable SVP (see definition below). The job requirements for the offered position must be reasonably related to the corresponding O*NET job summary and should not exceed the SVP provided in the O*NET job summary. An O*Net Job Zone “is a group of occupations that are similar in: how much education people need to do the work, how much related experience people need to do the work, and how much on-

1 72 Fed. Reg. 27904 (May 17, 2007). 2 72 Fed. Reg. 27904 (May 17, 2007).


2

the-job training people need to do the work.”3 The Job Zones are split into five levels, from occupations that need little or no preparation, to occupations that need extensive preparation. Each Job Zone level specifies the applicable SVP.” 4 “Specific vocational preparation (SVP) means the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”5 The SVP of an occupation may range from between levels 1 and 9 and the DOL uses the following formula for calculating the SVP: Leve l Time

1 Short demons tra tion

2 Anything be yond s hort demons tra tion up to a nd including 30 da ys .

3 Over 30 da ys up to a nd including 3 months .

4 Over 3 months up to a nd including 6 months .

5 Over 6 months up to a nd including 1 year.

6 Over 1 year up to a nd including 2 years .

7 Over 2 years up to a nd including 4 years .


9 Over 10 years .6

When calculating the SVP value of educational requirements, DOL uses the following formula:7 Education Time

Associate’s degree – general 0 years

Associate’s degree – specific 2 years

Bachelor’s degree 2 years

Master’s degree 4 years (includes the two years necessary to earn the prerequisite bachelor’s degree)

Ph.D. degree 7 years (includes the two years necessary to earn the prerequisite bachelor’s degree and the two years necessary to earn Page 79 the prerequisite master’s degree)

3 https://www.onetonline.org/help/online/zones 4 Matter of Wissen, Inc., 2009-PER-00405 (BALCA Apr. 15, 2010). 5 20 CFR §656.3. 6 Id. 7 69 Fed. Reg. 77326 (Dec. 27, 2004).

3

The regulation at 20 C.F.R. § 656.17(h)(1), provides, in pertinent part: (1) The job opportunity’s requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*Net Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner 8 When reviewing the SVP, the employer’s job description should not exceed the lower end of the SVP provided in the O*NET job summary. For example, if the ONET job summary indicates that the position should have an SVP range of (7.0 to < 8.0) then the SVP for the offered position should not exceed an SVP of 7. If the employer’s job description does exceed the SVP in the O*NET job summary, then business necessity documentation should be prepared. Some examples of scenarios that will require business necessity documentation include: a foreign language requirement, a combination of occupations and/or excessive experience requirements (exceeding SVP).

b. Actual Minimum Requirements When drafting the job description, the employer must also keep in mind their actual minimum requirements for the position. Specifically, the employer must use the following guidelines:

• The job requirements must represent the employer’s actual minimum requirements for the job opportunity;9and

• The employer must not have hired workers with less training or experience for jobs substantially comparable to the position involved.10 The regulations define “substantially comparable” to mean a job requiring performance of the same job duties more than 50 percent of the time.11

The DOL may review the employer’s history of hiring to determine if the employer "hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.”12 Additionally, the PERM minimum requirements cannot include requirements that can be satisfied in a "reasonable period of on-the-job training.”13 The definition of a "reasonable period" is not explicitly defined, thus the employer and practitioner must use their best judgement in determining this period.

8 20 CFR §656.17(h)(1). 9 20 CFR §656.17(i)(1). 10 20 CFR §656.17(i)(2). 11 20 CFR §656.17(i)(5)(ii). 12 20 CFR §656.17(i)(2). 13 20 CFR §656.17(g)(2).


2

the-job training people need to do the work.”3 The Job Zones are split into five levels, from occupations that need little or no preparation, to occupations that need extensive preparation. Each Job Zone level specifies the applicable SVP.” 4 “Specific vocational preparation (SVP) means the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”5 The SVP of an occupation may range from between levels 1 and 9 and the DOL uses the following formula for calculating the SVP: Leve l Time

1 Short demons tra tion

2 Anything be yond s hort demons tra tion up to a nd including 30 da ys .

3 Over 30 da ys up to a nd including 3 months .

4 Over 3 months up to a nd including 6 months .

5 Over 6 months up to a nd including 1 year.

6 Over 1 year up to a nd including 2 years .



9 Over 10 years .6

When calculating the SVP value of educational requirements, DOL uses the following formula:7 Education Time

Associate’s degree – general 0 years

Associate’s degree – specific 2 years

Bachelor’s degree 2 years

Master’s degree 4 years (includes the two years necessary to earn the prerequisite bachelor’s degree)

Ph.D. degree 7 years (includes the two years necessary to earn the prerequisite bachelor’s degree and the two years necessary to earn Page 79 the prerequisite master’s degree)

3 https://www.onetonline.org/help/online/zones 4 Matter of Wissen, Inc., 2009-PER-00405 (BALCA Apr. 15, 2010). 5 20 CFR §656.3. 6 Id. 7 69 Fed. Reg. 77326 (Dec. 27, 2004).

3

The regulation at 20 C.F.R. § 656.17(h)(1), provides, in pertinent part: (1) The job opportunity’s requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*Net Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner 8 When reviewing the SVP, the employer’s job description should not exceed the lower end of the SVP provided in the O*NET job summary. For example, if the ONET job summary indicates that the position should have an SVP range of (7.0 to < 8.0) then the SVP for the offered position should not exceed an SVP of 7. If the employer’s job description does exceed the SVP in the O*NET job summary, then business necessity documentation should be prepared. Some examples of scenarios that will require business necessity documentation include: a foreign language requirement, a combination of occupations and/or excessive experience requirements (exceeding SVP).

b. Actual Minimum Requirements When drafting the job description, the employer must also keep in mind their actual minimum requirements for the position. Specifically, the employer must use the following guidelines:

• The job requirements must represent the employer’s actual minimum requirements for the job opportunity;9and

• The employer must not have hired workers with less training or experience for jobs substantially comparable to the position involved.10 The regulations define “substantially comparable” to mean a job requiring performance of the same job duties more than 50 percent of the time.11

The DOL may review the employer’s history of hiring to determine if the employer "hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.”12 Additionally, the PERM minimum requirements cannot include requirements that can be satisfied in a "reasonable period of on-the-job training.”13 The definition of a "reasonable period" is not explicitly defined, thus the employer and practitioner must use their best judgement in determining this period.

8 20 CFR §656.17(h)(1). 9 20 CFR §656.17(i)(1). 10 20 CFR §656.17(i)(2). 11 20 CFR §656.17(i)(5)(ii). 12 20 CFR §656.17(i)(2). 13 20 CFR §656.17(g)(2).


4

c. Foreign Nationals Qualifications The regulations generally prohibit an employer from requiring U.S. workers “to possess training and/or experience beyond what the alien possessed at the time of hire.”14 There are two exceptions to this rule:

• If “[t]he employer can demonstrate that it is no longer feasible to train a worker to qualify for the position;”15 or

• If the employee gained experience with “the employer, including as a contract employee, in a position not substantially comparable” to the position stated on the labor certification application.”16

Thus, the education, experience and training of the foreign national beneficiary will be evaluated by the DOL and must be included on the labor certification application. The DOL will review the foreign national’s background prior to beginning employment with the employer.”17 Under PERM, an employer is defined as an entity with the same federal employer identification number (FEIN).18 Therefore, experience gained with related entities may be used so long as the FEIN is different from the employer. Additionally, the employer is not permitted to require education or training that the alien beneficiary earned at the employer’s expense unless the employer offers similar training to domestic worker applicants.19 In the event that the position has alternative requirements, they must be substantially equivalent to the primary requirements. An example of alternative requirements, may include a bachelor’s degree as the primary requirement and an associate’s degree plus two years of work experience as the alternative requirement. In 1998, the Board of Alien Labor Certification Appeals (“BALCA”) determined that if the foreign national only qualifies for the position based on the alternative requirements, and is currently employed by the employer, the employer must include additional language in the job description.20 Specifically, the language must state, “…any suitable combination of experience of education, training, or experience is acceptable.”21 As a practical matter, the employer should refrain from listing any preferences in the job description and should clearly identify the minimum requirements to fill the role. For example, if the employer will accept a range of years’ experience with a specific skill, the lowest number acceptable should be included on the labor certification application. Additionally, rather than including solely an advanced degree as a requirement, the employer may want to specify certain classes that must have been taken by the applicant in the job description. However, the practitioner

14 20 CFR §656.17(i)(3). 15 20 CFR §656.17(i)(3)(ii). 16 20 CFR §656.17(i)(3)(i). 17 20 CFR §656.17(i)(3). 18 20 CFR §656.17(i)(5)(i). 19 20 CFR §656.17(i)(4). 20 Matter of Francis Kellogg, 94-INA-465 and 544, 95-INA 68 (BALCA 1998) (en banc) 21 Id.

5

should caution the employer not to tailor the business description based on the foreign national’s specific experience and/or educational background. Section H.14 of the labor certification application is used to clarify experience, knowledge and skills required for the job. On March 6, 2017, the DOL’s Office of Foreign Labor Certification (“OFLC”) issued the H.14 FAQ, which required employers to quantify minimum requirements for a position in Section H.14 to facilitate the adjudication process for OFLC analysts. The FAQ was removed from the OFLC website on March 10, 2017 and we are currently awaiting the fate of H.14, however practitioners should take a practical approach when drafting the employer’s true requirements for the position and be sure to quantify all requirements when possible.

III. Recruitment Strategies & Tips

The PERM process requires several recruitment steps before the labor certification application may be filed.

a. File ETA Form 9141: Application for Prevailing Wage Determination The prevailing wage application is the first step to be taken once the practitioner and employer have finalized the job description and determined that the foreign national is eligible for the offered job. The prevailing wage is the wage rate DOL views as the wage paid to similarly situated workers in the area of employment.22 The employer will need to pay at least the prevailing wage to the employee when he or she becomes a permanent resident.23 The ETA Form 9141, Application for Prevailing Wage Determination, is filed with DOL's National Prevailing Wage Center (“NPWC”) to obtain the prevailing wage for the PERM position.24 In most cases, the Prevailing Wage Determination is received before the employer begins the recruitment phase.

b. Recruitment Steps for Nonprofessional and Professional Positions It is important to notify the employer at the onset that the foreign worker may not be involved in this phase of the process. Moreover, as the attorney, you may only have limited involvement in this step. For example, the attorney may not be involved in the interview process or in the rejection of candidates based on their resumes.25 For nonprofessional positions, the employer must: (1) place a job order with the local SWA serving the area of intended employment for a period of 30 days; and (2) place two Sunday newspaper advertisements.26 In addition to the recruitment efforts, the employer must post a notice of the intent to file a labor certification for 10 consecutive business days at the employer’s site, or be given to the bargaining representative.

22 20 CFR §656.40(b)(2). 23 20 CFR §656.10(c). 24 20 CFR §656.40(a). 25 20 CFR §656.10(b). 26 20 CFR §656.17(e)(2).


4

c. Foreign Nationals Qualifications The regulations generally prohibit an employer from requiring U.S. workers “to possess training and/or experience beyond what the alien possessed at the time of hire.”14 There are two exceptions to this rule:

• If “[t]he employer can demonstrate that it is no longer feasible to train a worker to qualify for the position;”15 or

• If the employee gained experience with “the employer, including as a contract employee, in a position not substantially comparable” to the position stated on the labor certification application.”16

Thus, the education, experience and training of the foreign national beneficiary will be evaluated by the DOL and must be included on the labor certification application. The DOL will review the foreign national’s background prior to beginning employment with the employer.”17 Under PERM, an employer is defined as an entity with the same federal employer identification number (FEIN).18 Therefore, experience gained with related entities may be used so long as the FEIN is different from the employer. Additionally, the employer is not permitted to require education or training that the alien beneficiary earned at the employer’s expense unless the employer offers similar training to domestic worker applicants.19 In the event that the position has alternative requirements, they must be substantially equivalent to the primary requirements. An example of alternative requirements, may include a bachelor’s degree as the primary requirement and an associate’s degree plus two years of work experience as the alternative requirement. In 1998, the Board of Alien Labor Certification Appeals (“BALCA”) determined that if the foreign national only qualifies for the position based on the alternative requirements, and is currently employed by the employer, the employer must include additional language in the job description.20 Specifically, the language must state, “…any suitable combination of experience of education, training, or experience is acceptable.”21 As a practical matter, the employer should refrain from listing any preferences in the job description and should clearly identify the minimum requirements to fill the role. For example, if the employer will accept a range of years’ experience with a specific skill, the lowest number acceptable should be included on the labor certification application. Additionally, rather than including solely an advanced degree as a requirement, the employer may want to specify certain classes that must have been taken by the applicant in the job description. However, the practitioner

14 20 CFR §656.17(i)(3). 15 20 CFR §656.17(i)(3)(ii). 16 20 CFR §656.17(i)(3)(i). 17 20 CFR §656.17(i)(3). 18 20 CFR §656.17(i)(5)(i). 19 20 CFR §656.17(i)(4). 20 Matter of Francis Kellogg, 94-INA-465 and 544, 95-INA 68 (BALCA 1998) (en banc) 21 Id.

5

should caution the employer not to tailor the business description based on the foreign national’s specific experience and/or educational background. Section H.14 of the labor certification application is used to clarify experience, knowledge and skills required for the job. On March 6, 2017, the DOL’s Office of Foreign Labor Certification (“OFLC”) issued the H.14 FAQ, which required employers to quantify minimum requirements for a position in Section H.14 to facilitate the adjudication process for OFLC analysts. The FAQ was removed from the OFLC website on March 10, 2017 and we are currently awaiting the fate of H.14, however practitioners should take a practical approach when drafting the employer’s true requirements for the position and be sure to quantify all requirements when possible.

III. Recruitment Strategies & Tips

The PERM process requires several recruitment steps before the labor certification application may be filed.

a. File ETA Form 9141: Application for Prevailing Wage Determination The prevailing wage application is the first step to be taken once the practitioner and employer have finalized the job description and determined that the foreign national is eligible for the offered job. The prevailing wage is the wage rate DOL views as the wage paid to similarly situated workers in the area of employment.22 The employer will need to pay at least the prevailing wage to the employee when he or she becomes a permanent resident.23 The ETA Form 9141, Application for Prevailing Wage Determination, is filed with DOL's National Prevailing Wage Center (“NPWC”) to obtain the prevailing wage for the PERM position.24 In most cases, the Prevailing Wage Determination is received before the employer begins the recruitment phase.

b. Recruitment Steps for Nonprofessional and Professional Positions It is important to notify the employer at the onset that the foreign worker may not be involved in this phase of the process. Moreover, as the attorney, you may only have limited involvement in this step. For example, the attorney may not be involved in the interview process or in the rejection of candidates based on their resumes.25 For nonprofessional positions, the employer must: (1) place a job order with the local SWA serving the area of intended employment for a period of 30 days; and (2) place two Sunday newspaper advertisements.26 In addition to the recruitment efforts, the employer must post a notice of the intent to file a labor certification for 10 consecutive business days at the employer’s site, or be given to the bargaining representative.

22 20 CFR §656.40(b)(2). 23 20 CFR §656.10(c). 24 20 CFR §656.40(a). 25 20 CFR §656.10(b). 26 20 CFR §656.17(e)(2).


6

If an occupation is for a professional position, there are mandatory and additional recruitment steps required. Appendix A to the preamble of the PERM regulations specifies occupations requiring “professional recruitment” efforts. The mandatory steps are those mentioned above and the employer must choose three additional recruitment steps, which are set forth in 20 CFR §656.17(e)(1)(ii) and include the following options:

• Job fairs • Employer’s website • Job search website other than the employer’s • On-campus recruiting • Trade or professional organizations/publications • Private employment firms • Employee referral programs with incentives • Campus placement offices • Local and ethnic newspapers (the preamble limits this “to the extent they are

appropriate for the job opportunity”) • Radio and television advertisements27

a. Timelines & Time Periods

The recruitment steps must have been conducted within the time period that is at least 30 calendar days and no more than 180 calendar days before the date the labor certification application is filed.28 There is one exception to this rule for professional positions, where the DOL allows a single supplemental recruitment effort for professional positions, which may take place during the 30 days before the application is filed.29 The timing of the recruitment, especially with respect to posting of ads and the Notice of Filing, is extremely critical and the DOL does not allow any room for error. Therefore, it is imperative to understand the DOL’s interpretation regarding timing in this step. The DOL has differentiated between two terms, “timelines” and “time periods.”30

• “Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before.”31

27 20 CFR §656.17(e)(1)(ii). 28 20 CFR §§656.17(e)(1) 29 20 CFR §§656.17(e)(1), (e)(1)(i), and (e)(2). 30 “DOL PERM FAQs” (Jan. 14, 2009), 31 Id.

7

• “Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is on the State Workforce Agency web site from February 1, 2007, through March 8, 2007, February 1st, is day 1, February 2nd, is day 2, March 2nd, is day number 30, March 8th, is day number 36.”32

“In Summary: There are two "types" of time calculations used by the Permanent Online System: timeline calculations and time period calculations. Timeline calculations are those calculations verifying the number of days prior to or after an event. For example, verifying that advertisements did not run less than 30 days but no more than 180 days from the date of filing.”33

b. Print Ad Requirements

The DOL regulations contain specific information that must be included in the newspaper ads during recruitment. However, in Symantec, BALCA held that the advertising requirements of 20 CFR §656.17(f) only apply to the Notice of Filing and mandatory print ads.34 For the print ads, the DOL regulations require that the ad contain the following:

• Name the employer; • Direct applicants to report or send résumés, as appropriate for the occupation, to the

employer; • Provide a description of the vacancy specific enough to apprise U.S. workers of the job

opportunity for which certification is sought; • Indicate the geographic area of employment with enough specificity to apprise applicants

of any travel requirements and where applicants will likely have to reside to perform the job opportunity;

• Not contain a wage rate lower than the prevailing wage rate; • Not contain any job requirements or duties which exceed the job requirements or duties

listed on the ETA 9089, and • Not contain wages or terms and conditions of employment that are less favorable than

those offered to the alien.35

While the regulations do not specifically address what is required in the other ads, best practice for PERM recruitment is to make all recruitment efforts identical.

c. Interview Process

32 Id. 33 Id. 34 Matter of Symantec Corp. 2011-PER-01856 (July 30, 2014 en banc). 35 20 CFR §656.17(f).


6

If an occupation is for a professional position, there are mandatory and additional recruitment steps required. Appendix A to the preamble of the PERM regulations specifies occupations requiring “professional recruitment” efforts. The mandatory steps are those mentioned above and the employer must choose three additional recruitment steps, which are set forth in 20 CFR §656.17(e)(1)(ii) and include the following options:

• Job fairs • Employer’s website • Job search website other than the employer’s • On-campus recruiting • Trade or professional organizations/publications • Private employment firms • Employee referral programs with incentives • Campus placement offices • Local and ethnic newspapers (the preamble limits this “to the extent they are

appropriate for the job opportunity”) • Radio and television advertisements27

a. Timelines & Time Periods

The recruitment steps must have been conducted within the time period that is at least 30 calendar days and no more than 180 calendar days before the date the labor certification application is filed.28 There is one exception to this rule for professional positions, where the DOL allows a single supplemental recruitment effort for professional positions, which may take place during the 30 days before the application is filed.29 The timing of the recruitment, especially with respect to posting of ads and the Notice of Filing, is extremely critical and the DOL does not allow any room for error. Therefore, it is imperative to understand the DOL’s interpretation regarding timing in this step. The DOL has differentiated between two terms, “timelines” and “time periods.”30

• “Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before.”31

27 20 CFR §656.17(e)(1)(ii). 28 20 CFR §§656.17(e)(1) 29 20 CFR §§656.17(e)(1), (e)(1)(i), and (e)(2). 30 “DOL PERM FAQs” (Jan. 14, 2009), 31 Id.

7

• “Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is on the State Workforce Agency web site from February 1, 2007, through March 8, 2007, February 1st, is day 1, February 2nd, is day 2, March 2nd, is day number 30, March 8th, is day number 36.”32

“In Summary: There are two "types" of time calculations used by the Permanent Online System: timeline calculations and time period calculations. Timeline calculations are those calculations verifying the number of days prior to or after an event. For example, verifying that advertisements did not run less than 30 days but no more than 180 days from the date of filing.”33

b. Print Ad Requirements

The DOL regulations contain specific information that must be included in the newspaper ads during recruitment. However, in Symantec, BALCA held that the advertising requirements of 20 CFR §656.17(f) only apply to the Notice of Filing and mandatory print ads.34 For the print ads, the DOL regulations require that the ad contain the following:

• Name the employer; • Direct applicants to report or send résumés, as appropriate for the occupation, to the

employer; • Provide a description of the vacancy specific enough to apprise U.S. workers of the job

opportunity for which certification is sought; • Indicate the geographic area of employment with enough specificity to apprise applicants

of any travel requirements and where applicants will likely have to reside to perform the job opportunity;

• Not contain a wage rate lower than the prevailing wage rate; • Not contain any job requirements or duties which exceed the job requirements or duties

listed on the ETA 9089, and • Not contain wages or terms and conditions of employment that are less favorable than

those offered to the alien.35

While the regulations do not specifically address what is required in the other ads, best practice for PERM recruitment is to make all recruitment efforts identical.

c. Interview Process

32 Id. 33 Id. 34 Matter of Symantec Corp. 2011-PER-01856 (July 30, 2014 en banc). 35 20 CFR §656.17(f).


8

All U.S. workers “who have affirmatively provided a response” or résumé must be contacted and/or considered by the employer.36 Thus, the employer should consider all applicants who have submitted a resume for the offered position. “…[T]he regulations indicate that the employer must actively pursue all the U.S. workers who could qualify for the job opportunity. An employer’s failure to establish that it made a diligent effort to contact applicants is a material defect in the recruitment effort…. A follow-up attempt to contact applicants is an essential element of the ‘good faith’ recruitment process, and labor certification is properly denied where alternative methods of contact are not utilized and documented.”37 If upon the receipt of the applicant’s resume, there is a reasonable possibility that the applicant may qualify for the offered job, the employer should contact the applicant in a timely manner. Generally, an applicant should be contacted for follow-up within 14 days of providing their resume to the employer. As part of the recruitment process, the employer is required to maintain an audit file, which will include a recruitment report, among other documentation.38 The employer should consider and include in the recruitment report any individuals who applied for the position within the six months preceding the date the labor certification application will be filed.

36 “DOL PERM FAQs” (Jan. 14, 2009). 37 Matter of Ukay Trucking and Delivery, 2003-INA-137 (BALCA 2004) (citing Matter of Gorchev & Gorchev Graphic Design, 1989-INA-118 (BALCA 1990) (en banc) and Matter of Divinia M. Encina, 93-INA-220 (BALCA 1994)). 38 20 CFR §656.17(g).


8

All U.S. workers “who have affirmatively provided a response” or résumé must be contacted and/or considered by the employer.36 Thus, the employer should consider all applicants who have submitted a resume for the offered position. “…[T]he regulations indicate that the employer must actively pursue all the U.S. workers who could qualify for the job opportunity. An employer’s failure to establish that it made a diligent effort to contact applicants is a material defect in the recruitment effort…. A follow-up attempt to contact applicants is an essential element of the ‘good faith’ recruitment process, and labor certification is properly denied where alternative methods of contact are not utilized and documented.”37 If upon the receipt of the applicant’s resume, there is a reasonable possibility that the applicant may qualify for the offered job, the employer should contact the applicant in a timely manner. Generally, an applicant should be contacted for follow-up within 14 days of providing their resume to the employer. As part of the recruitment process, the employer is required to maintain an audit file, which will include a recruitment report, among other documentation.38 The employer should consider and include in the recruitment report any individuals who applied for the position within the six months preceding the date the labor certification application will be filed.

36 “DOL PERM FAQs” (Jan. 14, 2009). 37 Matter of Ukay Trucking and Delivery, 2003-INA-137 (BALCA 2004) (citing Matter of Gorchev & Gorchev Graphic Design, 1989-INA-118 (BALCA 1990) (en banc) and Matter of Divinia M. Encina, 93-INA-220 (BALCA 1994)). 38 20 CFR §656.17(g).

2:00 ETHICAL CONSIDERATIONS RELATING TO DUAL REPRESENTATION OF AN EMPLOYER AND AN EMPLOYEE Charles H. Kuck, Kuck Immigration Partners LLC, Atlanta



3:15 BUSINESS IMMIGRATION IN THE NEW ADMINISTRATION Jay I. Solomon, Arnall Golden Gregory LLP, Atlanta


BUSINESS IMMIGRATION IN THE NEW ADMINISTRATION Jay I. Solomon, Arnall Golden Gregory LLP Atlanta

• January20,2017–itbegins–AmericaFirst

• TheExecutiveOrder–BuyAmericanHireAmerican

• USCISWeighsIn–Regulations,Interpretations,Policies

• StateDepartment–AllEmploymentVisaCategories

>>>>

From this moment on, it’s going to be America First.

Every decision on trade, on taxes, on immigration, on foreign affairs, will be made to benefit American workers and American families.

We must protect our borders from the ravages of other countries making our products, stealing our companies, and destroying our jobs. Protection will lead to great prosperity and strength.

….

Wewillfollowtwosimplerules:BuyAmericanandHireAmerican.


BUSINESS IMMIGRATION IN THE NEW ADMINISTRATION Jay I. Solomon, Arnall Golden Gregory LLP Atlanta

• January20,2017–itbegins–AmericaFirst

• TheExecutiveOrder–BuyAmericanHireAmerican

• USCISWeighsIn–Regulations,Interpretations,Policies

• StateDepartment–AllEmploymentVisaCategories

>>>>

From this moment on, it’s going to be America First.

Every decision on trade, on taxes, on immigration, on foreign affairs, will be made to benefit American workers and American families.

We must protect our borders from the ravages of other countries making our products, stealing our companies, and destroying our jobs. Protection will lead to great prosperity and strength.

….

Wewillfollowtwosimplerules:BuyAmericanandHireAmerican.


….

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/

Executive Orders

Presidential Executive Order on Buy American and Hire American Economy & Jobs

Issued on: April 18, 2017

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure the faithful execution of the laws, it is hereby ordered as follows:

Section 1. Definitions. As used in this order:

(a) “Buy American Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal procurement or Federal grants including those that refer to “Buy America” or “Buy American” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods.

(b) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

(c) “Petition beneficiaries” means aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program.

(d) “Waivers” means exemptions from or waivers of Buy American Laws, or the procedures and conditions used by an executive department or agency (agency) in granting exemptions from or waivers of Buy American Laws.

(e) “Workers in the United States” and “United States workers” shall both be defined as provided at section 212(n)(4)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(E)).

Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire American.

(a) Buy American Laws. In order to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases, it shall be the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

Sec. 3. Immediate Enforcement and Assessment of Domestic Preferences According to Buy American Laws. (a) Every agency shall scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.

(b) Within 150 days of the date of this order, the heads of all agencies shall:

(i) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within their agencies;

(ii) assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing; and

(iii) develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States, including manufactured products; components of manufactured products; and materials such as steel, iron, aluminum, and cement.

(c) Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, shall issue guidance to agencies about how to make the assessments and to develop the policies required by subsection (b) of this section.

(d) Within 150 days of the date of this order, the heads of all agencies shall submit findings made pursuant to the assessments required by subsection (b) of this section to the Secretary of Commerce and the Director of the Office of Management and Budget.

(e) Within 150 days of the date of this order, the Secretary of Commerce and the United States Trade Representative shall assess the impacts of all United States free trade agreements and the


….

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/

Executive Orders

Presidential Executive Order on Buy American and Hire American Economy & Jobs

Issued on: April 18, 2017

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure the faithful execution of the laws, it is hereby ordered as follows:

Section 1. Definitions. As used in this order:

(a) “Buy American Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal procurement or Federal grants including those that refer to “Buy America” or “Buy American” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods.

(b) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

(c) “Petition beneficiaries” means aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program.

(d) “Waivers” means exemptions from or waivers of Buy American Laws, or the procedures and conditions used by an executive department or agency (agency) in granting exemptions from or waivers of Buy American Laws.

(e) “Workers in the United States” and “United States workers” shall both be defined as provided at section 212(n)(4)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(E)).

Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire American.

(a) Buy American Laws. In order to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases, it shall be the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

Sec. 3. Immediate Enforcement and Assessment of Domestic Preferences According to Buy American Laws. (a) Every agency shall scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.

(b) Within 150 days of the date of this order, the heads of all agencies shall:

(i) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within their agencies;

(ii) assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing; and

(iii) develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States, including manufactured products; components of manufactured products; and materials such as steel, iron, aluminum, and cement.

(c) Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, shall issue guidance to agencies about how to make the assessments and to develop the policies required by subsection (b) of this section.

(d) Within 150 days of the date of this order, the heads of all agencies shall submit findings made pursuant to the assessments required by subsection (b) of this section to the Secretary of Commerce and the Director of the Office of Management and Budget.

(e) Within 150 days of the date of this order, the Secretary of Commerce and the United States Trade Representative shall assess the impacts of all United States free trade agreements and the


World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.

(f) The Secretary of Commerce, in consultation with the Secretary of State, the Director of the Office of Management and Budget, and the United States Trade Representative, shall submit to the President a report on Buy American that includes findings from subsections (b), (d), and (e) of this section. This report shall be submitted within 220 days of the date of this order and shall include specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs. Subsequent reports on implementation of Buy American Laws shall be submitted by each agency head annually to the Secretary of Commerce and the Director of the Office of Management and Budget, on November 15, 2018, 2019, and 2020, and in subsequent years as directed by the Secretary of Commerce and the Director of the Office of Management and Budget. The Secretary of Commerce shall submit to the President an annual report based on these submissions beginning January 15, 2019.

Sec. 4. Judicious Use of Waivers. (a) To the extent permitted by law, public interest waivers from Buy American Laws should be construed to ensure the maximum utilization of goods, products, and materials produced in the United States.

(b) To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award or Federal procurement under consideration.

(c) To the extent permitted by law, before granting a public interest waiver, the relevant agency shall take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods, and it shall integrate any findings into its waiver determination as appropriate.

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii) existing rights or obligations under international agreements.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE, April 18, 2017.

The White House


World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.

(f) The Secretary of Commerce, in consultation with the Secretary of State, the Director of the Office of Management and Budget, and the United States Trade Representative, shall submit to the President a report on Buy American that includes findings from subsections (b), (d), and (e) of this section. This report shall be submitted within 220 days of the date of this order and shall include specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs. Subsequent reports on implementation of Buy American Laws shall be submitted by each agency head annually to the Secretary of Commerce and the Director of the Office of Management and Budget, on November 15, 2018, 2019, and 2020, and in subsequent years as directed by the Secretary of Commerce and the Director of the Office of Management and Budget. The Secretary of Commerce shall submit to the President an annual report based on these submissions beginning January 15, 2019.

Sec. 4. Judicious Use of Waivers. (a) To the extent permitted by law, public interest waivers from Buy American Laws should be construed to ensure the maximum utilization of goods, products, and materials produced in the United States.

(b) To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award or Federal procurement under consideration.

(c) To the extent permitted by law, before granting a public interest waiver, the relevant agency shall take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods, and it shall integrate any findings into its waiver determination as appropriate.

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii) existing rights or obligations under international agreements.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE, April 18, 2017.

The White House


https://www.uscis.gov/news/uscis-makes-additional-data-employment-based-visa-programs-available-support-hire-american-executive-order10/12/2017

USCIS Makes Additional Data on Employment-Based Visa Programs Available in Support of ‘Hire American’ Executive Order U.S. Citizenship and Immigration Services (USCIS) has posted additional data about the agency’s employment-based visa programs on its website. This new information reflects USCIS’ commitment to transparency in carrying out President Trump’s Buy American and Hire American Executive Order.

Datasets now available on the webpage include:

L-1 Datasets: The L-1 program (L-1A and L-1B) allows companies to transfer certain categories of employees from their foreign operations to their operations in the U.S.

•Approved L-1 Petitions by Employer, FY2015 (PDF, 11.40 MB) •Approved L-1 Petitions by Employer, FY2016 (PDF, 11.97 MB)

H-1B Datasets: The H-1B program allows U.S. companies to temporarily hire foreign workers who will perform services in a specialty occupation. •Characteristics of Specialty Occupation Workers (H-1B) Fiscal Year 2016 (PDF, 3.03 MB)

•H-1B Trends: 2007 to 2017 (PDF, 100 KB)

•Approved H-1B Petitions by Employer, FY2015 (PDF, 13.40 MB) •Approved H-1B Petitions by Employer, FY2016 (PDF, 13.82 MB)

H-2B Dataset: •H-2B Supplemental Cap Number of Petitions and Beneficiaries by Job Code July 19-Aug. 11, 2017 (PDF, 266 KB)

USCIS continues to consider a combination of rulemaking, policy memoranda, and operational changes to protect the economic interests of U.S. workers, and to prevent fraud and abuse within the immigration system.


https://www.uscis.gov/news/uscis-makes-additional-data-employment-based-visa-programs-available-support-hire-american-executive-order10/12/2017

USCIS Makes Additional Data on Employment-Based Visa Programs Available in Support of ‘Hire American’ Executive Order U.S. Citizenship and Immigration Services (USCIS) has posted additional data about the agency’s employment-based visa programs on its website. This new information reflects USCIS’ commitment to transparency in carrying out President Trump’s Buy American and Hire American Executive Order.

Datasets now available on the webpage include:

L-1 Datasets: The L-1 program (L-1A and L-1B) allows companies to transfer certain categories of employees from their foreign operations to their operations in the U.S.

•Approved L-1 Petitions by Employer, FY2015 (PDF, 11.40 MB) •Approved L-1 Petitions by Employer, FY2016 (PDF, 11.97 MB)

H-1B Datasets: The H-1B program allows U.S. companies to temporarily hire foreign workers who will perform services in a specialty occupation. •Characteristics of Specialty Occupation Workers (H-1B) Fiscal Year 2016 (PDF, 3.03 MB)

•H-1B Trends: 2007 to 2017 (PDF, 100 KB)

•Approved H-1B Petitions by Employer, FY2015 (PDF, 13.40 MB) •Approved H-1B Petitions by Employer, FY2016 (PDF, 13.82 MB)

H-2B Dataset: •H-2B Supplemental Cap Number of Petitions and Beneficiaries by Job Code July 19-Aug. 11, 2017 (PDF, 266 KB)

USCIS continues to consider a combination of rulemaking, policy memoranda, and operational changes to protect the economic interests of U.S. workers, and to prevent fraud and abuse within the immigration system.


https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first

12/14/2017

… On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

…Enhancing Fraud Detection and Prevention

USCIS is committed to detecting and preventing immigration fraud and abuse by:

• Providing easy ways for the public to report fraud. The following programs have dedicated email addresses:

o H-1B: [email protected] o H-2B: [email protected]

… •Enhancing information sharing with the Department of State, Department of Labor, and Department of Justice

…•Enhancing the current site visit program to further ensure the integrity of the immigration system

Policy Memoranda

•Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status: PDF version (PDF, 97 KB)◦Under updated policy guidance (PDF, 97 KB), U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for nonimmigrant visa categories. The guidance applies to all nonimmigrant classificationsfiled using Form I-129, Petition for a Nonimmigrant Worker.

•Definition of “Affiliate” or “Subsidiary” for Purposes of Determining the H-1B ACWIA Fee: PDF version (PDF, 80 KB)

FAM Changes Incorporate ‘Buy American Hire American’

8/10/2017 9FAM402.9TREATYTRADERS,INVESTORS,ANDSPECIALTYOCCUPATIONS-EVISAS

9FAM402.10(U)TEMPORARYWORKERSANDTRAINEES-HVISAS

9FAM402.12INTRACOMPANYTRANSFEREES-LVISAS

9FAM402.13ALIENSOFEXTRAORDINARYABILITYOVISAS

9FAM402.14ATHLETES,ARTISTS,ANDENTERTAINERS–PVISAS

9FAM502.4EMPLOYMENT-BASEDIVCLASSIFICATIONS

9 FAM 402.10-2 (u) Overview of H Visas (CT:VISA-433;08-09-2017)…b.(U)OnApril18,2017,thePresidentsignedtheExecutiveOrderonBuyAmericanHireAmerican(E.O.13788),intendedto“createhigherwagesandemploymentratesforworkersintheUnitedStates,andtoprotecttheireconomicinterests.”ThegoalofE.O.13788istoprotecttheinterestsofUnitedStatesworkersintheadministrationofourimmigrationsystem,includingthroughthepreventionoffraudorabuse,anditiswiththisspiritinmindthatcasesunderINA101(a)(15)(H)mustbeadjudicated.


https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first

12/14/2017

… On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

…Enhancing Fraud Detection and Prevention

USCIS is committed to detecting and preventing immigration fraud and abuse by:

• Providing easy ways for the public to report fraud. The following programs have dedicated email addresses:

o H-1B: [email protected] o H-2B: [email protected]

… •Enhancing information sharing with the Department of State, Department of Labor, and Department of Justice

…•Enhancing the current site visit program to further ensure the integrity of the immigration system

Policy Memoranda

•Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status: PDF version (PDF, 97 KB)◦Under updated policy guidance (PDF, 97 KB), U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for nonimmigrant visa categories. The guidance applies to all nonimmigrant classificationsfiled using Form I-129, Petition for a Nonimmigrant Worker.

•Definition of “Affiliate” or “Subsidiary” for Purposes of Determining the H-1B ACWIA Fee: PDF version (PDF, 80 KB)

FAM Changes Incorporate ‘Buy American Hire American’

8/10/2017 9FAM402.9TREATYTRADERS,INVESTORS,ANDSPECIALTYOCCUPATIONS-EVISAS

9FAM402.10(U)TEMPORARYWORKERSANDTRAINEES-HVISAS

9FAM402.12INTRACOMPANYTRANSFEREES-LVISAS

9FAM402.13ALIENSOFEXTRAORDINARYABILITYOVISAS

9FAM402.14ATHLETES,ARTISTS,ANDENTERTAINERS–PVISAS

9FAM502.4EMPLOYMENT-BASEDIVCLASSIFICATIONS

9 FAM 402.10-2 (u) Overview of H Visas (CT:VISA-433;08-09-2017)…b.(U)OnApril18,2017,thePresidentsignedtheExecutiveOrderonBuyAmericanHireAmerican(E.O.13788),intendedto“createhigherwagesandemploymentratesforworkersintheUnitedStates,andtoprotecttheireconomicinterests.”ThegoalofE.O.13788istoprotecttheinterestsofUnitedStatesworkersintheadministrationofourimmigrationsystem,includingthroughthepreventionoffraudorabuse,anditiswiththisspiritinmindthatcasesunderINA101(a)(15)(H)mustbeadjudicated.

Appendix

APPENDIX

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

Appendix2 of 2

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Offi cial State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688


Printed By:

Copyright © 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.

Follow ICLE on social media:

http://www.facebook.com/iclega

bit.ly/ICLELinkedIn

#iclega#TuesAt2

WWW.ICLEGA.ORG

INSTITUTE OF CONTINUING LEGAL EDUCATION

PROGRAM MATERIALSJanuary 10, 2018

BU

SINE

SS IMM

IGR

AT

ION

20

18

BUSINESSIMMIGRATION

creo