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IMMIGRATION
101 INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM
3 THE CASE FOR CHANGE: WHY WE NEED TO GET IMMIGRATION RIGHT
7 CFGI’S PRINCIPLES FOR IMMIGRATION REFORM
11 MAKING SENSE OF THE SYSTEM
12 The Agencies
14 Nonimmigrant Visas
15 Immigrant Visas
19 Worksite Enforcement
21 EMPLOYMENT-BASED IMMIGRATION RESOURCES
22 Fees for Key Employment-Based Visas and Green Cards
24 A Select History of Major Employment-Based Immigration Provisions in U.S. Law
29 Glossary of Key Terms
35 ABOUT US
36 ENDNOTES
| IMMIGRATION 101 | INSIDE THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM
THE CASE FOR CHANGE WHY WE NEED TO GET IMMIGRATION RIGHTA
OF EMPLOYERS REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES.74%
4 COUNCIL FOR GLOBAL IMMIGRATION
GETTING IMMIGRATION RIGHT IS MORE CRITICAL THAN EVER
The world of work is rapidly evolving—and
the United States is falling further behind in
the competition. U.S. corporations, universi-
ties, research institutions, small businesses
and startups must increasingly compete with
organizations around the world to hire and retain
top talent. In developed economies, demand
for high-skilled labor is growing faster than
supply, with up to 40 million fewer workers with
advanced education than employers will need
worldwide by 2020.1
Here in the United States, more than two-thirds
of employers have recently indicated difficulty
recruiting for full-time positions, an increase
of 18 percent since 20142 (see Figure 1). These
employers report difficulty filling specific jobs
(see Figure 2), and nearly 5.5 million positions
remain open.3
Many factors influence U.S. workforce competi-
tiveness, including the skills gap and our aging
workforce. There is no single path to maximizing
workforce competitiveness in the 21st-century
economy. Competitive employers must invest
in tomorrow through workforce policies that
enhance employer-sponsored benefit pro-
grams, increase workplace flexibility, provide
fair employment practices, promote effective
labor-management relations, close the skills gap
(including programs for veterans, individuals
with disabilities and the long-term unemployed)
and allow them to access the best global talent.
FIGURE 2
MOST DIFFICULT HIGH-SKILLED POSITIONS TO FILL
High-Skilled Medical (nurses, doctors,
specialists)81%
Engineering & Architecture 72%
Scientists & Mathematicians 70%
Executives66%
IT/Computer Specialists 65%
Source: SHRM, “The New Talent Landscape: Recruiting Difficulty and Skills Shortages,” 2016
FIGURE 1
PERCENTAGE OF EMPLOYERS WHO REPORT DIFFICULTY IN FILLING JOBS
Source: SHRM, “The New Talent Landscape: Recruiting Difficulty and Skills Shortages,” 2016
68%
COUNCIL FOR GLOBAL IMMIGRATION 5
Shaping our immigration system for the 21st century must fuel growth,
protect and invest in the U.S. workforce, and allow employers to respond
to future changes that are impossible to predict.
Employers uniformly recognize that immigration is a key component of the
broader talent equation. In 2016, 74 percent of employers reported that the
ability to obtain visas in a timely, predictable and flexible manner is critical
to their business objectives (see Figure 3).
However, employers that rely on the U.S. immigration system remain
frustrated because it takes too long and does not allow organizations
to meet their business objectives within an appropriate time frame (see
Figure 4). Despite round after round of debate in Washington, D.C., the
employment-based immigration system remains misaligned with today’s
business realities, and U.S. employers and their employees cannot afford
to wait.
The U.S. employment-based immigration system has not been updated to
keep pace with the modern economy for nearly three decades. The world of
work continues to evolve, while the U.S. immigration system harms employ-
ers and employees alike. To compete in the modern workplace, the United
States must get immigration right. By realigning our system around a
framework that is flexible enough to meet the workforce needs of the future,
we can once again make our immigration system the envy of the world.
An Immigration Guide for You
The U.S. immigration system is extremely complex. The Council for Global
Immigration (CFGI) and the Society for Human Resource Management
(SHRM) have put together this Immigration 101 guide to give you straight-
forward answers to questions about the employment-based immigration
system, including how it works today and how to navigate its intricacies, and
to share with you our principles to reform the system so it can work better.
FIGURE 4
PERCENTAGE OF U.S. EMPLOYERS WHO DO NOT BELIEVE IMMIGRATION PROCESSING TIMES ARE REASONABLE
Source: CFGI, “Employer Immigration Metrics: 2016 Survey Results,” 2017
FIGURE 3
PERCENTAGE OF EMPLOYERS WHO REPORT THAT THE ABILITY TO OBTAIN VISAS IN A TIMELY, PREDICTABLE AND FLEXIBLE MANNER IS CRITICAL TO THEIR BUSINESS OBJECTIVES
Source: CFGI, “Employer Immigration Metrics: 2016 Survey Results,” 2017
74%
63%
CFGI’S PRINCIPLES FOR IMMIGRATION REFORM
THE U.S. MUST GET IMMIGRATION RIGHT. WE CALL ON POLICYMAKERS TO CREATE A 21st CENTURY IMMIGRATION SYSTEM THAT IS FAIR, INNOVATIVE AND COMPETITIVE.
8 COUNCIL FOR GLOBAL IMMIGRATION
PRINCIPLES FOR IMMIGRATION REFORM
The CFGI board of directors adopted these Principles for Immigration
Reform on November 16, 2016. We call on the President and the 115th
Congress to work together to enact bipartisan solutions that will provide
U.S. employers and employees with a 21st-century immigration system,
giving them the ability to recruit, hire, transfer and retain the talent they
need, while ensuring they have the tools to hire a legal workforce. The
Principles for Immigration Reform that follow outline these needs.
The world of work is rapidly evolving, but U.S. immigration laws have
not kept pace. Our employment-based immigration system is misaligned
with today’s business realities—harming employers and employees alike.
American employers have lost opportunities to grow, reducing opportunity
to produce new jobs for U.S. workers and increasing opportunity for global
competitors to hire U.S.-educated talent.
To compete in the modern workplace, America must get immigration right.
This is especially true for the highest skilled professionals—those most
sought after to fill skills gaps and generate the next waves of innovation.
We must take action. CFGI stands ready to provide solutions that will shape
the 21st-century immigration system—one that fuels growth, protects and
invests in the American workforce and responds to future changes that
affect the world of work.
Fair • Innovative • Competitive
COUNCIL FOR GLOBAL IMMIGRATION 9
FAIR To adopt policies that protect and develop the U.S. workforce, policy- makers should:
• Prioritize visas for employers who are growing the U.S. workforce and
investing in the education and training of U.S. employees.
• Partner with employers to enact fair recruitment policies that are clear,
transparent and effective—providing employer safe harbors for good
actors.
• Enforce existing immigration laws against bad actors, not employers
acting in good faith.
INNOVATIVE To provide solutions that increase system effectiveness and predictability, policymakers should:
• Enact a Trusted Employer program that creates efficiencies for low-risk,
immigration-compliant employers and saves resources for top govern-
ment priorities.
• Provide a reliable, national and entirely electronic employment verification
system with state-of-the-art tools to accurately authenticate identity to
hire a legal workforce, including a safe harbor for good-faith users.
• Control fees and use them to improve immigration services and strengthen
the U.S. talent pipeline.
COMPETITIVE To create and boost U.S. economic growth and innovation, policymakers should:
• Recognize that employers are best positioned to determine their skills and
workforce needs—now and in the future.
• Provide a market-based green card cap and critical exemptions for U.S.
STEM advanced degrees and dependents, while eliminating backlogs and
per country limits.
• Provide enough visas for employers to recruit, hire, transfer and retain the
best talent.
For America’s employers and employees to compete and win in the
global economy, we call on policymakers to create an employment-based
immigration system that is:
MAKING SENSE OF THE SYSTEM
THE U.S. IMMIGRATION SYSTEM IS COMPLEX, LIKE THE TAX CODE–LEADING MOST EMPLOYERS TO HIRE OUTSIDE COUNSEL FOR ASSISTANCE WITH NONIMMIGRANT AND IMMIGRANT VISA FILINGS.
12 COUNCIL FOR GLOBAL IMMIGRATION
COMPONENTS OF THE U.S. EMPLOYMENT-BASED IMMIGRATION SYSTEM
Employment-based immigration is governed by an elaborate set of laws, reg-
ulations, agency policy memoranda, court decisions and other interpretive
guidance. U.S. immigration laws are often compared to the tax code because
they are myriad and complex, and clear-cut answers are not always avail-
able, despite the fact that employers and their staffs may be subject to severe
monetary and/or criminal penalties for failing to abide by the laws. These
complexities often lead employers to use outside counsel to assist in filing
nonimmigrant and immigrant petitions and applications (see Figure 5). In this
section, we explain the complex U.S. immigration system in the simplest
terms possible—by outlining how foreign nationals may come to the United
States with legal status.
Foreign nationals coming to the United States are placed in one of two
categories:
Nonimmigrant meaning that the person intends to remain in the United
States temporarily; or
Immigrant meaning that the person intends to remain in the United States
permanently.
For the most part, U.S. law presumes that all foreign nationals coming to the
United States intend to remain permanently, unless they demonstrate intent
to remain only temporarily and to return to their home country at the end of
their stay. A few nonimmigrant categories allow for “dual intent,” meaning
the foreign national may pursue permanent residency while residing in the
United States on a temporary visa.
The Agencies
The Department of Homeland Security (DHS), the Department of State (DOS),
the Department of Labor (DOL), the Department of Justice (DOJ) and the
Department of Commerce (DOC) are cabinet-level agencies centrally
involved in employment-based immigration (see Figure 6).
FIGURE 5
PERCENTAGE OF EMPLOYER IMMIGRATION PETITIONS AND APPLICATIONS FILED BY OUTSIDE COUNSEL, BY CATEGORY
First-Time H-1Bs 78%H-1B Extensions 84%
Concurrent H-1Bs 78%Blanket L-1s 86%
First-Time L-1As (USCIS) 89%L-1A Extensions (USCIS) 91%First-Time L-1Bs (USCIS) 80%
L-1B Extensions 73%F-1 Optional Practical Training (OPT) (excluding STEM extensions) 70%
F-1 STEM OPT extensions 63%J-1 Visas 85%
Treaty-Based Visas (TN, E-3, H-1B1) 89%Labor Certification Applications (PERM) 88%
I-140 Petitions For EB-2 and EB-3 84%Adjustment of Status 90%Consular Processing 92%
Source: CFGI, “Employer Immigration Metrics: 2016 Survey Results,” 2017
COUNCIL FOR GLOBAL IMMIGRATION 13
FIGURE 6
EMPLOYERS FACE A MAZE OF GOVERNMENT AGENCIES
Source: CFGI, 2017
Department of Homeland
Security (DHS)
U.S. Citizenship
and Immigration
Services (USCIS)
U.S. Immigration and Customs Enforcement
(ICE)
Citizenship and
Immigration Services
(CIS) Ombudsman
U.S. Customs
and Border Protection
(CBP)
Department of Labor
(DOL)
Employment and Training
Administration Office of
Foreign Labor Certification
(OFLC)
Department of State (DOS)
Bureau of Consular
Affairs Office of Visa
Services
Overseas Embassies
and Consulates
Department of Commerce
(DOC)
Bureau of Industry and
Security (BIS)
Department of Justice
(DOJ)
Immigrant and
Employee Rights
Section (IER)
Executive Office for
Immigration Review (EOIR)
Bureau of Educational and Cultural
Affairs (ECA)
14 COUNCIL FOR GLOBAL IMMIGRATION
Within the DHS, U.S. Citizenship and Immigration Services (USCIS) pro-
cesses most immigration paperwork, Customs and Border Protection (CBP)
welcomes foreign nationals at our ports of entry, and Immigration and
Customs Enforcement (ICE) is responsible for enforcing immigration laws
within the interior of the country, including worksite enforcement.
The DOS issues visas abroad at U.S. consulates and embassies. The DOS’s
Bureau of Educational and Cultural Affairs (ECA) works to build friendly,
peaceful relations between the people of the United States and other coun-
tries through academic, cultural, sports and professional exchanges. The
DOL ensures that foreign workers do not adversely impact opportunities
for U.S. workers. The DOJ’s Immigrant and Employee Rights Section (IER)
enforces the anti-discrimination portion of the Immigration and Nationality
Act; the DOJ’s Executive Office for Immigration Review conducts immigra-
tion court proceedings, appellate reviews and administrative hearings; and
the DOC’s Bureau of Industry and Security issues deemed export control
licenses to certain foreign nationals working with controlled technologies
(see the Glossary of Key Terms on page 29 for more details).
Nonimmigrant Visas
Nonimmigrants can be categorized as those individuals coming to the
United States for business for pleasure or for a family or humanitarian
reason. The nonimmigrant categories in which foreign nationals can be
temporarily admitted to the United States follow. Their alphabetical labels
correspond with their place in the Immigration and Nationality Act. Visas
that are employment-based or that have specific applications for employers
are noted with an asterisk (*).
A: Diplomats and Foreign Government Employees*
B-1: Temporary Visitors for Business* (Note: Nationals of select countries can enter the United States without a visa for temporary tourist or business visits under the Visa Waiver Program)
B-2: Temporary Visitors for Pleasure
C: Transit Aliens
D: Crew Members*
E: Treaty Traders and Investors*
F: Students in Academic Programs*
G: Employees of International Organizations*
H-1A: Professional Nurses*
H-1B: Foreign Nationals in Specialty Occupations*
H-1C: Registered Nurses in Health Shortage Areas*
H-2A: Nonimmigrant Agricultural Workers*
H-2B: Nonimmigrant Workers in Temporary Positions (seasonal workers)*
H-3: Trainees*
I: Foreign Media Representatives*
J: Exchange Visitors*
K: Fiancés and Fiancées of U.S. Citizens
L-1A: Intracompany Managers and Executives*
L-1B: Intracompany Specialized Knowledge*
M: Vocational Students
N: Parents and Children of Certain Special Immigrants
O: Aliens of Extraordinary Ability*
P: Entertainers, Athletes and Artists*
Q: Participants in Certain International Cultural Exchange Programs*
R: Religious Workers*
S: Foreign Nationals Assisting Law Enforcement
T: Victims of Human Trafficking
TN: Certain Canadian and Mexican Professionals*
U: Victims of Criminal Activity
V: Spouses and Children of Legal Permanent Residents
COUNCIL FOR GLOBAL IMMIGRATION 15
The Requirements
Each category has unique qualifications for entry, as well as limits on
length of stay and permissible activities while within the United States. A
few categories have annual quotas, and most require foreign nationals to
demonstrate sufficient ties to their home countries as evidence that they
will stay only temporarily. Sometimes a foreign national qualifies for more
than one visa category. The choice of category can impact many aspects of
the foreign national’s life, from salary requirements to permanent residency
opportunities to whether their dependents can work.
Further information about the employment-related visas can be found in
the Glossary of Key Terms at the end of this book (see page 29).
The Process
Most of the employment-related nonimmigrant visa categories require
employer sponsorship. As a general rule, to sponsor a nonimmigrant
employee, the employer must have offices in the United States and must
petition USCIS to obtain permission for the employment by showing that
the foreign national is qualified for the position and demonstrating the
employer’s bona fides. Sometimes, DOL approval is also required to demon-
strate that the foreign national will not displace U.S. workers. Once these
approvals are received, the foreign national must obtain a nonimmigrant
visa stamp from a U.S. consulate abroad. The visa stamp permits the foreign
national to travel to a U.S. port of entry, but it does not guarantee that the
foreign national will be admitted to the United States. The CBP agents at the
port of entry have concurrent authority with the consular officers abroad to
decide whether the foreign national qualifies as a nonimmigrant intending
to stay in the United States temporarily and whether there are any reasons
he or she cannot be legally permitted to enter the United States.
Immigrant Visas
Persons seeking to immigrate to the United States and obtain legal per-
manent residence (often called LPR status or a green card) can be generally
grouped into four categories:
FAMILY-SPONSORED: Persons who are relatives of U.S. citizens and/or
permanent residents.
EMPLOYMENT-SPONSORED: Persons with offers of employment in occu-
pations in which U.S. workers are in short supply; certain highly talented
foreign nationals who may enter the country regardless of the availability of
U.S. workers and, in some instances, regardless of job offers; entrepreneurs
investing in the United States; and certain special immigrants (see below).
DIVERSITY: Persons from countries that historically have low levels of
immigration to the United States, who are allotted visas through a lottery
process.
HUMANITARIAN STATUS: Persons who qualify for asylee or refugee status.
Those receiving employment-sponsored visas are further divided into
preference categories, with a total pool of 140,000 visas per year allocated to
workers and their dependent family members.
EB-1: First Employment-Based Preference (40,000 visas/year):
EB-1A: Extraordinary AbilityEB-1B: Outstanding Professors and ResearchersEB-1C: Multinational Executives and Managers
EB-2: Second Employment-Based Preference (40,000 visas/year):
EB-2A: Advanced Degrees EB-2B: Exceptional Ability ProfessionalEB-2C: National Interest Waiver
EB-3: Third Employment-Based Preference (40,000 visas/year; including ~5,000 visas/year for EB-3Cs):
EB-3A: Skilled WorkersEB-3B: ProfessionalsEB-3C: Other Workers
EB-4: Fourth Employment-Based Preference (10,000 visas/year):
Certain Special Immigrants and Religious Workers
EB-5: Fifth Employment-Based Preference (10,000 visas/year):
Employment Creation Immigrant Investors
16 COUNCIL FOR GLOBAL IMMIGRATION
The Quotas
While the spouses and minor children of U.S. citizens and some
special immigrants may enter the United States without regard to any
numerical limitations, the admission of most family-sponsored or
employment-sponsored foreign nationals is restricted numerically,
both as to the maximum number of persons in each preference category
and as to the maximum number of persons permitted from each foreign
country, known as the per-country caps.
Each preference category has its own set of skill requirements, quotas
and per-country caps. Some categories allow a foreign national to obtain
permanent residence in a relatively short period of time, while others can
take decades due to processing delays, insufficient quotas in the category
or insufficient quotas for persons from particular countries.
The Process
Employers seeking to hire foreign nationals on a permanent basis are
required in most cases to obtain labor certification from the DOL showing
that there are no able, willing, qualified and available U.S. workers for the
position. The current electronic filing system for labor certification is known
as PERM. EB-1 and some EB-2 workers are exempt from this requirement.
Once the individual labor certification is obtained, or it is determined that
there is no such requirement for the foreign national, the employer files a
petition with USCIS, which determines whether the foreign national quali-
fies for classification in one of the employment-based preference categories.
An intending immigrant is then assigned a priority date based upon when
the initial paperwork was filed, either with the DOL or USCIS, to determine
the order in which his or her petition will be considered for a green card.
Since demand for green cards has consistently exceeded the annual supply,
many of the categories are severely backlogged, meaning that only those
with priority dates from many years ago are able to obtain an immigrant
visa number today. Each month the DOS publishes a Visa Bulletin with two
charts related to employment-based preference cases: 1) final action dates
and 2) dates for filing visa applications. A foreign national may follow one
of two paths for the final step in applying for permanent residence.
If the foreign national already holds valid nonimmigrant status in the
United States, this process is known as adjustment of status. Each month,
USCIS makes a determination as to whether it will honor only final action
dates or whether it will also honor dates for filing visa applications from
the Visa Bulletin for purposes of filing for adjustment of status. A foreign
national may file for adjustment of status when his or her priority date is on
or prior to the date indicated in the chart chosen by USCIS for that month.
While the foreign national becomes eligible for ancillary benefits, like work
authorization, upon application for adjustment of status, he or she will not
receive permanent residence until an immigrant visa number becomes
immediately available based upon the final action date.
If the foreign national applies abroad, it is known as consular processing. In
this case, the foreign national may file a visa application based upon the
dates for filing visa applications in the Visa Bulletin, but he or she will not
receive permanent residence until an immigrant visa number becomes
immediately available based upon the final action date.
For either path, the government will determine whether the foreign
national or any accompanying family member is subject to one of the
grounds of inadmissibility specified in the immigration law. These grounds
include a review of criminal, health, financial and other records that could
block a foreign national’s entry into the country.
Legal permanent residents (LPRs) have most of the rights and responsibili-
ties of U.S. citizenship, with one significant exception: They are not per-
mitted to vote in federal elections. In addition, if an LPR leaves the United
States for an extended period of time, he or she may have to take additional
steps to “maintain status,” or the U.S. government may presume that the
LPR has abandoned his or her status as a legal permanent resident. U.S.
permanent residents are eligible to apply for U.S. citizenship after passage
of a period of time mandated by the immigration laws, generally five years.
COUNCIL FOR GLOBAL IMMIGRATION 17
FIGURE 7
TYPICAL PATH FOR HIGHLY EDUCATED U.S. UNIVERSITY GRADUATE TO GREEN CARD
* To learn more about the fees listed in this figure see pages 22-23
** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced.
STEP 1 • Agencies: DOS, DHS (ICE/Student Exchange Visitor Program)
• Cost: about $445
• Time: 2-5+ years depending on degree earned
STEP 2 • Agencies: DOL, DHS (USCIS)
• Cost: Up to $11,675 per filing*
• Time: Up to 6 years in H-1B status (longer where there are waits for green card availability)
STEP 4 • Agencies: DHS (USCIS), DOS
• Cost: Up to $14,045*
• Time: Months to process petition, but green card availability can take up to 10 years. Application for green card undergoes security background check that can take months
STEP 3 • Agencies: DOL
• Cost: about $1,000–$5,000 advertising and recruiting costs + attorney fees*
• Time: At least six months (while employee is in H-1B status)
STUDENT APPLIES FOR
A VISA TO EARN A U.S. UNIVERSITY
DEGREE
1EMPLOYER HIRES U.S. UNIVERSITY GRADUATE ON
H-1B VISA WHEN NEED EXISTS **
EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS
AVAILABLE
FILE PETITION, WAIT FOR GREEN
CARD AVAILABILITY THEN APPLY FOR
GREEN CARD
• Agencies: DHS, DOL, DOS • Cost: Up to $37,395+• Time: Up to 22+ years
START
2
3 4
if approved receive
green card
FINISH
18 COUNCIL FOR GLOBAL IMMIGRATION
FIGURE 8
TYPICAL PATH FOR HIGHLY EDUCATED OVERSEAS GRADUATE TO GREEN CARD
* To learn more about the fees listed in this figure see pages 22-23.
** By law H-1Bs must receive the same wages, benefits and working conditions as U.S. workers. Sometimes DOL approval is required to show no U.S. workers will be displaced
STEP 2 • Agencies: DOL, DHS (USCIS)
• Cost: about $1,000–$5,000 advertising and recruiting costs + attorney fees*
• Time: At least six months (while employee is in H-1B status)
STEP 3 • Agencies: DHS (USCIS), DOS
• Cost: Up to $14,045*
• Time: Months to process a petition, but waits for green card availability can be up to 10 years, Application for green card undergoes security background check that can take months
START
EMPLOYER HIRES GRADUATE ON
H-1B VISA FROM OVERSEAS WHEN
NEED EXISTS**
1EMPLOYER TESTS LABOR MARKET TO ENSURE NO U.S. WORKERS
AVAILABLE
2
FILE PETITION, WAIT FOR GREEN CARD
AVAILABILITY THEN APPLY FOR GREEN CARD
3
• Agencies: DOS, DHS (USCIS)
• Cost: Up to $11,675 per filing*
• Time: Up to nine months to file and receive H-1B visa, up to 6 years in H-1B status (longer if waits for green card availability)
STEP 1
FINISH
if approved receive
green card
• Agencies: DHS, DOL, DOS • Cost: Up to $37,395+• Time: Up to 17 years
COUNCIL FOR GLOBAL IMMIGRATION 19
Worksite Enforcement
Prior to 1986, employers were not subject to federal civil and criminal penalties for the unauthorized
employment of foreign nationals, although such penalties existed within the laws of some states.
With the passage of the Immigration Reform and Control Act of 1986 (P.L. 99-603), employers were
prohibited from knowingly hiring or continuing to employ any individual who was unauthorized to
work in the United States, and were also required to verify the employment eligibility of all new hires,
including U.S. citizens. This verification is recorded on Form I-9. In 1996, Congress authorized the gov-
ernment to pilot three electronic employment verification systems. The only one that remains today is
known as E-Verify. E-Verify is voluntary except where it is mandated by federal, state or local law. This
is a rapidly evolving area of the law and will continue to be until Congress mandates use of one federal
employment verification system.
Generally, within three days of a new hire beginning employment, any employer in the United States
must complete a Form I-9 by examining one or more documents approved by the DHS that establish
the employee’s identity and authorization to work in the United States. After inspecting the employ-
ee’s documents and determining that they appear to be genuine, the employer and employee make
certain attestations on Form I-9. These records must be maintained for at least three years after the
date of hire, or for one year after the employment relationship is terminated—whichever is later.
If the employer is enrolled in E-Verify, the employer enters information from the completed Form I-9
into the system, which then compares that information to the government’s records in order to pro-
vide the employer with a determination of whether the employee is work-authorized. If a discrepancy
arises, the employer and employee must take certain steps to resolve the issue.
Certain employees may have only temporary authorization to work in the United States. In those
situations, the employer must reverify the employee’s eligibility status on the Form I-9 before the
date that the temporary authorization expires. If the employer discovers that an employee lacks work
authorization, or that the employee’s authorization to work has expired (and cannot immediately be
reverified), the employer must terminate the employment relationship.
The obligation to verify work authorization must be carefully balanced with the concurrent legal duty not
to discriminate against persons based upon their national origin, citizenship or immigration status—an
important part of our law enforced by the DOJ’s Immigrant and Employee Rights Section (IER). Significant
civil fines and criminal penalties can be assessed against employers that fail to properly verify work
authorization or that engage in discriminatory behavior. The greatest challenge confronting employers is
that this system can be defeated by individuals using stolen identities. Efforts to make the system more
secure have been insufficient to date.
20 COUNCIL FOR GLOBAL IMMIGRATION
68%
EMPLOYMENT-BASED IMMIGRATION RESOURCES
IMMIGRATION IS AN INVESTMENT IN TOMORROW’S WORKPLACE. ON AVERAGE, MORE THAN $35,395 IS SPENT ON FILING FEES ALONE OVER THE LIFETIME OF A FOREIGN NATIONAL PROFESSIONAL’S CAREER.
22 COUNCIL FOR GLOBAL IMMIGRATION
FEES FOR KEY EMPLOYMENT-BASED VISAS AND GREEN CARDS4
For employers, immigration is an investment in tomorrow’s workplace. In addition to salaries and
benefits for employees working in the immigration function, employers must plan for government
fees and anticipate the use of outside counsel. Some examples of the most common immigration
government fees for multinational employers follow.
VISA APPLICATION FEES ATTORNEY FEES5 OTHER FEES AND COSTS TOTAL
H-1B VISA & EXTENSION
$460 employer pays
$1,000 – $3,000 employer pays fees related to filing the labor condition application and the H-1B petition and typically pays other attorney fees
$1,500 education and training fee (for employers with over 25 employees) or $750 (for employers with 25 or fewer employees) employers pay, unless exempt6
Initial H-1B: $3,460–$11,675
Extension: $2,960–$11,675
$500 anti-fraud fee (employer pays, but not required if extension with same employer)
$1,225 (optional) premium processing (employer or employ-ee may pay, employer typically pays and employee may pay for personal travel)
$4,000 (50/50 fee) for employers with over 50% H-1B/L-1 in their U.S. workforce (employer pays)7
$190 visa application processing; $0 – $800 visa issuance/ reciprocity
L-1 VISA & EXTENSION
$460 employer pays$1,000 – $3,000 employer pays fees related to filing the L-1 petition and typically pays other attorney fees
$500 anti-fraud fee (employer pays, but not required if extension with same employer)
Initial L-1: $1,960–$10,675
Extension: $1,460–$10,675
$1,225 (optional) premium processing (employer or employ-ee may pay, employer typically pays and employee may pay for personal travel)
$4,500 (50/50 fee) for employers with over 50 employees and over 50% H-1B/L-1 in their U.S. workforce (employee pays)8
Additional fees consular-processed: $190 visa application processing; $0 – $800 visa issuance/reciprocity
COUNCIL FOR GLOBAL IMMIGRATION 23
VISA APPLICATION FEES ATTORNEY FEES OTHER FEES AND COSTS TOTAL
H-4 OR L-2 DEPENDENT
$370 employer often pays, but not required
$450 – $750 employer often pays, but not required
Additional fees if consular-processed: $190 visa application processing; $0 – $400 visa issuance/reciprocity
$820–$1,710
LEGAL PERMANENT RESIDENCE
(GREEN CARD)
$1,925 employment-based green card fee ($700 Form I-140; $1,140 Form I-485; $85 biometric fee)9 employer is not required to pay but the I-140 is filed by and typi-cally paid for by the employer
Additional fees if consular- processed: $430 ($345 immigrant visa application fee per person; $85 biometrics fee)–fees same for each family member
$5,000 or more (includes legal fees for labor certification work, adjustment, consular processing); $500 per family member; $500 per employment autho-rization document extension; $500 per advance parole extension (employer to pay attorney fees for green card if the same attorney represents both employer and employee)
$1,000 – $5,00010 estimated cost for advertising/recruiting will vary depending on location, dates and length of advertis-ing, including if supervised recruitment should apply (employer must pay for labor certification costs, cannot ask employee to reimburse)
$1,225 (optional) premium processing for Form I-140 (available for certain EB-1, EB-2 and EB-3 applicants)
$150-$300+ estimated cost for medical exam and any necessary vaccinations (employee may pay)
$165 covers costs of processing immigrant visa packages after visa holders receive their packages from the Department of State and are admitted into the United States.11
$8,075–$14,045
(does not include family members, legal fees for EAD or advance parole extension costs that may be due to process-ing delays)
GRAND TOTAL FOR H-1B TO GREEN CARD: $14,495 – $37,395 +
GRAND TOTAL FOR L-1 TO GREEN CARD: $11,495 – $35,395+
24 COUNCIL FOR GLOBAL IMMIGRATION
A SELECT HISTORY OF MAJOR EMPLOYMENT-BASED IMMIGRATION PROVISIONS IN U.S. LAW
Over the past three decades, several key immigration acts have changed
U.S. law, at times significantly reforming the employment-based immigra-
tion system and impacting the way employers manage their workforces.
The following is a detailed summary of the major laws that Congress has
enacted since 1986 that are of particular interest to U.S. employers.
The Immigration Reform Act of 1986 (IRCA) (P.L. 99-603)
• Required employers to attest to all employees’ identities and employment
eligibility verification by completing a Form I-9.
• Created tough new penalties for employers who know or have reason to
know that they are employing or recruiting unauthorized workers.
• Prohibited employers from discrimination in employment because of an
applicant’s national origin or citizenship status.
• Created the SAVE (Systematic Alien Verification for Entitlements) program
to allow the government to obtain information on immigrant status to
determine eligibility for public benefits.
• Created a pilot diversity visa program to enable persons from countries
with historically low immigration rates to apply for one of 5,000 (now
55,000) permanent resident visas.
• Created the Visa Waiver Pilot Program, which currently allows citizens
from (now 38) countries to travel to the United States for up to 90 days
without a visa.
The Immigration Act of 1990 (IMMACT90) (P.L. 101-649)
• Modified the employment-based (EB) preference
system by establishing five categories of EB
immigration.
• Placed a worldwide cap on EB immigration of
140,000 visas per year.
• Divided high-skilled temporary workers into
distinct temporary work visa categories.
• Placed a numerical cap on the H-1B program of
65,000 visas per year.
• Replaced the previous standard of distinguished
merit and ability with specialty occupation in the
H-1B visa category.
• Codified the doctrine of dual intent for H-1 and
L-1 visa applications.
• Required that prospective employers of H-1Bs
file a labor condition application with the
Department of Labor (DOL) attesting that
they pay the higher of the actual wage or the
prevailing wage.
• Limited the maximum length of stay for H-1
nonimmigrants to six years.
• Created the blanket L-1 program, permitting
qualifying employers to expedite global
transfers by filing a single petition for a group
of nonimmigrants, rather than individual
petitions.
• Raised existing fines for any use or acceptance
of fraudulent documents.
• Established the O and P visa categories for ath-
letes and entertainers, Q visas for international
cultural exchange.
COUNCIL FOR GLOBAL IMMIGRATION 25
• Modified criminal inadmissibility waiver
requirements and increased the number of
crime-related grounds of inadmissibility.
• Expanded the diversity visa pilot program into a
permanent visa category that allots 55,000 visas
annually to qualified applicants selected in an
annual lottery. Required individuals receiving
diversity visas to possess at least a high school
education or its equivalent, or have at least two
years of work experience.
• Expanded provisions under Immigration-related
Unfair Employment Practices to include pro-
tection against employer retaliation, requests
for unnecessary documentation and defenses
based on failure to file declarations of intending
citizenship.
• Imposed new certifications on foreign
physicians.
• Established the temporary protected status
(TPS) program, allowing the government to
designate nationals of countries experiencing
political, civil or environmental strife to remain
in the United States for up to 18 months.
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (P.L. 102-232)
• Eliminated the numerical limits on P visas.
• Clarified requirements for extraordinary ability,
international recognition and one-year affilia-
tion for O visas.
• Clarified requirements for labor condition
applications.
• Allowed certain doctors and fashion models to
qualify for H-1B visas.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (P.L. 104-208)
• Required entry and exit control systems to track
nonimmigrant visa overstays and established
a requirement for biometric machine-readable
identifiers for border crossing cards.
• Created new grounds of inadmissibility,
including three- and 10-year bars to re-entry
for persons unlawfully present in the United
States. Nonimmigrant visas are automatically
invalidated upon an overstay, and such nonim-
migrant must return to his or her home country
to obtain a new visa.
• Permanently barred those who falsely claim
to be U.S. citizens from becoming permanent
residents.
• Redefined aggravated felony to include any crime
or theft or violence for which a one-year sen-
tence may be imposed.
• Created the voluntary basic pilot program now
called E-Verify.
• Prohibited fines against employers for technical
Form I-9 paperwork errors made in good faith.
• Required proof of discriminatory intent for an
employee to prevail in an immigration-related
unfair employment practices claim.
• Made the Visa Waiver Program permanent.
• Prohibited F-1 students from attending public
schools other than secondary schools, and then
only for 12 months if they reimburse the school
for attendance costs.
• This act was originally intended to be retro-
active, but legal challenges have limited its
retroactive reach.
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (P.L. 105-277)
• Required H-1B dependent employers (em-
ployers with 15 percent or more of their U.S.
workforce on H-1Bs) to attest there have been
no layoffs of U.S. workers 90 days before or after
the filing of an H-1B petition.
• Required that H-1B dependent employers take
good faith steps to recruit U.S. workers that are
equally or better qualified for a job for which a
foreign national worker is sought.
• Increased the H-1B cap to 115,000 for FY 1999
and FY 2000.
• Imposed the initial H-1B education and training
fee of $500.
American Competitiveness in the 21st Century Act of 2000 (P.L. 106-313)
• Increased the H-1B cap to 195,000 for FY 2001-
2003, retroactively raising the cap for FY 2001,
to accommodate the existing backlog in these
years.
• Increased the H-1B fee from $500 to $1,000 and
exempted specific nonprofits, institutions of
higher education and governmental research
organizations from the H-1B education and
training fee as well as the cap.
• Required visas obtained by fraud or misrepre-
sentation to be recaptured and restored to the
H-1B cap.
• Required that H-1B employees may only be
counted against the H-1B cap for initial peti-
tions. H-1Bs employed at institutions of higher
26 COUNCIL FOR GLOBAL IMMIGRATION
education or related nonprofits, or nonprofit or
governmental research organizations are not
counted against the cap.
• Allowed for H-1B visa portability by permitting
employees to accept new employment upon
the filing of a non-frivolous petition by a
prospective employer.
• Allowed unused employment-based visas to
be used for employees from oversubscribed
(high-demand) countries.
• Allowed certain EB-1, EB-2 or EB-3 beneficia-
ries who are not able to obtain a visa due to
per-country limitations to obtain H-1B exten-
sions beyond six years and to change employers.
• Allowed EB-1, EB-2 or EB-3 beneficiaries whose
adjustment of status application has been
pending 180 days or more to change employers
without affecting their applications if the new
job is in the “same or similar” occupational
classification as the job for which the petition
was filed.
• Allowed B-1 business visitors to accept hono-
rarium payments and incidental expenses for
certain academic activities.
USA Patriot Act of 2001 (P.L. 107-56)
• Required the National Institute of Standards
and Technology to develop a technology
standard to verify the identity of persons
applying to enter and exit the United States.
This program is now a part of the Office of
Biometric Identity Management (formerly
US-VISIT). Ultimately, the United States aims to
create a cross-agency, cross-platform electronic
system to conduct background checks, confirm
identities, collect biometric information and
ensure that people do not receive visas under
varying names.
• Permitted the U.S. Citizenship and Immigration
Services (USCIS) and the Department of State
(DOS) to receive information from the Federal
Bureau of Investigation’s National Crime Infor-
mation Center database and allowed the DOS
to share information with foreign governments
through a visa lookout database.
• Established grounds of inadmissibility for
soliciting funds for terrorist groups or activities,
or commission of any act that one knows or
should have known affords material support
to terrorist groups or individuals.
• Required government to implement entry/exit
data system for all land, sea and airports.
• Allowed DOS to share information in the visa
lookout database with foreign governments.
Work Authorization for Spouses of Treaty Traders and Treaty Investors (P.L. 107-124)
• Permitted the spouses of E (treaty trader and
investor) visa employees the opportunity to
seek work authorization.
Work Authorization for Nonimmgrant Spouses of Intracompany Transferees (P.L. 107-125)
• Permitted the spouses of L-1 (intracompany
transferees) visa employees the opportunity
to seek work authorization and reduced the
period of time during which certain intra-
company transferees have to be continuously
employed before applying for admission to the
United States.
Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)
• Required Visa Waiver Program countries to issue
machine-readable, tamper-resistant passports
with biometric identifiers.
• Implemented a tracking system for F, M and J
visas (SEVIS) and required designated school
officials to notify the Department of Homeland
Security (DHS) of any foreign national student
who does not report to school and enroll within
30 days of the school’s registration deadline.
• Required the implementation of an inte-
grated entry and exit database containing
arrival and departure information gleaned
from machine-readable visas, passports and
other travel and entry documents. Originally
mandated by section 110 of IIRAIRA as a pilot
program, this program is now run by the Office
of Biometric Identity Management (formerly
US-VISIT).
• Required the government to make all security
databases involved in determining the admissi-
bility of foreign nationals interoperable.
• Restricted issuance of nonimmigrant visas to
nationals of countries determined to be state
sponsors of terrorism.
• Required USCIS to determine that foreign
nationals do not appear in federal lookout
databases.
COUNCIL FOR GLOBAL IMMIGRATION 27
Homeland Security Act of 2002 (P.L. 107-296)
• Abolished the Immigration and Naturalization
Service.
• Brought immigration within the purview of the
newly created DHS, dividing responsibility for
immigration management between Immigra-
tion and Customs Enforcement (ICE), Customs
and Border Protection (CBP) and USCIS.
• Established an Ombudsman to assist USCIS
stakeholders in resolving problems with the
agency and proposing changes to the system.
• The DHS secretary was given ultimate authority
to enforce the Immigration and Nationality Act
(INA) and issue pertinent regulations, although
this does not affect the DOS’s authority under
the INA, including the authority to deny a visa.
• Denied private rights of action regarding visa
denials or visa issuance.
L-1 Visa and H-1B Visa Reform Act of 2004 (P.L. 108-447)
• Created an H-1B cap exemption for up to
20,000 U.S. university master’s degrees and
Ph.D. graduates.
• Raised the H-1B education and training fee to
its current level of $1,500 for petitioners that
employ more than 25 employees and $750 for
petitioners that employ 25 employees or fewer.
• Improved methodology for prevailing wage
determinations.
• Expanded the Secretary of Labor’s authority
to investigate labor condition application
violations.
• Modified attestation requirements for H-1B
dependent employers.
• Established a good-faith exception for technical
failures to comply with labor condition applica-
tion rules.
• Initiated a $500 fraud prevention and detection
fee for initial H-1B and L-1 petitions.
• Required that blanket L-1s be employed abroad
by the petitioner for 12 months, up from six
months.
• Required that employees seeking to enter the
Unites States on any L-1B visa (initial petition
or extension) who will be stationed primarily
at the worksite of an employer other than the
petitioner, affiliate, subsidiary or parent, be
ineligible for L-1B status if: (1) the worker will
be controlled and supervised principally by that
employer; or (2) the placement of the worker
at the unaffiliated worksite is essentially an
arrangement to provide labor for hire for the
unaffiliated employer.
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
• Required most nonimmigrant visa applicants
to submit to an in-person interview before a
consular officer overseas.
• Required that nonimmigrant visa holders and
U.S. citizens enter the United States with pass-
ports or other DHS-approved documents.
The Real ID Act of 2005 (P.L. 109-13)
• Set standards for state-issued driver’s licenses
and identification documents, including proof
of lawful status.
• Recaptured employment-based visas that went
unused in previous fiscal years due to agency
processing delays (approximately 50,000 visas),
for use by nurses and physical therapists.
• Created the E-3 visa, allowing up to 10,500 visas
per year for Australian nationals to enter the
United States to perform specialty occupation
services.
The Emergency Border Security Supplemental Appropriations Act of 2010 (P.L. 111-230)
• Funded $600 million in border security efforts
from August 13, 2010, until September 30, 2014,
by imposing a new H-1B fee of $2,000 and L-1
fee of $2,250 on employers whose U.S. workforces
have 50 or more workers and more than 50 per-
cent H-1B and L-1 nonimmigrant workers.
The James Zadroga 9/11 Health and Compensation Act of 2010 (P.L. 111-347)
• Extended the H-1B and L-1 visas fees set
out in P.L. 111-230 by one year until
September 30, 2015.
Easing Service Members’ Ability to Remove Conditional Residency Act of 2011 (P.L. 112-58)
• Amended the Immigration and Nationality Act
to toll, during active-duty service abroad in the
Armed Forces, the periods of time to file a peti-
tion and appear for an interview to review the
conditional basis for permanent resident status.
28 COUNCIL FOR GLOBAL IMMIGRATION
E-2 Immigration Extenders Act of 2012 (P.L. 112-176)
• Permitted eligible Israeli nationals to receive
an E-2 nonimmigrant visa, if similarly situated
United States nationals are eligible for similar
nonimmigrant status in Israel.
The Immigration Extenders Act of 2012 (P.L. 112-176)
• Extended the authorization of the EB-5 Re-
gional Center program, the Special Immigrant
Non-Minister Religious Worker program, the
E-Verify program and the Conrad State 30 J-1
Visa Waiver Program until September 30, 2015.
The Consolidated Appropriations Act of 2016 (P.L. 114-113)
• Extended the authorization of the EB-5 Re-
gional Center program, the Special Immigrant
Non-Minister Religious Worker program, the
E-Verify program and the Conrad State 30 J-1
Visa Waiver Program until September 30, 2016.
Implemented the H-2B returning worker ex-
emption until September 30, 2016.
• Increased and extended P.L. 111-230 H-1B and
L-1 fees to $4,000 an H-1B and $4500 an L-1 on
employers whose U.S. workforces have 50 or
more workers and more than 50 percent H-1B
and L-1 nonimmigrant workers. The fees apply
to initial and change of status filings. The in-
creased fee amounts are extended for ten years
until September 30, 2025. The fees go to fund
9/11 first responders and biometric entry and
exit efforts.
• Added Visa Waiver Program (VWP) Security
Measures. Enacted the Visa Waiver Program
Improvement and Terrorist Travel Prevention
Act of 2015 (H.R. 158). Effective on enactment,
employers’ executives, contractors and other
key professionals must apply for a visa and may
not use the VWP if they are a national of Iraq or
Syria or if they have traveled to Iraq, Iran, Sudan
or Syria as of March 1, 2011. An exemption ex-
ists for VWP travelers who were present in any
of these countries to perform military service in
the armed forces of a VWP country or to carry
out official duties as a full-time employee of the
government of a VWP country. The Department
of Homeland Security may also waive the provi-
sion if it determines that such a waiver is in the
law enforcement or national security interests
of the United States.
The Continuing Appropriations Act of 2017 (P.L. 114-223)
• Extended the authorization of the EB-5 Re-
gional Center program, the Special Immigrant
Non-Minister Religious Worker program, the
E-Verify program and the Conrad State 30 J-1
Visa Waiver Program until December 9, 2016.
Did not extend the H-2B returning worker ex-
emption in P.L. 114-113.
The Further Continuing and Security Assistance Appropriations Act of 2017 (P.L. 114-254)
• Extended the authorization of the EB-5 Re-
gional Center program, the Special Immigrant
Non-Minister Religious Worker program, the
E-Verify program and the Conrad State 30 J-1
Visa Waiver Program until April 28, 2017. Did
not extend the H-2B returning worker exemp-
tion which expired on September 30, 2016.
GLOSSARY OF KEY TERMS
Departments and Agencies
CITIZENSHIP AND IMMIGRATION SERVICES (CIS) OMBUDSMAN: The CIS
Ombudsman role was created by Congress in the Homeland Security Act of
2002. The CIS Ombudsman is appointed to help employers and individuals
navigate the immigration benefits system.
DEPARTMENT OF COMMERCE (DOC), BUREAU OF INDUSTRY AND SECURITY: Within the DOC, this bureau issues export control licenses in cases where a
foreign national will work with sensitive technologies.
DEPARTMENT OF HOMELAND SECURITY (DHS): The DHS has multiple roles
in the U.S. immigration system including, but not limited to, welcoming
foreign nationals to our shores, securing our borders, conducting immigra-
tion enforcement at worksites and tracking immigration statistics.
DHS, STUDENT AND EXCHANGE VISITOR PROGRAM (SEVP) WITHIN U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: SEVP acts as a bridge for
government organizations that have an interest in information on nonim-
migrants whose primary reason for coming to the United States is to be a
student or an exchange visitor, including overseeing the rules for Optional
Practical Training (OPT).
DHS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS): USCIS oversees
lawful immigration to the United States, adjudicating most applications for
immigrant and nonimmigrant visas.
DHS, U.S. CUSTOMS AND BORDER PROTECTION (CBP): CBP is responsible
for admitting travelers through the United States’ air, land and sea ports
of entry.
DHS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE): ICE is
responsible for enforcing immigration laws at worksites.
DEPARTMENT OF JUSTICE (DOJ), EXECUTIVE OFFICE OF IMMIGRATION REVIEW (EOIR): Works to adjudicate immigration cases by fairly, expe-
ditiously and uniformly interpreting and administering the nation’s
immigration laws. Under delegated authority from the attorney general,
EOIR conducts immigration court proceedings,
appellate reviews and administrative hearings.
DOJ, IMMIGRANT AND EMPLOYEE RIGHTS SECTION (IER): Part of the Department of Justice’s Civil
Rights Division, enforces the anti-discrimination
portion of the Immigration and Nationality Act
(INA).
DEPARTMENT OF LABOR (DOL): The DOL is
responsible for protecting the rights and working
conditions of both U.S. and foreign workers. The
DOL’s Bureau of Labor Statistics analyzes, collects,
processes and disseminates labor economics
statistical data to Congress, other federal
agencies and the public.
DOL, OFFICE OF FOREIGN LABOR CERTIFICATION WITHIN THE EMPLOYMENT AND TRAINING ADMINISTRATION: One of the agencies involved in
granting permission for foreign workers to work
in the United States, and assuring that the admis-
sion of foreign workers in certain categories on a
permanent or temporary basis will not adversely
affect the job opportunities, wages and working
conditions of U.S. workers.
DEPARTMENT OF STATE (DOS), BUREAU OF CONSULAR AFFAIRS, OFFICE OF VISA SERVICES: Serves as a liaison with the Department of
Homeland Security and between the DOS and
U.S. embassies and consulates abroad on visa
matters; interprets visa laws and regulations and
acts as a point of contact for the public.
DOS, BUREAU OF CONSULAR AFFAIRS, U.S. EMBASSIES AND CONSULATES ABROAD: Issue
visas to eligible foreign nationals coming to the
United States.
COUNCIL FOR GLOBAL IMMIGRATION 29
DOS, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS (ECA): Works to
build friendly, peaceful relations between the people of the United States
and the people of other countries through academic, cultural, sports and
professional exchanges, as well as public-private partnerships.
Nonimmigrant VisasTemporary Employment for Professionals
DUAL INTENT: Dual intent represents the ability of a nonimmigrant visa
holder to reside temporarily in the United States with the intent to immi-
grate permanently. The ability to hold dual intent varies with each visa
category.
E-3 (SPECIALTY OCCUPATION PROFESSIONALS FROM AUSTRALIA): E-3 visas
are similar to H-1B visas but are available only to nationals of Australia
pursuant to a free trade agreement between Australia and the United States.
There are 10,500 visas available annually to those who qualify. The applica-
tion procedures differ somewhat from H-1B visas.
H-1B (FOREIGN NATIONALS IN SPECIALTY OR PROFESSIONAL OCCUPATIONS): H-1B visas are used by U.S. employers to hire foreign nationals who possess
at least a bachelor’s degree, or equivalent work experience, who will hold a
professional occupation in the United States. The employer must file a labor
condition application attesting that the working conditions will be equal to
those offered to U.S. workers. Visas may be issued for an initial period of up
to three years, which can be extended for an additional three years and, at
times, for a seventh year and beyond. Dual intent is allowed. H-4 visas are
issued to family members. There is an annual limit of 65,000 regular H-1B
visas and an additional 20,000 visas for advanced degree graduates of U.S.
universities.
H-1B1 (PROFESSIONALS FROM CHILE AND SINGAPORE): H-1B1 visas are
equivalent to H-1B visas but are available only to nationals of Chile and
Singapore pursuant to free trade agreements between those countries and
the United States. The application procedures differ somewhat from H-1B
visas. There are 6,800 H-1B visas reserved from the 65,000 H-1B cap for this
category each year.
LABOR CONDITION APPLICATION (LCA): Employers of H-1B professionals are
required to file an attestation with the Department of Labor that the foreign
national will receive the same wages, benefits
and working conditions as U.S. workers. Employ-
ers must also attest that they have provided
notice of the hiring of an H-1B worker to labor
officials and other employees.
O (FOREIGN NATIONALS OF EXTRAORDINARY ABILITY IN THE SCIENCES, THE ARTS, EDUCATION, BUSINESS OR ATHLETICS): O-1 visas are used by
U.S. employers for foreign nationals who possess
“extraordinary ability” in the sciences, the arts,
education, business or athletics. O-2 visas are
issued to accompanying support personnel and
O-3 visas to accompanying family members. Visas
may be issued for an initial period of up to three
years, which can be extended.
P-1 (OTHER ENTERTAINERS AND ATHLETES): P-1
visas are used by U.S. employers for internation-
ally recognized entertainers and athletes who do
not qualify for O visas. The visa may be used for
entertainment groups or sports teams and may
be available for essential support personnel.
P-2 (OTHER ENTERTAINERS AND ARTISTS): P-2
visas are for artists and entertainers (as well as
groups and essential support personnel) coming
to the United States through reciprocal exchange
programs.
TN (BUSINESS PERSONS FROM CANADA AND MEXICO): The North American Free Trade Agree-
ment (NAFTA) provides certain privileges to U.S.,
Canadian and Mexican business professionals
traveling between the three countries. NAFTA
enables Canadians and Mexicans to enter the
United States on B, E and L visas in an expedited
manner, and creates a special TN visa for certain
30 COUNCIL FOR GLOBAL IMMIGRATION
Canadian and Mexican professionals who may
work for a U.S. employer, be self-employed or
enter pursuant to a contract with a U.S. company.
Family members are issued TD visas. TN visas
may be issued for an initial period of up to three
years but can be extended almost indefinitely.
Intracompany Transfers and Investors
E-1 AND E-2 (TREATY TRADERS AND INVESTORS): E visas are available to companies and individ-
uals pursuant to treaties between the United
States and over 80 other countries.12 The E-1 visa
supports trade activities, and the E-2 visa pro-
motes investment. The United States maintains
both types of treaties for some countries and just
one type with others. Both the foreign national
and the company must be nationals of the treaty
country. Family members receive the same type
of visa as the principal beneficiary. E visas may
be issued for an initial period of up to two years
but can be extended almost indefinitely.
L-1A (INTRACOMPANY EXECUTIVES AND MANAGERS): The L-1A visa allows a U.S. organiza-
tion to transfer an executive or a manager from
a parent company, subsidiary or other affiliate
abroad to the United States. The employee must
have worked for the organization abroad for
at least one of the previous three years. Family
members receive L-2 visas. L-1A visas may be
issued for an initial period of up to three years
and can be extended for a total stay of seven
years. Dual intent is allowed.
L-1B (INTRACOMPANY SPECIALIZED KNOWLEDGE PROFESSIONAL): The L-1B visa allows a U.S.
organization to transfer workers with special
knowledge of the employer’s business, products
or services from an overseas parent company,
subsidiary or other affiliate to the United States.
The employee must have worked for the orga-
nization abroad for at least one of the previous
three years. Family members receive L-2 visas.
L-1B visas may be issued for an initial period of
up to three years and can be extended for a total
stay of five years. Dual intent is allowed.
Trainees, Interns and Students
H-3 (TRAINEE): U.S. employers can use the H-3
visa to bring foreign nationals to the United
States to participate in an established training
program. The trainee cannot engage in produc-
tive employment in the United States. Family
members are given H-4 visas. H-3 visas may be
issued for a maximum period of two years.
J (EXCHANGE VISITORS): The J category is very
broad and encompasses a variety of exchange
visitor programs and activities that are approved
by the Department of State (DOS) to promote
intercultural exchange and public diplomacy.
Unlike other visas that are administered by
United States Citizenship and Immigration
Services, J visas are issued through sponsor
organizations that have been approved by the
DOS. Exchange visitors can include the following:
students, trainees, interns, research scholars,
professors, specialists, foreign medical graduates,
summer work travel, au pairs, international and
government visitors, and camp counselors. Each
J-1 category has its own criteria for participation
and limits on length of stay and permissible
activities. Family members are given J-2 visas.
OPTIONAL PRACTICAL TRAINING (OPT) FOR F-1 STUDENTS (WORK AUTHORIZATION FOR STUDENTS): Foreign nationals engaged in
academic study at an accredited U.S. college
or university may be eligible to engage in work
related to their studies. F-1 students may
engage in up to 12 months of OPT pre- and/or
post-graduation. OPT can be extended for certain
graduates in science, technology, engineering and
mathematics fields up to 24 months (for a total
of 36 months of OPT)—subject to new obligations
for employers, including a training plan, attes-
tations and potential site visits. Some students
may also be eligible for on-campus employment
or training incidental to their course of study
known as Curricular Practical Training (CPT).
Q (INTERCULTURAL EXCHANGE VISITORS): Similar
to the J visa, the Q visa promotes intercultural
exchange through training and work opportuni-
ties. The Q-1 visa is open to all nationalities while
the Q-2 visa is specific to persons from Northern
Ireland or a county that borders Northern Ireland.
Family members receive Q-3 visas. The maximum
period of stay is 15 months.
International Business Visitors
B-1 (TEMPORARY BUSINESS VISITORS): Most
foreign nationals coming to the United States to
conduct business must obtain B-1 visas. Tourists
obtain B-2 visas. B-1 visitors cannot engage in
productive employment nor receive remunera-
tion in the United States, but they can meet with
colleagues or clients, attend conferences and
engage in similar activities. B-1s are admitted
for the period of time necessary to complete
their work, usually less than three or six months.
Persons from certain countries with which the
United States has a close relationship are exempt
from this visa requirement and can enter under
the Visa Waiver Program instead of a B visa.
VISA WAIVER PROGRAM (INTERNATIONAL BUSINESS VISITORS): Foreign nationals from a
group of 38 countries are able to enter the United
States as short-term visitors without obtaining
COUNCIL FOR GLOBAL IMMIGRATION 31
a B-1 or B-2 visa, known as “visa waiver.” These visitors must register with
the U.S. government through the Electronic System for Travel Authorization
(ESTA) in advance of their travel. Admission is for no more than 90 days.13
Immigrant Visas
DIVERSITY VISA LOTTERY: Each year the U.S. government provides perma-
nent residence (or green cards) to persons from around the world through
a diversity visa lottery process. The lottery is intended to provide opportu-
nities to persons from countries that historically have low levels of immi-
gration to the United States and who may not have family, employment
opportunities or other ties that would otherwise enable them to immigrate.
EB-1: The employment-based first preference category (EB-1) is reserved for
three subcategories of foreign nationals:
• Extraordinary ability in the sciences, the arts, education, business or
athletics.
• Outstanding professors and researchers.
• Multinational executives and managers.
• No labor certification is required, but the qualifying criteria are quite
demanding. There are 40,000 visas a year reserved for EB-1 workers and
their family members. Backlogs in this category have occurred.
EB-2: The employment-based second preference category (EB-2) has the
following subcategories:
• An advanced degree, or a bachelor’s degree plus five years of work
experience.
• Exceptional ability in the sciences, the arts or business.
• National Interest Waiver.
• Labor certification is generally required. There are 40,000 visas available
annually to EB-2 professionals and their family members. Significant
backlogs in this category exist for persons from China and India.
EB-3: The employment-based third preference
category (EB-3) has three subcategories:
• Skilled workers whose job requires a minimum
of two years of training or work experience.
• Professionals holding at least a bachelor’s
degree.
• Other workers.
• Labor certification is required. There are 40,000
visas available annually to EB-3 workers and
their family members. Note that significant
backlogs exist in this category for all countries,
particularly for other (unskilled) workers who
are technically limited to 5,000 of the 40,000
visas per year.
EB-4: The employment-based fourth preference
category is for certain “special immigrants”
and religious workers.
EB-5: The employment-based fifth preference
category is for employment creation immigrant
investors.
Worksite Enforcement
E-VERIFY: E-Verify is an online employment verifi-
cation program administered by the United States
Citizenship and Immigration Services (USCIS).
E-Verify confirms certain information from Form
I-9 with information maintained in the USCIS
and the Social Security Administration data-
bases. E-Verify is optional for the majority of U.S.
employers. However, a growing number of states
require employers to use E-Verify and certain
federal contractors must participate. Note that
E-Verify does not replace Form I-9 requirements
but is an additional step in the employment
verification process.
32 COUNCIL FOR GLOBAL IMMIGRATION
FORM I-9: All U.S. employers must complete an Employment Eligibility
Verification form (Form I-9) for all persons hired on or after November 6,
1986. The purpose of this form is to prove that the employee is authorized
to work legally in the United States. It must be completed for citizens and
noncitizens alike. The form is accompanied by lengthy instructions and
a Handbook for Employers (M-274), as well as guidance from the Depart-
ment of Justice’s Immigrant and Employee Rights Section (IER) regarding
nondiscrimination. Unwary employers can easily run afoul of the law,
from inadvertent discrimination to fines for paperwork errors to criminal
penalties for knowingly employing someone who does not have proper
work authorization.
IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES: When Congress
passed the Immigration Reform and Control Act of 1986 (P.L. 99-603), which
required employers to verify work authorization, there was concern that
employers would discriminate against legal workers who appeared foreign.
Thus, safeguards were incorporated into the law to prohibit discrimination
against legal U.S. workers. This group includes U.S. citizens, legal permanent
residents, refugees and asylees, and certain temporary workers. This law
is administered by the Immigrant and Employee Rights Section (IER) at the
Department of Justice.
Common Employment-Based Immigration FormsDepartment of State Forms
DS-160: online nonimmigrant visa application
DS-260: immigrant visa and alien registration application
DS-2019: certificate of eligibility for exchange visitors
DS-7002: training/internship placement plan
Department of Labor Forms
ETA 9035 AND 9035E: nonimmigrant worker labor condition application
ETA 9089: application for permanent employment certification
U.S. Citizenship and Immigration Services Forms
G-28: notice of entry of appearance as attorney or accredited representative
I-9: employment eligibility verification form
I-129: petition for a nonimmigrant worker
I-129S: nonimmigrant petition based on a blanket L petition
1-131: application for travel document
I-140: immigrant petition for alien worker
I-485: application to register permanent residence or adjust status
I-539: application to extend or change nonimmigrant status
I-765: application for employment authorization
I-907: request for premium processing service
U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program Forms
I-983: training plan for science, technology, engineering and mathematics optional practical training for students
COUNCIL FOR GLOBAL IMMIGRATION 33
ABOUT USTHE COUNCIL FOR GLOBAL IMMIGRATION
The Council for Global Immigration (CFGI), founded in 1972 as the
American Council on International Personnel, is a strategic affiliate
of SHRM. It is a nonprofit trade association comprised of leading
multinational corporations, universities and research institutions
committed to advancing the employment-based immigration of
high-skilled professionals. CFGI bridges the public and private sectors
to promote sensible, forward-thinking policies that foster innovation
and global talent mobility.
CFGI has testified before the U.S. Congress, appeared before federal
agencies and is frequently called upon to lend its expertise in inter-
national forums, including before the United Nations, the World Trade
Organization and the Global Forum on Migration and Development.
Learn more about CFGI and how to become a member at cfgi.org.
THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT
The Society for Human Resource Management (SHRM) is the world’s
largest HR professional society, representing 285,000 members in more
than 165 countries. For nearly seven decades, the Society has been the
leading provider of resources serving the needs of HR professionals
and advancing the practice of human resource management. SHRM
has more than 575 affiliated chapters within the United States and
subsidiary offices in China, India and United Arab Emirates. Visit us at
shrm.org.
36 COUNCIL FOR GLOBAL IMMIGRATION
ENDNOTES1 McKinsey Quarterly, “The World at Work: Jobs, Pay and Skills for 3.5
Billion People,” June 2012, http://www.mckinsey.com/global-themes/
employment-and-growth/the-world-at-work
2 Society for Human Resource Management, “The New Talent Land-
scape: Recruiting Difficulty and Skills Shortages,” 2016, https://www.
shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/
talent-landscape.aspx
3 Bureau of Labor Statistics, Job Openings and Labor Turnover, January 10,
2017, https://www.bls.gov/news.release/jolts.htm
4 The range of estimates provided in this chart are for employers utilizing
attorney services and for those nonexempt education and training fee
employers (with over 25 employees).
5 Data regarding attorney fees reflects a majority of Council for Global
Immigration member respondents surveyed in October 2016.
6 For additional information on the ACWIA fee, please see pages 19-21 of
Form I-129 at https://www.uscis.gov/sites/default/files/files/form/i-129.pdf
7 P.L. 114-113, 50/50 employer fee extended through September 30, 2025.
8 Ibid.
9 There are no additional fees for Forms I-131 (Application for Travel
Document) or I-765 (Application for Employment Authorization) when filed
concurrently with Form I-485.
10 Costs represent a majority of Council for Global Immigration member
respondents surveyed in October 2016. Costs for an employer can go much
higher when bundling multiple applications together, such as the cost of
advertising and recruiting for green cards.
11 For additional information about this fee, effective February 1, 2013, visit
https://www.uscis.gov/file-online/uscis-immigrant-fee
12 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, “Treaty
Countries,” https://travel.state.gov/content/visas/en/fees/treaty.html
13 U.S. Department of State, Bureau of Consular Affairs, U.S. visas, “Visa
Waiver Program Overview,” http://travel.state.gov/content/visas/english/
visit/visa-waiver-program.html
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