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GATS Symposium: Taking Stock and Moving Forward

A symposium organized by the World Trade Organization on Mode 4 of the GATS, discussing the current state and future prospects. Presented by Ellen G. Yost, Partner at Fragomen, Del Rey, Bernsen & Loewy LLP.

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GATS Symposium: Taking Stock and Moving Forward

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  1. World Trade Organization Symposium Mode 4 of the GATS-Taking Stock and Moving Forward Geneva 22-23 September 2008

  2. Ellen G. Yost Partner Fragomen, Del Rey, Bernsen & Loewy, LLP 7 Hanover Square New York, NY 10004-2756 Phone: +1 212 230 2874 Fax: +1 212 446-0371 Email: eyost@fragomen.comWebsite: www.fragomen.com

  3. The Fragomen Firm • Practices exclusively in the area of business immigration and nationality law • More than 250 attorneys and almost 1000 professional immigration specialists • 30 offices in the Americas, Europe and Asia-Pacific regions

  4. Involved Government Agencies • Department of Homeland Security: • United States Citizenship and Immigration Services - USCIS (formerly the Immigration & Naturalization Service – INS or BCIS) • Immigration & Customs Enforcement – ICE • Customs & Border Protection – CBP • CIS Ombudsman • Department of Labor • Centralized processing out of Atlanta and Chicago. • State Workforce Agencies (SWAs) • Department of State (DOS): U.S. Embassies and Consulates

  5. Basic Concepts • Immigrants vs. non-immigrants, not exactly permanent v. temporary • Dual intent • Petitions, visas, & status • Quotas & chargeability • Preservation of family unity • Priority workers • Preference classification

  6. Nonimmigrants • Coming to the U.S. temporarily • Retain residence abroad • Dual intent - only for H’s and L’s • “Alphabet Soup” - A-V

  7. Business and Employment Visas Common business and employment-based visa categories: • Business visitors (B-1) • Intracompany transferees (L-1) • Treaty Traders and Investors (E-1 & E-2) • Professional Visa for Australians (E-3) • New hires (H-1B, TN & O-1) • Trainees (J-1 & H-3) • Students on Practical Training(F-1 & J-1)

  8. B-1 Business Visitors • On foreign payroll • Activity in U.S. benefits foreign employer • Business meetings, training, & joint development projects - Activity in US must not accrue to the benefit of any US entity • Visa Waiver Program - 27 participating countries • 90-day maximum stay • Ineligible for Change and Extension of Status • ESTA

  9. L-1 Intracompany Transferees • Intracompany Relationship: • Parent, subsidiary, affiliate, branch or joint venture • Prior Employment Abroad: • 1 year within 3 years preceding transfer to U.S. • Qualifying Capacity: • Executive, Managerial (L-1A) • Specialized Knowledge (L-1B) • Duration: • L-1A = 7 years • L-1B = 5 years

  10. F-1 Students • Academic studies: elementary through postdoctoral • admitted for “duration of status” (D/S) • Full-time matriculated student at approved school • “Optional Practical Training:” pre- or post-graduation • total = 12 months (29 months for STEM graduates who work with employers that use E-Verify); part-time during school year, full-time during vacations and after graduation • need employment authorization document (EAD); • School endorsed I-20 (issued via SEVIS System) • not tied to particular employer • “Curricular” practical training if part of educational program • Need letter from school • School endorsed I-20 (issued via SEVIS System)

  11. H-1B Category: USCIS Provisions • “Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent • 3 for 1 rule -- 3 yrs. experience = 1 yr. of college • Labor Condition Application certified prior to filing petition • Six-Year Maximum Stay (can extend under certain circumstances - AC-21) • 65,000 Annual Ceiling • 6,800 of 65,000 reserved for citizens of Chile and Singapore • For FY 2008 and 2009, cap reached at the start of filing. • 20,000 additional visa numbers available to foreign nationals holding Master’s or higher degrees from U.S. universities • Reasonable costs of return transportation for dismissed employee

  12. Labor Condition Application • Filed with U.S. Department of Labor • Attests to four basic conditions • Wages • Working conditions • No strike or lockout • Notice • Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees • H-1B dependent vs. nondependent employers • Public Access file

  13. E-3 Visa for Australians • Similar to H-1B visa • For specialty occupations • Employee must have Bachelor’s degree • Employer must secure LCA from DOL • Not subject to 65,000 cap • But limited to 10,500 per year • Spouse eligible for work authorization • No foreign residence requirement • Can be renewed indefinitely

  14. J-1 Trainees and Interns • Exchange visitor program • Categories include trainees, interns, research scholars, specialists, students • Emphasis on reciprocity, cross-cultural activities, and orientation • Some J-Visa holders must return to home country for 2 years after completion of program or seek waiver of this requirement • skills list • government funding • graduate medical education • SEVIS (Student Exchange Visitor Information System) web-based system for generation of Forms DS-2019 and tracking

  15. E’s, O’s & P’s E-1 Treaty Trader E-2 Treaty Investor O-1 Persons of extraordinary ability P Internationally recognized athletes or entertainment groups

  16. E-2 TREATY INVESTORS • Employer & employee “nationals” of country with qualifying treaty with U.S. • Based on substantial investment in the U.S. • Employer > 50% owned by nationals of treaty country • Visa typically valid for 5 years • 2 year admission; no limit on extensions • E spouses authorized to work (must apply for EAD)

  17. TN’s Canadian and Mexican professionals performing certain occupations (based on then-existing US law, NAFTA categories were original model for the GATS) Must be nationals of either Canada or Mexico • Coming to U.S. to work in profession listed on NAFTA schedule • Generally require a Bachelor’s degree in field • Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate) • Mexicans apply at Consulate • One year stay, renewable in one-year increments

  18. H-2B Seasonal Workers • Since 1990, cap of 66,000 visas annually, has been used up every year since 1994 • Seasonal positions (not agriculture), on one-time projects, during times of exceptionally high workload, or intermittently  • For landscaping, seasonal hospitality, and seasonal construction, or to meet specific needs in manufacturing, food packaging and processing, fisheries, retail and other industries  • Requires employers to advertise through the state and federal labor departments and first to hire U.S. workers who apply • Must return home at the end of the season

  19. Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U.S. permanently • Numerically limited • Visa bulletin • Priority date • Can become U.S. citizens 3 or 5 years after receiving green card • Importantly, not all temporary workers become eligible for permanent visa

  20. Family-Based Permanent Residence • Immediate relatives (spouses, minor children & parents of U.S. citizens) • Other close family members of citizens or permanent residents, including: • Unmarried sons & daughters of citizens (over age 21) • Married sons & daughters of citizens • Spouses, children & unmarried sons/daughters of permanent resident aliens • Brothers & sisters of citizens

  21. Employment-Based Permanent Residence: 2/3-Step Process • Labor certification (where required) • filed by employer on behalf of foreign national • processed by U.S. Department of Labor • Immigrant preference petition • filed by employer • processed by USCIS • Adjustment of status or consular processing • filed by the foreign national & family members

  22. Employment-Based Categories EB-1: Priority workers EB-2: Advance-degree professionals & aliens of exceptional ability* EB-3: Professional, skilled & unskilled workers* EB-4: Special immigrants EB-5: Employment creation (* labor certification required)

  23. EB-1: Priority Workers • Persons of extraordinary ability (similar to the O-1 nonimmigrant category) • Outstanding professors & researchers • Multinational executives/managers • Labor Certification not required

  24. EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability • Job requires advanced degree (Master’s & above) or Bachelor’s degree + 5 years of progressive professional experience • Persons of exceptional ability in science, art or business • Labor Certification required • Waiver of labor certification requirement if employment is in the “National Interest” or foreign national is of “Exceptional Ability”

  25. EB-3: Professionals, Skilled Workers, & Other Workers • Most commonly used / highest demand • Professionals: position requires Bachelor’s degree or foreign equivalent degree • Skilled workers: position requires minimum 2 years of experience and/or training • Other workers: limited to 10,000 • Labor certification required in all cases

  26. Visit www.fragomen.com for links to key Web sites

  27. THANK YOU

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