Helping you compete in a global marketplace.

In today's global economy, competitive businesses need to employ the best and most skilled workers from around the world. For our clients, hiring employees with the right expertise or the most innovative ideas can often be the most important element in their success. To compete on an international scale, requires U.S. companies to hire and transfer personnel across borders.

Employing foreign nationals in the United States, however, requires careful attention to U.S. immigration laws. Foreign companies doing business in the United States must to be equally concerned with U.S. immigration procedures. In fact, securing the proper visa or work status for key personnel should be one of the most important first elements in strategic planning for establishing a U.S. office or business operation.

At Foley Hoag, we can provide our clients with the benefit of our 30 years of experience getting qualified foreign nationals the right to work for employers in the United States. We understand that U.S. immigration procedures can be complex and intimidating, particularly in the post-September 11 environment. Successfully working through the immigration maze requires careful planning, thorough analysis of the circumstances surrounding each case, selection of an appropriate strategy, and thoughtful preparation of the paperwork necessary to secure approval.

To enter and remain in the United States, a foreign national must qualify for admission within a specific temporary or permanent immigration status. Generally, this requires very specific advance filing procedures and/or a visa application at a U.S. consulate abroad. There are many categories of immigration status, and a foreign national, along with his or her employer, must seek the status, and any necessary visa, best suited for their needs. There are two broad categories: temporary (also known as "nonimmigrant") and permanent resident (known as "immigrant") status, and within each there are many classifications.

Our lawyers can help you with all of these elements to help ensure that your business remains competitive.

Nonimmigrant Status

Nonimmigrant status is granted for a specific period of time and a specific purpose. The categories that permit business activities, study or, in certain situations, employment of a foreign national, usually by a specific employer, include:

  • Visitor for Business or Pleasure: Citizens of countries eligible for a visa waiver do not need a visa to enter in visitor status; others need a “B-1” or “B-2” visa. Business activities for the benefit of a foreign employer are permitted, but not for any U.S. employment.
  • H-1B: Foreign national in a “specialty occupation,” which normally requires at least a bachelor's degree for entry. This person is coming to the United States to perform services requiring these special skills for a U.S. employer, provided the employer makes certain attestations concerning wage levels and labor conditions.
  • H-2A, H-2B: Agricultural, and other workers, coming temporarily to the United States for employment in jobs where U.S. workers are not available.
  • H-3: Foreign national coming to the United States to complete a formal training program.
  • L-1A, L-1B: Intracompany transferee who has worked for a multinational company abroad and is an executive, manager, or individual possessing specialized knowledge of the company's products or operations, and who is being transferred to work in such a capacity for the organization in the United States.
  • TN: Canadian or Mexican citizens coming to the United States to work for a U.S. employer in certain professions designated under the North American Free Trade Agreement (NAFTA).
  • O-1: Foreign national of “extraordinary ability” in the sciences, arts, business, or education, as demonstrated by sustained national or international acclaim, and sponsored by a U.S. employer or agent.
  • E-1: Foreign national coming to the United States pursuant to a treaty of trade to foster international trade between the United States and the foreign national’s native country.
  • E-2: Foreign national coming to the United States pursuant to a treaty of trade between the United States and the foreign national’s native country in connection with a substantial U.S. investment.
  • F-1: Foreign student attending a fulltime course of study at a qualified U.S. academic institution; and who is, in certain circumstances, specifically authorized to work.
  • I: Foreign information media representative.
  • J-1: Foreign student, scholar, trainee, professor or researcher coming to the United States as a participant in an international exchange; and who is, in certain circumstances, specifically authorized to work.
  • K-1: Fiancée or spouse of a U.S. citizen in temporary status, authorized to work.
  • P-1: Foreign athlete who performs at an international level or a member of an entertainment group that is recognized as outstanding, and sponsored by a U.S. employer or agent.
  • R-1: Foreign religious worker.

Permanent Resident Status

Permanent resident status allows a foreign national to live and work indefinitely in the United States. A foreign national can seek permanent resident status based on a job offer from a U.S. employer or high-level qualifications offering a benefit to the United States. To qualify, a foreign national must fit into one of the following “preference” categories:

  • Investors: Individuals who invest at least $1 million in a commercial enterprise, less in certain targeted geographic areas, which results in the employment of a particular number of U.S. workers.
  • Aliens with Extraordinary Ability: Individuals with extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated by sustained national or international acclaim, which will benefit the United States. These individuals are allowed to “self-petition” for permanent residence without a specific U.S. job offer.
  • Outstanding Professors and Researchers: Individuals recognized internationally as outstanding in a specific academic area, with at least three years experience in teaching or research in the area, and with a specific offer for regular permanent employment in their research field at an academic institution or qualified private employer.
  • Certain Multinational Executives and Managers: An alien who previously worked for one year with a qualified multinational organization outside of the United States in a managerial or executive capacity and is entering the country with a specific offer to continue employment with the multinational organization.
  • Advanced Degree Professionals/Aliens of Exceptional Ability with “National Interest Waiver”: Individuals with an advanced degree, or the equivalent, or with “exceptional ability.” The usual specific job offer requirement is waived based on national interest, as shown by substantial intrinsic merit of the alien’s field to the United States, the national impact the person will have in the field, and the person’s level of qualification demonstrating national interest in waiving the requirement to offer his or her employment to a U.S. worker. Aliens in this category are allowed to “self-petition.”
  • Aliens of Exceptional Ability: Individuals with exceptional ability in the sciences, arts or business who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States, with a specific offer of full-time employment in the Unites States.
  • Advanced Degree Professionals: Individuals holding advanced degrees, or the equivalent, with a specific offer of fulltime employment in a position requiring their qualifications. For purposes of this category, a bachelor’s degree followed by 5 years of progressive experience in the specialty field is considered equivalent to an advanced-degree qualification.
  • Skilled Workers: Individuals with bachelor’s degrees or who will perform duties that normally require at least two years of training or experience, with a specific job offer of fulltime employment.
  • Other Workers: Low skilled or unskilled labor, with a specific job offer of fulltime employment.
  • For individuals in the categories of Advanced Degree Professionals, Skilled Workers, and Other Workers, the employer must normally first obtain a “labor certification” from the Department of Labor. To do so, the employer must demonstrate, through the completion of prescribed recruitment activities, that there are no qualified U.S. workers available to undertake the work.

Employer Sanctions

Since 1986, federal law has made it unlawful for a company to employ a foreign national who is not authorized to work. Federal law also imposes on employers an affirmative duty to verify the identity and work authorization of every new employee, and to keep a record of that verification.

At the same time, the law prohibits employers from discriminating based on national origin, citizenship status, or intending citizenship status. Violation of any of these provisions can result in substantial civil penalties and, in extreme cases, criminal penalties.

At Foley Hoag, we assist employers in the development and implementation of procedures needed to comply with these requirements. We also advise our employer clients who have had difficulties with specific aspects of these employment obligations.

Foreign Immigration Law

We also assist employers on the visa requirements of other countries. In some cases, our lawyers assist our employer clients throughout the foreign visa process. In other cases, we provide a general overview of the foreign system and direct employers to appropriate foreign agencies. We are the only Massachusetts member of Lex Mundi, the world’s largest international association of independent law firms. Through these contacts, and other immigration resources, we can provide our clients with access to comprehensive immigration information for most countries.

An Interdisciplinary Approach

In many situations, our immigration clients need advice in other areas of the law, such as international transactions, corporate law, export control, labor and employment law, taxation and intellectual property.

As a full-service law firm, with experienced practitioners in all of these areas, we can establish an interdisciplinary team from the relevant practice areas to meet all of your needs. Our immigration lawyers also call on the specific experience of other lawyers at the firm to assist clients with specific issues or questions.

Links

U.S. Citizenship and Immigration Services (formerly INS)
http://uscis.gov/graphics/index.htm

U.S. Department of State, Bureau of Consular Affairs
http://travel.state.gov/index.html

U.S. Department of Labor, Employment & Training Administration, Foreign Labor Certification
http://www.workforcesecurity.doleta.gov/foreign/

American Immigration Lawyers Association (public site)
http://www.aila.org/

ILW.com and Immigration Daily
http://www.ilw.com/