As an employer in today's business climate it is important to properly manage immigration documentation and other immigration regulations. This webinar takes an in-depth look at strategies that will help you reduce your legal risk and ensure that you are in compliance.

1. Employment Based
Immigration
By Sarah Monty
Monty Partners, LLP
11.17.2009

2. Sarah Monty
• Partner, Monty Partners LLP
• Practices exclusively in the area of United States
Immigration and Naturalization law
• Counsels US employers hiring foreign nationals
• Assists foreign nationals at U.S. consulates and
embassies abroad
• Thurgood Marshall School of Law, Juris
Doctorate, cum laude, December 1997
• Admitted to the Texas State Bar, 1998

3. What is a Visa?
• Document found affixed to a page in an
individual’s passport.

4. What is the purpose of a Visa?
• Does not permit entry to the U.S.
• Permits an individual to apply to enter the United
States.
• Only the U.S. immigration officer at the Port of
Entry has the authority to permit an individual to
enter the United States and decide how long the
individual can stay for that particular visit.

5. Arrival-Departure Record
Form I-94
• This is evidence that an individual has permission
to be in the U.S.
• Issued at Port of Entry: If a visitor’s entry has
been granted, the Port of Entry Officer records a
date on the I-94 by which the individual must
leave the United States!!!!
• Issued Upon Extension of Status: The applicant
will be issued a new Approval-Departure Record
I-94 attached to the bottom of an approval notice
which evidences a persons status and work
authorization for certain visa classifications.

6. Sample Arrival-Departure Record
A small white card placed by an immigration officer in the
individual’s passport upon entering the U.S.

7. Sample Approval Notice with Arrival-
Departure Record

8. Visa v. Arrival-Departure Record
• Visa - permits an individual to apply to enter the
United States.
• Arrival-Departure Record
– an individual is authorized to stay in the U.S. until the
expiration date marked on the Arrival-Departure Record.
– In certain visa classifications (H-1B, TN, L-1, etc.), it
may serve as evidence that the individual has
authorization to live and work in the U.S.

9. Nonimmigrant Visa Options
• H-1B Specialty • H-2B – Temporary
Occupation Worker Nonagricultural
Worker
• TN – NAFTA Treaty
Nonimmigrant Worker • H-1B1 – Chile and
Singapore Specialty
• L – Intra-company Occupation Worker
Transfer Employee
• E-3 Australian
• O – Extraordinary Specialty Occupation
Ability Worker Worker

10. H-1B Specialty Occupation Worker
• The H-1B nonimmigrant category is set aside for
foreign workers in “specialty occupations” and
fashion models of “distinguished merit and
ability.”
• The workers in this category may be filling
permanent positions in the United States, as long
as they depart the United States at the end of
their authorized periods of stay, including any
extensions of stay.

11. H-1B Major Advantages:
• If transferring employee -quick process
• Dual intent allowed.
• Initial approval of up to 3 years with extension of
another three years allowed for not more than a
total of 6 years in H-1B classification.
• Premium processing available.

12. H-1B Major Disadvantages:
• Only available for aliens who work in professions
requiring at least a Bachelor degree or the
equivalent.
• Low numerical cap on H-1B aliens
• Expensive filing fees which must be paid by
employers.

13. TN NAFTA Treaty Nonimmigrant
Worker
• Allows a U.S. employer to petition for the
temporary employment of Canadian and Mexican
nationals to perform professional-level activities
in the U.S.

14. TN Major Advantages:
• Quick processing – Canadian TN applications are
processed at the Border immediately, while
Mexican TN applications can be processed in
approximately 2 months.
• Unlimited renewal of TN status – Though the
initial stay for a TN professional is one year, his
or her period of stay may be extended in one-
year increments every year, with no limit on the
total period of stay.

15. TN Major Disadvantages:
• The TN route is available only for professional
occupations. Employers would be able to bring in
Mexican or Canadian individuals to work in
professional positions stated in the treaty
examples of positions:
– Engineers – Bachelors degree (Mechanical, Civil,
Structural),
– Architects,
– Industrial Designers,
– Computer Systems Analysts, or
– Accountants.

16. L-1 Intra-company Transfer Employee
• Allows multinational companies to transfer
foreign national employees, such as:
– Executives to manage an organization or a major
function or division of an organization in the U.S.
– Managers to supervise work of other supervisory,
professional or managerial employees, or who manages
an essential function, department or subdivision in the
U.S.
– Employees with specialized knowledge such as, its
products, research methods and marketing techniques.

17. L-1 Major Advantages:
• May get visa approval for up to three years.
• Extensions of two years at a time may be allowed
until you have been in the U.S. for a total of
seven years for a manager or executive and five
years for specialized knowledge employee.
• Premium processing available.
• No minimum educational requirement.
• Spouse of an L-1 employee can apply for
employment authorization.

18. L-1 Major Disadvantages:
• If a new U.S. Company, then the initial L-1 visa
classification is only issued for a 12 month
period.
• The worker must have at least 1 year of tenure
as a full-time employee of the foreign affiliated
company of the U.S. employer in the last 3 years.
• The foreign employer must remain operative
during the employee’s transfer to the U.S.

19. B-1 Business Visitor
• Allows business professionals to:
– explore possibilities to set up a subsidiary of a foreign
corporation, or to make investments
– participate in commercial transactions (which do not
involve gainful employment) such as negotiating
contracts and consulting with business associates
– attend professional or business conferences, workshops,
or seminars or conventions
– attend meetings as a member of the Board of Directors
of a U.S. corporation
– observe business, professional, or vocational activity as
long as it does not involve any hands-on activity
– conduct business consultations with business associates
in the U.S.

20. What is a B-1 Business Visitor NOT
Authorized To:
• CANNOT receive a salary or compensation from a
U.S. source.
– Reimbursement for travel expenses is authorized.
• CANNOT remain in U.S. to manage business, but
may enter to survey potential sites for a business
and/or to lease premises in the U.S.
• CANNOT conduct construction work, but may
supervise or train U.S. workers to conduct such
activity.
• CANNOT attend certain trainings which require a
different visa classification.
• CANNOT attend school full-time.

21. O-1 Extraordinary Worker
• Allows U.S. companies to hire foreign nationals
with extraordinary ability in the field of arts,
sciences, education, business or athletics.
• For example: an individual who has sustained
national or international acclaim by receiving a
major internationally recognized award such as
the Nobel Prize.

22. O-1 Major Advantages:
• Nonimmigrant intent not required.
• Unlimited renewal of O status – Though the initial
stay for a n extraordinary worker is three years,
his or her period of stay may be extended in one-
year increments every year, with no limit on the
total period of stay.
• Premium processing available.

23. O-1 Major Disadvantages:
• Dependents may not work.
• Applicant must have an employer (unlike the
second preference employment based petition
where applicant can petition for himself or
herself).

24. H-2B Temporary Nonagricultural
Worker
• The H-2B temporary non-agricultural process
allows a U.S. employer to petition for an alien or
aliens to come temporarily to the U.S. to perform
temporary services or labor if qualified U.S.
workers capable of performing such services are
not available.
• Temporary status typically means up to one (1)
year, with possible extensions of stay in
increments of one (1) year up to a maximum of
three (3) years total.

25. H-2B Major Advantages:
• H-2B can be sought for a single alien or a group
of aliens. Usually the identity of the aliens must
generally be known in advance, although
substitution of aliens can occur in limited
circumstances.
• H-2B can be used for unskilled positions.

26. H-2B Major Disadvantages:
• Demonstrating that your need for labor is
“temporary’ is the most difficult hurdle to
overcome. In order for services to be temporary,
it shall be either:
– a one-time occurrence;
– a seasonal need;
– a peak load need; or
– an intermittent need.
• Cap – only 66,000 H-2B visa’s available every
year. Starting in April and October.
• Cap amount fills up very quickly, leaving many
seasonal and small businesses without seasonal
workers.

27. Specialty Occupation Worker
H-1B1 - Chile or Singapore
E-3 - Australia
• Allows a U.S. employer to petition for a foreign
professional who is a national of either Chile or
Singapore (H-1B1) or Singapore (E-3) to come
temporarily to the U.S. to work in a “specialty
occupation”.

28. H-1B1 & E-3 - Major Advantages:
• Unlimited renewal of H-1B1 and E-3 visa
classification.
• Although there is a numerical cap, currently there
is an abundance of H-1B1 and E-3 visa’s
immediately available.
• Low filing fees for visa issued abroad.
• E-3 - spouse can apply for employment
authorization on an E-3D visa classification.

29. H-1B1 & E-3 - Major Disadvantages:
• H-1B1 - Only for individuals from Chile and
Singapore.
• E-3 – Only for individuals from Australia.
• Only available for aliens who work in professions
requiring at least a Bachelor degree or the
equivalent
• Must show immediate nonimmigrant intent.
• No premium processing available.
• No AC21 porting provisions.

30. New Regulations

31. Optional Practical Training
(OPT) for Students

32. Optional Practical Training (OPT) for
Students
• Optional Practical Training (OPT) is temporary
employment that is directly related to an F-1
student’s major area of study.
• Student cannot begin employment until after
receiving an Employment Authorization Card.
• An F-1 student may be authorized to receive up
to a total of 12 months of practical training either
before (pre-) and/or after (post-) completion of
studies.

33. Pre and Post-Completion OPT
• Pre-Completion OPT
– F-1 Students authorized to work while enrolled in one
full year of course work.
– May only work part time during the school year and full
time during the holidays.
• Post-Completion OPT
– F-1 Students may be authorized to work after
completion of their studies.

34. STEM Extension of OPT
• 18 month extension of OPT allowed for the
following individuals:
– Students currently in their 12 months of post-completion
OPT
– Students must have successfully completed a degree in
a “STEM” field.
• S – science
• T – technology
• E – engineering, or
• M – mathematics

35. Situational Changes that
Impact Corporate Obligations

36. Major Concerns
• Handling a leave of absence
• Transfers to different work locations
• Cuts (or raises) in salary
• Changing job duties
• Corporate restructuring and your foreign workers
• Closing a foreign office
• Handling employee termination

37. Other Points to Remember
• Your obligations will differ based on the type of
visa classification (H-1B, L, P, etc.)
• Visas that require a Labor Condition Application
(LCA)- H-1B, H-1B1, E-3- are the most heavily
regulated
• When in doubt, assume the government requires
action and follow the most prudent course

38. Employment Based Lawful
Permanent Residence

39. What does employee need to gain
Lawful Permanent Residence?
• Employment Based Petition filed on behalf of the
employee.
• Visa available to the employee.

40. Visa Bulletin
• This bulletin summarizes the availability of
immigrant numbers during the month it is issued.
• The cut-off date for an oversubscribed category is
the priority date of the first applicant who could
not be reached within the numerical limits.
• Only applicants who have a priority date
earlier than the cut-off date may be allotted a
number.

41. Visa Bulletin
• Immigrant visas are numerically limited by
category and by country of chargeability (one's
country of birth).
• Immigrant visas are issued in the order in which
the petitions have been filed.
• Currently, the oversubscribed chargeability areas
are CHINA-mainland born, INDIA, MEXICO, and
PHILIPPINES.

42. What is a Priority Date?
• This is the date the application for labor
certification is received by the Department of
Labor.
• If no labor certification is required, then this is
the date an employment based immigrant
petition was filed.

43. What is the Cut-off Date?
• On the chart in the Visa Bulletin, the State
Department provides a date for each category of
preferences for both family-based immigrant
applications and employment-based immigrant
applications.

44. Cut-off Dates for December 09
All charge-ability areas CHINA-
INDIA MEXICO PHILIP-PINES
except those listed mainland born
Employment
-Based
1st C C C C C
2nd C 01APR05 22 JAN 05 C C
3rd 01JUN 02 01JUN 02 01 MAY 01 01 JUL 02 01 JUN 02
Other
01JUN 01 01JUN01 01MAY 01 01 JUN 01 01JUN 01
Workers
4th C C C C C
Certain
Religious C C C C C
Workers
5th C C C C C
Targeted
Employment
Areas/ C C C C C
Regional
Centers

45. Cut-off Date
• "C" means current, i.e., numbers are available for
all qualified applicants
• "U" means unavailable, i.e., no numbers are
available.
• The listing of a date for any class indicates that
the class is oversubscribed
• NOTE: Numbers are available only for applicants
whose priority date is earlier than the cut-off date
listed.

46. Employment Based – First Preference
(EB-1)
• Multinational Executives & Managers (L-1A
Nonimmigrants)
• Person worked for foreign parent, subsidiary,
affiliate for 1 of the last 3 yrs prior to entry to
U.S.
• Managers cannot be 1st line supervisors – unless
they supervise professionals
• Functional managers must manage an essential
function or operation

47. EB-1 Immigrant Visa Requirements
• No Labor Certification Needed
• Foreign Company needs to still be in operation
• Prior approval of L-1A does not necessitate
USCIS approval of Immigrant Petition – each
petition is adjudicated on its own merits

48. Employment Based - Second
Preference (EB-2)
• For Professionals with Advanced Degrees or
equivalent (Masters or a bachelors + 5 years
progressive exp)
• Labor Certification/Recruitment Needed
• For Exceptional Ability individuals in sciences,
arts, business
• Labor certification can be waived if in National
Interest to eliminate LC

49. EB-2 Advantages/Disadvantages
• Adv - Visa availability is usually faster than EB-3
for all countries, esp. India, China, Mexico
• Disadv – USCIS standards for EB-2 are strictly
adhered to; government can challenge
beneficiaries’ employment history for EB-2
equivalency if not well-supported with letters,
paystubs etc.
• Disadv – Must have employer verification letters
that verify prior experience, otherwise
government will not accept prior experience as
valid

50. Employment Based – Third Preference
(EB-3)
• For Professionals with bachelors or equivalent
(can include education, training, work)
• For Skilled Workers (non-professional) with at
least 2 years training or work experience
• Labor Certification needed; national interest
waiver not available

51. EB-3 Advantages/Disadvantages
• Disadv - Visa availability is usually Slower than
EB-2 for all countries, esp. India, China, Mexico –
longer wait for adjustment
• Disadv – Recruitment can be more difficult with
many job applicants to review due to lower years
of experience

52. Labor Certifications – Step One –
Employer Pays All Costs, Legal Fees
• Regulations require that Employers pay all legal
fees and advertising fees – employees cannot pay
any fees related to labor certifications.
• Cannot pass on LC costs to employees (wage
garnishment etc.)
• Employer must attest under penalty of perjury to
its payment of all fees as well as other
attestations
• Employee attests to truthfulness of his
education/employment history.
• All applications subject to Audit by Dept of Labor

53. Labor Certifications – Step One (EB-
2,EB-3) – Filed on Form ETA 9089
• Prevailing Wage from State Workforce Agency –
must adhere to this wage and offer this wage to
all job applicants as the minimum wage/salary
• Employer can pay for private survey if employer
not satisfied with federally set wages
• Employer does not have to pay that wage to
employee currently, just has to attest that it will
pay that wage when employee obtains
permanent residence in the future.
• 2. Posting Notice – gives notice to all employees
of job offer along with posting of minimum wage
– gives DOL address for employee complaints

54. Labor Certifications – Step One (EB-
2,EB-3)
• 3. Web Registration of Company – (Attorneys are
prohibited from registering employers online)
• 4. 30 Day Job Order – In Texas at
www.workintexas.com, Texas Workforce
Commission. Free posting.
• 5. 2 Sunday Ads – Newspaper of General
Circulation in Area – Employer must pay this ad
fee

55. Labor Certifications – Step One (EB-
2,EB-3)
• 6. Extra Required Ads for Professional Positions
• Must choose 3 of the following:
• Job Fair
• Employer Website
• Other Job Search Website
• On Campus Recruiting
• Trade/Professional Organization Ad
• Private Employment Firm
• Referral Incentive Program
• Campus Placement Office
• Local/ethnic paper
• Radio/TV ad

56. Immigrant Petition – Step 2; Ability to
Pay Wage
• Employer is obligated by regulations to provide
one of the following to support its ability to pay
employee’s permanent wage:
• Corporate Income Tax Return
• Independently Audited Financial Statement
• Annual Report

57. Adjustment of Status – Step 3; Alien
Applies for LPR Status
• If a visa becomes available, the alien can apply
to adjust his status.
• After filing for adjustment, the alien can obtain
an Employment Authorization Document, but the
employer should encourage the alien to maintain
his or her nonimmigrant classification until
approval of the adjustment application.
• The alien’s family may also apply for adjustment
which means increased legal and filing fees.

58. Thank You
Questions?
SARAH D. MONTY
LEAD IMMIGRATION ATTORNEY
Monty Partners, LLP
150 West Parker Road, Third Floor
Houston, Texas 77076
281.493.5529
www.montypartners.com
sdm@montypartners.com

59. Disclaimer
• ABOUT US. Established in 1998, Monty Partners, LLP is the largest Hispanic-owned labor,
employment and immigration law firm in the Southwest. The Firm is passionate about
representing the interests of companies with large Hispanic workforces. The firm offers a
range of corporate legal services to Fortune 500, publicly-traded companies, major industry
associations and governmental agencies (notably serving as Immigration Counsel for the
agencies). The Firm represents employers in investigations and audits conducted by the
National Labor Relations Board, Department of Labor, Bureau of Citizenship and
Immigration Service, Occupational Safety and Health Administration and Equal Employment
Opportunity Commission.
• DISCLAIMER. This presentation is for informational purposes only and provides general
information concerning employment and immigration law to help you identify when you
may need additional advice. It is not an exhaustive treatment of the statutes, case law or
regulations that are involved with the subject. Please recognize that the law is developing
rapidly in this area and you will want to obtain current legal advice on your specific
situation before taking action. Employment and Immigration law liabilities are often highly
dependent on the particular facts and circumstances of the individual case or situation. As
such, employers should seek the advice of counsel prior to making their determinations.
Monty Partners, LLP is available to answer any employment or immigration related issue(s)
with Your Company.

60. Copyright Materials
• This presentation is protected by US and
International copyright laws. Reproduction,
distribution, display and use of the presentation
without permission of the speaker is prohibited.