B-1 Visitors for Business
Computer professionals who entered the United States under B-1 status previously did so either in lieu of H-1 status or pursuant to after-sales service contracts. These two activities are briefly described below:
- Under the old INS Operations Instructions (“OI”), an alien who qualified for H-1 status could enter under B-1 where the alien was coming to the United States to perform H-1 services for which the alien would receive no salary, other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. The foreign employer required an office overseas, the employee had to be customarily employed by the foreign employer, the foreign employer had to pay the employee’s salary, and the source of the employee’s salary had to be overseas. The INS Inspectors Field Manual (“IFM”), which superseded the OIs, no longer contains such a provision. However, reference to “B-1 in lieu of H-1” still appears in the Foreign Affairs Manual (“FAM”).
- Under the OIs, an alien coming to the United States to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services could enter the United States under B-1, where the contract of sale specifically required the seller to provide such services or training, the alien possessed specialized knowledge essential to the seller’s contractual obligation and the alien received no remuneration from a U.S. source. Although the OIs also required that such a trip take place within the first year following the purchase, Canadians entering in B-1 status pursuant to Appendix 1603.A.1 of NAFTA could still enter for the life of the warranty or service agreement. The IFM now contains a provision similar to the old OI but the requirement that travel take place within the first year following the purchase has been omitted. A similar provision also appears in the FAM.
For further information, please refer to the general B-1 article, which is available here.
The TN category arises from the North American Free Trade Agreement (the “NAFTA.”) Only Canadian citizens are eligible; landed immigrants of Canada are not. Although Mexican nationals are also eligible for TN status, the eligibility requirements applicable thereto are very different. Mexican TNs are not discussed here.
Computer Systems Analysts
Some Canadian computer professionals will qualify as computer systems analysts under the TN category. However, in order to qualify, the proposed job duties must be shown to be those of a computer systems analyst.
The job duties of a systems analyst will vary widely. According to the Occupational Outlook Handbook(“OOH”), systems analysts define business, scientific or engineering problems and design their solutions using computers. This process may include planning and developing new computer systems or devising ways to apply existing systems to operations still completed manually or by some less efficient method. They may design entirely new systems, including hardware and software, or add a single new software application to harness more of the computer’s power.
The INS Inspectors Field Manual (“IFM”), which replaces the old INS Operations Instructions, confirms that the computer systems analyst category does not include programmers. A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs of users and who designs and implements computer-based processing systems. Systems analysts study the organization itself to identify its information needs and design computer systems which meet those needs. Although the systems analyst will do some programming, the TN category has not been expanded to include programmers.
Under Appendix 1603.D.1, a Canadian computer systems analyst must possess a Baccalaureate (bachelor) Degree or Post-Secondary Diploma and three years experience. “Post-Secondary Diploma” means a credential issued, on completion of two or more years of post-secondary education, by an accredited academic institution in Canada or the United States.
The OOH states that there is no universally accepted way to prepare for a job as a computer systems analyst because employers preferences will depend on the work being done. As an example, the OOH specifically states that an accountant may become a systems analyst specializing in accounting systems development. Consequently, it is possible to qualify as a systems analyst with a university degree or diploma outside of the computer science field, provided that the degree is relevant to the proposed position.
It is often possible for computer hardware professionals to qualify as scientific technicians in the field of engineering. Software professionals are unlikely to qualify under this category since they do not normally apply electrical engineering principles.
The IFM confirms that scientific technicians do not ordinarily require a baccalaureate degree. Supporting documents could be an attestation from the prospective U.S. employer or the Canadian employer, or other documents establishing the individual possesses the skills set forth in Appendix 1603.D.1. According to Appendix 1603.D.1, scientific technicians must possess:
- Theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and
- The ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.
Although ideally the alien will have a two year diploma in engineering technology, mere possession of an MCSE certification may be sufficient to qualify as a scientific technician in the field of engineering. However, such adjudications will be made on a case-by-case basis.
According to the IFM, scientific technician must be seeking temporary entry for work in direct support of professionals in specific fields, one of which is engineering. Although some ports of entry may be willing to approve a scientific technician case where the alien will be working in direct support of a professional having a degree in a related area other than engineering (for example, computer science), many will not. Most will require the alien to work in direct support of a professional engineer who possesses either an engineering degree or an engineering license.
TN Management Consultants
Many computer consultants will be able to qualify for TN status as management consultants. However, applications for status as a TN management consultant are carefully scrutinized since this is often the last resort for applicants who do not clearly fall within one of the other professionals listed in Appendix 1603.D.1 of NAFTA. In addition, it is perceived by the INS that many non-immigrants who are: (a) unable to seek H-1B status because the annual cap has been reached, or (b) reaching the end of their stay in H-1B or L-1 status are applying as management consultants in order to remain in the United States. Nevertheless, applying as a TN management consultant may be appropriate in certain cases.
Appendix 1603.D.1 states that a Canadian management consultant must have Baccalaureate Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.
The term “management consultant” is not defined in NAFTA, the Immigration and Nationality Act (“INA”) or Title 8 of the Code of Federal Regulations (the “INS Regulations.”) However, the OOH indicates that “both public and private organizations use consultants for a variety of reasons. Some don’t have adequate internal resources to handle a project; others rely on the consultant’s experience to determine what resources will be required – or problems encountered – if they pursue a particular course of action; while others want to get advice on how to resolve organizational problems that have already been identified or to avoid troublesome problems that could arise.” This broad definition covers a broad range of activities. However, the INS tends to adjudicate management consultant cases strictly.
For example, although the OOH also states that management consultants may assist in the implementation of their recommendations, some ports-of-entry take the position that management consultants may only advise management and may not assist in implementation, except where it is clearly incidental to his or her recommendations. This policy varies, depending upon the port-of-entry.
In addition, the IFM states that management consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such a U.S. entity, they may only fill supernumerary temporary positions. On the other hand, if the employer is a U.S. management consulting firm, the employee may be coming temporarily to fill a permanent position. This “supernumerary” requirement limits the types of positions that will qualify for TN status. A computer consultant who will be assuming a permanent position with the entity to whom he or she will ultimately be providing services will be considered an employee rather than a management consultant.
For further information, please refer to the general TN article, which is available here.
H-1B Specialty Occupations
Certain computer professionals in Canada may not qualify under TN status because they are not Canadian citizens. The H-1B category does not require Canadian citizenship. Consequently, citizens of other countries such as Indian and China will qualify for H-1B status, regardless of their status in Canada.
Others may lack specific education and/or experience requirements (contained in Appendix 1603.D.1) to qualify under TN status, since equivalency is not permitted in TN cases. However, equivalency is permitted for H-1B cases. Consequently, these workers may still qualify as specialty occupation workers under H-1B status, provided that they can establish work experience equivalency to the required bachelor degree.
For the purposes of H-1B eligibility, the term “specialty occupation” is defined in INA as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. If the worker does not have a bachelor degree, the INS expects at least three years of relevant work experience in progressively responsible positions for every year that he or she lacks towards a four year university degree.
Occupations such as software engineers, systems analysts and computer consultants would likely be considered specialty occupations. Unfortunately, the H-1B category is subject to several disadvantages, including prevailing wage requirements and an annual cap on the number of H-1B’s that may be issued in a given fiscal year.
For further information, please refer to the article on H-1B status, which is available here.
E-1/E-2 Essential Skills Workers
Computer professionals may qualify as essential skills workers under the E visa category, provided that they are otherwise eligible for such status. The E visa category does not require specific education in the field as a prerequisite to eligibility as an L-1 worker.
One disadvantage is there must be a bilateral investment treaty or treaty of commerce and navigation in place between the U.S. and the foreign country. Another is that the essential skills worker and the treaty business must have the same nationality. Finally, many (but not all) essential skills workers are only permitted to enter on a short-term basis. A distinction is made between short-term and long-term essential skills workers.
Short-Term Essential Skills Workers
This type involves situations in which the treaty business will be expected to train U.S. workers in a reasonably short time to replace the following essential skills employees. These may involve the following employees:
- Essential skills employees needed in the start-up of an enterprise (usually for not more than a year or two) because of their familiarity with the overseas operation rather than their specialized skills; and
- Highly trained and specially qualified technicians needed to train or supervise personnel in manufacturing, maintenance and repair functions, even though they may also perform some manual duties.
As such workers are essential only because U.S. personnel cannot be found, the employer must be prepared to show both that qualified personnel are not available locally and that it is training U.S. residents as replacements.
Long-Term Essential Skills Workers
This type involves essential employees who qualify for E classification on the basis of a long-term or continuing need, since some skills will be essential for as long as the business is operating. Long-term essentiality might be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
There is no requirement that the employer train this type of essential employee. There is an implicit requirement to train only if the skills are of the nature conducive to transfer to the local labor market; some skills are not readily transferred, and therefore remain essential to the efficient operation of the business for an indefinite period of time.
For further information, please refer to the general article on treaty traders and investors, which is available here.
L-1 Specialized Knowledge Workers
Computer professionals may also qualify as specialized knowledge workers under the L-1 category, provided that they are otherwise eligible for such status. Like the E visa, the L-1 category does not require specific education in the field as a prerequisite to eligibility as a specialized knowledge worker. Further, Canadian L-1 non-immigrants may apply at a port of entry. However, the alien worker must have worked in a specialized knowledge capacity for a foreign parent, branch, affiliate or subsidiary for at least one year within the previous three years. The alien worker must also be seeking entry to render services in a specialized knowledge capacity to a branch of the same parent, branch, affiliate or subsidiary thereof.
A Look at the Categorical and Modified Categorical Approaches to Determining Crimes of Moral Turpitude
The First Circuit Court of Appeals case of Da Silva Neto v. Holder, 680 F. 3d 25 (1st Cir. 2012) illustrates the categorical and the modified categorical approaches to determining whether a crime does or doesn’t involve moral turpitude.
A foreign national convicted of a crime of moral turpitude can be denied entry into the United States or removed from the United States.
Being convicted of a crime of moral turpitude can also bar a foreign national from proving good moral character. Good moral character is a requirement for naturalization and for applying for cancellation of removal.
The case of Da Silva Neto v. Holder illustrates the importance of proving good moral character and shows how courts determine whether a crime involves moral turpitude.
Neto went to a New Year’s party at his ex-wife’s house. He left the party and then tried to return. When his ex-wife refused him entry, he kicked the door in and, once inside, broke some glass and threw some furniture.
He was sentenced to eleven months probation and an anger management program. He successfully completed his probation and the court dismissed the charges against him. Nevertheless, ICE took Neto into custody and placed him in removal proceedings.
Cancellation of removal is a form of discretionary relief which allows a removable (deportable) foreign national to remain in the United States. Non LPR cancellation of removal is available to foreign nationals who:
• Have been physically present in the United States for at least ten (10) years before removal proceedings;
• Have been a person of good moral character during the ten (10) year period immediately before applying for cancellation of removal;
• Have no disqualifying criminal convictions;
• Have an LPR or U.S. citizen spouse, parent or child.
To be granted cancellation of removal, the applicant must persuade the judge that his removal will cause exceptional and extremely unusual hardship to his LPR or U.S. citizen spouse, parent, or child.
The immigration judge decided Neto didn’t qualify for cancellation of removal because his conviction for malicious destruction of property meant he could not demonstrate that he had good moral character. The conviction, the judge decided, involved moral turpitude.
A crime of moral turpitude is a crime that “shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or society in general.” A crime of moral turpitude is one that is inherently base, vile, and depraved.” “per se morally reprehensible and intrinsically wrong”
Whether a crime is or is not a crime or moral turpitude is decided on a case-by-case basis.
Neto appealed to the BIA and then to the First Circuit Court of Appeals.
To determine whether malicious destruction of property was a crime of moral turpitude, the BIA applied the categorical and then modified categorical approaches.
Under the categorical approach, the court looks to the statutory definition of the crime and determines whether or not it describes a crime that is “inherently base, vile, or depraved.” If it does, then the crime is a crime of moral turpitude.
If the statute describes both types of crimes- crimes that could involve moral turpitude and crimes that don’t necessarily involve moral turpitude- then the court will use the modified categorical approach.
Under the modified categorical approach, the court will look to the record of conviction to determine which type of crime the person was convicted of. The record of conviction is made up of the docket sheet, the plea agreement, and other reliable documents that prove what a person was convicted of.
The Massachusetts malicious destruction statute, M.G.L. c. 266 § 127, punishes both wanton destruction of property as well as malicious destruction of property. Under Massachusetts law, wanton destruction of property requires only that the actor’s conduct was indifferent to, or in disregard of, probable consequences. Malicious destruction of property requires a state of mind of cruelty, hostility, or revenge.
The BIA held that wanton destruction of property was not a crime of moral turpitude because it could be done with indifference or recklessly. The BIA held that malicious destruction of property was a crime of moral turpitude because it required a state-of-mind of cruelty, hostility, or revenge.
After looking at the record of conviction, the BIA determined that Neto committed malicious destruction of property, a crime of moral turpitude. The Court of Appeals upheld the BIA’s reasoning.
This case illustrates the importance to foreign nationals charged with a crime of retaining defense counsel experienced in both immigration and criminal law. An experienced and knowledgeable criminal and removal defense lawyer would have known how to create a record of conviction that would have favored Neto.
Criminal convictions are always accompanied with consequences. However the consequence for immigrant visa-holders can be dire. Depending on the nature of the crimes committed, immigrants can face deportation, inadmissibility or other visa problems.
Serious crimes that involve violence or deceitful conduct such as aggravated felonies or crimes of moral turpitude carry heavy penalties. Any visa holder that is facing criminal convictions should consult with an attorney to determine how the conviction will affect one’s stay in the United States.
While there are many different convictions carrying different degrees of seriousness and penalties, here are a few of the most serious convictions that can lead to deportation, inadmissibility or other consequences
Crimes of Moral Turpitude
A crime of moral turpitude is a phrase to describe a broad category of crimes, but generally is described as a crime that “shocks the conscience, ” is dishonest or is contrary to society’s rules of morality. These crimes include murder, manslaughter, kidnapping, fraud, and aggravated assault among others. This triggers deportation as well as inadmissibility into the United States
Aggravated felonies are a group of offenses added to the Immigration and Nationality Act that carry some of the harshest immigration consequences. The crimes in this category vary from murder to theft crimes and conspiracy. These harsh consequences could include deportation without a hearing, ineligibility for asylum, ineligibility for cancellation of removal and ineligibility for voluntary departure. A person convicted of an aggravated felony could also face permanent inadmissibility following departure from the United States and significant penalties for illegally re-entering the United States. This category also carries mandatory detention following release from custody.
Any crime involving illegal purchase, sale, exchange, ownership or possession of a firearm can result in a deportation. This can be extended to the firearm accessories as well.
Crimes against the State
Crimes against the United States or United States officers can result in deportation. These crimes include espionage, sabotage, treason, or conspiracy. Threats against the President also fall in this category.
Convictions of any domestic violence crimes can result in deportation. Child abuse, neglect and abandonment also can trigger deportation.
Violating a Protective Order
Protective Orders must be strictly complied with and a violation of the order can trigger deportation.
Fleeing an Immigration Checkpoint
Any immigrant that flees from an immigration checkpoint without complying with the checkpoint regulations is in violation of federal law and can cause deportation proceedings.
Falsifying important government documents such as visas, permits or other admission documents can result in deportation.
Controlled Substance Offenses
Drug offense are taken seriously and depending on the specific statute violated, can result in deportation or inadmissibility.
These are just some of the offenses that could result in deportation or other immigration consequences. There are many other crimes that can also affect visa status. Whenever a conviction occurs the visa holder should be aware that immigration status may be affected as well and should seek out guidance on this issue.
The my job of the immigration legal representative is to basically make their customers naturalized person of the United States. It is the responsibility of the attorneys to make certain that their clients are fully mindful and also have full expertise about what they are supposed to do, that they are not expected to do and just what civil liberties they have in the country as migrants living there.
It is not an outright need to hire the services of lawyer, but it consistently much better to work with legal representative’s solutions so you could have a clear image regarding your rights as well as obligations. Generally the legal representative will certainly be able to aid you out with everything lawfully relevant to the problem of immigration.
Utilizing this information you can locate the most effective immigration lawyer in Plumas County
Getting immigration to the United States is a quite strenuous activity. You have to fill up numerous kinds and also file lots of applications and even files, and also the meetings as well as court proceedings. However, if you employ an excellent immigration lawyer, your life will end up being a great deal simpler. Great legal representatives can assist you with the paperwork and even the research, yet most notably, you’ll have some much-needed assistance in case you bump into some complications. Hiring an attorney is in fact a quite challenging task for most of us, yet it shouldn’t be that intimidating.
You have to put in a fair little of research as well as keep your ears and eyes open up the whole time if you do choose to hire a legal representative. There are numerous perks of employing an excellent legal representative, such as support if you acquire stuck someplace. Moreover, great immigration lawyers know their method around the system; they recognize all the loopholes so they can effortlessly steer your case through them as well as get your immigration approved.
In any kind of instance, when you do start looking for legal representatives, make sure you understand your instance very well as well as be all set to provide the legal representative with all the necessary details and records. When you are looking for a good lawyer, ask your buddies, family members, or even associates if they understand any. Referrals are a superb means to locate excellent immigration lawyers, and even are additionally a fantastic method to acquire far better rates and also added support.
You can likewise surf for a good immigration attorney on the American Immigration Attorney Organization site. Even though not all immigration legal representatives are signed up AILA members, this is an excellent sign of the experience and quality of the lawyer.
It’s crucial that you have the very best immigration attorney in Greenville, CA 95947
As soon as you have a listing of attorneys put together, begin speaking with them. Ask regarding their experience and whether they have worked on cases just like your own. You would like to find as well as shortlist attorneys that have comprehensive dealing with of cases like your own since that would boost the chances of the successful resolution of your case. Experienced lawyers recognize which loophole they can use to obtain your immigration accepted. Inquire for client recommendations and talk with some of their customers to see exactly how they work.
After you have actually shortlisted a number of candidates, ask them about their fees and also charges. Ask about their preferred settlement methods and also how they will certainly bill you. Some cost per hour prices, while others ask for a flat charge so see to it you know exactly how these prospects charge. If they will certainly bill you for telephonic chats, make certain you ask them regarding added prices such as messenger charges and also also. Another thing you ought to ask them is how much the whole procedure will certainly set you back, consisting of the application fees and even such.
You can surf for immigration legal representatives from an attorney directory. You could locate a great immigration attorney in by talking to people who have currently utilized the services of the lawyer. It is not a downright need to work with the services of lawyer, but it constantly a lot better to work with attorney’s services so you could have a clear image concerning your civil liberties and obligations. In any sort of instance, when you do begin looking for lawyers, make sure you recognize your instance pretty well and also be ready to give the lawyer with all the required info and also records. Even though not all immigration legal representatives are registered AILA participants, this is a great indication of the experience and high quality of the legal representative.
When you really want to arrive to United States, there are many issues that require to be taken care of. Several of the problems that need to be looked after are lawful civil liberties of immigrants, obligations of immigrants and also responsibilities if there are any kind of for migrants. The work of the immigration attorney is to basically make their customers naturalized citizen of the United States. It is the duty of the legal representatives to make certain that their customers are completely aware and also have full know-how about just what they are supposed to do, exactly what they are not meant to do as well as just what civil liberties they have in the country as immigrants staying there.
It is not a downright need to employ the solutions of lawyer, yet it always much better to hire legal representative’s services so you can have a clear picture regarding your obligations as well as civil liberties. A lawyer will be able to tell you precisely what legal rights you have and what things you require to do. Generally the legal representative will certainly have the ability to aid you out with everything lawfully related to the concern of immigration. It is consistently much better to have a great understanding concerning all the legal components related to immigration.
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If you work with a good immigration attorney, your life will end up being a great deal easier. Good lawyers can help you with the research and the documents, however most importantly, you’ll have some much-needed support in instance you run into some problems.
If you do determine to work with a legal representative, you need to put in a fair little research and keep your ears and also eyes open during. There are numerous advantages of working with a great legal representative, such as moral support if you obtain stuck someplace. In addition, excellent immigration attorneys know their means around the system; they know all the loopholes so they could easily steer your case through them and even acquire your immigration approved.
Regardless, when you do start trying to find lawyers, see to it you understand your instance pretty well and even prepare to offer the attorney with all the required information as well as documents. In addition to that, below are some points that you ought to keep in mind. When you are searching for an excellent attorney, ask your friends, family members, or perhaps associates if they know any sort of. Even if they don’t know any kind of legal representatives directly, they will recognize a person who will. References are an outstanding methods to discover good immigration lawyers, and even are likewise a fantastic method to get better rates as well as added assistance. Furthermore, they could tell you which attorneys to prevent, making your life a great deal much easier. Make sure you do some background study on the referred attorney.
You could also look for a good immigration lawyer on the American Immigration Attorney Association internet site. They are a nationwide company of practicing attorneys that specialize in immigration regulation. You can conveniently locate seasoned attorneys that fit your budget plan from this source. It additionally makes it less complicated for you to look into a lawyer’s background and also credentials. Even though not all immigration legal representatives are signed up AILA participants, this is a great indicator of the dealing with and high quality of the lawyer.
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Begin speaking to them as soon as you have a list of attorneys put together. Ask them concerning their encounter and also whether they have worked with situations just like your own. You wish to discover and even shortlist lawyers that have extensive dealing with of instances like your own since that would boost the opportunities of the effective resolution of your instance. Experienced lawyers understand which loophole they can use to get your immigration authorized. Ask for customer referrals as well as speak with several of their customers to view how they work.
After you’ve shortlisted a number of prospects, inquire concerning their fees as well as charges. Inquire about their preferred repayment approaches and also exactly how they will certainly bill you. Some cost per hour rates, while others ask for a level charge so make certain you know how these candidates cost. Make certain you inquire about additional costs such as courier charges and even if they will certainly charge you for telephonic discussions. An additional point you should inquire is how much the whole process will certainly cost, including the application charges and even such.
You can surf for immigration legal representatives from an attorney directory site. You can discover an excellent immigration legal representative in by chatting to people that have already utilized the services of the legal representative. It is not a downright necessity to hire the services of lawyer, yet it always much better to work with lawyer’s solutions so you could have a clear photo concerning your civil liberties and even tasks. In any kind of case, when you do begin looking for lawyers, make certain you realise your case quite well as well as be prepared to offer the attorney with all the necessary information and even records. Also though not all immigration lawyers are registered AILA members, this is an excellent indicator of the encounter as well as top quality of the attorney.
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Good Faith Recommendations
Professional nurses may apply under either the TN (if they are Canadian citizens) or H-1B category. The requirements for TN and H-1B are briefly discussed below. However, it is recommended that readers also refer to the detailed general discussion section relating to the TN and H-1B categories.
TN Status for Nurses Having Canadian Citizenship
The most appropriate category for Canadian registered nurses is the TN category under the North American Free Trade Agreement (“NAFTA”). The availability of TN status gives Canadian nurses a simplified procedure for obtaining entry as a temporary worker. Even professional nurses other than registered nurses may qualify for TN status as a medical technologist, which is also a listed profession in Appendix 1603.D.1. However, the benefits of NAFTA apply only to Canadian citizens, not landed immigrants.
Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. In contrast to the H-1B category, registered nurses require only a state or provincial licence to practice in order to establish the necessary credentials. A licence to practice in any state or province should technically establish the necessary qualifications. However, where a licence to practice as a registered nurse is required in the state of intended employment, an applicant must also have such a licence before TN status will be granted. A temporary or interim licence should be sufficient to permit entry under the TN category.
TN workers can apply for status at a port of entry just prior to entering the United States. A properly prepared TN application takes only a few minutes to adjudicate. Once admitted, a TN worker is granted an initial stay of one year. Thereafter, a TN professional may request extensions of stay for one-year increments. There is currently no limit on the number of extensions that may be granted.
H-1 Status for Nurses Not Having Canadian Citizenship
Registered nurses who are not Canadian citizens are not eligible for TN status and must apply for an H visa. Prior to September 1, 1990, professional nurses who had bachelor degrees in the field applied as professionals under the H-1B category. After that date, foreign nurses had to seek temporary status under the H-1A category. The H-1A category imposed onerous labor conditions upon the employer but did not require that the foreign nurse have a bachelor degree as a condition of eligibility.
On September 1, 1995 the five-year program which established the H-1A category expired and Congress did not act to extend the program before that date. However, professional nurses are once again be eligible to apply as professionals under the H-1B category, provided that they meet the requirements thereof.
The H-1B category is open to aliens seeking entry into the United States to work in a “specialty occupation”. However, it must first be shown that the job requires someone in a specialty occupation. It the job qualifies, it must then be established that the H-1B worker meets the requirements for the job.
The term “specialty occupation” is defined as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. To qualify as a specialty occupation, one of the following must be shown:
- a bachelor degree or higher degree (or it equivalent) is normally the minimum entry requirement for the position;
- the requirement of a degree for the position is common in the industry or the position is so unique or complex that it can only be performed by someone with a degree;
- the employer normally requires a degree or its equivalent for the position; or
- the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor or higher degree.
If the position is a specialty occupation, the H-1B worker must then show that he or she is qualified to fill the position. To meet the requirements of the specialty occupation, the alien must possess the following:
- full state licensure, if required for practice in the state; and
- either of the following:
- completion of a bachelor or higher degree (or its equivalent) in the specific specialty; or
- experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
For the purpose of determining equivalency to a bachelor degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the H-1B worker lacks.
In order to hire an H-1B worker, a U.S. employer must comply with several labor requirements including attesting to the fact that it will pay the greater of the actual wage paid by that employer to all other individuals with similar experience and qualifications at the place of employment and the prevailing wage for the occupation in the area of intended employment.
An H-1B visa is valid initially for up to three years. Extensions of up to three years at a time may be requested to a maximum total stay of six years. The H-1B worker must then remain outside the United States for at least one year before becoming eligible for H status again.
New H-1C Category for Professional Nurses
On November 12, 1999, the President signed the Nursing Relief for Disadvantaged Areas Act of 1999 into law. In order to qualify for an H-1C, nurses must:
- Have a full and unrestricted license as a nurse in their home countries or must have been educated in the United States;
- Pass an appropriate examination (to be determined by HHS), or have a full and unrestricted license to practice as an RN in the state of intended employment;
- Must be fully qualified and eligible under all state laws and regulations to practice as an RN in the state of intended employment immediately upon admission to the United States.
The statute requires facilities hiring H-1C nurses to file an attestation with the Department of Labor that confirms the following:
- The employer is a hospital (as defined under the Social Security Act) and is located in a designated health professional shortage area, has at least 190 acute care beds, and that, since 1994, has had at least 35% of its patients entitled to Medicare, and at least 28% Medicaid;
- Employment of the nurse will not adversely affect wages and working conditions of similarly employed nurses;
- The nurse will be paid the same rate as other registered nurses similarly employed at the facility;
- The facility has taken and is taking timely and significant steps to recruit and retain U.S. citizen or immigrant registered nurses, including (without limitation):
- Operating a training program for nurses at the facility or financing (or providing participation in) a program elsewhere;
- Providing career development programs and other methods to encourage other health care workers to become registered nurses;
- Paying a wage to registered nurses higher than the prevailing wage;
- Providing “reasonable opportunities for meaningful salary advancement” by RNs.;
- There is no strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility with in the 90 days before and the 90 days after the date of filing a visa petition for the H-1C nurse and the employment of an H-1C nurse is not intended or designed to influence union activity (layoff means loss of employment other than through discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or expiration of a grant or contract but does not include any situation in which the work is offered, as an alternative to termination, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits, regardless of whether the alternative job offer is accepted).
- Notice of the filing is provided to the bargaining representative for registered nurses at the facility or, if no bargaining representative, has been posted to employees in conspicuous locations;
- That the facility will never employ H-1C nurses as more than 33% of its total registered nursing staff;
- The H-1C nurse will not work at any worksite not directly controlled by the employer or transfer the H-1C nurse to another worksite during the course of the nurse’s employment.
Attestations are valid for one year from date of filing, or the last day that any H-1C nurse is employed under the attestation (whichever is later), and can be used for filing petitions for one year from the date of its filing.
More than one nurse may be included in a single petition. H-1C nurses may be admitted for three years; no extensions are provided.
Where the facility has failed to meet a condition in the attestation or misrepresented a material fact, a civil penalty of up to $1000 per nurse per violation up to $10,000 and a bar on filing H-1C petitions of at least one year may be imposed. In addition, where the facility has violated the wage attestation, the Department of Labor may order the employer to provide back pay to the H-1C worker.
Up to 500 H-1C visas may be issued each year. States with less than 9 million in population as of 1990 may not have more than 25 visas annually; states with more than 9 million can have no more than 50 visas annually. However, if not all visas available in a quarter are used, the visas may be issued to states regardless of their population or the state cap in the last quarter of the fiscal year.
The Immigration and Naturalization Service must promulgate regulations for the H-1C category within 90 days from the date of the statute’s enactment. The category will sunset four years after date the regulations are first promulgated.
Exclusion for Foreign Health Care Workers
Nurses should be aware that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) now makes registered nurses excludable both as nonimmigrants and immigrants under the new INA 212(a)(5)(C) unless they have been certified by the Commission on Graduates of Foreign Nursing Schools (“CGFNS”). The CGFNS is an independent, non-profit organization which developed the CGFNS examination to test the capabilities of foreign professional nurses in all areas of nursing for which American nurse graduates are responsible, and to give an objective estimate of their ability to pass licensure examinations in the United States.
A subsequent memorandum from the INS clarified that the existing CGFNS certification was not sufficient to overcome INA 212(a)(5)(C). In addition, the INS took the position that it would not accept certifications until its regulations were promulgated.
The INS finally promulgated interim regulations on October 14, 1998, which become effective on December 14, 1998. The interim regulations confirm that CGFNS is the designated credentialing organization for registered nurses. They also confirm that a certificate which meets the requirements stated therein is sufficient to overcome this ground of exclusion. Finally, the regulations confirm that Graduates of health professional programs in Canada (except Quebec) are exempt from the English language requirements of section 343 of IIRAIRA for the duration of the interim regulation.