The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.
November 2010 Archives
Ohio Immigration Lawyer: Challenges to the new controversial Immigration law in Arizona. Will the law be overturned?
Judge Susan R. Bolton has dismissed two of the cases that challenged Arizona's controversial immigration law, SB 1070. On August 24, she dismissed a claim by Roberto Frisancho, who claimed that the law would keep him from traveling to Arizona for research. On August 31, she ruled that a Tuscon polic officer Martin Escobar lacked standing to pursue his claims.
This law will continue to be challenged, but with judges deferring to the law, will these challenges ever grow legs?
Ohio Immigration Lawyer: Get Out of Removal (Deportation) Proceedings for Free? Not Exactly - Noncriminals Can Get Out in 30 Days!!
If you are in removal or deportation proceedings and you have a family based petition (Form I-130) petition pending or it has been approved, you could go home is as little as 30 days! This article addresses the new handling proceedures for individuals in removal or deportation (issued an NTA) with a pending or approved application or petition with USCIS.
Petition for Alien Relative (I-130) Expedites Removal:
A recent policy memo instructs the U.S. Immigration and Customs Enforcement (ICE) on handling removal deportation proceedings of aliens with pending or approved I-130 applications or petitions. The new ICE policy outlines a framework for ICE to request expedited adjudication of an application or petition for alien relative in removal proceedings. The petition must be pending before U.S. Citizenship & Immigration Services (USCIS). The case will be expedited if the approval of such an application or petition would provide an immediate basis for relief for the alien.
- Detained Alien: if the case involves a detained alien whose application or petition is pending with USCIS, the office of chief counsel (OCC) is directed to request that USCIS expedite the adjudication of the application or petition within 30 days. ICE will see that USCIS conducts the interview, if needed.
- Non-Detained Alien: if the case involves a non-detained alien whose application or petition is pending with USCIS, OCC will request that USCIS expedite the adjudication of the application or petition within 45 days.
Detained Aliens: Terminate Proceedings. Dismiss the Case. Get of Jail!
Certain cases in removal proceedings can be dismissed without prejudice. Where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE determines as a matter of law and in the exercise of discretion that such alien appears eligible for relief from removal, the office of chief counsel is allowed to move to terminate the proceedings and the judge will dismiss the case. Dismissal is only done after the OCC contacts the local USCIS Field Office Director where the case is pending and Special Agent in Charge to determine if there are any investigations or serious, adverse factors weighing against dismissal of proceedings. Adverse factors include criminal convictions, evidence of fraud or other criminal misconduct, and national security and public safety concerns. This affects thousands of aliens married or related to a U.S. citizen or a lawful permanent resident who has filed a petition for them and who do not have a criminal conviction.
This is the first move by the Obama administration to establish a more lenient immigration policy towards aliens facing removal from the United States. Once it is determined that there are no adverse factors, Chief Counsel is likely to dismiss the case without prejudice before the Immigration Court. "Without prejudice" simply means that if the underlying petition or application is subsequently denied, the alien will be allowed to his or her case heard again in Immigration Court. This is advantageous because it allows the alien's case to be heard by USCIS and again by the Immigration Judge if something goes wrong at USCIS. This allows the alien to remain in the United States to take more bites out of the apple.
After OCC notifies the Field Office Director that there are no adverse factors, the Director must release the alien pursuant to the dismissal of the proceedings. This allows ICE to focus on those aliens who are criminals while expediting the cases of law-abiding immigrants. The new approach saves tax dollars and efficiently allocates ICE's resources. It also promotes unity of the family unit - a tenant of the Immigration laws.
Where there is an underlying application or petition and ICE determines in the exercise of discretion that a non-detained individual appears eligible for relief from removal, Chief Counsel should promptly move to dismiss proceedings without prejudice before the Immigration Court.
So detained and non-detained aliens' cases can be dismissed and terminated from Immigration Court. This does not apply to all cases. Suffice it to say that if you are in deportation because of an overstay problem or techincal violation of immigration laws, your case can be expedited out of removal proceedings. There are four (4) criteria that ICE uses to determine which cases are "dismissible."
The United States Citizenship & Immigration Services ("USCIS") has announced that any U.S. citizen seeking to adopt a child from Nepal should file Form I-600 with the U.S. Embassy in Kathmandu, assuming the case is not affected by the recent suspension in processing of Nepali cases.
Immigration Customs and Enforcement ("ICE") has issued a statement that it will approve special relief for some Haitian F-1 students who were lawfully present as F-1 visa holders on January 12, 2010, and have suffered severe economic hardship because of the earthquake on that day.
California Supreme Court Unanimously Upholds In-State Tuition Policy for Undocumented Foreign Nationals
In a well reasoned opinion, the California Supreme Court upheld a California state statute that allows for high school students, who have attended at least three years of high school in California, to receive in-state tuition prices from California public colleges and universities. This ruling is a great victory for proponents of such laws in ten states that allow for in-state tuition pricing for such students as well as for fundamental fairness and justice to the children of undocumentaed workers who would have been harmmed had this case been decided in favor of the opposition.
The statute at issue, which was intended to bring children of undocumented immigrants into the educational and societal mainstream, ties the in-state tuition rate to the place where the student had attended the last three years of high school instead of basing in-state tuition to the residence of the child in the state.
Advocates who argued against the bill cited to federal law which does not allow for undocumented aliens to be awarded governmental benefits which are tied to residence. However, because the law did not tie the benefit of in-state tuition to the child's residence, the federal law was deemed by the court to not have been violated.
The ruling also dealt a blow to noted anti-illegal immigration activist, Kris Kobach, who had played an integral role in filing and arguing this lawsuit as well in the drafting of Senate Bill 1070 in Arizona.
Columbus Ohio Immigration Attorney Discusses the Extreme Backlog of H-1B Visas at the Vermont and California Processing Centers
Does the delay on the processing of your H-1B, employment based non-immigrant visa make you feel like pulling your hair out? You are not alone. The USCIS in its infinite wisdom has decided that it will drastically increase its enforcement efforts, while at the same time not hiring new staff to adjudicate H-1B visas. As a result of this unfunded mandate to allocate resources that the services centers do not possess, both the California and Vermont Service centers are reporting absurd delays in processing H-1B petitions which were filed through the normal processing methods. Whether these laughable wait times are incidental to or a desired effect of the USCIS's war against the H-1B visa, what is apparent is that this conflict has become a war of attrition with documented, bachelor's degree holding foreign nationals and their families enduring effects of the of the collateral damage.
What caused the delays to increase so drastically?
A variety of forces have converged to create this unfortunate result. After reporting processing times in the area of two months in early 2010, the service provided by these service centers has taken a drastic turn for the worse. First, we should begin by blaming everyone's favorite scapegoat, the economy. Obviously the economy, backed by speculation on the housing industry, crashed into a rescission in 2007. As always happens in a down economy, non-immigrants, who have no voting rights yet are taxed as any US citizen, are among the first to be targeted by political pundits from both sides of the aisle. Simply put, it is not politically popular for foreign nationals to have good jobs in American companies when US citizens are being laid off, even if these foreign nationals happen to hold master's degree in software engineering. Therefore, pressure comes down from above to reduce the number of H-1B visas granted.
However, this economic thinking is contrary to the reality of the H-1B visa landscape today. In 2009, H-1B visas were awarded at an extremely slow rate, indicating the demand for such workers was in line with demand for all workers, i.e. slow. Down from the usual pattern of selling out within hours of the new fiscal year opening, the H-1B visa cap was not reached until December of 2009, a span of nearly nine (9) months. The numbers do not indicate that H-1B workers were being hired before American workers who could do the same job. Moreover, H-1B workers provide a competitive advantage to many companies who cannot find enough Americans with specific skill sets in science and engineering here in the states. In any case, the economy has resulted in pressure being placed on the non-immigrant class of people in the United States, a people who are always the easiest target for politicos.
Secondly, the Neufeld memo of January 2010 mandated that the legal analysis of the requirement of "employer control" of H-1B employees that is incongruent with reality and more befitting the analysis of a "frolic" verses a "detour" in Tort law. The analysis of all H-1B visa applications involving computer consultants who are placed off site under the Neufeld guidelines has resulted in an exponential increase in Requests for Additional Evidence (RFE) and Notice of Intent to Deny Decisions (NOID) issued by the USCIS. Visa petitions are adjudicated by living, breathing individual immigration officers. Every RFE doubles the amount of time needed to adjudicate an H-1B petition. Every notice of intent to deny contains a detailed argument and takes much more time to draft than an approval notice. Additionally, immigration lawyers have been including more and more evidence into each petition in an attempt to show that H-1B employers really do control their H-1B employees no matter where they happen to physically work. As a result of all of this paperwork, H-1B petitions that formerly took days to process are now estimated to take years to process. The USCIS has not indicated that it has or plans to hire additional officers to take care of this increase in work load. Therefore, the work keeps piling up on each immigration officer.
Finally, seeing the processing times increase, although not reported by the USCIS, immigration attorneys, petitioners and beneficiary's began to utilize the Premium Processing Service offered by the USCIS, which guarantees adjudication of a petition within 15 business days. The premium processing service has become inundated with petitions, beyond what the premium processing staff can handle. Therefore, officers have been pulled from the regular processing H-1B line to the premium processing H-1B line, further exasperating this problem.
What can be done?
Premium processing appears to be the most advisable option. Our firm is still experiencing reasonable processing times by filing in this manner. H-1B visas can still be had; however there is currently no reliable way to gauge when people who file under regular processing may have them.
Since I began working at "The Law Firm of Shihab & Associates," I have been amazed by the firm's innovative approaches to processing H-1B visas. Innovation has streamlined the once cumbersome H-1B process. The firm can process an H-1B visa in as little as 5 business days! This is by far the fastest H-1B visa processing around. To do this every move has to be caclulated, detailed and swift, like a cheetah lurking in the wild and eventually pouncing on its prey. This article discusses how this is accomplished.
For a brief overview of the H-1B visa process, please visit our website here.
Day 1: Starting the H-1B Visa Process
After you have contacted our firm about beginning an H-1B visa, we will meet with your executive officer or human resources specialist to gather information about the foreign national ("FN") you are sponsoring. This initial step is accomplished in one day. It allows our firm to get to know the FN's education background and experience and learn about the job offer. Once we have determined that the foreign national qualifies for the H-1B visa, we will allow the FN to access our online visa portal to upload all his or her biographical information. Our innovative ShihabEDGE online portal allows our firm to gather all the relevant information in one step, eliminating the time it takes to send information and documentation by mail or e-mail. Once all the pertinent information is gathered, we can immediately move to the next step.
The Department of Labor: The Waiting Game
The H-B visa must be filed with a certified Labor Conditions Application ("LCA"). The LCA must be filed and certified with the Dept. of Labor ("DOL") Employment and Training Administration's iCERT Visa Portal System. This online filing has a mandatory wait time that our firm has no control over. LCAs take as little as 5 days and as long as 7 days to be certified with the DOL. If you have filed an H-1B visa in the last year, the DOL will already have the company's FEIN on file. The DOL uses company's FEIN to verify that the company exists. If the company has not filed an H-1B visa in the last year, we will request FEIN documentation up front (on Day 1 with the information gathering) and we will send that information to the DOL to update the database. Of course, this will slow down the process. But, if you have filed an H-1B within the last year, then the DOL will certify the LCA in the normal processing time.
Day 2-5: Preparing the H-1B While the LCA is Pending
Once we have submitted the LCA, we will begin preparing the H-1B visa application and Public Inspection File. The Public Inspection File is mandated by federal regulation to make sure that the employer has complied with the H-1B visa requirements. If there's an audit, this file will prove to the government that everything has been done correctly. When hiring foreign labor, employers want to be sure that they will not be sanctioned if something is out of order. Our firm makes sure that the employer is in compliance, and we use this time period to fully examine the case for accuracy.
Whether it is an H-1B cap case, extension of status, or transfer petition, we will have all the documentation ready for the employer to sign as soon as the LCA is certified. The DOL has certified LCAs in as little as 5 business days. If this is the case, our firm will have all the documents needed for the H-1B filing on Day 5. We will then overnight the petition to the United States Citizenship and Immigration Service ensuring the fastest filing possible! The only reason that our firm is able to process H-1B visas so quickly is because we are organized in our approach. We offer the most innovative representation by the use of our secured online case management system. This allows us to seemlessly prepare an H-1B with extreme accuracy. The information is prepared by the FN and the employer meaning that it is accurate and reliable. The speed and accuracy of our filings is what separates our firm from others who are not as experienced in this process.
Day 5-9: Possible Reasons for H-1B Delay
The DOL is main reason that an H-1B visa is delayed. If the DOL does not have information about a company (i.e., it does not have the company's FEIN on file), then we will have to certify the FEIN before the LCA. This can take an additional 2 days. The DOL may also take a full 7 days to certify the LCA. Another reason for delay is that the employer or FN is unorganized. If the employer or FN does not complete the biographic questionnaire online or provide sufficient documentation up front, delays will occur. Often times, we will have questions for the employer's HR department that will not be answered timely. This also causes delays. But when the employer desires to have the foreign national begin immediately, the company is usually very swift in supplying the necessary information.
Post H-1B Filing Issues:
After the H-1B visa has been filed, our firm maintains contact with the company and FN to ensure that the worker can start at the earliest possible date. If the FN is in the United States, the filing of the H-1B petition can allow them to begin working at a new employer's location. Hence, if you want to transfer a worker on H-1B, they can start as soon as a week after our firm has been contacted. This is very helpful for firms who have a project with an end client that is to begin immediately.
The Plight of India's Three Year Bachelor's Degrees and The Green Card Controversy.... I-140 Denials Can Be Avoided Only with Careful Planning......
Problem: Many I-140 petitions are denied simply because of poor drafting of the PERM application itself. This particularly true for foreign nationals who possess three year Indian degrees.
Solution: Careful planning of the PERM application can lead to EB-2 and EB-3 petition approval for aliens possessing Indian three year degrees. Certain specific rules apply for which numerous lawyers do not understand.
It amazes me!!!
Many immigration lawyers do not understand how to represent their clients in PERM green card processing when the foreign national possesses a three year bachelor's degree from India. As a Columbus, Ohio immigration lawyer, I receive numerous calls where the foreign national's PERM green card has been approved but the subsequent I-140 had been denied by the USCIS. By the time we get the case, the damage had already been done and the foreign national had wasted valuable time and resources. The main question is, can a foreign national who received a three year bachelor's degree from India qualify for permanent residence on the basis of EB-3? Can such foreign national qualify on the basis of EB-2? Clients who call my office state that their attorney categorically dismissed such foreign national's chance of ever getting an EB-2. This article explains that such opinion is contrary to correct legal interpretation of the manner in which the USCIS and Nebraska Service Center will adjudicate these cases.
What is the Source of the Problem? Could It Be Me....?
Prior to the year 2000 Indian foreign nationals who processed their permanent residence had no problem whatsoever to show that their three year degrees were in fact equivalent to US bachelor's degree. A historic unrelated event occurred in 2001 which had a profound impact on the issue at hand. By April 30, of that year a record 350,000 additional labor certificate applications were filed nationwide in an attempt to qualify many immigrants who had entered the US illegally under the Legal Immigration Family Equity ("LIFE") Act. This event affected the adjudication of all labor certificate applications nationwide and by 2003 the adjudication of all labor certificate applications halted completely. In the absence of certified labor certificate applications, there was obviously no I-140 petitions to adjudicate. This period of silence, amazingly caused the Nebraska Service Center to devise ways to attack Indian three year degrees.
In 2005 the labor certificate application process was replaced with PERM and many previously filed labor certificate applications were refilled under the PERM process. Initially PERM applications were being adjudicated in days, which obviously was encouraging. When it came to the I-140 processing, however, many foreign nationals whose PERM applications were based on three year degrees were shocked to learn that their I-140s are being denied on the premise that such degrees are not equivalent to a US bachelor's degree. The USCIS argued that three year degrees are not equivalent to 4 year degrees and that the Indian educational system awards both three year and four year degrees. In doing so, the USCIS had completely ignored the quality of education given in India which in many cases surpasses the US educational curriculum. Based on the writer's independent research, many three degrees awarded in India, yield more classroom hours than their American four year degree counterparts. In other words, Indian three year bachelor's degrees offer more intensive education than a similar four degrees awarded in the United States. Even though the Nebraska Service Center repeatedly assured immigration practitioners and employers that each case turns on its own merits, the USCIS takes a categorical approach that such three year bachelor's degrees are not equivalent to four year degrees.
Why is Your I-140 Being Denied? The "Single Source Rule" Conundrum.....
But the problem is one of regulatory construction! The EB-2 and EB-3 regulations under 8 CFR §204.5(k) and (l), talk about the qualifying educational criteria for these employment based preference categories as a US baccalaureate degree or a "foreign equivalent degree."
For instance, the EB-2 regulations, among other criteria, will accept a position requiring an advanced degree or a bachelor's degree or a "foreign equivalent degree" plus five years of progressive experience. Likewise the EB-3 professional category regulations would award an immigrant visa to a foreign national beneficiary if the position required and the alien possessed a US baccalaureate degree or a "foreign equivalent degree."
Simply put, the USCIS will only accept one such degree since the regulatory language does not speak of "degrees" but rather talks about a "foreign equivalent DEGREE." This is called the "single source" rule. Since the regulations speak of a "degree," a single "degree" then only one "degree," and in most instances, not a combination of degrees will suffice. On that basis, the USCIS considers a three year bachelor's degree from India to not equate a US baccalaureate degree since it is not a four year degree. It follows that in most cases if the foreign national tried to augment the missing degree with another degree in a different field or a diploma then the single source rule will be violated and the alien will not have a "foreign equivalent degree" but "degrees." It is no that basis that the USCIS is denying the I-140 petition. It matters not how many credential evaluations the foreign national may obtain pointing that the combination of degrees are equivalent to a US degree, and unless certain steps are carefully undertaken during the PERM process, the USCIS in most cases will deny an I-140 petition for EB-3 or EB-2. Furthermore, any precatory language drafted by practitioners to try to explain that "any combination of degrees will suffice for the bachelor's degree" or inserting the word "or equivalent" will not work.
Hence, if the PERM application specified that the minimum educational qualification for the position is a bachelor's or master's degree or "equivalent," then the USCIS will deny the subsequent I-140 petition if the foreign national possessed a three year bachelor's degree, had a subsequent one or two year master's degree in a different discipline. Unless precautionary language was included in the PERM labor certificate application, an EB-3 or EB-2 petition will be denied if the foreign national possessed a three year bachelor's degree.
It is crucial for the immigration practitioner representing foreign nationals who posses Indian three year degrees and who are undergoing the permanent residence process through PERM to understand these concepts as failure to do so will lead to grave unpleasant and expensive consequences.
An EB-3 Based on Three Year Indian Bachelor's Degree Is Possible
The above recitation is a detailed analysis of USC regulatory interpretations and the reason why so many I-140s were denied even under the EB-3 category when the foreign national possessed a three year bachelor's degree from India. In order for the process to be successful, the immigration practitioner must understand the pitfalls created by the USCIS regulatory interpretation. Furthermore, certain language must be included in the PERM application in section H which clarifies that the employer will accept a three year degree. The Nebraska Service Center has approved various combinations of certain phrases or words that must be recited in section H of the PERM application that will make it clear that the minimum qualifications for the job opportunity are less than a US baccalaureate degree or a "foreign degree equivalent." The recitation of such phrases will cause the subsequent I-140 petition to be approved in the "Skilled Worker" category not the "Professional Degree" necessarily. This is a distinction without a difference since both categories are lumped in the EB-3 category and the foreign national will not lose anytime should he received his or her I-140 in the Skilled Worker EB-3 category. Again, it matters not if the foreign national had 10 years of experience subsequent to her three year bachelor's degree or a master's degree or several post graduate degrees or diplomas in different fields, the PERM application must include this specific language in order for the subsequent I-140 to be approved in the EB-3 category.
Many of my clients who are undergoing the immigration or green card processes work for information technology or engineering firms in Columbus, Ohio ask wonder about the tax implications of their departure and work in the US once they receive permanent residence.
Tax laws in the US empower the Internal Revenue Service (IRS), to tax global incomes of those holding US Citizenship or the green card. All US Citizens and permanent residents are tax residents. They must report their entire worldwide income to IRS. However it does not necessarily mean the IRS will tax all the income. Treaties control whether or not the resident must pay US tax on income earned elsewhere. However, the majority is presently non-compliant, in the belief that they should only be taxed where they live.
India and US signed double taxation avoidance agreement which became effective from 1 January 1991, which provides agreed rates of tax for income arising in a country to a tax resident of another country. Hence the annual gross income, income from real estate rental or sale of stock requires filing requirement. The US tax laws exclude the first $80,000 of foreign earned income from US tax, but the individual still have to file a tax return. In addition to tax returns, there are information returns such as the Foreign Bank and Financial Account Report; this covers not only foreign Bank accounts but also all foreign financial type of accounts including investment and life insurance with cash value, etc. Disclosure is required if the aggregate balance of foreign accounts exceed $10,000 at any time during the year.
Normally many Indians, who become permanent residents in US, send money back home, which is invested in the stock market in India, where dividend and long-term capital gains are tax exempt. However, they are liable to pay tax in US for income generated in India. Article 13 of the Treaty states that each contracting state may tax capital gains in accordance with the provisions of its domestic law. That means they both have a right to tax the income. Article 25 of the Double Taxation Avoidance Agreement provides for tax credit being allowed by the country of residence in accordance with the Agreement in respect of the tax paid in the country of source.
Permanent residents even if remain outside US for entire year, still need to report the worldwide income and must file US tax return Form 1040 each year by April 15th. US Government is implementing strict tax laws and measures to trace unreported income through tighter tax laws and disclosure norms after detection of unreported accounts of US citizens and permanent residents in other countries. This is one of the reasons of concern for many green card holders from countries like India who are ignorant about the fact that they have to pay tax or disclose their income at home to IRS. Now, with computerization of accounts in all Banks and registration of land transactions by registration department of the Government, it had become very difficult to evade payment of tax as well as disclosure of assets for many individuals in India.
The United States possesses the greatest employment opportunities and training facilities for professional athletes of any single country in the world. As a result, the world's top athletes have been coming to the United States to compete and train for decades. Just as with all other foreign nationals, professional athletes require special visas in order to live and work temporarily in the United States. The O Visa was created by Congress with this purpose in mind. Below is a discussion of the O category of temporary work visas that allow professional athletes to pursue their dreams and refine their skills in the United States.
Work Visas for Extra-ordinary Athletes: An overview of the O-1A Visa
The O-1 visa is reserved for the world's top athletes. Prospective O visa beneficiaries will need to show that they have demonstrated "extra-ordinary ability" through "sustained international acclaim." This high degree of international acclaim must be demonstrated through extensive records, which an immigration attorney can help in selecting, organizing and highlighting in the visa petition.
One of the greatest advantages of the O visa is that it allows an athlete's support personnel and family accompany the athlete to the United States to aid and succor the athlete during his or her visa stay. First, O-2 visas are available for persons who will enter the United States in order to assist the athlete so long as that person is essential to that athlete's performance, has particular knowledge or a proficiency that cannot be performed by others and the O-2 foreign national has a foreign dwelling that the person does not intend to desert. An simple example of an O-2 candidate would be an experienced boxing trainer that accompanies a boxer to the United States to help prepare the boxer for a fight.
O-3 visas are also available for a spouse and children of the athlete to accompany the athletes for the duration of the O-1 visa. The O-3 visa is tied to the O-1 visa, so changes in the O-1 visa need to be reflected and updated in the O-3 visa. O-3 visa holders may study in the United States, but they are not allowed to hold employment. They may also depart a return to the US on the O-3 visa as many times as they would like during the O-3 validity period.
The High Standard for the O-1 Visa
As stated above, O-1 visas are reserved for athletes competing at the highest levels. This means that a person entering to compete on a major league baseball team could very well qualify, while a person entering the US to compete on a minor league baseball team would have a more difficult time meeting the strict parameters of the O-1 visa category. While there are other visas available for minor league level players, the O-1 visa category may not be the best option in all cases.
As stated in federal immigration law, extraordinary ability in athletics means that the foreign national possesses a level of capability that indicates that the person is one of the minute number of people who have ascended to the very top of his or her line of work. Extraordinary ability is proven to the USCIS by showing that the person has continuous international or national acclaim by providing documentary evidence of the following:
- Receipt of a preeminent intercontinental prize, such as an Olympic gold medal
- reception of other nationally or internationally recognized awards
- invitation or selection to membership in a society that requires exceptional success
- news publications about the applicant in professional or major trade publications
- selection to serving as the judge of the work of others who are at the top of their field
- an original work of major significance in the field
- evidence of the authorship of scholarly work in the field
- evidence that the person has been employed in a significant of crucial capacity at an association with a renowned reputation
- has commanded or will command a high salary for his or her services
Applying for the O Visa
The athlete himself, or herself, cannot apply for the O-1 visa. Even in individual sports that do not usually have a traditional employer, the athlete must have someone that will file the petition on his or her behalf. Therefore a sports agent or filing agent may file the case of an athlete who competes individually. For athletes that compete in team sports, the team may apply for the visa. The O-1 visa cannot be applied for more than one year ahead of the time that the athlete expects to arrive in the United States and begin working.
An O-1 visa holder may have one or more locations of employment. If there is more than one location of employment, an itinerary of all work locations must be supplied with the O-1 visa petition package. If the athlete switches employers while on O-1 visa, the new employer will need to file a new O visa petition to the USCIS. Additionally, some situations may require that an amended visa petition be filed with the USCIS, however, advancement in an organization is not a material change to the employment. The employer must notify the USCIS if the employment changes so drastically that the foreign national's qualifications for the O-1 visa are altered or the person is no longer employed by the O-1 visa petitioner.
Agents and O Visas
As stated above, the beneficiary of an O-1 visa cannot self petition. There must always be an employer or agent that petitions for the athlete. An agent that signs for the O-1 visa may be needed in cases where the athlete competes in an individual sport where no organization or team is usually needed. In the case of an agent signatory, the federal government has established guidelines to ensure that only bona fide, professional agents apply for such athletes.
First, where the athlete has used an agent and the athlete will actually be paid by the organizers of each competition or meet, the athlete will technically be employed (money will be paid to the athlete) by all of the different meet organizers. If the athlete competes at different meets, the athlete will have many different employers. Therefore, the O-1 visa petition must include the entire list of events, the dates of each event, the contracts between each employer and the athlete, and an explanation of the employment arrangement between the agent and the athlete.
Secondly, not every person will be eligible to be an agent for the purposes of signing the government documentation for an O-1 visa. The agent must be "in the business" of being an agent. Evidence establishing that the agent is in the business is as follows:
- document signed by the employer stating that the person is authorized to act as the agent for O visa purposes
- statement by the employers confirming the relevant information
- agency contracts
- fee arrangements
- statements from other agents
O-1 visa extensions are granted in one year increments for individual competitive occurrences. There is no additional documentation that needs to be submitted with the government forms and fees for the O-1 visa extension, unless requested by the USCIS. O-1 visa holders may travel outside of the country while they have an extension pending with the USCIS. The athlete can even request that notification of a decision on the O-1 visa extension be sent to the consulate closest to where the athlete is traveling.
When professional athletes are traded to a new team, employment authorization with the old team will continue for 30 days while a new O visa is filed. Employment authorization is then extended until the petition is approved.
O-1 visas may be granted for up to three years. The beneficiary may enter the US on the O-1 visa up to 10 days before the O visa status begins. The O visa holder may also leave up to ten days after the O visa expires. However, the O visa holder cannot work during these periods of time.
If the O-1 visa holder is terminated both the petitioner and employer of the O-1 visa holder are on the hook for travel costs to the O visa holder's country. If the O visa is denied on the basis of information that the petitioner was unaware of , the petitioner gets 30 days to respond, then an appeal can be made to the AAO. The visa is automatically revoked if the petitioner ort the underlying employer goes out of business files a written withdrawal or notifies the USCIS that the O visa holder is no longer employed. All other circumstances require further notification prior to revocation.
Models from all over the world may enter the United States for a temporary stay on a visa to model or participate in modeling events. If you are a model in the fashion industry and you are in search of a U.S. visa, you may not fully understand your options. This article addresses the common visa options for models coming to the U.S.
H-1B Work Visa: Allows Modeling for Three Year Stay in U.S.
Under the H-1B Visa Program, a fashion model can come to the United States to work for a modeling agency for a three year period of stay. The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant (temporary) basis in a specialty occupation or as a fashion model of distinguished merit and ability. The H-1B3 "model" visa can be extended for up to six years. A major benefit of coming in as an H-1B3 visa model is that it allows for you to seek permanent residence (or a green card) in the United States. There are two basic requirements to obtain an H-1B visa as a fashion model:
- You must be qualified as a "distinguished" fashion model in the industry; and
- You must have a written job offer from an employer in the United States.
Employer Must Require a Fashion Model of Prominence
In order to be employed in the U.S. as a fashion model, it must be demonstrated that the model is of distinguished merit and ability. A "distinguished" fashion model is a model that has gained some recognition for his/her talents as a model. This would include winning contests, pagents, or any other modeling contest. In addition, highly recognized models from overseas may present evidence of payment of high remuneration for their work as a model as evidence of distinguished merit.
The federal regulations requires a prospective employer to show that the model is prominent in the field and that the position requires prominence. Prominence is defined as "a high level of achievement as evidence by a degree of skill and recognition substantially above that ordinarily encountered ... The person must be renowned, leading, or well-known." The H-1B3 category for distinguished models does not include hair stylists and make-up artists who may apply under other nonimmigrant categories such as O-1 or H-2B.
The Employer Must Submit an Offer Letter to the Model
The H-1B3 model visa requires the employer to submit a copy of the written contract or summary of the terms of the oral agreement. Modeling agencies will issue a performance contract prior to the employment engagement. This will suffice under the standard. Many models come to the U.S. to perform at a nationally or internationally recognized event. This must be documented. Under the federal regulations, the employer must show the services to be performed for a distinguished event or production, or for an organization that has a distinguished reputation or record of employing prominent persons.