TN Visa Restrictions

Have you been offered a job in the United States? If you’re a Canadian or Mexican citizen, you may be eligible for a TN visa. TN, or Trade NAFTA, is an arrangement under the North American Free Trade Agreement (NAFTA). This nonimmigrant employment visa allows Canadian and Mexican citizens in certain professions to work in the US.

TN status is one of the fastest, easiest US work authorizations available. However, some restrictions still apply.

You Must Maintain Your Visa Status

Under US immigration law, nonimmigrant employees who fail to maintain their TN status can be deported. This means if you stop working for your US employer, you’ll be asked to leave the country. If things escalate to this point, you could become ineligible to request an extension or change of status. Be aware that you may be exempt from deportation if you’re involved in a strike or labor dispute that prevents you from working temporarily.

You Must Leave the US or Make Corrective Measures If You Lose Your Job

If you are laid off, terminated, or voluntarily leave your job, you have 60 days or until your TN status expires, whichever comes first, to complete one of the following:

• Apply for a new TN visa with another employer

• File for a change of status to another nonimmigrant visa classification

• Make preparations to depart the US

Family members with TD visa status are also eligible for this grace period.

You Must Leave the US If Your TN Status Expires

Unless you file an extension application, you cannot continue working or living in the US once your TN-authorized stay expires. This date should be listed on your I-94 record or passport admission stamp. If you overstay, you could end up:

• Being deported

• Being barred from reentering the US for up to 10 years

• Having your TN visa stamps voided

• Having future TN visa applications denied

Your employer could also face civil penalties or criminal prosecution for continuing to employ you after your TN status expires.

You Cannot be Self-Employed

You can’t get a TN visa if you own or “substantially control” the US company you work for. Immigration offers to assess business ownership based on whether you:

• Founded or currently own and operate the company

• Have sole or primary control of the business, regardless of how many shares you own

• Receive most or all of the income the business generates

You Cannot Intend to Stay Permanently

A TN visa is meant for temporary workers only. You’re not allowed to use it if you intend to remain in the country indefinitely.

If you have questions about TN visa restrictions or how to apply for TN status, reach out to Hurtubise Weber Law. We’ll assist with the application process and offer advice to keep you compliant with TN visa restrictions. Call us today at (415) 413-8760 or contact us online to speak with our immigration lawyers based in San Francisco and San Jose, CA.

H-1b Visa Cap Season is Almost Here!

USCIS has announced that the initial registration period for the FY2023 H-1b cap will open at 12 pm ET on March 1, 2022, and run through 12 pm ET on March 18, 2022.

H-1b visa cap season is rapidly approaching. If you are an employer looking to hire a foreign national under an H-1b visa, now is the time to get started with the process.

This March there will be an H-1b visa registration lottery system similar to the one used in March 2021. A company will be required to identify their H-1b visa candidates and enter them in the lottery for a chance at H-1b visa issuance.

We specialize in H-1b visas. If you are an employer with potential candidates, we would be happy to evaluate them for the H-1b visa. Please contact us today for a free employer consultation, at 415-413-8760 or theteam@huwelaw.com.

Consular Interviews Can Now be Waived for Certain H, L, & O Visa Applicants

Great news for employment-based visa applicants abroad - the Department of Homeland Security has announced that throughout this year consular officers will have discretion to waive interviews for H, L, & O visa applicants applying in their country of nationality or residence who were previously issued any type of visa, who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Officers also now have authority to waive interviews for first-time applicants in these categories who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided that they have no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

Need assistance applying for an H-1b, H-4, O, or L visa? We are here for you! Contact us today at theteam@huwelaw.com or 415-849-1199.

Work Permit No Longer Necessary for L-2 Visa Holders; Automatic Extensions for H-4 Visa Holders

A recent class action legal settlement has resulted in good news for thousands of spouses of L-1 visa holders, as well as spouses of H-1b visa holders. L-2 visa holders will now be issued work authorization automatically and will not be required to submit an application for an EAD. H-4 visa holders will now be eligible for an automatic extension of their employment authorization if a timely extension request has been submitted.

The new government policy highlights are below:

• Provides that certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.

• Provides that the automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.

• Provides that the following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).

• Provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.

Are you an employer needing assistance with a visa application? We would be happy to see if we can help! Contact us today at theteam@huwelaw.com or 415-849-1199.

H-1b Visa Cap Season is Almost Here!

UPDATE: USCIS has announced that the initial registration period for the FY2022 H-1b cap will open at 12 pm ET on March 9, 2021, and run through 12 pm ET on March 25, 2021.

H-1b visa cap season is rapidly approaching. If you are an employer looking to hire a foreign national under an H-1b visa, now is the time to get started with the process.

While the details are not out yet, it is expected that this March there will be an H-1b visa registration lottery system similar to the one used in March 2020. A company will be required to identify their H-1b visa candidates and enter them in the lottery for a chance at H-1b visa issuance.

We specialize in H-1b visas. If you are an employer with potential candidates, we would be happy to evaluate them for the H-1b visa. Please contact us today for a free consultation, at 415-548-7067 or theteam@huwelaw.com.

Trump's Sweeping H-1b Visa Regulatory Changes

The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.

Below are the additional key changes:

Specialty Occupation

• The definition of a “specialty occupation” has been amended, and now states that there must be a direct relationship between the required degree field(s) and the duties of the position:

  • General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.

  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.

  • Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.

• A bachelor’s degree in a specific specialty or its equivalent must be a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:

  • The requirement for the occupation as a whole,

  • The occupational requirement within the relevant industry,

  • The petitioner’s particularized requirement, or

  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.

Third-Party Worksites

• The definition of “worksite” has been amended to “the physical location where the work is actually performed by the H-1B nonimmigrant.”

• “Third-party worksite” has been defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”

• A 1-year maximum validity period has been set for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite.

Employer-Employee Relationship

• The definition of “United States Employer” has been amended by:

  • Striking the word “contractor” from the definition of “United States employer." However, the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer.

  • Inserting the word “company” in the general definition.

  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.

• At the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.

• "Employer-employee relationship” has been redefined as the “conventional master-servant relationship as understood by common-law agency doctrine.” USCIS will look at whether the employer actually exercises that right to control.

• Petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.

The Department of Homeland Security has announced that it expects approximately one-third of H-1b visa petitions to be denied under the new regulatory scheme.

Stay tuned for further updates!

Need assistance with an H-1b visa or employment-based green card? Contact us today at 415-413-8760 or theteam@huwelaw.com.

How Does the New H-1b Registration Affect My Business?

USCIS has made it official: All companies must register between March 1st and March 20th for the H-1b cap season lottery. Registration will require basic information about the company sponsor and the beneficiary, an attestation of intent to file, and a $10 registration fee. USCIS will conduct the lottery based on this registration and lottery winners will have 90 days to submit their H-1b applications.

How does this change affect my business?

This year it will be easier and cheaper to enter the H-1b lottery.

We expect that there will be many more participants in this year's H-1b lottery. The chances of any specific beneficiary winning the lottery will be lower than in prior years. Developing a good contingency plan with your attorney is critical. Your candidate may be eligible for another visa or it may make sense to start the green card process early.

You can take advantage of the lower bar to entry and register more candidates than you may have before. If a security software engineer is a critical position, consider submitting registrations for multiple beneficiaries. Remember that a beneficiary can have multiple candidate petitions. So, if there is a highly desirable candidate with multiple offers, it is worth seeing if your company's registration can be the one to win that lottery slot for them.

Join us on January 15th at 9 am for a free webinar with attorney expert Isabelle Hurtubise to prepare for the 2020 H-1b cap season. Hurtubise Weber Law specializes in employment visas and business immigration for small and early stage companies.

Need help with your H-1b application? Contact us at theteam@huwelaw.com or 415-413-8760 today.

The E-3 vs. the H-1b Visa: The Australian Advantage

The US and Australia have a treaty that, among other things, permits Australians to work in the US on an E-3 employment visa. Just like an H-1b visa, the beneficiary still needs a US company sponsor, the job must be a specialty occupation and the company must pay prevailing wage. However, the E-3 has several advantages over its H-1b cousin:

1. It is effectively always available. There is a cap, but it has never been close to being reached. So Australians can apply anytime, there is no H-1b style lottery.

2. The beneficiary can apply at the consulate. A petition with USCIS is not required, which saves time and money. (You do still need to file an LCA with the Department of Labor.)

3. There is no maximum stay on an E-3. H-1b holders are limited to six years total. While an E-3 approval is good for two years, there is no limit on the number of extensions you can file. Extensions can be filed in the US through USCIS or by a return visit to the consulate. (Although at some point, the officer may question the beneficiary's required nonimmigrant intent.)

4. The spouse can work. After entering on an E-3 dependent visa, the spouse can apply for general work authorization. This is a major benefit to your employee.

So, is there ever a reason to file for an H-1b for an Australian? Sometimes, if the company is planning on sponsoring a green card. An H-1b is a dual intent visa and allows for international travel during a short time during the green card process when an E-3 visa holder could not leave the US. Each H-1b is good for three years rather than two, which means less frequent renewals. But these small advantages are often outweighed by the benefits of the E-3 visa.

What to know more about how to hire an Australian citizen? Contact us at 415-496-9040 or theteam@huwelaw.com for a Free Employer Consultation.

H-1b Basics for Prospective Employees

H-1b season is coming! If you are a prospective employee, here is what you need to know:

1. You need a U.S. company sponsor. Every H-1b petition must be filed by a U.S. company with a Federal Employer Identification Number (FEIN). That employer is committing to a specific prevailing wage as set by the Department of Labor (DOL).

2. There are a limited number of new H-1b visas issued each year. USCIS accepts petitions only during the first week of April. Less than half are selected for further consideration through a random lottery system.

3. The job must require a minimum of a U.S. bachelor's degree in a specific field. The beneficiary must also possess the equivalent of a U.S. bachelor's degree, but the key is that the job itself must require a degree. This is determined by the complexity of the job duties, past case law, and the strength of your attorney's advocacy.

4. The employer must pay prevailing wage. Prevailing wage is determined by the DOL based on the Standard Occupational Classification (SOC) Code and location of the worksite. Similar SOC codes can have different prevailing wages, even within the same city.

5. An H-1b transfer is just a cap exempt new H-1b petition. The current administration gives no deference to prior H-1b petition approvals. Each petition stands alone on its own merits.

Want to know more? Need other options? Contact us at theteam@huwelaw.com or 415-496-9040 today.

Cheaper Than a Headhunter: Hire an Immigration Lawyer

According to this recent Time Magazine article, more and more tech companies are choosing to grow their businesses in Canada rather than in the U.S.: https://bit.ly/2k5AzRO

Why is that?

U.S. businesses are having a hard time remaining competitive and hiring the best talent. Employment-based immigration to the U.S. is complex and restrictive, and requires a deep understanding of U.S. law and policy. Employers often feel forced to undertake costly and time-consuming searches for potential employees who are already U.S. citizens or permanent residents because they do not feel competent to navigate our immigration system.

A good immigration lawyer is necessary to recruit the very best employees, wherever in the world they may happen to be.

Hurtubise Weber Law can help. We offer a complimentary call for employers looking to explore their options. Contact us today at 415-496-9040 or theteam@huwelaw.com to learn more.

Are you ready for H-1b season?

Employers growing their business need the best talent, and sometimes that talent needs a visa. The 2018 H-1b season was brutal - USCIS applied unprecedented levels of scrutiny and issued burdensome Requests for Evidence. The stop on premium processing and extraordinary processing delays left businesses and applicants in an often untenable limbo. Some applications are still pending.

This season, we are front loading our applications with legal arguments against the novel and specious ones USCIS used last year. We are also providing additional evidence they claim they now want. Finally, we are working with our clients to develop a plan B for their candidates - even if the application is selected for the lottery. We are ready. Are you?

Contact us today to get started: 415-496-9040 or TheTeam@HuWeLaw.com