The table below describes the different classifications of temporary business visitors. For more information on eligibility and the application process, see the links under “Temporary Visitors for Business” to the left.

As an employer, you may require the services of a foreign national to work at your company or business. If the individual is already a permanent resident (green card holder), you may hire that individual, but you must comply with the employment verification requirements.

If the alien is not already a permanent resident, you will need to file a petition so that the individual may obtain the appropriate immigrant or nonimmigrant classification.  You may chose to file an immigrant petition (permanent) or a nonimmigrant petition (temporary) on behalf of that employee. The links to the left provide information on how to petition and the different eligibility categories.

Employees

No alien may accept employment in the United States unless they have been authorized to do so. Some aliens, such as those who have been admitted as permanent residents, granted asylum or refugee status, or admitted in work-related nonimmigrant classifications, may have employment authorization as a direct result of their immigration status. Other aliens may need to apply individually for employment authorization.

There are many ways in which a person may be able to work in the United States. You may seek an immigration classification that permits you to live and work in the United States permanently or temporarily. In most instances, your employer or potential employer must petition for you. In the links to your left, you will find more information about coming to the United States to work temporarily or permanently and the many different eligibility categories for working in the United States.

U.S. Federal Tax Information

Employers who employ foreign workers may be subject to special U.S. Tax withholding rules.

Aliens employed in the U.S. may have a U.S. tax obligation.  Please see the Internal Revenue Service (IRS) for more information.

• Taxation of Resident Aliens
• Taxation of Non Resident Aliens

Additional Information

• General employer information:  1-800-357-2099

If you wish to pursue full-time academic or vocational studies in the United States, you may be eligible for one of two nonimmigrant student categories.  The “F” category is for academic students and the “M” is for vocational students.

If you wish to participate in an exchange program you may be eligible for the “J” category for exchange visitors. The J visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs.

U.S. Federal Tax Information

Aliens temporarily present in the United States as students, trainees, scholars, teachers, researchers, exchange visitors and cultural exchange visitors are subject to special rules with respect to the taxation of their income.

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Labor Certification

Some immigrant visa preferences require you to already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:

• There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
• Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers

U.S. Federal Tax Information

Aliens employed in the U.S. may have a U.S. Tax obligation.

• Taxation of Resident Aliens

Permanent Worker Visa Preference Categories

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Spouses and Children Seeking Dependent Nonimmigrant Classification

Spouses and children who qualify for dependant nonimmigrant classification of a temporary worker and who are outside of the United States should apply directly at a U.S. consulate for a visa.

Spouses and children requesting a change of status or extension of stay in a dependent nonimmigrant classification must file Form I-539, Application to Extend/Change Nonimmigrant Status.  Please see the Form I-539 instructions for further information on filing procedures for this application.

Federal U.S. Tax Information

Aliens employed in the U.S. may have a U.S. Tax obligation. See the Internal Revenue Service (IRS) for more information.

¹ Only a few nonimmigrant classifications allow you to obtain permission work in this country without an employer having first filed a petition on your behalf.  Such classifications include the nonimmigrant E-1, E-2, E-3 and TN classifications, as well as, in certain instances, the F-1 and M-1 student and J-1 exchange visitor classifications.

² The H-1C nonimmigrant classification expired on December 20, 2009.

³ E and L dependent spouses may apply for employment authorization.

⁴ Though the Immigration and Nationality Act (INA) does not provide a specific nonimmigrant classification for dependents of Q-1 nonimmigrants, this does not preclude the spouse or child of a Q-1 from entering the U.S. in another nonimmigrant classification.

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The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs; the H-2B program allows U.S. employers to bring foreign nationals to the United States for temporary nonagricultural jobs. USCIS, with limited exception, approves petitions only for nationals of countries designated by the Secretary of Homeland Security as eligible to participate in the H-2A and H-2B programs. A new list of eligible countries publishes in a Federal Register notice on January 18, 2011 , and the designations are valid for one year from the date of publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:  Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.  Of these countries, the following were designated for the first time this year:  Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

After considering a number of relevant factors under the governing regulations, the Department of Homeland Security and the Department of State have determined that Indonesia currently does not warrant a renewed designation as a participating country in the H-2A and H-2B programs for 2011.

This new list does not affect the status of individuals who currently hold valid H-2A or H-2B visas or status. A national from a country that is not on the list may be the beneficiary of an approved H-2A and H-2B petition if the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that it is in the U.S. interest for the alien to be a beneficiary of the petition.

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“Our efforts to guard against terrorism while enhancing legal travel and trade depend upon close collaboration with our international partners,” said Secretary Napolitano. “I commend our partners in Greece for committing to strong screening and security standards and enhanced information sharing for travel by Greek citizens to the United States as we work together to protect our citizens and strengthen our economies.”

Greece’s VWP designation represents a major step forward in the continued and long-standing economic and security partnership between the United States and Greece—reflecting more than two years of coordination between the two countries on Greece’s entry into VWP.

In accordance with the VWP designation process, DHS determined that Greece complies with key security and information-sharing requirements—such as enhanced law enforcement and security-related data sharing with the United States; timely reporting of lost and stolen passports; and the maintenance of high counterterrorism, law enforcement, border control, aviation and document security standards. In turn, Greek citizens will be permitted to travel to the United States for up to 90 days without obtaining a visa.

With this announcement, Greece joins the 35 nations already participating in VWP—established as a pilot program in 1986 to help eliminate unnecessary barriers to travel and made permanent on October 30, 2000. Like VWP travelers from other countries, Greek citizens will be required to apply for an Electronic System Travel Authorization (ESTA) through the Web-based system. Greek citizens will be able to visit the United States without visas in approximately 30 days.

Today’s announcement augments Secretary Napolitano’s ongoing efforts to bolster the international aviation security system—including recent joint declarations to strengthen the international civil aviation system between the United States and Argentina, Brazil, Canada, Chile, the Dominican Republic, Mexico and Panama on Feb. 17, and between the United States and the European Union on Jan. 21.

Secretary Napolitano will travel to Tokyo later this week to meet with her counterparts from the Asia/Pacific region and officials from the International Civil Aviation Organization (ICAO)—the third in a series of major international meetings attended by the Secretary to build consensus on strengthening global aviation security and identify specific steps which nations can take individually and collectively to protect all passengers.

Since January, Secretary Napolitano has met frequently with top government and private sector officials from across Europe, Asia, Africa, the Middle East and North America on ways to strengthen the international aviation security system.

For more information, visit www.dhs.gov or esta.cbp.dhs.gov.

Visit our website for Information about Immigration Laws or to contact an Immigration Lawyer.

Introduction

U.S. Citizenship and Immigration Services (USCIS) is clarifying for performing arts associations and their members the regulatory requirements for agents who file as petitioners for the O and P visa classification.

Background

USCIS has received inquiries from the public and at the Service Centers that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers.

Discussion

Under 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2 (p)(2)(i), O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S agent.

Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform services, unless an “established agent” files the petition.  See 8 CFR 214.2(o)(2)(iv)(B) and  8 CFR 214.2(p)(2)(iv)(B).

A petition filed by an agent is subject to several conditions.  A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

• The supporting documentation includes a complete itinerary of the event or events.
• The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
• The contract between the employers and the beneficiary is submitted.
• The agent explains the terms and conditions of the employment and provides any required documentation.

See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2).  In addition, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee.  8 CFR 214.2(o)(2)(iv)(E)(1) and (p)(2)(iv)(E)(1).  Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as an agent.

An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition.  For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients.  This may be accomplished by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

Visit our website for Information about Immigration Laws and Temporary Visas.

Last month, the Departments of State and Homeland Security announced that the new passport card was in full production.   The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda.

While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer.  Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program.

The passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

For more information about working in the United States, visit our website at www.GarcesGrabler.com.

For immediate assistance with your immigration issues, call 1-866-951-2860 to schedule an appointment with an immigration attorney.

Do I need to complete a Form I-9 for everyone who applies for a job with my company?
No. You need to complete Form I-9 only for people you actually hire. For purposes of the I-9 rules, a person is “hired” when he or she begins to work for you for wages or other compensation.

I understand that I must complete a Form I-9 for anyone I hire to perform labor or services in return for wages or other remuneration. What is “remuneration”?
Remuneration is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.

Can I fire an employee who fails to produce the required document(s) within three (3) business days?
Yes. You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

What happens if I properly complete a Form I-9 and the ICE discovers that my employee is not actually authorized to work?
You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.

What is my responsibility concerning the authenticity of document(s) presented to me?
You must examine the document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. You may contact your local ICE office for assistance. To get the address and telephone number of the ICE office nearest you.

May I accept a photocopy of a document presented by an employee?
No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate.

For more information about Immigration Law, visit our website at www.GarcesGrabler.com

For immediate assistance with your immigration needs, call 1-866-951-2860 to schedule an appointment with an immigration lawyer.