General Overview of Business Immigration Law

At the stroke of midnight on February 28, 2003 the 112 year old Immigration and Naturalization Service (INS) ceased to exist! March 1, 2003 saw the bulk of the immigration related "service" functions transferred over to the United States Citizenship and Immigration Services, (USCIS or CIS) a bureau of the newly created Department of Homeland Security, (DHS). The remaining "enforcement" responsibilities were then divided between two other newly created DHS bureaus. Investigative and enforcement responsibility for federal immigration laws, customs laws and air security laws were all placed under the Bureau of Immigration and Customs Enforcement (BICE or ICE). Responsibility for all border enforcement was combined under the Bureau of Customs and Border Protection, (BCBP or CBP).

These changes were in direct response to the tragic events of September 11, 2001, with the goal of realizing better coordination, communication and cooperation between sister agencies. Whether this goal is achieved can only be determined over time, but the immediate impact on immigration related activities at all levels is clear. An agency that was previously difficult and often enigmatic, has become even more so as they have clearly taken to heart the underlying mission statement of their "parent," DHS. All decisions are now passed through the perceived filter of "National Security," no matter how attenuated the nexus. This even greater pattern of denial has been so profound that the American Immigration Lawyers Association (AILA) the largest private immigration bar in the country recently devoted an entire CLE program to it, with the title, "Countering the Culture of "NO" - Strategies for Business Immigration in 2004."

The history, development and evolution of immigration in the United States is truly fascinating. It illustrates a deep seated schizophrenia with our cyclical need for the benefits that skilled, hardworking and talented immigrants bring to this great nation of ours. We often reflect a deeply entrenched paranoia that feeds the irrational fear of the impact these "unwashed hoards" will have. This pageant continues today with unabated emotion. Every day we are surrounded by a dizzying swirl of new laws, proposals, editorials, cartoons, investigative reports and all forms of written and electronic comment on what the USA "must" do to "protect" itself from the "threat" posed by foreign nationals both inside and outside of our borders who would do us physical or financial harm. Self appointed experts (which includes virtually all politicians) rarely if ever pause to allow a critical review of the facts to stand in the way of their predetermined conclusions.

If you represent or counsel international businesses, then at some point along the way, you must address this risk to your client(s). This guide will attempt to provide a practical introduction to the issues and questions that must be addressed by international businesses, and the international business traveler. It is not, and will not try to be a "definitive" guide to immigration in the United States. Rather, it will try to provide a "plain English" explanation of the system, and offer tools to pragmatically identify and address the most fundamental concerns. This type of "broad brush" approach must necessarily leave open some of the finer details that in some cases could easily change the answer from a "Yes" to a "No." However, it is hoped that it will provide sufficient information to alert you to what issues must be addressed.

There are few areas of law that have so many people who "think" they understand the law, but do not. The fact that your client may have successfully navigated his / her way into this country on one (or more) occasions should not provide you with false comfort that the immigration issues are not really a concern. You were not there. You do not know what questions were asked nor what responses were given. Never assume! Effectively assessing the risks requires a basic understanding of the process. Many terms are either mis-used or take on very different meanings depending on their context. Where practical, I will try to distinguish.

Immigrant vs. Non-Immigrant

The word, "Immigration" is frequently used interchangeably for both "Immigrant" and "Non-Immigrant" entry. Immigrants are generally deemed to be those people who are lawful permanent residents, with "green cards." The cards have not been green for over 40 years, but virtually everyone calls the Form I-551 (previously Form I-151) a "green card." For many foreign nationals, this coveted status carries a value that is difficult for most U.S. citizens to fully appreciate. If you are going to reside and work in the USA for anything longer than a few years, this is where you want to be. Individuals cannot get green cards, simply because they "love America," and want to live here permanently. Each must qualify for permanent residence status, generally based on one of four major routes: Lottery, Asylum, Family or Work. This discussion will limit itself to only work based immigrant visas. Although often called "immigrants," the class of "non-immigrants" encompasses everyone else who enters the United States "temporarily" for periods of time that can range from a matter of hours to an extended number of years. These are identified by a "Letter / Number" combination, and will be discussed in detail later in this article.

Time

One of the most common questions and (especially in a business context) often one of the most critical issues is the issue of "Time." "How long will this take?" is more than just the second most frequently asked question. (In case you were wondering, the first is, "How much do you charge?") In the immigration world, delays in processing and the length of time required can substantially impact and in some cases even dictate which path you will choose. Generally, the first concern is how long will the processing time take before permission is granted to enter / work.

The answer to this question is analogous to asking the weatherman what the weather will be like in five days. After we tell you the "official" processing times (published by the government), and then the "real" processing times that we observe based on how quickly we see our clients' applications being processed, there is always the final "X" Factor - The Government. Just as no one can control the weather, no one can control the government nor guarantee any specific result. The best we can offer is an "educated best guess." This provides little comfort to someone organizing an outside wedding or to the business with an urgent need for one or more persons who are critical to the operation, but it is the best we can offer.

Generally speaking, you may not begin employment in a new category (or for a new employer) unless and until your petition has been approved. One notable exception to this has come with a recent law change that allows for "Portability" for H-1B visa holders. What this says is that if you are (or have been) an H-1B, then you may begin working for a new employer once the new application is filed. However, make sure you have the receipt in hand before the employee begins working! CIS will deny a change of status if the work began even one day before the receipt was issued. This only applies to persons who are or were in H-1B status. It does not apply to other work based non-immigrant visa categories.

Time is also a critical factor when considering applications for a green card. One of the most important points to understand about the permanent residence (immigrant / green card) process is that in almost all cases it will generally take a minimum of 2 to 4 years to obtain a green card, no matter who you are. While the foreign national has a compelling interest in completing the process as quickly as possible and finds the delay most distressing, the savvy employer may recognize that in this particular instance, the longer processing times can actually be used to the employer's advantage. As long as the employee is convinced that there is a clear process in place to apply for and obtain a green card, then s/he will continue to work for an employer. The lengthy processing time actually helps to lock in a critical employee. The key point to remember here is that you will be required at all times to maintain his / her (non-immigrant) status throughout most of the process of applying for your green card.

Another aspect of Time in the immigration process is the question of, "How long can I remain in the USA in this status?" Clearly, for lawful permanent residents (green card holders) the answer is, "For as long as you (intend to) reside in the United States." However, for employment based non-immigrants, there are generally "caps" or limits to how long you can remain in the USA in a given visa status. The Time on these caps can initially seem abundantly adequate, but the fact that you cannot (lawfully) remain in the USA for longer than a certain time limit has proven to be a critical factor in the visa planning strategy!

The reason is because the law generally does NOT allow a person to remain in the USA unless they are lawfully in status. When you process a green card, it will often take years, and during most of that time the beneficiary must be able to maintain his / her status, or leave until the process is completed. A recent exception has been made to allow individuals to remain beyond the maximum limit of their non-immigrant visa, but only if their application has been in process for a minimum of one year. Planning how to keep someone in the USA in order to accrue the necessary processing time, can sometimes require a high degree of creativity.

Non-immigrant visas generally have limits on how long the visa will be valid, and how long the individual will be given for each entry. On some visas these limits are the same, but on others they can be different. By way of illustration, there is often confusion when a person is given a B-1/2 visitor's visa stamp (in their passport) that appears to grant them a number (often 10) of years. This does not mean that they can stay in the United States for 10 years! It only means that they have a 10 year window during which they may present themselves for admission. The amount of time they will be admitted is often dramatically shorter than the validity of the visa. In the case of a B-1/2 visa it will generally not exceed six (6) months, and this will be reflected on an I-94 Entry / Departure card which is generally stapled into the passport upon arrival. This authorized period of stay is critical, and there can be severe consequences (supra) if one should overstay the authorization.