work authorization

What is DACA?

April 23, 2021

On June 15, 2012, the secretary of the Department of Homeland Security under the Obama administration announced a new immigration policy known as Deferred Action for Childhood Arrivals (DACA). This policy allows certain people who came to this country as children to request consideration of deferred action for a period of two years, subject to renewal. Those that qualify are also eligible for work authorization. However, it must be noted that DACA does not provide lawful status and does not establish a pathway to residency and citizenship. Who Qualifies for DACA? Those under the age of 31 as of June 15, 2012; Those who came to U.S. before their 16th birthday; You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order. Those who have continuously resided in the U.S. since June 15, 2007, to the present; Those physically present in the U.S. on June 15, 2012, and at the time of the DACA request; Those who had no lawful status on June 15, 2012, meaning that: You never had lawful immigration status before June 12, 2012, or Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012; Those currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Those who have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. A minor traffic offense will not be considered a misdemeanor for purposes of DACA. Driving under the influence is a significant misdemeanor regardless of the sentence. You can find detailed information in the Criminal Convictions section of the Frequently Asked Questions on USCIS.

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Third-Party Worksites

June 8, 2018

Introduction An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles. The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary. Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store. However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite. It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary. Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner. However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

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Treaty Traders and Investors

February 2, 2016

Foreign nationals who wish to come to the U.S. to engage in international trade or to direct and operate a business investment may do so if they are citizens of a country that has entered into a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent with the United States using the E visa.  This is a temporary, non-immigrant visa that may be obtained from overseas at the U.S. Embassy or consulate through consular processing or from U.S. Citizenship & Immigration Services if the foreign national is filing from within the U.S. for an extension or a change of a status. The list of qualifying treaty countries can be found on the U.S. Department's website, which currently can be accessed here.  Eligible visaholders may enjoy their E visa status for two years at a time, to be renewed in two year increments for an indefinite number of times, provided they continue to meet the visa requirements. E-1 Treaty Traders E-1 Treaty Traders are either traders coming to the U.S. to carry on a trade of a substantial nature for him/herself, someone else, or for an organization engaged in trade, or as an alien employee of a treaty trader coming to the U.S. to assume an executive or a supervisory role or some essential function for the efficient operation of the trade enterprise. To qualify as an employee for E visa purposes the foreign national's employer must be a national of a qualifying treaty country and must have at least 50% ownership in the business organization. For the purposes of E-1 visa, trade means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. Items that qualify for trade include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities.  For the trade to be substantial there must be continuous trading activities between the United States and the treaty country, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade. E-2 Treaty Investors E-2 Treaty Investors are foreign nationals coming to the United States to invest or to be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States for the sole purpose of developing and directing the enterprise.  E-2 status may also be granted to a qualifying employee of a treaty investor as long as the employer maintains his/her E-2 status and has at least 50% ownership of the organization. A treaty investor must place personal capital (funds or other assets) at risk in the commercial sense with the objective of generating profit.  The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor's unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The invested funds may be placed in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.

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Students & Cap-Gap Protection

May 22, 2014

Since 2008 an F-1 student who has a pending H-1B application at the United States Citizenship & Immigration Services (USCIS) to change status from a student to a professionally…

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