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3/1/2010
VISITORS & BUSINESS VISA
Due to heavy demand from our Clients, I have taken this liberty this time to talk about requirements of Visitor’s visa, Business Visa and PERM in this issue of March 2010. We get multiple requests to work on Visitor’s and Business Visa matters and are of the opinion that due to ever changing requirements from time to time, the confusion has clouded the general frame of mind. It has, thus, necessitated on us a desire to devote this month’s Newsletter to Visitor’s visa, Business Visa and PERM issues.
VISITORS & BUSINESS VISA
The Visitor visa is a type of nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1) or for pleasure, tourism or medical treatment (B-2).
In order to be eligible for a B-1 visa, you must satisfy that you will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to; Consulting with business associates, Traveling for a scientific, educational, professional or business convention, or a conference on specific dates, Settling an estate, Negotiating a contract, Participating in short-term training, Transiting through the United States: certain persons may transit the United States with a B-1 visa or Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa.
In addition, you must demonstrate that the purpose of your trip is to enter the United States for business of a legitimate nature, that you plan to remain for a specific limited period of time, that you have the funds to cover the expenses of the trip and your stay in the United States, that you have a residence outside the United States in which you have no intention of abandoning, as well as other binding ties which will ensure your return abroad at the end of the visit and that you are otherwise admissible to the United States.
If the purpose of your planned travel is recreational in nature, including tourism, amusement, visits with friends or relatives, rest, medical treatment, activities of a fraternal, social, or service nature, and participation by amateurs, who will receive no remuneration, in musical, sports and similar events or contests, then a visitor visa (B-2) would be the appropriate type of visa for your travel.
Travelers from certain eligible countries may be able to visit the U.S. without a visa on the Visa Waiver Pilot Program. Students, temporary workers, journalists and persons planning to travel to the U.S. for a purpose other than that permitted on a visitor visa, must apply for a different visa in the appropriate category.
It is important to note that representatives of the foreign press, radio, film, journalists or other information media, engaging in that vocation while in the U.S., require a nonimmigrant Media (I) visa and cannot travel to the U.S. using a visitor visa and cannot travel on the visa waiver program, seeking admission by the DHS immigration inspector, at the U.S. at the port of entry.
APPLYING FOR A VISITOR VISA
The applicants should generally apply for Visa at the United States Embassy or Consulate that has jurisdiction over their place of permanent residence.
Each applicant for a Visitor visa must submit:
1. An application Form DS-156 duly completed and signed;
2. A Supplemental Nonimmigrant Visa Application, Form DS-157 provides additional information about your travel plans. Submission of this completed form is required for all male applicants between 16-45 years of age. It is also required for all applicants from state sponsors of terrorism age 16 and over, irrespective of gender, without exception. Four countries are now designated as state sponsors of terrorism, including Cuba, Syria, Sudan, and Iran.
3. A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States;
4. One (1) 2x2 photograph.
ADDITIONAL INFORMATION
Applicants must demonstrate that they are properly classifiable as visitors under U.S. law by:
• Evidence which shows the purpose of the trip, intent to depart the United States, and arrangements made to cover the costs of the trip may be provided. It is impossible to specify the exact form the documentation should take since applicants' circumstances vary greatly.
• Those applicants who do not have sufficient funds to support themselves while in the U.S. must present convincing evidence that an interested person will provide support.
• Depending on individual circumstances, applicants may provide other documentation substantiating the trip's purpose and specifying the nature of binding obligations, such as family ties or employment, which would compel their return abroad.
In addition to all of the documentation requirements explained above, the following documentation is also required, for persons seeking medical treatment in the U.S.:
Persons desiring to travel to the U.S. for medical treatment should be prepared to present the following, in addition to any other documentation the consular officer may require:
• Medical diagnosis from a local physician, explaining the nature of the ailment and the reason the applicant requires treatment in the United States.
• Letter from a physician or medical facility in the United States, expressing a willingness to treat this specific ailment and detailing the projected length and cost of treatment (including doctors’ fees, hospitalization fees, and all medical-related expenses).
• Statement of financial responsibility from the individuals or an organization that will pay for the patient’s transportation, medical and living expenses. The individuals guaranteeing payment of these expenses must provide proof of ability to do so, often in the form of bank or other statements of income/savings or certified copies of income tax returns.
Persons traveling to the U.S. for medical treatment should have a statement from a doctor or institution concerning proposed medical treatment.
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States.
U.S. PORT OF ENTRY
Applicants should be aware that a visa does not guarantee entry into the United States. The period for which the bearer of a visitor visa is authorized to remain in the United States is determined by the USCIS, not the consular officer who issues the USCIS Form I-94, Record of Arrival-Departure to visitor, which notes the length of stay permitted, is validated. Those visitors who wish to stay beyond the time indicated on their Form I-94 must apply to USCIS to extend their stay.
STAYING BEYOND YOUR AUTHORIZED STAY IN THE U.S. AND BEING OUT OF STATUS
• It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause you to be out-of-status.
• Staying beyond the period of time authorized by the Department of Homeland Security (DHS) and being out-of-status in the United States is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travels to the U.S.
• Staying unlawfully in the United States beyond the date Customs and Border Protection (CBP) officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
PERM PROCESS
PERM is the new labor certification program that replaces the Reduction in Recruitment (RIR) and the regular labor certification process. PERM is the abbreviation of "Program Electronic Review Management". To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005. As of March 28, 2005, ETA Form 750 applications were no longer accepted under the regulation in effect prior to March 28, 2005, and instead new ETA Form 9089 applications had to be filed under PERM at the appropriate National Processing Center. Applications filed under the regulation in effect prior to March 28, 2005, have continued to be processed at the appropriate Backlog Elimination Center under the rule in effect at the time of filing. The DOL processes Applications for Permanent Employment Certification, ETA Form 9089. The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with a From I-140, Immigrant Petition for Alien Worker.
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The qualifying criteria for processing PERM are as under;
• Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the PERM Regulations;
• The employer must hire the foreign worker as a full-time employee.
• There must be a bona fide job opening available to U.S. workers.
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. In addition, the employer should document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
The following Process must be adopted for filing PERM application;
1. Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application will describe in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.
2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the National Processing Center (NPC). Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
3. Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
4. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
5. Audits/requests for information: Supporting documentation need not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
6. Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
7. Refiling. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may re-file by withdrawing the original ETA Form 750 application and submitting, within 210 days of withdrawing, an ETA Form 9089 application for an identical job opportunity which complies with all requirements of the new PERM regulation.
8. Online filing. The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
The company’s recruitment efforts must include:
• Two consecutive Sunday advertisements placed in a major local newspaper;
• Posting notice of the job opportunity on the company premises for 10 consecutive business days ;
• Placing a job order with the Department of Labor for 30 days; and
• Obtaining a prevailing wage determination from the State Workforce Commission.
In addition, the sponsoring company must undertake at least three of the following:
• Participating in a job fair;
• Posting the position on the employer’s website;
• Use of a job search website other than the employer’s;
• On-campus recruiting;
• Recruitment through trade or professional organizations;
• Use of private employment firms;
• Use of an employee referral program with incentives;
• Posting notice of the job opening at a campus placement office if
the job requires a degree but no experience;
• Advertisement in local and ethnic newspapers; or
• Radio and television advertisements.
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