Creativity and Talent Can Clear the Way to the United States – Common U.S. Visa Categories for the Fashion and Design Industries

The fashion and design industries employ individuals in various fields of specialization, both in “back office” design and production and “front office” presentation and merchandising, marketing/advertising and sales. Following is an overview of common nonimmigrant and immigrant visa categories allowing employers in these industries to hire and retain foreign talent:

For Design/Production Staff & Marketing/Advertising/Merchandising Staff – Temporary Work Visas:

  • For foreign students: F-1 curricular practical training (CPT; on-the-job training that is part of the curriculum; F-1 pre- or post-adjudication optional practical training (OPT; for up to 12 months – very useful for design, and marketing/advertising students)
  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S. Citizenship & Immigration Services.
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in a related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max) for enumerated occupations such as Architect or Landscape Architect, Graphic Designer, Industrial Designer and Interior Designer; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed workersL-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for transferring employees of global fashion enterprises of any size, in design and non-design roles, to apply knowledge of the brands, products and/or processes in the United States).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as published design work (very common in the  design field).
  • Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationality:  E-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (similar to L-1 but no experience with foreign affiliate per se required; document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

For Fashion Models – Temporary Work Visas:

  • H-1B for fashion models of distinguished merit and ability = prominent in the field and coming to work in a position that requires prominence.
  • O-1 person of extraordinary ability (this can also be used for support staff such as hair stylists and make-up artists).

Permanent (Green Card) Work Visa Categories for All of the Above, as Feasible:

  • For multi-national managers/executivesEB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor in the design or fashion field (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the design or fashion work would have substantial merit and national importance – likely challenging for these industries, but not really relevant given the EB-1-1 category; no test of the U.S. labor market required; self-petition possible).
  • For those not qualifying under the aboveEB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help fashion and design employers and individuals determine what options are feasible, and advise on expected timing and cost.

Passport Validity at the Time of Entry into the U.S. and Status Renewal: Plan Early and Often

Foreign national individuals coming to the United States or in the process of filing a nonimmigrant petition or application should make sure they have a sufficiently valid foreign passport to avoid problems due to past or upcoming passport expiration.

U.S. Customs & Border Protection (CBP) rules require most nonimmigrant visa applicants for admission to the United States to have a passport that is valid for at least 6 months beyond the individual’s anticipated period of stay. While CBP can consider the passport validity as automatically extended for at least 6 months beyond the expiration date for foreign nationals from many countries (see https://www.ustraveldocs.com/ci/9-FAM-41.104-Exhibit-I.pdf), CBP does not always follow this guidance, and may admit the individual only until the passport expiration date, which can be considerably earlier than the end of the period of stay for which the individual is eligible. Foreign nationals who overlook that their Form I-94 – the document generated electronically by the CBP system that shows the authorized period of stay – was limited to the expiration date of their passport, risk unknowingly being unlawfully present, and, in turn, becoming deportable. Continue reading “Passport Validity at the Time of Entry into the U.S. and Status Renewal: Plan Early and Often”

Temporary and Permanent U.S. Immigration Options for Information Technology Workers

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession. Here is an overview of the most common U.S. visa categories for the IT industry:

Temporary Work Visa Categories:

  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S Citizenship & Immigration Services.
  • For foreign students in the United States: F-1 on-campus employment; F-1 curricular practical training (CPT; i.e., on the job training that is part of the curriculum); F-1 pre-or post-graduation optional training (OPT) for up to 12 months; and F-1 STEM OPT extension for up to an additional 24 months (for those with a U.S. degree major in a STEM field and whose employer is enrolled in E-Verify).
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in an IT or closely related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max), for computer systems analysts and possibly software engineers under “engineers”; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed IT workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for large, global IT service providers).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as patents (not impossible, but challenging in the IT industry as employer-independent awards are rare).
  •  Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationalityE-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

Permanent (Green Card) Work Visa Categories:

  • For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the IT work would have substantial merit and national importance; no test of the U.S. labor market required; self-petition possible but challenging in the IT industry).
  • For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help IT employers and individuals determine what options are feasible, and advise on expected timing and cost.

2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal

There are several noteworthy developments in the PERM labor certification world requiring employers and practitioners to rethink how to time PERM applications and to (once again) adapt their processes front-to-end. The COVID-19 pandemic combined with high unemployment rates, as well as U.S. Department of Labor (DOL) efforts to change the prevailing wage system, and an apparent increase in scrutiny of PERM applications, have all contributed to a change in the PERM landscape. Below are the top 5 developments employers and practitioners have been facing with respect to PERM preparation and filing: Continue reading “2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal”

TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC

On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.

Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading “TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC”

Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19

Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees).  Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny  by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.

Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.

During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html

Continue reading “Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19”

PERM Business Necessity – Back with a Splash?

The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.

Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.

Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading “PERM Business Necessity – Back with a Splash?”