Over the past year, the Biden administration has focused on enhancing immigration administrative procedures and fostering a favourable environment for high-skilled foreign nationals, including but not limited to:

• Validity extension of employment authorisation: In September 2023, USCIS extended the maximum validity of Employment Authorization Documents and Advance Parole travel documents to five years for individuals waiting for their green card applications. This is a welcome change, as previously, applicants had to renew their employment authorisation every two years, causing disruptions and uncertainty.
• Interview waiver authority extended: In December 2023, the Department of State extended and updated a policy that allows consular officers to waive visa interviews. The policy is in place until further notice for certain nonimmigrant visa applicants. Implementation of this authority began on 1 January 2024, and will be reviewed annually. Interview waiver authorities helped the Department of State drive down visa backlogs in Fiscal Year 2023.
• Executive Order highlighting the national importance of research in AI: In October 2023, the Biden administration released an executive order on artificial intelligence that directs relevant government agencies to take appropriate steps for streamlining immigration procedures for non-US citizens who wish to come to the USA to work, study or conduct research in AI or other critical and emerging technologies to ensure that the USA remains competitive in the field of AI and its related domains. The Biden administration has also created a supportive environment for National Interest Waiver (NIW) cases. This includes providing updated public guidance, offering information on useful evidence for STEM applicants, and extending premium processing service to NIW petitions.
• H-1B domestic visa renewal pilot: The pilot was the first step in reintroducing domestic visa renewal to foreign nationals in the US. The Department of State’s H-1B domestic visa renewal pilot application period ran from 29 January through 15 April 2024. The pilot concluded on 1 May 2024. The Department of State indicated that it will evaluate the pilot programme’s success before potentially establishing a more permanent domestic visa renewal programme for H-1B and certain other nonimmigrant visa holders.
• Changes to the H-1B registration selection process: In February 2024, USCIS published a regulation to overhaul the H-1B registration selection process. This was an important update to the H-1B lottery system that shifted the focus from a petitioner-centric lottery to a beneficiary-centric lottery. This means that USCIS will select each beneficiary only once, even if they have multiple registrations filed on their behalf. The purpose of this change is to discourage fraudulent behaviour and gaming the system while improving and streamlining the application processes.
• USCIS fees: To overcome financial challenges, manage processing demands and avoid future backlogs, USCIS revised many of its fees over the past year. The USCIS fee rule, which took effect on 1 April 2024, was the most significant one for high-skilled categories as it resulted in a considerable increase in immigration filing fees. USCIS also increased its fees for premium processing service due to inflation. Consequently, sponsoring foreign workers has become more expensive for US employers.
• Department of Labor (DOL)’s definition of “science or art” adopted by USCIS: On 10 April 2024, USCIS announced it will use DOL’s definition of “science or art” for Schedule A, Group II cases. Roles that qualify under Schedule A, Group II provide a path to obtaining a green card without undergoing the traditional PERM certification process. By incorporating DOL’s definition, USCIS has highlighted this as a viable option for applicants in STEM (Science, Technology, Engineering, and Math) fields and a range of other fields.

Upcoming Changes

Some of the most relevant potentially upcoming changes to immigration policy in the USA and/or ongoing litigation cases include:

• USCIS fees: A lawsuit was filed on 19 March 2024, challenging the USCIS fee rule. According to the federal case Moody et al v. Mayorkas et al, the government did not follow proper steps for its fee changes. On 29 March 2024, the Colorado District Court rejected the plaintiffs’ request for a Temporary Restraining Order, which would have temporarily blocked the implementation of USCIS fee increases. However, the case has not been dismissed yet, and litigation over the fee rule is expected to continue. The judge’s ruling means that the fee hikes took effect on 1 April 2024.
• Deferred Action for Childhood Arrivals (DACA): All attention is focused on the Fifth Circuit Court of Appeals as it prepares to make a crucial decision on the legality of the Biden administration’s DACA regulation, which aims to “preserve and fortify” DACA. It is widely expected that the ruling will be challenged and appealed to the US Supreme Court.
• H-4 work authorisation: A 2015 regulation allowed certain H-4 visa holders to apply for work authorisation, and a federal court upheld this in March 2023. The Supreme Court had previously refused to consider the case in November 2023, which left the March 2023 ruling in place. As a result, the case was returned to the usual appeals process.

2024 Regulatory Agenda

Regulations that are being discussed by different federal agencies in 2024 include the following:

• Adjustment of status procedures: The Department of Homeland Security (DHS) plans to propose updates to the regulations governing Adjustment of Status procedures aimed at more efficient processing and immigrant visa usage. The DHS is also set to propose changes to the regulations governing employment-based immigrant petitions in the first, second, and third preference classifications. The proposed changes include crucial updates and modernisations to provisions for individuals of extraordinary ability and outstanding professors and researchers. The evidentiary requirements for first preference classifications, second preference national interest waiver (NIW) classifications, and physicians of national and international renown would also be clarified. DHS aims to publish this proposal in August 2024, marking a significant milestone in the agency’s efforts to streamline and improve immigration petitions.
• H-1B modernisation: USCIS has yet to finalise other portions of the H-1B modernisation proposed rule published in October 2023, including some that would make changes to H-1B eligibility requirements.
• H-2 modernisation: In April 2024, the DHS finalised a rule to modernise and reform the H-2A and H-2B programmes. In September 2023, the agency proposed a rule to reduce inefficiencies, improve pay protections, and address any potential exploitation or abuse of those seeking to come to the USA as H-2A and H-2B workers. The final rule is scheduled to be effective on 28 June 2024.
• Modernisation of regulations governing nonimmigrant workers: The DHS intends to revise regulations for certain nonimmigrants by publishing a proposal targeted for October 2024. The proposed changes are expected to include modernising policies and procedures for Employment Authorisation Documents, provide additional flexibility for some nonimmigrant workers who are terminated or resign from their employment and update the employment authorisation rules for certain dependent spouses.

While the changes the Biden administration has outlined would significantly impact immigration programmes, they are at different stages in the rulemaking process. Proposed regulations are generally subject to a public notice-and-comment period during which members of the public may submit feedback.

Additionally, current immigration policies and the formulation of immigration regulations are highly dependent on various political factors, such as the outcome of the 2024 presidential election and the possibility of a Republican presidential administration.

The most common forms of employment-based temporary work visas and green card categories for corporate purposes in the USA are outlined below.

Employment-Based Temporary Visas

H-1B Visa specialty occupation

The H-1B Visa classification applies to jobs in a “specialty occupation”, which requires the theoretical and practical application of highly specialised knowledge. Typically, this entails the completion of a specific course of higher education relevant to the job. For certain individuals with specialised skills and considerable work experience that shows a progressive increase in responsibility, equivalency evaluations can be obtained to meet the educational requirements. The H-1B Visa is subject to an annual quota, which is detailed below, and certain DOL requirements regarding wages and working conditions.

L-1 Visa intracompany transfers

The L-1 Visa classification applies to intracompany transferees who, within the three years preceding entry to the USA, have been employed outside of the USA continuously for at least one year in a managerial, executive, or specialised knowledge capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the USA in a managerial, executive, or specialised knowledge capacity. Employees who will be working in the USA in a specialised knowledge role will receive L-1B status. Employees who will be working in the USA in a managerial or executive role will receive L-1A status.

O-1 Visa extraordinary ability

The O-1 Visa classification applies to individuals with an extraordinary ability in the sciences, education, business, athletics, or the arts. Generally, O-1 applicants will be required to prove that they have extraordinary talent and skill, and that they are renowned in their field.

Country-specific nonimmigrant visas

Citizens of Australia, Canada, Chile, Mexico, and Singapore may have additional work and training visa options (eg, the TN, E-3, and H-1B1 Visas).

• The TN Visa classification applies to citizens of Canada and Mexico whose profession is outlined in the USMCA occupations list (formerly known as the NAFTA occupations list). The individual must meet all the specific qualifications of the position, including but not limited to, education, experience, and profession.
• The E-3 Visa classification applies to nationals of Australia who have a legitimate offer of employment in the USA and possess the necessary academic or other qualifying credentials for a “specialty occupation”.
• The H-1B1 Visa classification (subcategory of the H-1B) was created for nationals of Chile and Singapore as a result of the United States-Chile Free Trade Agreement Implementation Act, and the United States-Singapore Free Trade Agreement Implementation Act.

Employment-Based Immigrant Classifications (Green Cards)

There are five permanent employment-based immigrant preference categories. The three most common are outlined below.

EB-1

Three types of foreign nationals may qualify for the EB-1 or First Preference category:

• individuals of “extraordinary ability” (EB-1A); this includes foreign nationals who have sustained national or international acclaim in the sciences, arts, education, business, or athletics;
• outstanding professors and researchers (EB-1B); this includes those who have received recognition for outstanding achievements in a particular academic field; and
• multinational managers or executives (EB-1C); this includes foreign nationals who have been employed as a manager or executive for a firm or company outside of the USA and will be employed as manager or executive for a related employer in the USA.

EB-2

Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their i) advanced degree; or ii) exceptional ability in the sciences, arts, or business. This category typically requires a job offer from an employer and a PERM Labor Certification from the DOL, but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW).

EB-3

Foreign nationals may qualify for the EB-3 Third Preference category under the following three types of circumstances: i) skilled workers; ii) professionals; and iii) unskilled workers (other workers).

The main unsponsored nonimmigrant and immigrant work and investment visas are outlined below.

E-1 Treaty Trader

The E-1 Visa classification applies to nationals of a treaty country with which the USA maintains ties of navigation and commerce. The individual must be an executive, manager, or specialist in a treaty-nation company where that individual owns at least half of the company, or at least 50% of the company is owned by nationals of the treaty country. Certain employees of a qualifying treaty-nation company may also qualify for E-1 Visa classification.

E-2 Visa Treaty Investor

The E-2 Visa classification applies to nationals of a treaty country with which the USA maintains ties of navigation and commerce. The individual must have invested, or be actively in the process of investing, a substantial amount of capital in a real and operating commercial enterprise in the USA. The proffered position in the USA must be an executive/supervisory position or require skills essential to the company’s operations in the USA. Certain employees of a treaty investor may also qualify for an E-2 Visa.

EB-5 Visa Immigrant Investor

The main investment immigrant visa is the EB-5 classification. There are two primary requirements to qualify for the EB-5 Fifth Preference category: i) making the necessary investment of capital in a commercial enterprise in the US; and ii) planning to create or preserve the required full-time jobs for qualified US workers.

Unsponsored Work Immigration Routes

For unsponsored work immigration routes, certain qualifying foreign nationals are eligible to file a Form I-140 (Immigrant Petition for Alien Worker) on their behalf as a “self-petitioner” without an offer of employment from a US employer. This type of green card process is referred to as “self-sponsorship”. The following employment-based preference categories allow foreign nationals to file their own Form I-140:

• EB-1A First Preference Category – Extraordinary Ability; and
• EB-2 Second Preference Category – NIW (National Interest Waiver).

Other Options

USCIS has published online resources to provide an overview of some of the temporary and permanent pathways (including the International Entrepreneur Rule) for noncitizen entrepreneurs to work in the USA.

A visitor may participate in limited activities of short duration as authorised by US immigration authorities. Business visitors enter the USA either on a B-1/B-2 Visitor Visa or under the Visa Waiver Program (VWP).

The VWP permits foreign nationals to conduct qualifying business activities for up to 90 days without obtaining a B-1/B-2 Visitor Visa at a US embassy or consulate, provided they are eligible citizens of a qualifying country. Foreign nationals travelling to the USA under the VWP must have an approved Electronic System for Travel Authorization (ESTA). Business visitors not eligible for the VWP must generally obtain a B-1/B-2 Visitor Visa prior to travel by submitting an application to a US Embassy/Consulate. Visitors who are citizens of Canada or Bermuda, Bahamian nationals or British subjects in certain islands are not required to have a visa to travel as a visitor.

The following are examples of permissible activities for a business visitor:

• attending business meetings;
• taking orders for goods manufactured outside the country;
• attending a trade show, conference, or seminar; and
• negotiating contracts or performing litigation.

If an activity requires work authorisation, entering the USA as a business visitor is generally not permitted.

It is not possible to work remotely in the USA for an employer located abroad without work authorisation. The USA does not currently have a specific visa category for digital nomads. Business visitors are generally prohibited from engaging in productive work activities and must remain on foreign payroll.

Language requirements may apply to certain US nonimmigrant classifications. Foreign nationals who plan to apply for an F-1 or M-1 visa must be proficient in English or be enrolled in courses leading to English proficiency. J-1 applicants must be proficient in English.

Additionally, to be eligible for naturalisation, foreign nationals must undergo a naturalisation test to demonstrate that they are able to read, write, and speak basic English.

When applying to become a lawful permanent resident (LPR) through an Adjustment of Status (AOS) application in-country or through the consular process for an immigrant visa to enter the USA as an LPR, a foreign national generally must provide a medical examination confirming their eligibility. As part of the medical exam, the doctor will check the foreign national’s vaccination records and ensure that the applicant has received all required vaccines for preventable diseases. The complete list of vaccinations needed can be found on the Centers for Disease Control (CDC) website.

Some temporary travellers may also require a medical exam at the consular officer’s discretion or based on US immigration policy, such as the requirement that visa applicants be referred to a panel physician for medical testing if they have a single alcohol-related arrest or conviction within the last five years, or if there are two or more alcohol-related arrests or convictions within the last ten years, or if there is any other evidence to suggest an alcohol problem.

Salary and qualification requirements for the most common corporate nonimmigrant and immigrant visas (green cards) in the USA are outlined below.

Employment-Based Temporary Visas

• H-1B Visa Specialty Occupation: The minimum entry-level requirement for the job is a bachelor’s degree in a relevant field or equivalent. For certain individuals with specialised skills and considerable work experience that shows a progressive increase in responsibility, equivalency evaluations can be obtained to meet the educational requirements. The employee must be paid by a US company, and the salary must meet the required wage for the occupation in the area of intended employment.
• L-1 Visa Intracompany Transfers:  L-1A and L-1B individual applications do not require a degree but require managerial, executive or specialised knowledge in a relevant field. Employees may remain on overseas payroll or be paid by the US company. L-1B Blanket applications require a bachelor’s degree in a relevant field or other relevant qualifications.
• O-1 Visa Extraordinary Ability: The foreign national must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics, or a demonstrated record of extraordinary achievement in the motion picture or television industry. The foreign national must have been recognised nationally or internationally for those achievements.
• E-1 Treaty Trader: The foreign national must be an executive, supervisor, or specialist in a treaty-nation company where that individual owns at least half of the company or at least 50% of the company is owned by nationals of the treaty country. Foreign nationals may remain on overseas payroll or be paid by the US company.
• E-2 Visa Treaty Investor: The foreign national must be an executive, supervisor, or essential employee (not necessarily an employee of a company abroad or investor). Foreign nationals may remain on overseas payroll or be paid by the US company.

Country-Specific Nonimmigrant Visas

• TN Visa: Nationals of Canada and Mexico must meet all the specific qualifications of the position (which must be listed under the USMCA occupation list), including but not limited to education, experience, and profession.
• E-3 Visa: Australian nationals must have at least a bachelor’s degree in a relevant field, and employees must have relevant degrees or equivalent experience. Employees must be paid by the US company and meet US required wage levels.
• H-1B1 Visa: Nationals of Chile and Singapore must have at least a bachelor’s degree in a relevant field and must have a relevant degree (or equivalent experience). Employees must be paid by a US company and meet US required wage levels.

Employment-Based Immigrant Classifications (Green Cards)

• EB-1: The foreign national must be an alien of extraordinary ability (EB-1A), an outstanding professor or researcher (EB-1B), or a multinational manager or executive (EB-1C). To qualify as an alien of extraordinary ability, the foreign national must demonstrate that they have received sustained national or international acclaim through achievements in the sciences, arts, business, education, or athletics. To qualify as an outstanding researcher or professor, the foreign national must apply to work full-time in a tenure or tenure track teaching position, or a research-related position in the USA and document that they have at least three years of experience in teaching or research and have received recognition for outstanding achievements in a particular academic field. To qualify as a multinational manager or executive, the foreign national must have been employed as a manager or executive for a qualifying foreign entity related to the US employer for at least one out of the three years prior to entering the USA, and their role in the USA must also be managerial or executive.
• EB-2: Foreign nationals may qualify for the EB-2 second preference category on the basis of their:
1. advanced degree: this includes foreign nationals who possess at least an advanced degree (a master’s degree or higher); or
2. exceptional ability: this includes foreign nationals with exceptional ability in the sciences, arts, or business.
• EB-2 NIW: Foreign nationals must demonstrate that they meet the eligibility requirements for the EB-2 classification (ie, advanced degree or exceptional ability) and also that they are eligible for and merit a National Interest Waiver by meeting the following three criteria: i) the foreign national’s proposed endeavour has both substantial merit and national importance; ii) the foreign national is well positioned to advance the proposed endeavour; and iii) on balance, it would be beneficial to the USA to waive the requirements of a job offer and thus of a PERM Labor Certification for the foreign national.
• EB-3: Foreign nationals must be skilled workers (minimum two years of training, education, or work experience depending on position), professionals (minimum of a US bachelor’s degree or foreign equivalent), or other workers (unskilled labour requiring less than two years of training or education or work experience).
• EB-4: Foreign nationals must be one of the following categories of “special immigrants”: certain religious workers, Special Immigrant Juveniles, certain broadcasters, certain retired officers or employees of qualifying international organisations or NATO, certain US government employees abroad, members of the US armed forces, employees of the Panama Canal company or Canal Zone government, certain physicians, and individuals who have provided information concerning criminal or terrorist organisations. The individual’s spouse and children may also qualify, depending on the category. The requirements for the EB-4 Fourth Preference category vary based on the category of “special immigrants” an individual qualifies for.
• EB-5: There are two types of requirements to qualify for the EB-5 Fifth Preference category: i) making the necessary investment of capital in a commercial enterprise in the USA; and ii) planning to create or preserve the required full-time jobs for qualified US workers.

In general, an individual can work only for the employer for which they received the visa, but may obtain authorisation to work for a different or additional employer in some circumstances.

An H-1B employee may change employers; however, the new employer must first sponsor the employee’s new work authorisation by filing a petition with USCIS before the employee begins working for the new employer.

An O-1 employee may change employers with prior approval. The new employer must file Form I-129 with USCIS.

TN, E-3, and H-1B1 employees may also change employers with prior approval. Please note that E-1 and E-2 Visa holders may only change to an employer meeting the treaty requirements.

L Visa holders cannot change employers unless the new employer meets the corporate relationship requirements of the L-1 classification. Depending on the case, prior approval may be required.

Visa processing times vary. The length of time it takes for USCIS to process a petition or the Department of State to process a visa application after they receive it depends on several factors. USCIS’s website publishes general processing times based on the type of petition or application and the Field Office or Service Center location adjudicating the petition or application.

The Department of State’s National Visa Center (NVC) and Kentucky Consular Center (KCC) do not adjudicate visa applications, but have a role within the Department of State’s process. Processing times for the NVC can be found on their website. Wait times for appointments for visa applications filed at a US embassy or consulate abroad can be found on the Department of State’s website. In addition, for post-specific information about visa processing, applicants may consult the appropriate US embassy or consulate website for the most up-to-date information regarding visa processing, appointment availability, and requirements for expedited requests.

There may be travel restrictions while an immigration application is pending, or even after an application or visa has been issued, that travellers should be aware of. Generally, information about such restrictions is available on USCIS’s website, the Department of State’s website, or the website of the embassy or consulate where the application was filed.

Applicants applying from abroad must generally first obtain a visa through a US embassy or consulate before travelling to and entering the USA. Citizens of Canada or Bermuda, Bahamian nationals or British subjects in certain islands may not require a visa to enter the USA and may apply to enter the USA directly at the port of entry.

Individuals in the USA submitting applications/petitions through USCIS may not be able to travel while their application is pending. It is recommended to seek immigration counsel in order to determine if international travel might be possible, depending on the case.

For those with pending green card petitions with USCIS, travel authorisation may be required. A travel permit must generally be obtained prior to travel, or the application can be denied.

Visa processing in the USA may involve multiple government agencies and application processes, for which processing times may vary. 

USCIS premium processing is available for certain petitions or applications. An additional fee must be paid on top of the normal application costs. Please note that premium processing may be temporarily suspended at the discretion of USCIS at any time. Additional information about who is eligible for premium processing and specific premium processing times is available on the USCIS website.

USCIS may also expedite certain cases based on severe financial loss, emergencies and humanitarian reasons, and other limited reasons.

Visa application processing at US embassies and consulates abroad cannot generally be expedited. Individuals with urgent travel needs may request an expedited visa interview appointment by following the expedite request instructions for the US embassy or consulate where the application is filed. Expedites are limited and are typically reserved for emergencies. Applicants are required to provide a written justification of their need for urgent travel.

There are no post-visa requirements or steps for an applicant to complete. However, they should be mindful of their Form I-94 (denotes authorised period of stay) to determine if an extension is required so that they remain compliant with immigration laws. As Customs and Border Protection (CBP) no longer issues admission stamps in passports, foreign nationals should retrieve their online I-94 from the CBP website after every entry to ensure the information is correct.

Foreign nationals should also be mindful of their visa expiration date, as the visa can only be used to seek admission to the USA during the period the visa is valid. The visa expiration date does not dictate how long an individual may stay in the USA; the Form I-94 does.

Foreign nationals in the USA must report a change of address to the government within ten days of moving. This requirement applies to individuals in the USA on a temporary status (ie, nonimmigrants) and individuals who hold a green card (ie, lawful permanent residents). More information on how to notify USCIS of the change of address can be found here.

The cost of sponsoring an employment visa in the USA varies greatly depending on the visa classification and whether the application is submitted in the USA or abroad. Visa fees for nonimmigrant (temporary) and immigrant (green card) visas can be found here.

As previously mentioned, USCIS significantly raised filing fees for immigration benefit requests for most high-skilled classifications starting on 1 April 2024. The rule imposed significant costs on employers.

Depending on the nonimmigrant or immigrant (green card) visa classification, the sponsoring employer is responsible for certain costs. For example, the Department of Labor regulations expressly prohibit an employee from paying for or contributing to any fees and costs associated with the PERM Labor Certification application process. Certain costs may be paid by the foreign employee, such as the cost of obtaining required documents or any fees associated with the translation of documents. It is recommended to seek immigration counsel for further guidance on the costs of a particular visa application and obligations.

Fines and penalties vary among the different federal government agencies tasked with enforcing immigration laws. For example, noncompliance monetary fines for Form I-9 paperwork violations run from USD281 to USD2,789 per violation. U.S. Immigration and Customs Enforcement (ICE) as well as the Department of Justice’s Immigrant and Employee Rights Section (DOJ IER) have the authority to issue civil penalties for failing to comply with Form I-9 employment verification requirements.

Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the Immigration and Nationality Act (INA), knowingly hiring unauthorised workers, committing document abuse, and unlawful discrimination against an employment-authorised individual in hiring, firing, or recruitment, or referral for a fee can give rise to fines and even criminal liability.

The DOL may assess civil monetary penalties specific to the record-keeping requirements related to Labor Condition Applications (LCA) and the related Public Access File (PAF). Specifically, government regulations provide that DOL may assess penalties for violating requirements related to public access where the violation impedes the ability of the DOL to determine whether a violation has occurred or the ability of members of the public to have the information needed to file a complaint.

Additionally, information contained in or missing from the Public Access File could lead the DOL to assess civil monetary penalties for other violations of the DOL regulations (eg, the DOL could identify a deficiency in the PAF that then leads to an investigation regarding other H-1B obligations). The following are the most common violations enforced by the DOL:

• failure to provide required notice;
• wilful failure to pay wages;
• lack of specificity on Labor Condition Applications; and
• misrepresentation of a material fact.

Monetary penalties for these violations are steep and can rise to the level of disqualification from filing immigration petitions with USCIS. Outside the formal enforcement scheme, the agencies responsible for determining eligibility for immigration benefits and visas, the Department of Homeland Security (DHS) and the Department of State (DOS), also drive compliance with the legal requirements through adjudications. The agencies may apply increased scrutiny to a company’s H-1B and other immigration filings, leading to adjudication delays and workforce disruptions.

The government can also pursue criminal investigations related to immigration sponsorship. The False Claims Act prohibits knowingly making false claims to the government, and imposes significant monetary penalties on violators. A separate provision of federal law prohibits knowingly making under oath, or under penalty of perjury, knowingly subscribing as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations, or knowingly presenting any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact. A violation of this provision is punishable by a fine or imprisonment for up to ten years, or both, depending on the circumstances. The Department of Justice (DOJ) routinely publishes announcements of settlement agreements with companies that result from such investigations.

The INA also imposes severe immigration-related penalties for fraud or misrepresentation when seeking an immigration benefit. An individual found to have committed fraud or misrepresentation is subject to a permanent bar on admission to the United States. A misrepresentation can be characterised as material: i) if the foreign national was inadmissible on the true facts; or ii) if the misrepresentation tended to shut off a line of inquiry that was relevant to the individual’s eligibility and that line of inquiry might have resulted in a proper determination that the alien not be admitted.

Employer obligations in the USA for some of the most common corporate nonimmigrant and immigrant (green card) visas in the USA include but are not limited to:

• Regulations require employers in the USA to complete and retain Form I-9, Employment Eligibility Verification, for every person they hire for employment after 6 November 1986, in the USA as long as the person works for pay or other remuneration. Please refer to 6.3 Right to Work Check Requirements for more information.
• Employers in the USA are required to report specific changes in their foreign national employees’ employment activities to the federal agencies overseeing immigration benefits in certain categories.
• Employers of H-1B, H-1B1, and E-3 nonimmigrants must make certain documents available for public inspection at the employer’s principal place of business or at the place of employment within one day after the date of submission of the LCA to the Department of Labor (DOL). Employers also have legal obligations relating to notifying affected workers at the worksite where an H-1B, H-1B1, or E-3 nonimmigrant employee will be placed.

For information regarding penalties for noncompliance, please refer to 6.1 Enforcement Action Against Individuals and/or Sponsors.

Under US law, all US employers must conduct employment eligibility verification for every person hired in the USA if they will work for pay or other type of remuneration. Employers must conduct employment eligibility verification by completing and retaining Form I-9, Employment Eligibility Verification, as required by law. This applies regardless of an employee’s citizenship, immigration status, or national origin. Specific exceptions may apply for completing and retaining Form I-9. Employers must complete the Form I-9 for each worker (including foreign nationals) who begins employment in the USA after 6 November 1986, including workers who remain on foreign payroll. Employers must generally reverify employment authorisation documentation for all employees whose authorisation is expiring to ensure that the employee is still authorised to work, although there are exceptions. The employment verification process in the USA is complex, and employers risk both civil and criminal penalties for noncompliance.

Most visa types allow for certain dependent family members, but which family members qualify for a visa may vary. 

Certain family members of foreign nationals may obtain nonimmigrant or immigrant (green card) visas or status based on their relationship with the foreign national. The foreign national is known as the “principal” nonimmigrant, and the qualifying family members are known as the “dependent” or “derivative” nonimmigrants.

Dependents are typically limited to the principal’s spouse (opposite or same-sex marriages) or unmarried children under the age of 21. Dependents may seek admission to the USA for the same duration as the principal’s stay. Domestic partners (opposite or same-sex), such as those in a civil union, may qualify for a B-2 Visitor Visa to accompany a principal to whom they are not legally married.

An immigrant visa (green card) may also be available to other family members, such as a son or daughter over 21, or the parents and siblings of US citizens. These family members are not typically considered “dependents” but may have a path to obtain a green card.

Only certain nonimmigrant classifications allow the family members (also known as “dependents” or “derivatives”) to work in the USA.

Depending on the nonimmigrant classification family members may be required to apply for and receive employment authorisation in the form of an Employment Authorization Document (EAD) from USCIS before they are eligible to accept employment in the USA.

Dependent family members must also comply with state and federal laws regarding employment, such as child labour laws that prohibit the employment of individuals below a certain age.

Individuals who receive lawful permanent resident status (a “green card”) are work authorised.