Hiring Foreign Nationals in TN and E-3 Status

Hiring Foreign Nationals in TN and E-3 Status

E-3 Australian Specialty Occupation Employees • The E-3 category allows aliens who are nationals of the Commonwealth of Australia to come to the United States to perform services in a "specialty occupation." • The E-3 visa classification allows a maximum of 10,500 Australian nationals per fiscal year to come to the U.S. to perform services in a specialty occupation under the Australia-United States Free Trade Agreement (AUSFTA).Spouses of E-3 visa holders can also apply for an EAD to work in the United States. www.temple.edu/isss/international/E-3AustralianSpecialtyOccupationWorkers.html

E-3 Specialty Occupation Workers may be admitted initially for up to 2 years, and extensions of stay may be granted indefinitely in increments not to exceed 2 years each). • As there is no limit on the total length of stay for an E-3 alien in the legislation, there is no specified number of extensions a qualifying E-3 Specialty Occupation Worker may be granted. • E-3 nonimmigrant shall maintain an intention to depart the United States upon the expiration of termination of E status. However, an application for initial admission, change of status or extension of stay in E-3 classification, however, may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

Acquiring E-3 status from abroad Australian citizen must first obtain an E-3 visa. No I-129 petition is necessary. Applicant presents the necessary documents to the US consular officer at the time of visa application, including: • Copy of the employer's LCA certified by DOL • Documentation showing eligibility for employment in a specialty occupation • Proof of a legitimate offer of employment in the United States • Documentation that the position qualifies as specialty occupation employment (under the same standards as an H-1B specialty occupation)

Acquiring E-3 status from abroad • Proof of Australian citizenship • Proof that he or she has the necessary academic or other qualifying credentials and any required licensure • Proof that the stay will be temporary • Proof of payment of the Machine Readable Visa fee (currently $390 for E-3 visas) With an E-3 visa, an Australian citizen can then apply for admission to the U.S. in E-3 status at a U.S. port of entry. Visit the U.S. embassy in Canberra's website at http://canberra.usembassy.gov/e3visa/qualifying.html

Submitting a Change of Status Petition to E-3 status if the Applicant is already in the U.S. • Form I-129 with I-129 fee • Copy of the E-3 LCA certified by DOL • Proof of Australian nationality • A letter from the prospective U.S. employer describing the alien's occupation, the alien's anticipated length of stay, and salary/remuneration arrangements. The letter should establish that the position qualifies as specialty occupation employment (under the same general standards as an H-1B specialty occupation) • Evidence that the alien meets the educational requirements for the position to be filled (a bachelor's degree or higher or its equivalent in the specific specialty occupation) • Evidence that the alien meets any licensing or other occupational requirements

Extension of E-3 Status • It is MUCH faster and easier for your E-3 to travel outside the US and reenter in E-3 status than to apply for an extension in the US through USCIS as there is no Premium Processing. We have had petitions languish at USCIS for MONTHS. Please encourage your E-3 to travel outside the US and reenter to ensure no interruption of employment. • Please note that ISSS can not file an LCA with the Department of Labor more than 6 months in advance of the LCA start date

Spouses of E-3 workers can apply for work permission • In order to obtain an employment authorization document, the E-3 nonimmigrant dependent spouse must file Form I-765, Application for Employment Authorization, and provide evidence that he or she qualifies as an E-3 spouse and that the nonimmigrant principal is in E-3 principal status. • When completing the form, applicants will need to select the visa type E1/E2, as E3 is not listed as an option. • Spousal employment may be in a position other than a specialty occupation, and may be full time, part time or casual work. • Children on an E-3D visa are not permitted to work.

E-3 Australian Specialty Occupation Worker • Look at LCA and I-94: The E-3 worker’s employment start date will be the LCA start date or the I-94 card start date, whichever is later. The E-3 worker’s last date of employment will be the LCA end date or the I-94 card end date, whichever is earlier. Should the dates on the E-3 employee’s I-94 card differ from the LCA dates, immediately contact an ISSS advisor. • Not Your E-3? Then No Honorarium, No Salary or Wage

Trade NAFTA (TN) The TN category was developed as part of the North American Free Trade Agreement (NAFTA), to facilitate the entry of Canadian and Mexican citizens to the US to engage in professional business activities on a temporary basis. The TN category allows for admission of individuals for the purposes of: • Working for a U.S. employer as a professional; or • Working for a foreign employer (including even a non-Canadian or non-Mexican employer) to provide pre-arranged professional services to a U.S. employer. • www.temple.edu/isss/international/nafta.html

Employment Limitations for Temple’s TN Status Holders • Can only work for the organization that petitioned for their services • Is not applicable for those who have already filed for permanent residency (Green Card) as this status does not allow for dual intent • Not all positions are on the TN schedule – see www.temple.edu/isss/international/requirements-professional-job.html for details • TN must have required degree and license, if applicable

Teacher: Can only be used for teachers entering to work for a university, college or seminary. They must possess relevant baccalaureate or licenciatura degrees. Since the TN applicant must show that their stay is temporary, the TN category is not recommended for tenure-track faculty who plan to apply for lawful permanent residence. • Scientist: Covers a broad range of scientific fields that may be useful to academic and research institutions • Research Assistant: Must be entering to conduct research for a postsecondary educational institution. • Medical/Allied Professionals: Encompasses many occupations that are useful to universities and medical institutions. A few examples are Occupational Therapist and Recreational Therapist, Physician (teaching or research only), and Registered Nurse.

Time and duration, and numerical limitations • Canadian and Mexican citizens can be admitted to the United States in TN status in increments of up to 3 years. Extensions of stay are also granted in up to 3-year increments. • There is no cumulative total limit on the time a Canadian or Mexican citizen can be in TN status. Status can be renewed each year indefinitely, provided that the stay remains temporary in nature. This can get tricky if someone is in the US for many years, however. • There is no annual limit on the number of Canadians or Mexicans granted TN status. www.uscis.gov/working-united-states/temporary-workers/tn-nafta-professionals

Employment Letter • The employer in the U.S. must provide to the applicant a Letter of Employment in the United States. The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity. • Letter should be on TU letterhead and signed by Department Official • Please email a copy of the letter to ISSS through TUSafesend www.temple.edu/isss/international/sample-letter-support.html

What are the Required Fees? • Nonimmigrant visa application processing fee - Each applicant for a visitor visa must pay a nonrefundable nonimmigrant visa application processing fee and possibly a visa issuance fee – Department may reimburse the TN applicant for these fees but it not legally required to do so • The hiring department does not need to pay any visa or application costs.

Extension of Stay Canadian or Mexican citizens admitted as a NAFTA Professional may seek an extension of stay, which may be granted up to three years: • If the applicant is in the U.S., employer may file Form I-129 Petition for Non-immigrant Worker with USCIS; or • Applicant may apply at a port of entry using the same application and documentation procedures above as required for the initial entry.

Initial processing requirements differ for Canadians and Mexicans The procedures for acquiring TN status differ for Canadians and Mexicans. • A Mexican citizen must obtain a TN visa from a U.S. consulate before being eligible to apply for admission to the United States in TN status. http://travel.state.gov/content/visas/english/employment/nafta.html • A Canadian citizen does not require a TN visa. A Canadian simply presents the required supporting documentation at a U.S. port-of-entry, and is admitted directly in TN status. Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting Form I-129, Petition for Nonimmigrant Worker to USCIS. Premium Processing Service is available.

TN eligibility requirements Alien • Alien must be a citizen of Canada or Mexico • Alien must possess the minimum qualifications of a member of one of the professions listed in NAFTA Appendix • Entry must be "temporary" Job • Job must constitute "pre-arranged" professional activity for a U.S. entity, within one of the professions listed in NAFTA Appendix Employer • Employer can be either a U.S. employer for whom the pre-arranged services are being done, or a foreign employer who has arranged for the Canadian or Mexican citizen to provide pre-arranged services in the U.S. for a U.S. entity • Alien cannot be "self-employed" in the U.S.

NAFTA TN Eligibility Checklist PROOF OF CITIZENSHIP • WHTI-compliant passport (Mexican Nationals Are Required to Have a TN Visa stamp in the passport) OFFER OF EMPLOYMENT LETTER • Job Title • Detailed job description (i.e. duties in layman terms) • Source(s) of remuneration, salary, and benefits • Duration of employment • Must be on company letterhead with original signature for each employer

EVIDENCE OF QUALIFICATIONS • Must be original document • Degree (including transcripts) /Diploma / Certificate • If obtained outside of North America, must provide accredited evaluation and English language translation • Degree must relate to the job applied for • Proof of experience / qualifications if applicable ADDITIONAL MANDATORY EVIDENCE, if applicable • Visa Screen (healthcare workers) • State License • Waiver of inadmissibility (if applicable) DEPENDENTS • Marriage License • Birth certificate • Adoption record • TD visa for non-Canadian dependent(s)

ENTRY MUST BE TEMPORARY TN applicants are subject to the I.N.A. § 214(b) "presumption of immigrant intent" which places the burden on them to prove that they have temporary, non-immigrant intent. The "presumption of immigrant intent" implied in INA § 101(a)(15) and § 291 is expressly stated in INA § 214(b), which reads: Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under 101(a)(15). A nonimmigrant visa shall not be issued to an alien who has failed to overcome the presumption of immigrant status established by INA 214(b)

TN IS JOB SPECIFIC • TN status holders may change jobs, or have more than one job, but since TN status is employer and employment-specific, DHS must approve all new employment prior to its commencement. • There are two options for adding new or additional employers. In either case, the new employment cannot begin until the Service Center approves the I-129 petition and the petition start date is reached, or the TN reenters the United States.

TN IS JOB SPECIFIC Filing at the Vermont Service Center • The new or additional U.S. employer can file an I-129 petition with the correct Service Center, following the same general filing guidelines as for an extension of TN status, but marking the I-129 for "new employment," "new concurrent employment," or "change in previously approved employment," as appropriate. Your Department can Premium Process the application if you are anxious to hire the TN. Readmission at the border • The TN can also choose to exit the U.S. and re-enter through a qualified port of entry inspection facility, with new documentation that incorporates the new or additional TN employment. This procedure will require the Canadian TN to pay a new $50 fee. Mexican TNs would have to present a valid TN visa in addition to the new documentation. This is probably the fastest way to be able to hire the TN.

TN—TRADE NAFTA • ONLY For Citizens of Canada & Mexico • Look at I-94 • Sponsoring Employer Specific for a Fixed Period • Canadians require only I-94; Mexicans require I-94 and TN VISA Stamp • Not Your TN? Then No Honorarium, No Salary or Wage, OK—Expenses Only!

Hiring Foreign Nationals in TN and E-3 Status