Fredrikson & Byron’s Immigration Group offers complete services in all areas of immigration law, with special emphasis on business, arts and family immigration.
What We Do
The lawyers in the Immigration Group are experienced practitioners, many of whom speak frequently at national and international conferences in their areas of expertise as well as volunteer their time for various immigrant organizations. All of the individuals currently working in the Immigration Group share a common philosophy of wanting to provide the best, most personal representation available. Members of the Immigration and International Groups are fluent in written and spoken English, Spanish, French, German, Chinese, and Vietnamese.
We offer counsel on the following immigrant-related areas: Artists, Entertainers and Athletes; Deportations and Removal; Employment/Temporary; Employment/ Permanent; Expatriates; Family Immigration; Foreign Students; I-9 Compliance for U.S. Employers; Lottery; Naturalization; and Refugees and Asylees.
- B-1/B-2 Visitors: B-1 visas are available for business visitors who are entering the U.S. for a short period and who are not engaged in local employment. B-2 visas are for non-business visitors for pleasure.
- E-1/E-2 Treaty Traders and Investors: Certain countries have treaties with the U.S. regarding trade and/or investment that allow such individuals and their employees to receive visas to engage in business in the U.S.
- H-1B Specialty Occupations: Professional workers with at least a bachelor’s degree in a relevant field (or its equivalent in work experience) may be eligible for an H-1B visa if the job requires a degree in that field and the employer can demonstrate that it will be paying at least the prevailing wage to the foreign employee. This is a two-step process involving both the Department of Labor and the USCIS.
- H-2A and H-2B: Occasionally non-professional workers can obtain temporary work permission either for agricultural or non-agricultural labor that is in short supply in the U.S. These categories require a labor certification from the Department of Labor. The procedure is quicker than for immigrant-based labor certifications, but it is still unwieldy and should be reserved only for those cases that truly warrant it.
- H-3: An employer may be able to set up a temporary training program to bring over experienced individuals for the purpose of training them further in their field with the intention that they will return to their countries after such training.
- J-1 Trainees: Occasionally individuals may come to the U.S. under an approved exchange program for the purpose of business training, teaching, providing research, or even serving as camp counselors and au pairs. Depending on the country the individual is from and the program requirements, some J-1 visa holders will be subject to a requirement that they spend at least two years outside of the U.S. before being permitted to change to another nonimmigrant visa or even adjust status to permanent residence. There are waivers available to remove this requirement which are more or less difficult to obtain depending on a number of variables, including the program sponsor and the country of origin.
- L-1 Intra-Company Transferees: L-1 visas are available to executives, managers and employees with specialized knowledge (both professional and non-professional) who are transferring to the U.S. from an overseas affiliate. The foreign and U.S. companies must have the requisite legal affiliation to be eligible. L-1 executives and managers may qualify for permanent residence in the Employment-Based First-Preference (EB-1) category and therefore do not need a labor certification.
- O-1 Extraordinary Ability Workers: O-1 visas are available for individuals with extraordinary ability, including artists, entertainers, athletes, scientists, and business people. The standard for eligibility is higher for all those except artists and entertainers, who need show only “distinguished ability.” Most Os in the arts and entertainment field require advisory opinions from applicable labor unions.
- P-1, P-2, P-3 Artists and Athletes: These categories cover artists, entertainers, athletes and coaches. P-1 is for entertainment groups (not individuals) and individual or group athletes that are internationally recognized. P-2 is a category for artists and entertainers engaged in established reciprocal exchange programs. P-3 is for artists, entertainers and coaches who are culturally unique. Most P visas require advisory opinions from a related union indicating that there is no objection to the grant of a visa.
- Q-1: Q-1 visas are for a unique classification of individuals participating in international cultural exchange programs. These visas can be very useful for temporary culture or language teachers and certain camp counselors.
- TN Status: The TN category is a special one set up for nationals of Canada and Mexico under the provisions of the North American Free Trade Agreement. Despite the similarities, it is considerably easier to get TN status for a Canadian than a Mexican. To qualify, one must fit the specific TN job classification, and the U.S. employer’s job duties must conform to the job classification.
Employment-based immigration is divided into the following five preference categories:
- EB-1 Foreign Nationals of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives and Managers: All of the above individuals are eligible for permanent residence without having to obtain a labor certification. The applications for the first two groups of individuals require substantial documentation establishing their national and/or international renown and expertise. Multinational executives and managers are only able to apply if they have worked for at least one year for companies with the appropriate ownership relationships and affiliations.
- EB-2 Workers With Advanced Degrees or Exceptional Ability: Individuals in this category normally must have a job offer and an approved labor certification. The labor certification process is comprehensive and involves demonstrating that the foreign worker will not be taking a job away from a U.S. worker. If individuals in this category can show that their entry is in the U.S. national interest, both the labor certification and job offer requirements can be waived.
- EB-3 Skilled Workers and Professionals: Individuals in this category typically must have a job offer and approved labor certification. While there is also an EB-3 unskilled labor category, it is so backlogged that it really makes no sense to proceed with a labor certification for an unskilled laborer.
- EB-4 Special Immigrants: Ministers and other religious workers are eligible for permanent residence in this classification provided they have worked for the past two years in that same occupation for the same religious denomination.
- EB-5 Investors: 10,000 visas per year have been set aside for investors who either invest at least $500,000 in “targeted employment areas” (rural areas or those experiencing high unemployment) or those who invest $1,000,000 anywhere else. There are numerous restrictions and regulations regarding this category and anyone proceeding is strongly advised to seek immigration counsel before doing so.
Through contacts developed out of our Mexico and China offices, as well as our affiliates throughout the world, we are able to advise our clients on consular visa processing issues, which have become progressively more complex in recent years. Obtaining H-1B or L-1 approvals from CIS is only the first step for foreign workers entering the U.S. from abroad. Being able to provide critical and timely information on visa processing is a vital service that many smaller practitioners cannot provide.
Through our close membership in the 20-firm Alliance of Business Immigration Lawyers (www.abil.com) we have developed a private consortium of immigration attorneys in forty-six countries world-wide. Much more than a network, we work hand in hand with these attorneys in a cooperative effort to obtain visas for our multi-national corporate clients’ employees coming from or to any part of the world. We meet and collaborate with these foreign-licensed attorneys on a regular basis, making them a part of our immigration team in bringing favorable results to our clients. A select group of attorneys from this alliance have been invited to join ABIL Global, which is a team of attorneys we collaborate with even more closely and whom we give preferred provider status. For more see http://www.abil.com/lawyers/abil_global.cfm.
I-9 Compliance for U.S. Employers
As most of us are by now very well aware, all employers in the U.S. are required to have their employees fill out I-9 forms indicating eligibility to work. These documents should be carefully filled out and maintained by the employer in case the USCIS ever decides to audit the employer’s records. There are severe penalties for both technical and willful I-9 violations, so it is essential that employers thoroughly understand the I-9 process, especially as there are many different types of documents that can be provided by foreign nationals to establish work eligibility. It should be noted that even if employers do not hire a single foreign worker, they can be fined for serious technical I-9 violations. Further, employers have to take care that they do not discriminate against individuals on the basis of their nationality by asking for documentation that is not required. Employers have to walk a fine line between avoiding penalties for failure to properly document all of their hires and penalties for discrimination against foreign nationals.
Other Regulatory Compliance
We have assisted our corporate clients in navigating audits by the Department of Labor and the USCIS. Employers can be assessed serious fines and penalties for failure to comply with immigration regulations, and we carefully ensure that companies’ compliance files (for H-1B’s and labor certifications) are in good order should an audit ever occur.
Artists, Entertainers, and Athletes
This is a unique area of immigration law with special visa types which require unique strategies. Laura Danielson is known on a national level for her representation of artists/entertainers and athletes. Depending on circumstances, these individuals may be eligible for a variety of temporary visas, including B-1, H-1B, J-1, O-1, P-1, P-2, P-3, or Q-1. (Described below under Employment-Temporary) Permanent options for such individuals range from Employment-Based First Preference for Extraordinary Ability, Employment-Based Second Preference and traditional Labor Certifications.
Most foreign students are in the U.S. on an F-1 visa which allows them to reside in the U.S. for the duration of their study program as long as they are maintaining a full course of study and are not working unlawfully. There are various types of practical training permits that foreign students may be eligible for, but as a general rule, they are not allowed to work except on campus or with this special permission. Some students are also in the U.S. on J-1 visas, which are for scholars, teachers and others. While J programs and program sponsors vary widely, students in J status are similar to F-1 students in that they are ineligible for outside employment. Spouses of J-1s (J-2s) are eligible for work authorization from USCIS, but spouses of F-1s are not. Many individuals in J status are subject to a requirement that they return to their country of origin for two years before being eligible for a change of status or adjustment of status to lawful permanent residence. While waivers are sometimes available, students should carefully consider their long term plans before agreeing to J-1 status over F-1 status.
Family immigration is divided into immediate relatives and preference relatives. Immediate relatives include spouses, children under age 21 and parents of U.S. citizens. These individuals are immediately eligible for permanent residence in the U.S., although the application process can typically take quite awhile. Preference relatives are divided into the following categories: First preference – unmarried adult children of U.S. citizens; second preference – spouses and children of U.S. permanent residence; third preference – married children of U.S. citizens; and fourth preference – brothers and sisters of U.S. citizens. These are the only family relationships which allow immigration to the U.S. USCIS has very specific definitions of what constitutes “children” (including step children and adopted children) and “parents.” Family relationships are typically proven with birth certificates, marriage certificates and other legal documentation. The USCIS scrutinizes family relationships closely to ensure that relationships were not entered into merely for the purpose of obtaining immigration benefits.
Individuals who have resided in the U.S. as lawful permanent residence for 5 years (or in the case of spouses of U.S. citizens, 3 years) are eligible to apply for naturalization as U.S. citizens. These individuals must also establish that they have been physically present in the U.S. for at least half of the time during the past 5 years, and that they have not been outside the country for more than one year at any given time without obtaining a waiver. The naturalization process requires that individuals be of good moral character, not be removable from the U.S. for any reason, including past criminal activity, and can pass a test in U.S. government and written and spoken English skills. There are certain exceptions regarding these testing requirements for individuals of a certain age or with certain disabilities. Once interviewed and approved, individuals will be sworn in as U.S. citizens and asked to take an oath of allegiance. Acquiring U.S. citizenship in the U.S. through naturalization does not automatically revoke one’s native citizenship provided that dual citizenship is allowed by that country.
Refugees and Asylees
Refugees and Asylees are individuals who have been granted protection by the U.S. government on account of having established a well-founded fear of persecution by their foreign government on account of their:
- Political opinion;
- Religious beliefs;
- Membership in a particular social group.
Social group membership includes such areas as gender and sexual preference persecution. The main difference between refugees and asylees is that refugees establish this well-founded fear while outside the U.S., typically in a refugee camp, and are then relocated to the U.S. to reside here. Asylees are individuals who have come to the U.S. with visas or as illegal entrants and then file for asylum. Their application must establish their well-founded fear of persecution on account of one of the five grounds. The asylum and refugee process is not an easy one; simply because a country is war torn or in extreme turmoil does not mean its citizens are eligible to reside in the U.S. as refugees or asylees. Proving a well-founded fear of persecution is a very difficult process that is best done with legal counsel. Individuals with strong claims can sometimes qualify for assistance from a human rights organization that helps prepare applications on a pro bono basis. One such organization is the Minnesota Advocates for Human Rights, located at www.theadvocatesforhumanrights.org/.
Deportation and Removal
Fredrikson & Byron’s immigration services include comprehensive representation in the area of deportation and removal. Our attorneys are highly regarded in this area with many years of experience. As a result of recent changes in the law, many more individuals are now subject to deportation and removal, even for committing the most minor offenses. We are capable of handling these matters both in Immigration Court and U.S. Federal Court.
Once a year, most typically around October, the U.S. State Department runs a visa lottery for individuals from certain countries that are under-represented in U.S. immigration. Simple applications must be filed within a narrow window of time and approximately 9 or 10 months later the winners are announced. Even though these applications are very simple, it should be noted that many are rejected for failure to follow exact directions. The visa lottery winners are eligible for lawful permanent residence in the U.S. and must adjust to that status or obtain a visa from a consulate abroad by the end of the next fiscal year. As the State Department issues considerably more approvals than it can grant, it is essential that individuals who win the lottery take immediate steps to make their applications. Otherwise, they may end up in the unfortunate position of being denied because the quota has been reached.
News & Articles
April 21, 2017
By Immigration Group
On April 7, 2017, USCIS reached the H-1B cap for FY 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption.Read More
April 21, 2017
Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.Read More
April 21, 2017
Among other things, USCIS said it "will take a more targeted approach" when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.Read More
April 21, 2017
Visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond.Read More
March 21, 2017
New fees for U.S. Citizenship and Immigration Services (USCIS) forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of December 23, 2016. As of February 21, 2017, USCIS is no longer accepting previous editions of these forms.Read More
March 21, 2017
The Department of State’s Visa Bulletin for March 2017 estimates potential monthly movement in several categories in the coming months.Read More
March 21, 2017
According to news reports, U.S. Immigration and Customs Enforcement has been conducting a series of targeted enforcement actions and has removed hundreds of people. ICE’s focus reportedly includes immigrants with criminal convictions, fugitives and those who reentered the United States after removal. Others with no criminal histories but who had removal orders were included. ICE said the actions were routine and were planned before an executive order on interior security was issued. President Trump issued that executive order, “Enhancing Public Safety in the Interior of the United States,” on January 25, 2017.Read More
March 21, 2017
John Kelly, Secretary of the Department of Homeland Security (DHS), has signed two new memoranda that implement two of President Trump’s recent immigration executive orders. The DHS memos call for, among other things, strict enforcement of immigration laws, stepped-up detentions and enhancement of expedited removal. As part of the new enforcement efforts, U.S. Immigration and Customs Enforcement (ICE) will seek funding to hire 10,000 new officers and agents and the Border Patrol will seek funding to hire 5,000 new agents.Read More
March 21, 2017
U.S. Citizenship and Immigration Services (USCIS) recently reminded employers that the agency must dispose of transaction records that are more than 10 years old in April 2017. Employers that have been using E-Verify for more than 10 years can down their Historic Records Reports through March 31, 2017. A Historic Records Report contains transaction records dated on or before December 31, 2006.Read More
March 21, 2017
President Donald Trump signed a new "travel ban" executive order on March 6, 2017, that was scheduled to take effect March 16. Among other things, the new order revokes a previous order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a "temporary pause." The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump's rationale for the order's provisions.Read More
March 21, 2017
U.S. Citizenship and Immigration Services (USCIS) announced that starting April 3, 2017, the agency will temporarily suspend premium processing for all H-1B petitions. The suspension may last up to six months. While H-1B premium processing is suspended, petitioners will not be able to file a Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker that requests H-1B nonimmigrant classification. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, USCIS said it will reject both forms.Read More
February 8, 2017
Last week, we sent a travel alert on the January 27, 2017 executive order, generally referred to as the “Travel Ban,” that limited the ability of citizens and nationals from seven countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - to enter the U.S. under either nonimmigrant or immigrant visas for at least 90 days, or even to receive visas from U.S. consulates abroad; suspended for at least a 120-day period of time the entire refugee program; disqualified Syrians entirely from refugee eligibility; and pledged to reassess the entire security clearance process for foreign nationals coming to the U.S.Read More
January 30, 2017
President Trump signed an executive order on Friday, January 27, 2017, which has caused great concern worldwide on new travel restrictions to the U.S. The order entitled “Protecting the Nation from Terrorist Entry into the U.S. by Foreign Nationals,” has stirred public protests, federal litigation and a confusion over who this order impacts.Read More
January 19, 2017
On November 14, 2016, USCIS issued a revised version of the I-9, Employment Eligibility Verification Form. USCIS provided a transition period which ends on January 22, 2017. As of January 22, all employers must begin using the revised Form I-9, with a revision date of “11/14/2016 N.” Additional changes were designed to streamline certification for certain foreign nationals and to make completion of the form more computer friendly.Read More
January 5, 2017
USCIS will start accepting H-1B petitions for fiscal year 2018 (October 1, 2017-September 30, 2018) on April 1, 2017. Only 65,000 H-1B’s are issued each fiscal year, with an additional 20,000 H-1B’s for graduates of U.S. master’s degree programs.) As in recent years, we expect the H-1B cap to be reached within a week. Last April, USCIS received approximately 236,000 H-1B petitions in the first week. There will likely be a lottery for those applications received within seven days of April 1, 2017, once USCIS receives more than 65,000 applications. The lottery is a random selection process of the H-1B applications received to determine which applications will be assigned an H-1B cap number and adjudicated.Read More
Matter of Dhanasar: New and Expanded Standards for Permanent Residence Under National Interest Waivers
December 30, 2016
One of the most productive, oftentimes time-efficient pathways to permanent residence is through a National Interest Waiver, under which a foreign national can attain permanent residence by showing that his/her employment will serve to the nation’s benefit. There are two immense advantages to this immigration strategy: 1) a foreign national can self-petition for permanent residence rather than having to be sponsored by an employer; and 2) the submission is made directly to U.S. Citizenship and Immigration Services, thereby avoiding entirely the recruitment and advertising requirements that are the backbone of the labor certification application process through the Department of Labor. Despite its advantages, however, over these past years immigration examiners have operated under somewhat vague guidance on the adjudication standards for National Interest Waiver cases.Read More
December 28, 2016
President Barack Obama signed H.R. 2028 (Pub. L. 114-254), a short-term bill passed by Congress, into law on December 9, 2016.Read More
December 28, 2016
Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) announced on December 9, 2016, that they have introduced S. 3542, a bipartisan bill “to protect undocumented individuals should the Deferred Action for Childhood Arrivals (DACA) program be discontinued.” Cosponsors include Sens. Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), and Jeff Flake (R-AZ). The legislation, dubbed the “Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act,” would provide temporary relief from removal and work authorization to young undocumented persons who were brought to the United States as children.”Read More
December 28, 2016
U.S. Citizenship and Immigration Services (USCIS) is reminding all EB-5 regional centers with a designation letter dated on or before September 30, 2016, that they must file Form I-924A, Supplement to Form I-924, for fiscal year 2016 by December 29, 2016. Regional centers must submit an I-924A every year to demonstrate continued eligibility for the regional center designation.Read More
December 28, 2016
The U.S. Supreme Court denied rehearing of United States v. Texas on October 3, 2016. The Court’s refusal to reconsider the case, on which it was deadlocked 4-4 in June, means that several Obama administration deferred action programs remain blocked by the U.S. Court of Appeals for the Fifth Circuit’s order. The programs include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The original DACA program is unaffected and has continued since 2012.Read More
December 28, 2016
Australia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.Read More
October 17, 2016
The Immigration-related programs extended by the bill include E-Verify, EB-5 regional centers, EB-4 non-ministerial religious workers and Conrad 3 for J-1 medical workers.Read More
October 17, 2016
The Department of State’s Visa Bulletin for October 2016 provided an overview of potential visa number availability.Read More
October 17, 2016
All Form N-400 (Application for Naturalization) applicants, except those who reside overseas, no longer need to submit two passport-style photographs.Read More
Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill
October 17, 2016
A lot has been happening the last few days in the EB-5 world. Sens. Grassley and Leahy wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. Also, Rep. Goodlatte introduced an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 programRead More
July 7, 2016
The Supreme Court in United States v. Texas essentially upended the President’s Executive Order that provided limited benefits to parents of U.S. citizens or permanent resident children and an expanded class of “Dreamers” who were brought to the U.S. in unauthorized status as children. In a split 4:4 decision, that was issued without discussion, the Supreme Court affirmed the decision of the Court below, effectively finding that the President had exceeded his executive authority by issuing a blanket reprieve from deportation and expanding the right of long-term, otherwise law-abiding residents to work. This decision ended the President’s initiative to address a burgeoning population of unauthorized foreign nationals in the U.S., thereby throwing the entire issue back to Congress or perhaps setting the stage for renewed court action following the appointment of a ninth justice who could break the tie.Read More
May 13, 2016
USCIS has finalized guidance on determining whether a new job is in the “same or similar” occupational classification with respect to job portability.Read More
May 13, 2016
USCIS announced it has received a sufficient number of petitions to reach the H-2B cap for the first half of FY 2016. March 15, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2016.Read More
May 13, 2016
USCIS will accept comments until April 27, 2016, on the revised Employment Eligibility Verification Form I-9.Read More
May 13, 2016
DHS published a final rule amending regulations to expand optional practical training (OPT) for students with U.S. degrees in science, technology, engineering, or mathematics (STEM) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.Read More