Hiring Foreign Nationals in TN and E-3 Status

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Hiring Foreign Nationals in TN and E-3 Status

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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-3AustralianSpe
cialtyOccupationWorkers.html
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• 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.

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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)

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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.ht
  ml

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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

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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

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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.

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E-3 Australian Specialty Occupation Worker

• Look at LCA and I-94 The E-3 workers employment
  start date will be the LCA start date or the I-94
  card start date, whichever is later. The E-3
  workers 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 employees
  I-94 card differ from the LCA dates, immediately
  contact an ISSS advisor.
• Not Your E-3? Then No Honorarium, No Salary or
  Wage

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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

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Employment Limitations for Temples 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-pro
  fessional-job.html for details
• TN must have required degree and license, if
  applicable

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• 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.

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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-work
  ers/tn-nafta-professionals

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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-su
  pport.html

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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.

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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.

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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/empl
  oyment/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.

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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.

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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

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• 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)

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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)

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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.

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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.

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TNTRADE 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, OKExpenses Only!