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53598884922_4742d81a60_cLast week the world of immigration experienced a seismic event. The President announced a historic executive action on immigration that will forever change the lives of undocumented spouses of U.S. citizens and streamline the nonimmigrant work visa process for DACA recipients and other individuals. In this blog post, we share with you everything we know about how the executive order will benefit U.S. college graduates seeking work visas.

President Biden’s executive action was announced on the 12th anniversary of the Deferred Action for Childhood Arrivals (DACA) program, first enacted under the Obama administration. In addition to providing individuals protection from deportation, the order provides relief to potentially thousands of DACA recipients and other Dreamers who have earned academic degrees in the U.S. and are seeking employment opportunities in fields related to their course of study.

In doing so, the government will allow Dreamers to explore existing employment-based visa options such as H-1B, TN, L, O visas, etc.

Key Highlights

What the Executive Order does

  • Work Visas: DACA recipients and other undocumented individuals could soon apply for expedited waivers and receive temporary work visas, granting them legal status to live and work in the United States without fear of deportation
  • Eligibility: To be eligible for nonimmigrant work visas, individuals must have earned a degree at an accredited U.S. institution of higher education in the United States, and have an offer of employment from a U.S. employer in a field related to their course of study
  • Path to Residency: There is potential for these temporary work visas to create a path to permanent residency through employment-based sponsorship options.

Why This Matters

Due to the contentious political climate, the U.S. congress has failed to bring about meaningful immigration reform that provides a legal pathway for Dreamers to remain in the United States and positively contribute to the U.S. economy, utilizing the skills and education they gained here in the United States.

For the first time ever, the government will direct the State Department (DOS) and Department of Homeland Security (DHS) to issue clarifying guidance making it possible for DACA recipients and other individuals without legal status to apply for expedited waivers and temporary work visas.

How will this process work?

While complete details have not yet been released, the government will facilitate expedited review of waivers of visa ineligibility by clarifying that it is within a Consular officer’s discretion to grant a waiver for such individuals, making it easier for them to apply for work visas.

212(d)(3) Waivers and the Ten-Year Unlawful Presence Bar

Under current immigration law, DACA recipients and other undocumented immigrants face additional barriers to obtaining temporary work visas due to their unlawful presence. Under the law, anyone who has accrued unlawful presence for a year or more is subject to a ten-year bar that is triggered upon departing the United States. As a result, the ten-year bar prevents an individual from re-entering the United States for at least ten-years after their departure. This has been a long-standing problem for undocumented immigrants because the bar is triggered even when an individual leaves to obtain a visa at a U.S. Consulate or Embassy abroad.

To overcome the ten-year bar, work visa applicants are forced to obtain a discretionary waiver from the U.S. Customs and Border Protection’s Admissibility Review Office. This waiver is known as the INA 212(d)(3) waiver and is designed to excuse certain grounds of inadmissibility including unlawful presence. An approved waiver removes the bar and allows such individuals to apply for temporary work visas at U.S. Consulates and Embassies. Only once the U.S. work visa is issued, can the individual re-enter the United States in nonimmigrant visa status and work for their employer pursuant to the terms of the employment visa.

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Exciting news for fully vaccinated travelers from Mexico and Canada! The United States Customs and Border Protection (CBP) recently published a notice in the Federal Register announcing that the United States will be lifting travel restrictions on nonessential travel for Canadian and Mexican nationals who have been fully vaccinated for COVID-19 (as defined by the Centers for Disease Control and Prevention) so that they may enter the United States at land ports of entry along the United States/Canada and United States/Mexico border.

Further, Secretary of Homeland Security Alejandro Mayorkas has said that the new measures have been made to align “with the new international air travel system that will be implemented in November.” According to Mayorkas the United States, “will begin allowing travelers from Mexico and Canada who are fully vaccinated for COVID-19 to enter the United States for non-essential purposes, including to visit friends and family or for tourism, via land and ferry border crossings.” This will be a significant step in reopening the economy as “cross-border travel creates significant economic activity in [U.S.] border communities and benefits our broader economy.”

These new measures will occur in two phases over the next few months.  First, in November, U.S. Customs and Border Protection (CBP) will begin allowing fully vaccinated travelers from Mexico or Canada to enter the United States at land and ferry ports of entry for non-essential reasons. Travelers will be required to have appropriate paperwork that provides proof of vaccination. Individuals who have not been fully vaccinated for COVID-19 will not be allowed to travel for non-essential purposes from Canada and Mexico into the United States via land and ferry ports of entry.

Second, beginning in early January 2022, DHS will require that all inbound foreign national travelers crossing U.S. land or ferry ports of entry – whether for essential or non-essential reasons – be fully vaccinated for COVID-19 and provide related proof of vaccination. This approach will provide ample time for essential travelers such as truckers, students, and healthcare workers to get vaccinated.

When will travel restrictions be lifted for vaccinated nonessential travelers?

The travel restrictions on nonessential travel for fully vaccinated Canadian and Mexican nationals will be lifted on November 8, 2021 – the same date that the relaxation will apply to fully vaccinated air travelers. Travelers crossing U.S. borders with Canada and Mexico for non-essential reasons will be required to present proof of vaccination to a Customs and Border Protection officer upon request. More details will be released by U.S. Customs and Border Protection in the coming weeks.

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In this post, we discuss the different options available for foreign nurses to work in the United States.

First, let’s discuss licensure requirements.

Registered Nurse License Requirements by Examination Educated Outside the U.S.

  1. Educational Evaluation of Transcripts:

All applicants who graduated from nursing schools outside the United States must have their transcripts evaluated in a course by course evaluation by one of the following Nursing Commission approved service providers:

  • Graduates of Foreign Trained Nursing Schools (CGFNS), www.cgfns.org,
  • Education Records Evaluation Service (ERES) www.eres.com,
  • International Education Research Foundation, Inc. (IERF) www.ierf.org

*Please review the RN educational requirements of the state in which you wish to be licensed.

  1. English Proficiency Exam

An English Proficiency test is required for all LPN and RN license applicants who received their nursing education out of the United States except for Canada (Quebec requires the English Proficiency test), United Kingdom, Ireland, Australia, New Zealand, American Samoa, Guam, Northern Mariana Islands and Virgin Islands.

You must take and pass either the Test of English as a Foreign Language (TOEFL) www.toefl.com or International English Language Testing System (IELTS, academic version) www.ielts.org. This exam is required regardless of whether the program was taught in English.

  1. NCLEX:

Foreign nurses must take and pass the national licensure examination known as the NCLEX. Once the Nursing Commission approves your application you will need to register with Peasrsonvue at http://home.pearsonvue.com/ to take the national exam (NCLEX). Do not register for the NCLEX before the commission has approved your application. Once you register, our office will make you eligible on the Pearsonvue website. Pearsonvue will then email you the “authorization to test” (ATT). At that point you can schedule to take the NCLEX exam.

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If you are a citizen of Canada or Mexico and you are interested in working in the United States temporarily, the TN visa may be right for you.

Under 8 CFR 214.16, Citizens of Canada or Mexico may seek temporary entry under the North American Free Trade Agreement (NAFTA) to engage in business activities at a professional level.

This section of the law defines business activities at a professional level as “undertakings which require….at least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of NAFTA.”

What are business activities at a professional level?

A citizen of Canada or Mexico may perform prearranged business activities for a United States entity, meaning that the Canadian or Mexican citizen must have a pre-arranged employment agreement to perform professional services in the United States. TN applicants may not enter with the intent to establish permanent residence in the United States. TN visa applicants may only remain in the United States to fulfill their pre-arranged employment agreement and depart after that period has ended. The TN visa is issued for an initial period of 3 years, with one-year extensions granted thereafter if necessary.

The following table outlines professions authorized for TN Visa purposes:

Appendix 1603.D.1 (Annotated)

– Accountant – Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A.

– Architect – Baccalaureate or Licenciatura Degree; or state/provincial license. 2

2 The terms “state/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.

– Computer Systems Analyst – Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma 3 or Post Secondary Certificate 4 and three years’ experience.

3 “Post Secondary Diploma” means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States.

4 “Post Secondary Certificate” means a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.

– Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) – Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.

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U.S. Customs & Border Protection (CBP) recently released a NAFTA Reference Guide that is filled with useful information to assist TN visa applicants filing applications under the North American Free Trade Agreement (NAFTA). Specifically, the guide addresses the process for issuing TN visa approval for multiple employers.

To facilitate approval for multiple employers, CBP has advised that Canadian citizens;

 

  • Provide a letter of support signed by each employer on company letterhead;
  • For applicants who filed their applications at a land border: CBP will include all the approved TN employers on a single I-94 card. If additional I-94 cards are required, CBP will use the same I-94 number for each card;
  • Upon visa issuance, the TN applicant’s electronic I-94 system will be updated by CBP to reflect TN approval for all the employers;
  • For applicants who file their applications at a CBP airport office (where no paper-based I-94 form is issued): CBP will update its electronic I-94 system to reflect TN approval for all the employers.
  • Applicants who file applications for multiple employers at the same time only need to pay one filing fee—however, additional fees may be required for multiple I-94 records;
  • If an additional employer is added by the TN worker at a later date, then a second filing fee will apply.

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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Start-up entrepreneurs who wish to come to the U.S. to open a business have several immigration options. It is important that you understand the requirements, benefits, and downsides of each and choose the one that best fits your situation.

B-1 Business Visa

A B-1 business visa is a non-immigrant visa issued to those who wish to enter the United States for a business purposes. You are eligible to apply for a B-1 visa if you want to consult with a business associates, participate in a required medical clerkship without any remuneration, embark on independent research which does not benefit any U.S. institution, or participate in educational, professional scientific or business conventions, seminars, or conferences.

The validity period for this visa will differ depending on your country of origin. If you are seeking entry into the U.S. for business reasons for the first time, you may be allowed to stay in the U.S. for a period of time long enough to enable you conduct your business. However, the maximum period of stay allowed per visit is 6 months. But you can also apply for another six-month extension if you needed. A B-1 visa can be used for multiple entries in so far as it has not expired.

There are certain tasks that you are and are not allowed to do while in the U.S. on a B-1 visa. If you are in the U.S. with a B-1 visa, you are allowed to negotiate business, discuss planned purchases or investment, solicit sales or investment, attend and participate fully in meetings, conduct business research, and interview and hire staff. You are not allowed to look for employment, run a business in the U.S., or to take part in sporting and entertainment events as a professional.

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