IMPORTANT INFORMATION TO EMPLOYEE. PLEASE READ THIS PAGE IN ITS ENTIRETY. Click here for a printer-friendly PDF.
The Employee’s USCIS Nonimmigrant Approval Notice (Form I-797)
The employment-based nonimmigrant petition that you filed with the United States Citizenship and Immigration Services (“USCIS”, formerly known as INS) on behalf of your employee has been approved. The I-797 approval notice states the employee’s nonimmigrant status (e.g. H-1B, L-1A) and the dates of employment as authorized by the USCIS. The original I-797 approval notice must be given to the employee. A copy of the I-797 approval notice should be kept in the immigration file you have set up for this employee. Please note that I-797 approval notice is not a visa and does not permit the employee to apply for entry (“admission”) into the United States. To apply for entry into the United States (after a departure if the employee is already in the U.S.), the employee will need to have a nonimmigrant visa entered in his or her passport. Detailed instructions on how to obtain a nonimmigrant visa, as well as information regarding short trips to Canada and Mexico, are contained in the memo to the nonimmigrant employee.
If the Employee is Canadian
If your employee is a Canadian citizen, he or she will not need a visa in order to apply for entry to the United States (unless the employee is entering under E-1/E-2 status, in which case a visa is needed). The employee need only present the I-797 approval notice. The spouse and children must present proof of their relationship to the employee (e.g. marriage certificate and birth certificates for the children). Upon entering the United States for the first time, the employee will be issued a Form I-94 that will be generally stamped “multiple-entry.” When the employee leaves the U.S., he or she will not need to relinquish the multiple-entry Form I-94, but rather may use Form I-94 to depart and re-enter the United States for as long as it is valid.
If the employee is presenting a TN or L-1 petition at the border (for adjudication by a U.S. Customs and Border Protection officer at the border), the USCIS I-797 approval notice will be mailed to our office at a later date. We will forward the I-797 approval notice to the employee once we receive it from the USCIS. The lower portion of the I-797 approval notice should then be placed in the employee’s passport. The employee should also carry the upper half of the I-797 approval notice when he or she travels.
When the employee enters the United States, the employee’s passport will be stamped by the immigration inspector noting the nonimmigrant status and an electronic Form I-94 (record of admission) will be entered into the U.S. Customs and Border Protection (“CBP”) system. CBP has recently implemented electronic automation of Form I-94 for foreign nationals arriving in the U.S. via air or sea only. CBP will still issue a paper Form I-94 at land border ports of entry. Once in the U.S., the employee must print a copy of the Form I-94 from the following website: www.cbp.gov/I94.
Please note that the Form I-94 determines the length of the employee’s authorized stay in the United States. If the Form I-94 does not accurately reflect the expiration date of the employee’s nonimmigrant status, our office must be notified. It is the employee’s responsibility to remain in status at all times and to verify the expiration dates on all Forms I-94.
Social Security Number
The employee must have a Social Security number when working in the United States. If this is the employee’s first job in the United States, then the employee probably does not have a Social Security number. The employee must apply for one in person at a Social Security Administration office, only after the USCIS has approved the employment-based nonimmigrant petition. The employee should wait 14 days after his or her initial admission to the United States before applying for a Social Security Number because there is generally a delay in the receipt of information by the Social Security Administration regarding the employee’s immigration status. You may download the Social Security Number application form (SS-5) and find the location of your nearest Social Security Administration office on the Social Security Administration website: www.ssa.gov. If the employee’s spouse is in L-2 or E-2 nonimmigrant status, then they are eligible for a social security number and should apply for one. If the employee’s spouse and children are not authorized to work in the United States, then they should apply for Individual Tax Identification Numbers for purposes of opening bank accounts, paying taxes, etc. The ITIN application form (W-7) may be downloaded from the Internal Revenue Service website: www.irs.gov. Please note that the employee’s spouse and any children applying for a driver’s license may be required to obtain a letter from the Social Security Administration confirming that they are ineligible for a Social Security number. Identification requirements for driver’s licenses differ by state; please check the current requirements for the employee’s state. Links to U.S. state driver’s license requirements may be found at the following website: http://www.usa.gov/Topics/Motor_Vehicles.shtml.
Please remember to complete Form I-9 (Employment Eligibility Verification) for the employee. You must complete a new Form I-9 each time your employee obtains new employment authorization from the U.S. Citizenship and Immigration Services (e.g. an extension of nonimmigrant status or a change of nonimmigrant status). Please contact us if you wish to discuss I-9 issues.
Foreign nationals have certain tax obligations that may vary based upon country of citizenship, visa category, or length of stay in the United States. You may obtain more information from the Internal Revenue Service website at: www.irs.gov (IRS Publication 519 “U.S. Tax Guide for Aliens”). Please contact us if you wish to discuss taxation issues with a member of our firm’s tax department.
Change in Conditions of Employment
Approval of the employee’s nonimmigrant status is tied to one or more of the following: the employer, job title, job duties, and the geographic location of the work. Leaves of absence also affect your employee’s status. If any of these factors change please contact us well in advance of any change (at least a month in advance). In many cases, the company will need to file a new or amended nonimmigrant petition with the USCIS. Please also notify us if the employee is terminated or otherwise leaves the company. In many cases, the company must notify the USCIS.
Work Authorization for the Employee’s Spouse
If your employee is in L or E nonimmigrant status, his or her spouse may be able to obtain authorization to work in the United States. This is achieved by filing Form I-765 with the USCIS Service Center having jurisdiction over the employee’s state of residence. The I-765 form and relevant instructions may be downloaded from the USCIS website (www.uscis.gov). Once the I-765 application is approved, the USCIS will send the spouse a work authorization card valid up to two years. Please note that the work authorization for the spouse is tied to the employee’s nonimmigrant status. If the employee is in a nonimmigrant status other than L or E, the spouse may be able to obtain his or her own employer-sponsored work authorization.
Nonimmigrant Status Extensions
Extensions of nonimmigrant status may be filed with the USCIS up to six months prior to the expiration of the employee’s current status (as noted on the I-797 approval notice). The maximum period of stay allowed by the USCIS depends upon the nonimmigrant category. A maximum of 6 years in the U.S. is normally allowed for H-1B status; 7 years for L-1A status; 5 years for L-1B status. Please note that the employee’s ability to travel outside the United States may be restricted while an application to extend or change nonimmigrant status is pending with the USCIS and must be analyzed on a case-by-case basis. You may wish to contact us when an employee is planning to travel in the months surrounding an extension of change of nonimmigrant status.
Should the company wish to pursue a long-term relationship with this employee, please contact us to discuss securing permanent resident status. The process for obtaining permanent residence (a “green card”) may take several years or more. Please plan accordingly.