     |
 |
 |
 | | | | |
 |
|||
 |
||||||
          |
 |
 |
||||
|
Playing the Immigration Game I was sitting in the United States Department of Immigration and Naturalization Service (INS) offices in San Francisco with a prominent digital effects artist from Industrial Light & Magic, who I'll call "Carlos". Carlos was from Spain, and had a fatalistic view of life that's not uncommon to many Europeans. Carlos was a very talented graphics expert, having made major contributions to several Oscar-winning visual effects. On the side, he also wrote and directed short films. Carlos accordingly looked at life through the eyes of a filmmaker. His green card interview was delayed because they had "misplaced" his file, which gave the two of us plenty of time to sit and chat about the immigration process, films, games based on films, and so on. It also provided Carlos plenty of time to observe the daily grind at the INS offices, with its green plastic chairs, bland beige walls, low murmur of conversations in 20 different languages, unsmiling bureaucrats and the occasional calling of a person's name for an interview.
After deep contemplation, Carlos turned to me and commented, "Ron, this place is just like the Ministry of Information in "Brazil"." We finally heard Carlos' name called, and as we stood up to go to his green card interview I replied, "I understand the sentiment. There are many similarities. But I don't think the INS is "Brazil" yet." That conversation with Carlos occurred over ten years ago, but if it occurred today, I might well agree with his assessment. The INS now no longer exists - As of March 1, 2003, the INS functions have been taken over by the new Department of Homeland Security and the INS has become the Bureau of Citizenship & Immigration Services (BCIS). If ever there was a real life government agency that could serve as a model for "Brazil", or for that matter George Orwell's "1984", it is the Department of Homeland Security. We have now entered an era of secret trials, cattle-call round ups of foreign nationals and 24/7 monitoring systems. Despite this, there are still many talented foreign nationals who wish to come to the USA to work for game companies. It has been my role for over twenty years to facilitate this migration of talent into the America. I'm often asked for an appropriate analogy for what they face in the United States' immigration process. Some see it as a maze of illogical twists and turns that must be navigated. I prefer to think of it as carefully walking people across a minefield. In this article I'll explain how the immigration system in the United States works, and some strategies for navigating its minefield. Bureaucratic Spaghetti Code There is a logic, structure and history to the US immigration system - although its logic is very difficult to ascertain and fully understand due to layers of beaurcracy created by 50 years of immigration legislation. The most recent layers are the Homeland Security Act and the Patriot Act. To borrow a programming analogy, the "base code" of the current US immigration system is the Immigration Act of 1965, which set up the underlying foundation of visa categories and allocations. Since then, there have been over twenty major pieces of immigration legislation passed by Congress. Each new piece of legislation adds to the base code, replaces some of the existing code, and often causes some conflicts with the existing code. The immigration system is accordingly like a huge mess of COBOL spaghetti code that was initially written in the mid 1960's, has gone through over 20 re-writes by different programmers and unfortunately does not have a good user manual. Due to backlogs and delays in various parts of the system, the logical approach is often not the best approach -- getting from point A to point B in the US immigration system is often not a straight-line route. A seemingly circuitous path can be much faster than the logical alternative, and the fastest approach to getting a US work visa or green card is often the best approach. Additionally, certain US consulates and border entry locations are "problem posts" due to recalcitrant personnel who have very restrictive interpretations of immigration laws and regulations. It is accordingly best to avoid these "problem posts" if possible. This is best illustrated by a situation that occurred on the US/Canadian border a few years ago. A game company in the Seattle area wanted to hire a Canadian living in Vancouver for a programming position. But the BCIS (then INS) agents at certain border crossing points in the Vancouver area were very belligerent, and had very strict (some would say "unique") interpretations of various immigration laws, including provisions of the NAFTA treaty. Logically, one would think that the Canadian game developer would take the short trip south and get the work visa at the border near Bellingham, WA. However, that was not a good plan from the standpoint of US immigration strategy. Instead, the company flew the person from Vancouver all the way across Canada to Nova Scotia. The game developer then went through US immigration in Nova Scotia, secured a temporary work visa (called a "TN visa") and flew back across the country to Seattle. This six-thousand-mile loop was the best immigration approach to travel the 300 miles between Vancouver and Seattle. Foreign nationals often state that even with the assistance of the most seasoned attorney, there is still no ultimate control over the immigration procedure. Certainly an experienced immigration attorney can help you avoid stepping on most of the land mines that could blow up your immigration case, but there is some credence to the view that the chaos theory operates within the US immigration system. It is not unusual for cases to get misplaced, lost and even shredded. Often it takes more time and energy to overcome these "procedural errors" than it does to prepare and file the case in the first place. A "Brazil"-like story recently emerged from the INS California Service Center regarding one immigration official's creative approach to reducing backlogs. The INS measured the productivity in their mailroom by how quickly they processed applications, from the time of receipt to the time of ultimate approval or denial. The INS California Service Center was running behind the desired rate, which was going to reflect badly on the people responsible for processing cases through the mailroom. Accordingly, the supervisor in charge of the INS mailroom decided to shred 90,000 immigration applications stacked up on their shelves. This did wonders to reduce the backlog and produced a seemingly great productivity rate. It was, of course, not great for the foreign nationals whose applications were shredded, and it took took months to straighten out the mess. Whenever you have incompetent government bureaucrats administering a complex and illogical immigration system, chaos is bound to emerge at times. The foreign national can only hope that their case is not struck by the chaos factor, or if it is, that they have professional help from persons who know how to rescue it from the bureaucracy. The changes occurring under the new Homeland Security regime prominently impact foreign nationals from Islamic countries. Nationals of these countries are subject to "Special Registration" when they enter and leave the USA. They must also register with the BCIS at periodic intervals even if they do not travel outside of the USA. Foreign residents have never had US constitutional rights while applying for a visa at an American embassy abroad, or even when trying to enter the country at an American airport or border crossing point. However, they have generally enjoyed some US constitutional rights while in the USA. Those rights were less than US citizens and permanent residents, due to the plenary discretionary authority over immigration matters provided to the Congress under the US Constitution. But new laws contained in the Patriot Act now impact the rights of not only foreign residents, but also green card holders and even US citizens, in the areas of judicial review, surveillance and international travel. Thus, foreign residents coming to work in the USA in the games industry are subject to the wide and pervasive powers of the Department of Homeland Security. This puts a premium on knowing the rules and regulations that could impact their ability to stay and develop a game development career in the USA. It is very important to develop immigration strategies for developing a career and establishing a life in the USA. Temporary Visas The first concern for a game company, and the foreign national worker, is to make him or her legal to work for the company as soon as possible. This is normally accomplished using temporary work visas, also called "non-immigrant work visas". Unlike the "green card", which is a permanent visa, a temporary work visas are faster to obtain. But a foreign national who has a "green card" can live and work in the USA for the rest of their life, and they can work for any company they like. In contrast, someone with a temporary work visa can generally only work for the company that sponsored the visa. Here is a list of the most commonly used temporary work visas: H-1B Visa. The H-1B visa is the "bread and butter" work visa. It is available for nationals of all foreign countries. There is an annual cap on the amount of new H-1B visas that can be issued each fiscal year. During the height of the dot-com boom, the annual limit in the USA was increased to 195,000. But it will revert back to 65,000 per year on October 1, 2003. This will likely require "cap management" by US companies. There will be an H-1B season running from Fall to Spring when H-1B visas will likely be available. It is likely, though, that available H-1B visas may not be available during the summer. This depends on H-1B demand, which in turn depends on the economy. The general requirement for an H-1B visa is that the foreign national must have a bachelors degree, or equivalent, in a field of work related to their employment in the US. If a game developer does not have a degree, often they can qualify based upon a combination of some formal education, previous professional experience and training. There is a formula for determining whether a person can qualify for an H-1B visa based upon a combination of some college level credits and professional experience. The base line standard is that the person must have four years of related college, or its equivalent. For each year of college that the game developer lacks, they must have three years of related professional experience. This calculation should be made when evaluating job candidates. It is a disservice to both the game company and the individual to pursue an employment arrangement when there is no chance of getting a work visa. If there are doubts as to whether a person might qualify for a work visa, it is always a good idea to consult an immigration lawyer before a job offer is made and/or accepted. The H-1b visa is issued in three-year increments. Foreign nationals can accumulate up to a total of six years in H-1B visa status. The status can, however, be extended beyond those six years if the developer has a green card case filed and pending for at least a year. To ensure that a person does not run out of H-1B time, it is important for a company to start the green card sponsorship on a timely basis. The TN Visa. This is a temporary work visa, which was instituted as part of the North American Free Trade Agreement (NAFTA). It is available only to Canadian and Mexican citizens. The TN is only available in 12-month increments. You should not start a green card case while you are on a TN visa as it creates a "conflict of intents". Accordingly, the TN is considered a good means to quickly get a work visa to start a job at a game company in the United States. It is possible to get a TN visa quickly, as it can be issued right at the border crossing point. But someone who gets a TN visa should later move over to an H-1B visa status to permit a longer stay in the USA and ultimately green card sponsorships. The L-1 Visa. This is an intra-company transfer visa. A US company with offices abroad can bring in employees from those foreign operations to work in the USA. Moreover, a foreign-based company with US offices can use the L-1 visa to bring in employees from the foreign parent company to work at their American offices. Larger companies can qualify for special "blanket" L-1 visas, which are issued directly at the US Embassy abroad and do not require any prior filing with the BCIS offices. The L-1 visa can be extended to a maximum of 7 years. L-1 visa holders can also qualify for a fast track green card, avoiding the lengthy labor certification procedure. Finally, spouses of L-1 visa holders can obtain US work authorization. Such spousal work authorization is not available for H-1B and TN visa holders. The O-1 Visa. This visa is available to game industry professionals who have "extraordinary ability" in the arts, science or business. To qualify for an O-1 visa, a foreign games developer must show evidence documenting significant career achievement and industry renown. The types of evidence that can be presented are industry awards, nominations of awards, articles about the person in industry or trade journals, demonstration that the person has played a major role in games that have had significant commercial or critical success, testimonials from prominent members from the games industry, or evidence that the person has spoken at industry conferences or published papers. The O-1 visa is not easy to obtain, especially for younger game developers. It is, however, an option for people who have advanced careers and have made a significant impact in the games profession. The F-1 Practical Training Visa. This is the "practical training" work visa status given to foreign national graduates of US colleges, universities or art schools. It is valid for up to 12 months following a person's graduation from school, at which time the person usually changes over to an H-1b visa. Game companies that recruit from colleges should be aware of this visa as it allows companies to get new college grads on the job fairly quickly, and provides a bridge to the longer-term H-1b visa. But companies should be very careful how they handle these hires after October 1, 2003, due to the lowering of the H-1B cap. The E Treaty Visa. This temporary work visas is only available to certain foreign nationals who are working for a company in the USA that is majority-owned by nationals of their home country. For example, a US company that is 51% owned by German nationals can generally obtain E visas for German citizens to work for them. The foreign country must have the requisite treaty with the US in order to qualify for the E visa, and currently over 30 countries have this treaty with the US. Those countries include the companies that produce the majority of foreign game developers, including Canada, UK, France, Germany, Japan and Korea. Obtaining Permanent Residence Once a foreign national game developer has obtained a temporary work visa, that person should look into their options for staying longer in the USA. There are various different ways for foreign nationals to obtain permanent US residence status (commonly known as "green card" status). The common routes to a green card are summarized below. Company-sponsored green cards. A US company can sponsor a foreign national for permanent residence. Normally, the person is working for them on a temporary work visa, such as an H-1B, while the green-card sponsorship is taking place. The standard company sponsorship involves a three-step process. The first step is called Labor Certification. In this stage, the US company must make an effort to recruit qualified and willing American workers who could perform the position at the company. The required recruitment efforts include newspaper advertisements, Internet job postings and internal postings at the company. If the sponsoring company can demonstrate to the satisfaction of the US Department of Labor that they have conducted the required recruitment activities and were unable to find qualified and willing American games professionals to do the job, then they will be issued a certification. The second step in the green-card process is called the Immigrant Visa Petition. This is an application filed by the company with the BCIS proving that the foreign national meets all the requirements for the permanent position, and demonstrates that the company has the ability to pay the appropriate salary. In that regard, the salary offered for a green card position must meet the prevailing wage levels of the position within the game industry for that geographic location. In other words, you cannot have "cheap foreign labor", where you pay foreign game developers less than you pay your American employees. This prevailing wage requirement also applies in H-1B sponsorships. The third and final step in the company-sponsored green-card process is called the Adjustment of Status. In contrast to the first two steps, which are filed by the company, this part must be filed by the foreign national himself. He must demonstrate that he is a "good person" in this application. Things that could lead to a denial of the green card at this stage include criminal convictions, especially drug convictions. Another reason for denying a green card has to do with prior immigration problems like fraud, working in the USA without the proper visa or overstaying expired visas. In the post 9/11 environment, a green-card applicant must also pass several security checks to ensure that they are not involved in terrorist activities. Extraordinary Ability Green Cards. These cases can be filed either by the company or sometimes by the individual themselves. The requirements are very similar to those in the aforementioned O-1 visa category. Extraordinary Ability green cards are usually only available to persons who have won major awards in the game industry or who have played a very prominent role in a major game, which enjoyed significant commercial and/or critical success. Such green-card cases only involve two steps - hiring companies can skip the labor certification step (there's no need to run advertisements or conduct other recruiting activities). This obviously speeds up the processing of these cases. Family Sponsored Green Cards. If the foreign national game developer has a spouse, parent, child or sibling who is a United States citizen, the developer can be sponsored for a green card by that relative. Moreover, if they have a spouse or parent who is a US permanent resident, they can be sponsored by those persons for a green card. Cases for persons who are spouses or parents of US citizens are are relatively quick in immigration terms. The other types of family sponsored green card cases can however take several years to process. Other types of green card cases. There are some other categories in which persons can qualify for green card status. The Diversity Lottery annually provides thousands of green cards to foreign nationals who are lucky enough to get their name selected by random. Political Asylum is a route to a green card for those persons who are fleeing persecution in their home country. Preparing Your Battle Plan Knowing the basic categories for work visas and green cards is helpful, but it's also important to know some of the battle-tested strategies for getting them. Here are some tips to help you through the Immigration Game. First, determine what temporary work visas are available for you. This will depend primarily on your nationality, education and experience. When game companies are hiring, they normally want someone right away. It is therefore important for you to take the necessary immigration steps as soon as possible. Here's what I recommend pulling together:
When you do get a job offer from a US company, the next important step is to get the temporary work visa approved as soon as possible. The longer the visa process is delayed, the greater the chance that the employer (or if you're an employer, the job candidate) will lose interest in pursuing the process. To get a fast visa approval, utilize the "Premium Processing" option at the BCIS. It costs an extra $1,000 but the case will be done in two weeks instead of the standard 3-5 months. If your initial work visa is a TN, try to get an H-1B visa as soon as possible. If you work for the foreign affiliate or parent of a US game company, it is generally better for you to come to the USA on an L-1 visa as opposed to an H-1B visa. This is particularly true when you can qualify for the L-1A classification as a manager or executive. This will lead to a much faster and easier green card. Also note that just because you don't have the word "manager" in your job title doesn't mean that you do not qualify for the L-1A visa. An experienced immigration lawyer can find out if you might qualify anyway. If you were able to obtain an O-1 temporary work visa, you should consider going for an Extraordinary Ability Green Card. Normally, you will want to start the green card process as soon as you reasonably can. This may entail some negotiation with your American employer. It is in the best interests of the foreign national to have a green card as opposed to a temporary work visa. With a green card you can work for any company you like, and change jobs at any time. If you are on a temporary work visa, you can only work for the sponsoring company. Moreover, if you get laid off, you are immediately out of proper immigration status. There is a misconception that you have 10 days to resolve your immigration status once you have been laid off while you are on a temporary work visa, especially the H-1B. This is generally not true -- in almost all situations you do not get the 10 days if you have been laid off. With a temporary work visa, once you are laid off you are immediately without legal status. This does not occur if you have a green card. If you are on a temporary visa and you see signs of a possible impending layoff, your best bet is to file the necessary immigration application before the layoff occurs. This is particularly helpful under the rules of the Portable H-1B Provision. The Portable H-1B Provision states that if you are on H-1B status with one employer and then you move to H-1B status with another company, you can start with the second company once their petition is merely filed with BCIS, as opposed to approved. The catch is that petition by the second company must be filed with the BCIS while you are still working for the first company. It is very important that the H-1B petition by the new company be filed before you are laid off or quit the current employer. In addition, you need to submit evidence of your current employment, such as recent pay stubs, with the filing. The ability to work once the petition is filed is a special exception to the general rule that you can only start work with a US company after their petition has been approved. The term "Portable H-1B" is in some ways a misnomer; for instance, you don't take your current H-1B with you, you get another one with the new company, but you can jump start when you start work with them. You must be legally in status at the time that you make any immigration filing to move to another status or another company. To be in legal H-1B status, you must be working for the company that sponsored your H-1B visa. If you have fallen out of status (by getting laid off or having quit your job), the BCIS can deny your request to change to a new visa type or a new company. In such a case you may be required to leave the United States and come back in on a new visa. It is always very important to maintain "continuity" of your legal status in the USA. Getting laid off or quitting your job breaks the continuity, as does having your visa expire, and other events. But you are free to quit your job with Employer A once Employer B has filed their H-1B visa petition for you. Once you have obtained the green card, you may later have the option of obtaining US citizenship. The citizenship application can normally be submitted approximately five years after you have obtained the green card. Obtaining US citizenship may or may not impact your ability to keep your citizenship with your country of birth. The US allows dual citizenship, but your country of birth may however have an issue with the Oath of Allegiance that you took with the US when you obtained American citizenship. The immigration game is always changing its rules, policies and procedures. I have merely summarized the rules of the game as they exist today, but they could well change tomorrow. Anyone looking for advice is welcome to contact me at ronrose@roserix.com.
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Playing
the Immigration Game
Features
|
|
|