The Gazette 1988

GAZETTE

JULY/AUGUST 1988

Get t ing into Amer i ca

— Legal ly

Ronan Molumby

In view of the increase in recent years of Irish lawyers moving

to the United States it wou ld be most useful to t hem to be

aware of how they deal w i t h their immi gra t i on status both

before they leave Ireland and after they arrive into the U.S.

j ur i sd i c t i on. The most suitable and common ly used visa

category to secure wo rk status for lawyers comi ng f r om

Ireland and Europe to the U.S. is the H—1 category.

This article is focussed on the

situation of a lawyer either:

(i)

securing a firm job offer from

some U.S. firm (legal or other-

wise) while he or she is still

present in Ireland and having

the H—1 visa issue from the

U.S. Consul in Dublin; or

(ii) arriving to the U.S. as a visitor

(B —1 or B — 2 status) and

then securing a job offer while

in the U.S. and adjusting

status to eligible worker while

remaining in the U.S. juris-

diction.

This writing does not apply to

the law student who is coming to

the U.S. for summer placement to

wh om a different visa structure

applies, or to the intra company

transferee whe re the Irish or

European and U.S. corporations are

satisfactorily affiliated.

In general

The H—1 non - immi g r ant visa

category is used by companies and

other organizations to temporarily

employ non-U.S. nationals who

qualify as persons of "distin-

guished merit and ab i l i t y" in

positions that require such ability.

There are t wo classes of persons

considered to be of "distinguished

merit and ability":

(i)

Professionals, and

(ii) Persons who are pre-eminent

in their fields.

It is important to note that the

position can be permanent in

nature, but t he emp l o yme nt

Ronan Mo l umby,

Solicitor

Sioris & Mo l umby,

New York

relationship w i th the non-U.S.

national must be temporary.

Duration of Stay

The employee/H—1 beneficiary

may be admitted to the U.S. for the

period of time required by the

employer up to a maximum of t wo

years initially. Occasionally this

initial period granted is for three

years but in either case further

extensions of up to a maximum of

five years in total are possible.

During this intervening period, if the

H—1 beneficiary so wishes, he or

she can adjust to a permanent

resident status ("green ca r d ") if

t he

emp l oyer

agrees

sponsorship.

Eligibility/Basic Requirements

The emp l o y ee

mu st

be a

" p r o f e s s i o n a l" or o t h e r w i se

possess "distinguished merit and

ability" in his or her field. For a

person to be considered a profes-

sional t wo requirements must be

met:

(i)

the person's field must be one

for wh i ch a baccalaureate or

higher level degree (or its

equ i v a l en t) is t he usual

minimum entry requirement,

and

(ii) the person must possess

q u a l i f i c a t i o ns

least

ma t c h i ng t h at

m i n i mum

requirement.

To come to the U.S. as an Irish or

international lawyer and to qualify

for H—1 status, the employee must

have successfully completed at the

minimum a three or four year

university degree in legal or legal

r e l a t ed s ub j e c t s, or in t he

alternative, must be admitted to the

Bar or be entered on the Roll as a

Solicitor.

In d e t e rm i n i ng wh e t h er a

position requires a professional

level employee the United States

Immigration and Naturalization Ser-

vice will scrutinize the job duties to

be performed by the employee. The

employer's stated requirement of a

bachelors or higher level degree

must be accurate and a prerequisite

for the proper performance of the

job offered. Again attention is

brought to the point that the

position to be filled can be a

permanent one but the employer's

intention must initially be to fill that

position only temporarily, even

though the initial intentions of both

employer and employee can later

change.

Procedure

The procedure in brief involves the

hiring U.S. firm (the "Pe t i t i one r ")

formally petitioning the Immi-

gration and Naturalization Service

t o

c l a s s i fy

t he

emp l o y ee

( " bene f i c i a r y ") for H —1 wo rk

authorization. To discharge the

burden of "distinguished merit and

ability" the following documents

should be submitted along wi th this

Petition to Classify:

(i)

Or i g i nal

t r a n s c r i p ts

duplicate from the relevant

University or College giving

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