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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
by
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
on
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
at
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
in
duplicate from the relevant
University or College giving
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