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Guide to Immigration Law
An L-1 visa is a narrowly defined visa which allows a person to work in the United States for an employer which is closely related to the applicant's current employer. The employer can be a corporation, a non-profit organization, religious organization, etc. There are no limits to the number of L-1 visas granted so the waiting time is relatively short. Once in the United States, there is a quick process available to L-1 visa holders to receive a green card.
Requirements
The following qualifying conditions must be met:
1. The applicant must have been employed abroad for at least one of the last three years by a parent, affiliate, or subsidiary of the United States employer
- Time working while in the United States does not count toward meeting the one year requirement
- Time working in the United States does not disrupt the continuity of the time requirement
- It is possible to work part-time and still qualify for an L-1 visa
2. The employer in the United States and the employer abroad must have a "qualifying relationship" through common control or ownership of the corporation or organization.
3. The applicant must be coming to the United States as an executive, a manager, or an employee with "specialized knowledge".
- Executives Qualify for L-1A status and can stay for up to 7 years
- Executives typically direct and supervise the management of an organization i.e., President, Vice-President, etc.
- Managers Qualify for L-1A status and can stay for up to 7 years
- Managers direct the management of a department, site, or branch within the organization
- Employees With Specialized Knowledge Qualify for an L-1B visa and may stay in the United States for up to 5 years
- Applicants (employer) must submit labor certification or the visa will expire at a date listed on the visa up to three years after approval.
- An Employee with Specialized Knowledge is one who has an advanced or proprietary knowledge of the organization, products, services, or procedures.
Opening
an Office in the US
A person coming to the United States to open a new office will typically be required to submit plans or proof that office space has been obtained. This type of L-1 visa will expire after only one year. The company can apply for an extension by providing proof of the plans in process for the new office.
Blanket Approval for Many Employees
Companies engaged in commercial sales or services which send large numbers of employees to the United States have the opportunity to receive an approval for all their employees and avoid petitioning for each employee separately. In order for a company to qualify for this blanket approval, it must meet the following requirements:
- Both the United States and foreign companies must be involved in commercial sales and services
- The company must have documented evidence of the following:
- At least 10 L-1 visas granted in the last year
- U.S. sales of at least a million dollars OR a U.S. workforce of over 1,000 employees
Employees who come under this blanket visa granted to the company are required to have worked for only six months abroad prior to applying for the visa rather than the twelve months required for an individual L-1 visa.
Specialty Worker Employment Visas: H1-B
A worker with highly specialized knowledge or skills hired by a United States employer may be eligible for an H-1B Specialty Worker visa. The H-1B visa is good for up to six years. The United States employer must meet wage requirements which are designed to prohibit United States companies from hiring immigrants for the purpose of minimizing company costs and lowering wages in any given field of work.
Specialty Worker Visa Requirements
The following requirements must be met to qualify for an H-1B visa:
- The employer must be based in the United States
- The occupation or position must one which requires a highly specialized set of skills or knowledge
- The employee must have at least a bachelor's degree in a field related to the occupation and any required licenses or certificates required for the occupation
The United States employer must submit the petition on behalf of the visa applicant. The employer files a labor certification application with the Department of Labor which certifies the employer is paying at least the same wage to the foreign worker as it would to a U.S. worker. The wage paid to the employee must be the higher of the actual wage paid by the employer for employees of a similar experience and qualifications for that occupation OR the prevailing wage for the employee's occupation in the geographic area. The employer must make all wage determinations and surveys available for public inspection upon request.
Documentation for an H-1B
When applying for an H-1B visa, detailed documentation regarding the employee and the position is required to prove the status as a specialty worker and to prove the U.S. employer is legitimate and following the law. When sending this documentation, it is recommended that copies are submitted and not originals. Original documents should be available for inspection at the personal interview or at a later time if requested by immigration officials.
The following documents need to be submitted:
- Passport
- Complete, detailed resume of specialty worker
- Diplomas and professional certificates or licenses
- Description of the job and the qualifications required to perform it
- Method used to determine appropriate wages
Numerical Caps on H-1B Visas
The current law limits the number of aliens who may be issued a visa or otherwise provided H-1B status to 65,000. H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are exempt from the limit of 65,000 H-1B visas. Laws also exempt up to 20,000 foreign nationals holding a masters degree or higher from U.S. universities from the cap on H-1B visas. Also, Free Trade Agreements allow a reserve of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Visa renewals also do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.
Maintaining Status
The H-1B visa holder will maintain his status as long as the employer/employee relationship exists. If the H-1B visa holder is on sick leave, maternity leave, or otherwise inactive (but still "employed") it will not affect her visa status. If an H-1B visa holder changes employers, the new employer must file a new H-1B petition for the visa holder BEFORE she starts working for the new employer and before the expiration date of the original H-1B visa. The H-1B visa holder may not work in any capacity other than the specialty occupation for which she petitioned.
Apply Early
The applications for visas under this category go very fast and the demand far exceeds the availability. Applicants must apply as soon as possible to have a chance at an H-1B visa. For fiscal year 2008, the entire quota was exhausted before the end of the first day on which applications were accepted. Under USCIS rules, the 123,480 petitions received on April 2 and April 3, 2008, that were subject to the cap were pooled, and then 65,000 of these were selected at random for further processing. The additional 20,000 Advanced Degree H-1B visas for FY 2008 were exhausted on April 30, 2008.
H-1B visa holders can bring their dependents on an H4 visa. H4 visa holders are not allowed to work in the United States or to apply for a social security number.
Seasonal Non-Agricultural Workers: H-2B Visas
Seasonal non-agricultural workers may apply for an H-2B visa which allows people to enter the United States for the purpose of performing temporary work seasonally, for peak load or as a one-time worker. H-2B visas are only available for positions for which there is a shortage of U.S. workers. Employers must prove the hiring of foreign nationals in the United States will not adversely affect U.S. workers and their opportunities for employment.
From October 1 through September 30 each year, there is a limit of 66,000 initial H-2B visas (renewal visas are not included toward the limit). This total limit of visas issued is divided in half and allocated for two distinct times of year. This divided allocation allows employers who need employees later in the year to receive visas which otherwise might be gone at the beginning of the application process. 33,000 visas are available to workers scheduled to begin work between Oct. 1 and March 30 of each fiscal year. The remaining 33,000 visas are awarded to workers who will start work between April 1 and September 30. The H-2B visa is good for up to one year and can be extended upon request in one year increments for up to a total of 3 years. Both the employer and the employee have requirements to meet before the visa will be approved.
Requirements
To qualify for an H-2B visa, the employer must meet the following requirements:
- The employer must have a need which is seasonal, one-time, intermittent or peak load
- The job time-frame must be for less than one year
- There must be no qualified and willing U.S. workers available for the job
The employee must meet the following requirements:
- Employee must have a valid job offer from a U.S. employer to do seasonal or temporary work.
- The employee must intend to return home before the expiration date on the visa
Once granted, the H-2B visa holder may bring his/her dependants to the United States and they may travel freely to and from the United States. The dependants may attend school while in the United States without filing for a separate student visa. An H-2B visa holder will also have the same employee benefits as other employees in the company.
Trainee Visa: H3 Visas
Foreign nationals who come to the United States for the purpose of job training by a company in the United States may apply for a Trainee visa (H-3). H-3 visa holders are not allowed to work for any company other than the company providing the training. The main objective of the program should be training and not the work.
Requirements
Three requirements of the H-3B visa are:
- The training is not available in the applicant's home country
- The training will help the applicant get a job in his/her home country
- The visa holder must intend to return to his home country upon completion of the training
Training can be done in almost any field including finance, communications, or marketing. The one exception is medical training, which cannot be allowed under the H-3B visa. Most people coming to the U.S. for medical training, including foreign medical graduate students, come on a J-1 visa.
Your employer must file the petition for your H3B visa by filing Form I-129. On form I-129, your employer must prove the training benefits you in some way and must have an explanation for why the employer is willing to provide your training. The most common scenario is a U.S. employer bringing a foreign employee to train in the United States to work in a branch or office outside of the U.S. The United States does not want employers to bring aliens to the United States to work under the guise of providing training. For this reason, not many H-3B visas are granted. While you can work while in the U.S. on an H-3B visa, the work must be incidental to the training.
H-3B visas can be issued for Special Education training which allows teachers and caregivers of children with special needs to receive training in the United States.
Training visas are usually issued for the duration of the training program, not to exceed two years. Dependents of H-3B visa holders can come to the United States on H-4B visas and they can travel to and from the United States. Dependants who enter the U.S. on H4-B visas cannot work in the United States. There is no limit to the number of H-3B visas given each year.
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