Temporary Work Visas
The H1B visa is a nonimmigrant work visa used by aliens who will be employed temporarily in a specialty occupation. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor’s degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor’s degree. Read information below or call our Brooklyn NY immigration law firm at 718-646-5783 for a phone consultation.
Specialty occupation includes accounting, architecture, business specialties, engineering, education, law, mathematics, medicine and health, physical sciences, social sciences, theology, and arts. Other professions may also qualify as specialty occupations.
The H1B work visa requires a sponsoring US employer. The sponsor must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The H1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service). Based on the USCIS petition approval, the alien may apply for an H1B visa stamp at an American Embassy or Consulate abroad or a change of nonimmigrant status with the USCIS. An H1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition.
An alien may be admitted into the US in H1B work visa status initially for up to three years with possible extension for three more years. After six years in H1B status, an alien must remain outside the United States for one year before another H1B petition can be approved. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition.
An H1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting the H1B status. This is known as “dual intent” and is recognized under the immigration laws. During the time that the application for LPR status is pending, an alien may travel on his or her H1B work visa rather than obtaining advance parole or request other advance permission from the USCIS to return to the US.
H1B Quota – The law limits the number of H1B visas to 65,000 per year. Generally, the quota does not apply to H1B aliens filing for extension of status or change of employer. However, H1B aliens employed by quota exempt organizations, such as institutions of higher education or nonprofit research organizations, may become subject to the H1B quota, if they apply to change jobs to a non-exempt employer. Under the H1B Visa Reform Act of 2004, Congress allocated 20,000 additional H1B numbers for aliens who have received a Master’s or higher degree from a US College or University.
H1B Transfer – Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), an alien previously issued an H1B visa and/or granted H1B status may transfer to a new H1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H1B alien CEASES upon denial.
Due to the numerous H1B layoffs in recent times, employers must understand their obligations upon termination of H1B workers. Employers who dismiss their H1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H1B worker voluntarily terminates his or her employment prior to the expiration of the H1B status, then the employer is not liable for the alien’s return transportation. The USCIS regulations also require the employer who no longer employs the H1B nonimmigrant to notify the USCIS of the termination in writing.
THE E-1 TREATY TRADER VISA CATEGORY
An “E” visa is based upon a treaty of friendship, commerce and navigation, or a Bilateral Investment Treaty. Corporations and citizens of a qualifying treaty country may qualify for an “E-1” Treaty Trader visa on the basis of trade between the the treaty country and the United States. The “E” visa category is the nonimmigrant visa category which most closely approximates the status of an immigrant. Section 101(a)(15)(E) of the Immigration and Nationality Act (INA) describes the “E” category as follows:
“an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign of which he is a national, and the spouse and children of any such alien if accompanying or following to join him:
(i) solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national; or
(ii) has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital . . .”
So long as eligibility continues, “E” status not only permits the alien to engage in the qualifying trade, but permits incidental activities as well, and to stay in the United States indefinitely, so long as the alien engages in the qualifying “E” employment. It allows the spouse and children to join the principal alien in the same status. Spouses of “E” principles can work after receiving authorization from the U.S. Citizenship & Immigration Services and children may attend school without any formal application. The nationality of the spouse and children is immaterial to their “E” status. Only the nationality of the principal alien is an issue. Note, however, that children lose their “E” classification when they turn 21 years of age, and must thereafter qualify for admission to the United States as an independent adult.
The basic requirements for an “E” visa are:
1. Both the employer and the employee must have the nationality of a country which has a treaty of commerce and navigation or a bilateral investment treaty with the United States of America. (Note, however, that a U.S. permanent resident owner of a business, who is a national of a treaty country does not qualify as as a “national” of the treaty country.)
2. The alien must be an “executive”, “manager”, or have a “essential skills” necessary to the operation of the employer.
A “Treaty Trader” must carry on trade of a “substantial” nature, that is international in scope, and principally between the United States and the treaty country. It is important to consult competent legal counsel for an analysis of any particular situation and an application of the law and regulations to any particular business situation.
Definition of “Trade”:
There is no definition of “Trade” in the immigration statutes, but is found in the Regulations. The U. S. Department of State has long understood that “trade” was to be viewed liberally, so as to “encompass the wide ranging types of transactions in the business world.” Ordinarily there had to be an exchange of goods or money to constitute transactions. Although the U.S. Department of State has appreciated that since the enactment of the treaty trader provision in 1924, that trade was not restricted to the sale of tangible goods, it was not until the Immigration Act of 1990 (IMAC 1990) that the concept of “trade” to include “services” more generally became law. Under the currently accepted definition, trade means: “the exchange, purchase or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include, but are not limited to, banking, insurance transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.” [8 C.F.R Sec. 214.2(e)(2)]. The U.S. Department of State has long interpreted “trade” to include international banking, insurance, transportation, tourism, communications, and news gathering activities, in addition to business that provide other types of services, such as law, inspection and testing, accounting, marine survey and any other business that offers a service to its customers, even though there is no trade in goods.
“Substantial Trade” Defined:
The word “substantial” in describing trade is not intended to exclude aliens who trade on a modest scale or who are employed by small companies. It refers to the volume or number of transactions and not necessarily to their monetary value. A pattern of many small transactions, or one or a few small transactions which are complex in their negotiations and deal with high-dollar products can qualify. The trade can be considered substantial if it yields enough income to support the individual trader and the trader’s family. The State Department regulation directs attention to a practical factor. It adds to the requirements of trade: “consideration being given to any conditions in the country of which the alien is a national which may affect the alien’s ability to carry on such substantial trade . . .” [22 C.F.R Sec. 41.51(a)(1)]. If your company does not qualify under the test for “substantial trade” between the USA and a qualifying “E” country, of which you are a citizen, you might want to look at an “E-2” Treaty Investor visa. “E-1” visas have very stringent qualification requirements, too numerous to name here. It is essential that qualified legal counsel be consulted before attempting to apply for an “E-1” Treaty Trader visa.
E2 Investor / Investment Visa
Foreign investors who invest a substantial amount of capital in a US enterprise, and who will develop and direct the enterprise, may apply for E2 visas if their country of citizenship has the required treaty with the US.
If the investor is inside the US, he or she may apply to the US Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service) for a change of status, extension of stay, or change of employment. The E2 category does not require a petition for employment if the investor is outside of the US. In that case, the investor may apply for the E2 visa on his or her own behalf directly to a US consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
E2 Visa / Document Requirements
The visa application must be filed with evidence that:
1. The investor is a national of a country with whom the USA has the requisite treaty or agreement;
2. The applicant (or in the case of an employee of a treaty investor who seeks classification as an E2, the owner of the treaty enterprise) will direct or develop the enterprise. The applicant must demonstrate that he or she controls the enterprise by showing ownership of at least 50 percent of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
3. The investor has invested in or is actively in the process of investing in the enterprise;
4. The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
5. The investment enterprise is not a marginal enterprise;
6. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify; and
7. That the applicant intends to depart the United States upon the expiration of E2 status.
E2 Dependents / Family Members
Spouses and unmarried children under age 21, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Family members may be students in the US while remaining in E2 dependent status and spouses may apply for work authorization with the USCIS.
Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.
L-1 Intra-Company Transferee Visas
The L-1 is available to a foreign national who, within the three years immediately prior to entering the U.S., has been employed abroad for at least one continuous year and is now seeking temporary admission to the U.S. to be employed by a parent, branch, affiliate, or subsidiary of that foreign employer in a managerial or executive capacity, or in a position requiring specialized knowledge.
Duration of Stay An L-1 petition may be approved initially for up to three years, with the possibility of extension for up to four more years. In the case of a “new office*” in the United States, the L-1 will be initially limited to one year, with the possibility of extension upon showing the U.S. company has actually been doing business during that year.
* See definition of “New Office” below.
1. Managerial Capacity:
Refers to an assignment within an organization in which the employee primarily: manages the organization or a department, subdivision, function or component, or, supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision thereof; has the authority to hire and fire or recommend those actions (promotion, leave authorization, etc.) if another employee or other employees are directly supervised. If no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of supervisory duties unless the employees supervised are professional.
2. Executive Capacity:
Refers to an assignment within an organization in which the employee primarily directions the management of the organization or major component or function thereof; establishes the rules and policies of the organization, components, or functions; exercises wide latitude in discretionary decision-making; and, receives only general supervision or direction from higher level executives, the Board of Directors, or stockholders of the organization.
3. Specialized Knowledge:
This is knowledge, possessed by an individual, of the U.S. employer’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise of the employer’s processes and procedures.
4. Qualifying Organization:
This refers to a U.S. Or foreign firm, corporation, or other legal entity which is, or will be, doing business as an employer in the U.S. And in at least one other country, directly or through a parent, branch, affiliate, or subsidiary, for the duration of the foreign national’s stay in the U.S. as an Intra-Company transferee, and which meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate, or subsidiary.
A firm, corporation, or other legal entity which has subsidiaries.
An operating division or office of the same organization housed in a different location.
A firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, fifty percent of the fifty-fifty joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity but in fact controls the entity.
One of two subsidiaries, both of which are owned and controlled by the same parent or individual, or one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. The paramount issue is that of control. If A & B each own 26% of both the U.S. And foreign entities, it is irrelevant who owns the remaining 48% of either organization.
9. New Office in the United States
An organization which has been doing business in the U.S. through a parent, branch, affiliate or a subsidiary for less than one year.
10. Doing Business:
The regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying entity of organization in the U.S. And abroad. It is crucial to obtaining approval of an L-1 visa petition that you read and fully understand the definitions and qualifications described in this article, particularly as they apply to you and your case.
The words used in the L-1 statutes and regulations are carefully defined. Your organization and the individual worker to be transferred must fit exactly within each relevant definition. For example, the requirement that the employee have worked for the foreign entity for one out of the three years immediately preceding his entry in L-1 status means 12 consecutive calendar months; not 11 or even 11 1/2. The three years before entry means just that. If a worker was employed by the foreign organization 3 1/2 years ago, and left that employ 2 1/2 years ago, he or she does NOT qualify. Similarly, the ability of a first-line supervisor to qualify if the individual supervised professionals means, specifically, that those supervised must hold a baccalaureate degree (4 years of college) and be doing work which normally requires that degree in order to enter the field. Thus, it is extremely important to consult with your attorney to insure that each of the requirements have been properly evaluated before taking any further steps toward obtaining the visa.
11. Spouse and Dependent Children:
The spouse and children (under 21 and unmarried) may obtain an L-2 visa, allowing them to enter the U.S. with the principal alien. After arrival in the United States, L-2 Spouses can apply for an Employment Authorization Document, and once issued are allowed to work in the United States. Children and spouses are allowed to attend school and/or participate in voluntary organizations.
The O-1 visa is a temporary work visa available to foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics.”
The extraordinary ability must have been demonstrated by “sustained national or international acclaim.” The O-1 visa is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” The requirement has been interpreted broadly to include most creative fields, including
photographers, chefs, carpenters and lecturers. The person must be coming to the United States to work in his or her field of ability, but the position need not require the services of a person of extraordinary ability.
Qualifications for an O-1 Visa
To qualify for an O-1 visa, you must demonstrate that you possess extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry. You must show that you have achieved sustained or international acclaim. You must be coming to the United States to perform temporary services for a U.S. employer relating to an event or events. Extraordinary ability means that you have achieved a high level of expertise such that you are one of a small percentage at the top of your field. Artists and entertainers must show a degree of skill and recognition substantially above that normally encountered, and is prominent, renowned, leading or well-known in their artistic field. O-1 visa holders must be entering the United States to perform temporary services for an American employer or an agent of an international employer. You must be entering the United States to participate in a specific event or events which require your expertise. The petition may not be filed more than six months before the services are needed.
Evidence for O-1 Visa Petitions
The O-1 visa petition requires specific evidence of your qualifications and international recognition of your extraordinary ability. You may prove your ability in the field by showing that you have received an internationally-recognized award, such as a Nobel Prize. You can also document at least three of the following:
Internationally or nationally recognized prizes or awards; Published material about your work; Membership in an association that requires members to have outstanding achievement; Original scientific, scholarly, or business-related contributions of major significance in the field; Authorship of scholarly articles published in any type of major media or professional journals; High salary or any other type of compensation; Participation on a panel, or as a judge for other people’s works;
Evidence of past employment for organizations or establishments that have a high reputation.
If the above standards do not readily apply to the alien’s occupation, you may submit comparable evidence in order to establish your eligibility. You will also need to provide a contract between you and your employer that describes the terms and conditions of services to be performed, or a summary of the terms of an oral agreement. For specific events, you should provide a specific itinerary showing the schedule and ending date of events.
Length of Stay and Renewals of O-1 Visa
An O-1 visa may be granted for up to three years. O-1 visa status may be renewed in one year increments, or until the project is finished. Application Procedures You cannot apply for an O visa on your own behalf. Generally, the employer must petition for the status with the U.S. Citizenship and Immigration Services. You can also file through a U.S. agent. This process is often used when you will work for multiple employers in the United States. Once the petition is approved, you must then apply for an O-1 visa at a U.S. embassy or consulate.
Assistants of O Visa Holders (the O-2 visa) Foreign nationals who are accompanying an O-1 visa holder and assisting in the performance may be able to obtain an O-2 visa.
To qualify for an O-2 visa, the assistant must meet the following requirements:
Be an integral part of the actual performance; Have critical skills and experience that cannot be performed by others; In television and motion pictures, have a long-standing working relationship with the O-1 alien.
The petition must include evidence to establish the applicant’s essential role, and that they have skills and experience not possessed by an immediately available US worker.
Dependents of O Visa Holders (the O-3 visa)
Spouses and children of an O-1 visa holder are eligible for admission to the United States in O-3 status. Dependents need to show proof of the family relationship. Dependents may not engage in employment, but may attend school or college.
O-1 Visas and Permanent Residency
O-1 visas allow for “dual intent,” meaning that you may apply for permanent residence without jeopardizing your eligibility for the O-1 visa.
Furthermore, qualification for the O-1 visa category is similar to the requirements for the EB-1A permanent resident category, as Aliens of Extraordinary Ability. Therefore, O-1 visa holders are likely eligible for permanent residence without having to file a labor certification application.