Nonimmigrant Visas

H1B – Specialty Occupation

The H-1B Nonimmigrant visa allows companies and other employers in the United States to temporarily employ foreign workers for up to six years in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

H1B Cap and the Lottery

The number of new H1B Nonimmigrant visas is limited by law to 65,000 a year, they must be submitted before April 1, for jobs that begin October 1 of that same year. In addition, an extra 20,000 H1B visas are available for beneficiaries who hold a U.S. master’s degree. When there is anticipated demand for more than the 85,000 available H1B visas the USCIS is required to conduct a lottery for the selection of H1B visas. The current H1B lottery takes place in multiple stages. Initially a lottery for H1B applicants who hold U.S. master’s degrees is conducted. Then the remaining U.S. master’s degree applicants are added to the larger applicant pool and a lottery for the remaining 65,000 available visas is conducted. Finally, a lottery is conducted in summer for any unused H1B visas. This process used to be conducted physically but is now electronic and selected applicants are informed very quickly if they have made the H1B Cap.

Cap Exempt employers

H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization or a government research organization are not subject to the H1B cap. These H1B petitions may be filed at any time and are not subject to the lottery rules.

Key aspects of H1B Petitions

Employers should be informed about all the aspects of H1B nonimmigrant workers as they specific regulations that cover their placement, pay and qualifications. As discussed H1B workers must hold at least a bachelors degree, but they must also be employed in a position that at least requires the equivalent of a bachelors degree. The definition of specialty occupation is complex and requires careful review.

Fees

H1B Petitions require filing fees and they can be significant. Below please find the current break down of H1B petition filing fees, there is also an optional additional premium processing fee should that service be available for the H1B Cap:

• H1B Registration fee, to participate in the lotter: $10
• Base Nonimmigrant petition filing fee: $460
• Fraud prevention and detection fee for all new H1B Petitions: $500
• AICWA Fee (Imposed by the American Competitiveness and Workforce Improvement Act of 1998):
  • $750 – for employers with 1 to 25 full time employees;
  • $1500 – for employers with 26 or more full time equivalent employees;
• Public Law 114-113 Fee, only applicable for employers with 50 or more employees and more than 50% of employees are working under H1B or L1 status: $4,000
• Premium Processing Fee, guarantees a response from USCIS on a petition in 15 days: $2,500

The Labor Condition Application

H1B petitions must be accompanied by a certified Labor Condition Application from the Department of Labor. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

• The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
• The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
• At the time of the labor condition application there is no strike or lockout at the place of employment.
• Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.

Prevailing wages

Pursuant to the Labor Condition Application the H1B employer must offer to pay the actual wage or the prevailing wage level for the H1B occupational classification in the proposed area of employment, whichever is greater, based on the best information available. The prevailing wage must equal the average of the rate of wages paid to other workers similarly employed in the area of intended employment. Employers must be careful in identifying the specific wages ranges and areas of employment.

Material changes matter

U.S. Citizenship and Immigration Services and Department of Labor regulations of H1B workers are strict and complex, fines and penalties abound for the unwary. H1B employers must abide by the material terms of the H1B petition that they submit. Changes to job title, job duties, job location, salary, benefits and any other material changes can have significant consequences. For example: H1B workers can not be “benched” and significant penalties can be incurred for violations.

Return transportation

Please note that an H1B employer is liable for the reasonable costs of the return transportation of the H1B employee abroad if the H1B employee is dismissed from employment before the end of the authorized stay in H-1B status.

Other H1B related visa categories

• H-4 spouse and dependents
• H1B1 – Treaty based H1B visa applications for citizens of Singapore and Chile.

L1 Visa – Multinational Transferees

The Intra Company Transferee visa allows multinational businesses to transfer key personnel to the United States on a temporary basis. The L-1 visa is available for individuals who have previously worked for an affiliated entity of the US employer or are coming to the US to open a new office. L1 visa applicants must demonstrate their position in the US and their prior position qualified as being executive, managerial or a position that requires specialized knowledge. L1 visa applicants are broken into two distinct areas L1A visas for individuals who are Executives or Managers or L1B visas for individuals who possess specialized knowledge.

The following provides a summary of each of the requirements for obtaining a L visa.

Prior Continuous Employment:

To receive an L visa, the applicant must demonstrate via petition to the USCIS that he or she has been employed full-time by the enterprise overseas for one of the past three years. Business owners, shareholders, and partners may obtain L visas, but they must show that the entity overseas will continue to exist, and their intent is to come to the U.S. temporarily. Periods of time spent in the United States for business or pleasure do not interrupt the one-year of continuous employment abroad requirement, but they cannot be counted toward the fulfillment of it.

 Relationship between foreign and U.S. business entity:

The company or business entity in the U.S. must be a “branch of the same employer or a parent, affiliate, or subsidiary thereof.” Examples of Qualifying Relationships:

• The U.S. company is a branch of the foreign company, or vice versa.
• The U.S. company is a wholly owned subsidiary of the foreign company.
• Partners in a foreign company establish a branch or related company in the U.S.
• The petitioning company is one of two legal entities, which are owned and controlled by the same individuals, each owning and controlling approximately the same proportion of each entity.
• The petitioning company is one of two subsidiaries both of which are owned and controlled by the same parent company or individual.

Managerial, Executive, Specialized Knowledge positions:

The position held outside the U.S., as well as the one in the U.S. must be managerial, executive, or involving specialized knowledge. These terms are defined by the USCIS regulations as follows:

• L1A visa: Managers supervise and control supervisory, professional or managerial employees, or manage an essential function of the business. If the manager does not supervise high-level employees, it must be shown that he or she functions at a senior level in the organization, or with respect to the activity managed.
• L1A Visa: Executives direct the management of an organization or a major function of that organization.
• L1B Visas: Persons with specialized knowledge are those with special knowledge of the company’s product, and its application in international markets, or have an advanced level of knowledge of the company’s processes and procedures.

Amount of time in the U.S. allowed by the L1 visa:

Managers and Executives of established businesses may have petitions approved initially for 3 years, with extensions up to a total of 7 years. Specialized knowledge employees of established businesses may have petitions approved for 3 years, with extensions up to a total of 5 years. There is no overall time limit for those in the US intermittently in L status.

Individuals coming to the United States to open a new office for a foreign company may also obtain an L1 visa, however their initial time in status will be limited to a year while they set up the company.

Transfers under Blanket Petitions:

Ordinarily a company must file an individual petition for each employee it wants to transfer to the U.S. as an intracompany transferee. There is an exception for that have obtained approval of petitions for at least ten “L” managers, executives, or specialized knowledge professionals during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees. Those organizations may apply for a “Blanket Petition” so that potential transferees do not need individual petitions but may apply for L visas directly at a U.S. consular office.

Individuals transferring under blanket L1 approvals go directly to the consulate in their home country, which saves significant time and expense of USCIS processing. Applicants must present evidence confirming the organization has a blanket petition, and evidence they have worked for a qualifying organization for one of the immediately preceding three years in an executive, managerial, or professional specialized knowledge capacity, and are coming to the U.S. for a similar position. Unlike the individual intracompany petition, however, only persons employed in a “professional” specialized knowledge capacity may benefit from a blanket L. The term “profession” includes architects, engineers, lawyers, physicians, surgeons, and teachers, and other individuals with professional degrees.

Note that consular officers grant classification only in “clearly approvable applications.” If the consular officer is uncertain of the qualification of an individual, he or she will advise the visa applicant to have his employer file an individual intracompany transferee petition.

Finally, employees admitted to the U.S. in L status under a blanket petition may be reassigned to any organization listed in the approved petition provided they are performing virtually the same job.

Other L1 related visa categories:

• L-2 spouse and dependents.

O-1A Extraordinary Ability

The “Extraordinary Ability” or O-1A classification allows employers or agents to file a temporary employment based visa on behalf of individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, and has been recognized nationally or internationally for those achievements. Beneficiaries of O-1A petitions must have demonstrated extraordinary ability by providing evidence of sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of their extraordinary ability.

Nonimmigrant Visa Process

O-1A Petitions are filed with the United States Citizenship and Immigration Services (USCIS). Once a petition is received by the USCIS the agency will, upon review, either request for additional information or approve the Petition. O-1A status can be approved for up to three years on the initial petition and may be extended in one-year increments as long as employment continues. In certain circumstances a new three petition may be filled if there is a material change to the employment of the O-1A visa holder.

After USCIS have approved the petition a secondary step is must occur, this either a change of status if the O-1A beneficiary is in the United States or the beneficiary must obtain an O-1A visa at an Embassy or Consulate in order to enter the United States in O-1A status. Further information regarding the Nonimmigrant visa process will be provided upon petition approval.

Extraordinary Ability Evidence

Extraordinary ability in the fields of science, education, business or athletics, as defined by the USCIS, means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of their field of endeavor. Regulations of the USCIS provide a framework for petitions seeking to classify an individual as having extraordinary ability. The requirements are described below. An individual seeking this classification must show the existence of documentation from three categories in a “menu” of categories of evidence provided for in the regulations.  That list of evidence includes:

• Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of the alien’s membership in associations in the field for which classification is sought which require outstanding achievements of their members, as judged by recognized national or international experts;
• Published material about the alien in professional or major trade publications or other major media relating to the Alien’s work in the field for which classification is sought. Such material shall include the title, date, and author of the material, and any necessary translation;
• Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied field;
• Evidence of the alien’s original scientific or scholarly research contributions of major significance to the field;
• Evidence of the alien’s authorship of books or articles in the field;
• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
• Evidence that the alien has commanded a high salary or other significantly high remuneration in relation to others in the field.

Other O1 Visa categories:

• O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry;
• O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance; and
• O-3: Individuals who are the spouse or children of O-1 and O-2 visa holders.

E-3 Australian Specialty Occupation Visa

The E-3 classification applies only to nationals of Australia. The E-3 shares regulatory rules with the H1B regarding its definition of specialty occupation and the requirement for a Labor Condition Application. Accordingly, E-3 applicants must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

The E-3 differs from the H1B in that it may be obtained via application directly to an Embassy or Consulate, which reduces the processing time significantly.

TN – NAFTA Professionals

TN status is available under the North American Free Trade Agreement (NAFTA, now USMCA) for Canadian or Mexican nationals who have the required qualifications and will be coming to the U.S. to perform in one of the specific occupations listed in the NAFTA treaty.

TN applications require an employer and the following key evidence:

• The applicant must present a current job offer: Self employment is not permitted.
• The proposed position must be at a professional level: This means the position must be a profession under the Appendix to the NAFTA treaty https://www.nafsa.org/_/file/_/amresource/8cfr2146.htm
• The TN applicant must hold the correct qualifications for the profession as per the Appendix to the NAFTA treaty https://www.nafsa.org/_/file/_/amresource/8cfr2146.htm

Canadian TN applicants may obtain their TN Status a U.S. Port of Entry. Mexican TN applicants must apply via application to a U.S. Embassy or Consulate in Mexico.

A and G Nonimmigrant visas

Diplomats and other foreign government officials traveling to the United States to engage solely in official duties or activities on behalf of their national government must obtain A-1 or A-2 visas prior to entering the United States. They cannot travel using visitor visas or under the Visa Waiver Program. With the exception of a Head of State or Government — who qualifies for an A visa regardless of the purpose of travel — your position within your country’s government and your purpose of travel determine whether you need an A-1 or A-2 visa. Immediate family members of diplomats and government officials receive A-1 or A-2 visas, with few exceptions. Personal employees, attendants, or domestic workers for diplomats and government officials (holding a valid A-1 or A-2 visa) may be issued A-3 visas.

Diplomats, government officials, and employees who will work for international organizations in the United States need G visas.  Officials and employees of the North Atlantic Treaty Organization (NATO) who will work for NATO in the United States need NATO visas.

A and G visas are subject to unique rules and processing given their special circumstances. Both visas often hold limited diplomatic protections. Generally speaking, certain dependents may obtain work authorization but its dependent on specific treaties.

E1 and E2 Nonimmigrant Visas

Treaty Trader (E-1), and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. For a list of participating countries, select Treaty Countries.

E-1 visa holders must be coming to the United States to engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country. E-1 Treaty Traders require the following:

• They must be a citizen of a treaty country.
• The trading firm for which they plan to come to the United States must have the nationality of the treaty country, meaning persons with the treaty country’s nationality must own at least 50 percent of the enterprise.
• The international trade must be substantial, meaning that there is a sizable and continuing volume of trade.
• More than 50 percent of the international trade involved must be between the United States and the treaty country.
• Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
• The E-1 applicant must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

While E-2 visa holders are investors looking to develop and direct the operations of an enterprise in which they have invested a substantial amount of capital. E-2 Treaty Investors require the following:

• The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country. If the investor is a business then at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
• The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
• The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
• It must generate significantly more income than just to provide a living to the investor and their family, or it must have a significant economic impact in the United States.
• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
• The investor must be coming to the United States to develop and direct the enterprise. If the applicant is the principal investor, they must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

P and Q Nonimmigrant Visas

P-1: Individual or Team Athlete, or Member of an Entertainment Group

Are nonimmigrants intending to perform at a specific athletic competition as an athlete or as a member of an entertainment group. Requires an internationally recognized level of sustained performance. Includes persons providing essential services in support of the above individual.

P-2: Artist or Entertainer (Individual or Group)

Are nonimmigrants coming to the United States for a performance under a reciprocal exchange program between an organization in the United States and an organization in another country. Includes persons providing essential services in support of the above individual.

P-3: Artist or Entertainer (Individual or Group)

Are nonimmigrants coming to the United States to perform, teach or coach under a program that is culturally unique or a traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. Includes persons providing essential services in support of the above individual.

Q-1: Participant in an International Cultural Exchange Program

Are nonimmigrants coming to the United States for practical training and employment and for sharing of the history, culture, and traditions of your home country through participation in an international cultural exchange program.

R-1 Nonimmigrant Visas

Temporary religious worker (R-1) visas are for persons who want to enter the United States to work temporarily in religious capacities. R-1 applicants must be a member of the same religious denomination as the religious organization as they plan to work for in the United States for at least two years before that organization files a petition on their behalf. They must be coming to work as a minister or in a religious vocation or occupation in the United States. Their religious employment or vocation must be via a a non-profit religious organization in the United States (or an organization affiliated with the religious denomination in the United States). Finally their position must be at least part time, an average of at least 20 hours per week.

F-1 Student Visas

Individuals who wish to attend an educational institution in the United States must obtain an F-1 visa for the duration of their studies. F-1 visas are applied for via the educationally institution (high school, college, university etc.) through the SEVIS program. Only SEVP registered institutions may issue F-1 visas. The institution will issue the individual a form I-20 to obtain their F-1 visa abroad. Although F-1 visas can be obtained via change of status in the United States this approach is not recommended as the processing time is lengthy.