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Nonimmigrant (Temporary) Visas

Nonimmigrant visas allow a foreign national employee to enter the United States and engage in authorized employment for a specific employer and for a specified period of time. Common nonimmigrant visa categories include:


 

H-1B Specialty Occupation visa

One of the most common employment-based nonimmigrant categories is the H-1B "Specialty Occupation.” A Specialty Occupation is defined as one whose specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher in that field.

H-1B Specialty Occupation Requirements
The job offered must have the following minimum degree requirement:

  • A Bachelor's Degree  in an academic field related to the job duties, or
  • A Bachelor's Degree Equivalent in education, training and/or experience.

The degree requirement must be normal for the type of job being offered and must be common in the industry for similar positions.

Immigration service regulations provide that 3 years of progressive experience in the specialty occupation equals one year of university-level education. That means for each year of academic training less than the normal 4 years of education required to obtain a bachelor's degree, an alien must have three years of experience in the specialty occupation.

For employee candidates holding degrees from non-U.S. schools, Tafapolsky & Smith will have the degree evaluated by a professional credentials evaluator to determine if it is the equivalent of a United States Bachelor's degree. In order to do this we will need both the degree and transcripts with certified English translations.

Labor Condition Application (LCA)
Employers who wish to hire H-1B workers are required by the Department of Labor to meet specific conditions:   

  • The wage paid to the worker is the higher of:
    • The wage paid to similarly employed individuals at the company, or
    • The prevailing wage for that position in the geographical area of employment
  • The employer must attest that by employing the H-1B worker they are not adversely affecting the wages or working conditions of other similar workers,
  • The employer must attest that there is no work stoppage, strike or lockout at the company,
  • The employer must give proper notice to either a collective bargaining representative or by posting the H-1B terms of employment for a period of 10 business days at two conspicuous spots on the employer's premises.

H-1B Nonimmigrant Petition
An employer may file a nonimmigrant H-1B petition on behalf of a prospective employee when:

  • It has completed the above Labor Condition Application and has received a Certified Labor Condition Application from the Department of Labor.

The petition should be accompanied by supporting documentation that proves the position being offered is a Specialty Occupation and that the alien qualifies as a specialty worker.

While an H-1B Petition is Pending

  • A prospective employee cannot work for the petitioning company while an H-1B petition is pending, except under specific qualifying circumstances listed below. The alien must have an approved petition and a corresponding arrival/departure card (form I-94) in order to be lawfully employed by a petitioning company.
  • An alien who is continuing an already existing H-1B employment with a petitioner in the same specialty occupation may be employed by that petitioner for a period of up to 240 days during the pendency of an extension petition.
  • An alien who is transferring from an already existing H-1B employment with a different employer in the same specialty occupation may be employed by a new employer during the pendency of a change of employer extension petition.
  • Please contact our office if your prospective employee is in the United States and may be traveling outside the US during the pendency of an H-1B petition. There are special rules regarding various travel situations and each situation must be examined to determine the best possible course of action for employers and prospective aliens.

H-1B Dependency
A company is deemed H-1B dependent if the employer has a total workforce of:

  • 25 or fewer employees and has at least 7 H-1B nonimmigrants, or
  • Between 26 and 50 employees and has at least 12 H-1B nonimmigrants, or
  • More than 50 employees and has a workforce of more than 15% H-1B nonimmigrants.

Employees are not included in the H-1B dependency count if they:

  • Earn more than $60,000 per year, or
  • Have obtained a Master's Degree in a field related to the specialty.

 


L-1 Intracompany Transferees


The L-1 "intracompany transferee" nonimmigrant category is a convenient category for companies that have qualifying overseas subsidiaries, parents, affiliates, branches or joint-ventures and wish to transfer personnel from those overseas entities to a qualifying organization in the United States.

L-1A and L-1B Categories
There are two kinds of L-1 employees that may be transferred to the United States from a qualifying organization abroad:

  • L-1A "Managers or Executives ", and
  • L-1B "Specialized Knowledge personnel”  

A person is considered L-1A Manager who:

  • Manages an organization, department subdivision, function or component of an organization,
  • Supervises the work of other supervisory, professional, or managerial employees,
  • Has the authority to hire, fire or recommend personnel actions over those he/she supervises while acting within a senior level of an organizational hierarchy, and
  • Has discretion over day to day operations of an activity or function for which the employee has authority.

A person is considered L-1A Executive who:

  • Directs the management of an organization or who directs a major component or function of the organization,
  • Establishes the goals and policies of the organization, component and/or function,
  • Exercises wide latitude in discretionary decision making within the organization,
  • Receives only general direction from higher level executives, board of directors or stockholders of an organization.

A person is considered Specialized Knowledge worker who:

  • Possesses unique information about the petitioning company's products, services, research, equipment, techniques, management, or proprietary processes and procedures.

It is possible to change from L-1B to L-1A classification while in the United States, but there are special rules regarding this change. Please contact our office to learn more about this strategy.

“Length of Employment” Requirement for L-1 Status
A person must be employed full-time at the overseas entity for at least one year during the three years before filing the petition, or before the last entry into the United States, whichever is earlier.

“Maximum Periods of Stay” for L-1A and L-1B Nonimmigrants

  • L-1A Transferees:

L-1A Transferees are entitled to an initial period of stay of up to three years and two subsequent two-year extensions for a total period of up to seven years of physical presence in the United States.

  • L-1B transferees:

L-1B transferees are entitled to an initial three-year period of stay and one two-year extension for a total period of up to five years of physical presence in the United States.

Qualifying Organizations
Qualifying organizations include subsidiaries, parents, affiliates, branches, and joint ventures.  As a general rule, if the company abroad and the company to which the alien is being transferred in the United States have a common parent (at least 50%), they are considered affiliates. Companies that do not meet this 50% requirement may still qualify as Qualifying Organizations if the two companies can prove that there is "common control" over the two entities through voting rights, veto powers, powers of appoint of executive officers etc.
A new business entity that is a Qualifying Organization may employ L-1 personnel, but if the business has been established for less than one year, the immigration service may grant petitions for a limited probationary period of up to one year.

 


The O-1 Extraordinary Ability Visas

The O-1 visa is designed for individuals with proven Extraordinary Ability in the sciences, arts, education, business or athletics or Extraordinary Achievement in motion picture or television productions who are coming to the US to work on a project or event in their area of expertise.

Extraordinary Ability
Extraordinary Ability is defined as a level of expertise indicating that an individual is one of the small percentage who has risen to the very top of his or her field of endeavor.

Proof of Extraordinary Ability
The O-1 visa petition must be accompanied by evidence of national or international acclaim and that the petitioners’ achievements have been recognized in their field of expertise.
Evidence of a one-time achievement can prove Extraordinary Ability. If visa candidates have received a major international award like the Nobel Prize, the A. M. Turing Award, an Academy Award or any prize at this level, it should be sufficient evidence.
If a prestigious award has not been received, at least three (3) other types of Extraordinary Ability evidence must be submitted from the following list:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor,
  • Membership in association of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields,
  • Published material in professional or major trade publications or major media about the alien and relating to the alien's work in the field of endeavor,
  • Evidence of participation, on a panel or individually, as a judge of the work of others in the same or an allied field of specialization,
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor,
  • Authorship of scholarly articles in the field, in professional journals or other major media,
  • Display of the alien's work in the field at artistic exhibitions or showcases in more than one country,
  • Performance in a lead, starring, or critical role for organizations or establishments with distinguished reputations,
  • Receiving a high salary or other significantly high remuneration for services in relation to others,
  • Commercial successes in the performing arts, as shown by the box office receipts or record, cassette, compact disc, or video sales.

If candidates cannot provide such supporting documentation because those forms of evidence do not readily apply to their occupation, they may submit comparable evidence to establish eligibility in certain circumstances. Please contact our office for more information.

Extraordinary Achievement
Extraordinary achievement in Motion Pictures or Television refers to a very high level of achievement in the movie or television industry accompanied by a degree of skill that is significantly above other members of the industry. As a result of the individual's skill and achievement, he or she is recognized as an outstanding, notable or leading member of the industry.

O-1 Visa Requirements

  • An offer of employment (sponsorship) is required to petition for O-1 visa. The O-1 visa petition has to be made by a US employer on behalf of a prospective employee.
  • The candidate’s Extraordinary Ability is limited to the following fields:
    • Sciences,
    • Arts,
    • Education,
    • Business, or
    • Athletics.
  • A consultation with a Peer Group in the area of their ability is required for certain occupations or industries.  This requirement can be satisfied by a letter from a group or association that can reasonably speak on behalf of the profession in which the visa applicant has demonstrated extraordinary ability. In certain professions, the USCIS will only accept consultations from selected collective bargaining associations (unions). Union consultations are usually required for O-1s in the arts or athletics.

Support Personnel (O-2) Qualifications
Support personnel (O-2s) can qualify to travel only with the O-1 visa holders who are approved as extraordinary members of the following fields:

  • Arts,
  • Athletics, and
  • Motion pictures and television.

O-2 support personnel seeking to accompany O-1s must:

  • Enter solely for the purpose of assisting the O-1's performance,
  • Be integral to the O-1's performance,
  • Have critical skills and experience with the O-1 alien, and
  • Have an unabandoned foreign residence.

Support personnel of the following fields are ineligible for O-2 status:

  • Business,
  • Sciences, and
  • Education.

Immediate Family (O-3) Qualifications
Spouses and unmarried children under 21 of O-1 visa holders may qualify for O-3 visas and remain with them in the US while they maintain O-1 status. However, the family members may not work with O-3 status.

General Length of O-1 status
O-1 visa holders may be admitted to the US for an initial period of up to three years. However, the status can be extended in one-year increments.

Change of Status to Permanent Residency (Green Card)

  • O-1s and their O-3 dependents  may pursue permanent residency in the U.S. while maintaining their respective nonimmigrant status.
  • O-2s, however, must be coming to the U.S. temporarily with a purely nonimmigrant intent and cannot apply for permanent residency. They must also maintain an unabandoned foreign residence.

  


NAFTA TN Professionals

NAFTA is the North American Free Trade Agreement. Certain professionals listed in the NAFTA who are citizens of the signatory countries are eligible for a work authorized nonimmigrant status called TN. The present participants in NAFTA are:

  • The United States,
  • Canada,
  • Mexico.

TN Professionals have no maximum stay limit and may extend their TN status on an annual basis.

Eligibility Requirements for TN Professional Status
Most TN Professionals are required to hold a Bachelor's degree or Licenciaturia degree in an eligible Profession. In addition, if the state in which the professional will work requires a state license to practice (i.e. lawyer, doctor), then the TN professional must possess that credential as well.

The professions eligible for TN status are listed in Appendix 1603.D.1 of Chapter 16 of the NAFTA, and are available online at
http://canada.usembassy.gov/visas/doing-business-in-america/professions-covered-by-nafta.html.  They include but are not limited to:

  • Engineers,
  • Accountants,
  • Computer Systems Analysts,
  • Architects, and
  • Some 60 other professions.

TN Professions That Do Not Require a Degree
The following professions are among those that have alternative minimum educational/experiential prerequisites for entry into the TN professional status category:

  • Computer Systems Analyst,
  • Management Consultant, and
  •  Scientific Technician.

TN applicants seeking entry to the United States in these categories are however given a higher level of scrutiny than those persons seeking entry in other TN professions.  These TN Professionals are allowed to stay in the United States for periods of up to one year.

Visa Requirements for TN Professionals from Mexico & Canada

  • Canada:
    • TN Professionals from Canada may apply for entry in that status at any “Class A” border crossing.
    • There is no limitation on the annual allotment of TN status professionals for Canadians.
  • Mexico:
    • TN professionals from Mexico must have their employers submit:
      • A Labor Condition Application, LCA, to the Department of Labor,
      • A nonimmigrant petition to the Nebraska Service Center, and
      • Must obtain a visa in TN status from the United States Department of State.
    • There is a 5500 annual limitation on TNs for Mexicans.

These requirements do not differ significantly from those required for H-1B specialty occupation status. TN status is an option available for employee candidates from Mexico during periods where the annual cap on H-1B visas has been reached.   

 


The E-1 & E-2 Treaty Investor and Trader Visas

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E-2 Visa
The E-2 visa is suitable for foreign investors (and certain employees of the investor) who:

  • Are nationals of qualifying countries, and
  • Make a qualifying investment in the United States.

The investor may either be an individual or an entity.

Qualifying for an E-2 Visa
Applicants for E-2 visas must prove three (3) essential elements in order to qualify for an E-2 visa:

  1. The investor must have a treaty status, and
  2. The investment must be "substantial" and must result in an active and operating enterprise, and
  3. The employee applicants  must be:
    1. Of the same nationality as the principal investor and either perform duties at the director/manager level, or
    2. Have special qualifications that make his or her skills essential to the operation of the enterprise.

Treaty Status for Individual Investor:
Person must be a national of a country that has a "treaty of commerce and navigation" or a "bilateral investment treaty" in place with the United States.

Treaty Status for Foreign Company Investor:
The foreign company must be at least 50% owned by nationals of the same treaty company. Companies that are publicly traded generally are considered to have the nationality of the country where its stock was initially listed on a public stock exchange. Place of incorporation is not relevant to determining nationality.

Substantial Investment Resulting in an Active and Operating Enterprise:
The size of the investment will be considered in light of the type of business that is being created in the United States. The investment must be enough to establish a viable business of whatever type has been initiated. For example, if an investor is building a semiconductor plant in the US, then the amount of investment that would rise to the level of "substantial" for this enterprise would be very large. Far less would be required for an investor starting an internet-based company.
There are few limits placed on the investment vehicles that an E-2 investor may use. This means that cash, debt, and equity transactions in their various forms may all be acceptable. However, to be counted as part of the "substantial investment," the investor's funds or assets must be placed “at risk” in the commercial sense:

“At Risk” Requirement:
The "at risk" requirement will render certain leveraged investments ineligible for E-2 status. The investor's personal funds (or the funds of the foreign entity) must be subject to total loss if the investment is unsuccessful.

The business created by the investment must be one that actively seeks to produce a profit. The business cannot be marginal in the sense that it will only provide sufficient return to support the investor and his or her family.

Investor's Employees Qualifying for the E-2 Visa:
The employees of the individual investor or of the investor entity must meet two criteria to qualify for the E-2 visa:

  • They must be nationals of the same country as the investor, and
  • They must be going to the US:
    • To assume a position with executive or supervisory duties, or
    • Possessing special qualifications that make them essential to the operation of the company.

Where to File an E-2 Application
Depending on the investor's situation, U.S. law allows investors to file E-2 applications in the following two ways:

  • File an application with the United States Citizenship and Immigration Services (USCIS), or
  • File an application with a US consulate.

However, the consulates normally have the last word on the E-2.

Filing E-2 application with USCIS:

Investors and their employees who are already legally in the United States and who are eligible to change status to another type of visa may file their applications with the USCIS. If the USCIS believes that the investor or the employee meets the criteria discussed above, it can change the investor or employee to E-2 status. However, when these applicants travel outside the US, they must make another full application for the E-2 visa at a US consulate. The E-2 visa specialists at the consulates around the world do not defer to the USCIS determination of E-2 visa eligibility. They review applications anew, and exercise virtually complete discretion in their conclusions.

Filing E-2 application with a US Consulate:
More than any other nonimmigrant visa, the E-2 is a creature of the US consular system which falls under the jurisdiction of the Department of State. Most consulates that review E-2 visa applications have specialists who are able to parse through the financial documentation that is used to prove these cases. Once an investor proves to the E-2 visa specialist's satisfaction that the investment made in the U.S. qualifies for the issuance of E-2 visas, the Consulate will consider that company to be "registered" at their office. If the investor is actually a company that will be sending many employees to work at the new operations in the US, then the following employees need not re-prove the substantiality of the investment. They can simply reference the initial registration of the company and file far less complicated applications proving that they are qualifying E-2 employees.

Maintaining the E-2 Status
E-2 visa holders are admitted to the US for two years. However, the status can be extended in two-year increments for as long as the E-2 investor or the E-2 employee meets the E-2 criteria. The caveat to this rule is that employees with specialized qualifications who are traveling to the US to establish a startup company are presumed to have completed their essential work by the end of the initial two-year admission. Extensions of stay beyond the initial two years for such employees are difficult.

Traveling with E-2 visas
E-2 visas can be issued with a validity of up to 5 years. Each time a person enters the US with an E-2 visa, they may be granted a period of stay on Form I-94 of up to two years. The period of stay may at times exceed the validity of the E-2 visa.

E-2 Status of Family of Principle Alien
The spouse and unmarried children under 21 are entitled to the same E-2 classification as the principal alien. The nationality of the spouse/children is not material to their classification as long as the principal alien is a treaty national.

Applying for a Green Card
E-2 status does not require an applicant to maintain an un-abandoned residence abroad. A person in E-2 status who adjusts status to permanent lawful residence (green card) status in the US should file a waiver of privileges and immunities for treaty nationals.

  


E-3 Australian Professional Visas

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BUSINESS VISITOR VISAS and the visa waiver program

B-1 Visa Overview
The B-1 business visitor visa allows an individual to come to the U.S. for a short period of time for business purposes that may include:

  • Attending meetings and consultations with business associates
  • Attending non-productive training of benefit to the overseas company
  • Attending professional conferences or meetings

B-1 visas are subject to the following limitations:

  • A B-1 visitor is not authorized to perform productive work in the U.S.
  • A B-1 visitor must maintain a foreign residence abroad to which the B-1 visitor intends to return at the end of the visit.
  • The B-1 status may not be used as a means to accelerate a candidate's eligibility to enter the U.S. to work.
  • The B-1 visitor should generally remain on a foreign employer's home country's payroll and must not receive compensation from a U.S. source, other than reimbursement for incidental expenses.

The B-1 visa is applied for directly at the U.S. Consulate.  B-1 visa holders are generally admitted for the period of time necessary to conduct the business, up to a maximum of six months.  In practice, US Customs and Border Protection officers typically set 30 to 90 day limits for business visitors to remain in the United States. If unexpected events necessitate an extension of stay, individuals may apply to extend their stay up to six months but must provide specific justification for such extension.  Prolonged business visits may give rise to a presumption that the visitor is engaged in prohibited productive employment.

Visa Waiver Program
The Visa Waiver Program (VWP) enables citizens of participating countries to travel to the U.S. for tourism or business for 90 days or less without obtaining a U.S. visa. Currently there are 27 participating countries in the VWP: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Citizens of VWP participating countries are permitted to enter the U.S. under the same rules as the B-1 classification through the Visa Waiver program for up to 90 days, but must depart within the 90 day period. No extensions of status or change of status are allowed.

 


 

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