Temporary Work Visas
What is an E-2 investment visa?
The E-2 investment visa is derived from treaties of friendship, commerce and navigation or bilateral investment. Thus, unlike most other nonimmigrant visa categories, the U.S. Department of State (often referred to as the State Department or DOS) retains primary authority over the E-2 investment visa because it is the State Department who holds sole authority to negotiate and interpret the treaties that provide the basis for approving and issuing E-2 investment visas. Moreover, and critical to deciding whether the E-2 investor visa is even available to a foreign national, the principal investor must prove that he or she holds the nationality of a country that maintains such a treaty with the U.S. Prospective investors may refer to the State Department’s website at http://travel.state.gov/content/visas/english/fees/treaty.html for a list of countries with which the United States maintains a treaty of commerce and navigation.
What documents are submitted to the U.S. Embassy in support of an E-2 investment visa?
A properly prepared E-2 investor visa application must be supported by evidence proving each requirement for E-2 investor visa eligibility under the law and as described in the U.S. Department of State Foreign Affairs Manual. In addition to proving the applicant (individual or business) possesses the nationality of the treaty country, the application should be supported by evidence that:
• The applicant has invested or is in the process of investing personal funds,
• The enterprise is real and operating,
• The amount of the investment capital is substantial,
• The investment capital is at a risk of loss,
• The investment capital is derived from a lawful source,
• The investment is more than a marginal one,
• The applicant (in the case of a principal investor) is in a position to develop and direct the enterprise,
• The applicant (in the case of an employee) will hold an executive position or possesses skills essential to the investment enterprise’s operations in the U.S. and
• The applicant intends to depart the U.S. upon termination or expiration of E-2 status.
The E-2 investor visa application is made on the Form DS-156E, and as a general rule, will have a letter describing in verifiable detail the investment enterprise and how the presented evidence satisfies all the requirements for E-2 investment visa eligibility.
Are spouses of an E-2 Investor granted permission to work in the U.S.?
Yes. Spouses must file the Form I-765 Application for Employment Authorization, with supporting documentation, with the designated USCIS Service Center.
Is it possible for someone in another lawful nonimmigrant status change status to that of an E-2 from within the US?
Yes. However, once an applicant departs the United States, the applicant must apply for the E-2 investment visa at the U.S. Embassy in his or her home country or a country willing to take jurisdiction over the E-2 investment visa application.
H-1B Specialty Worker Visa
The H-1B Specialty Worker Visa program is the primary method for providing a foreign national with a temporary H1-B visa to work in the United States in a professional capacity for a U.S. employer. This visa has been the subject of considerable media attention in recent years because Congress has set limits on the numbers of workers allowed in on H-1B visas.
What is an H-1B visa?
The H-1B is a nonimmigrant visa used by a foreign national who will work in the United States temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
What is a specialty occupation for an H-1B Visa?
A specialty occupation for an H-1B visa requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, specialty occupations include, but are not limited to, careers in the fields of architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
How many individuals are granted H-1B status each year?
Under current law, there is an annual limit of 65,000 foreign nationals who may be issued an H-1B visa each fiscal year. An additional 20,000 H-1B slots are available to graduates with a U.S. masters or higher degree.
Who is subject to the cap?
Fortunately, not every H-1B applicant is subject to the cap. H-1B visa holders filing for extensions and transfers are not subject to the cap. The cap also does not apply to applicants who work at (but not necessarily for) institutions of higher education, nonprofit research organizations, and government research organizations. Additionally, physicians offered positions under State 30 or federal government agency waivers based on serving underserved communities are exempt from the H-1B cap.
Are there advantages to the H-1B Program?
Yes. One of the major advantages is that, unlike many other nonimmigrant visa categories, the H-1B is considered to be a “dual intent” visa. What this means is that permission to work in the U.S. will not be denied simply because the individual is simultaneously seeking a green card. Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified U.S. workers and, consequently, a labor certification is not required for this visa.
What is the application process?
The H-1B process begins with the U.S. employer, known as the petitioner, making an offer to work in the U.S. The next step is for the petitioner to ensure that the worker will be paid 100% of the prevailing wage, which is a wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications.
Once the wage information has been obtained, a Form ETA 9035 – Labor Condition Application (LCA) must be submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is submitted electronically to the U.S. Department of Labor. The certified LCA petition is submitted to U.S. Citizenship and Immigration Services (USCIS) as part of the H-1B petition package.
Why must a Labor Condition Application (LCA) be filed?
The purpose of the LCA is to ensure that U.S. wages are not depressed by the hiring of foreign labor and that foreign workers are not exploited. On this document, the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed including:
• The employer will pay the required wage, either the prevailing wage or the actual wage paid to other employees in the same position, whichever is greater.
• The employment of H-1B workers will not adversely affect the working conditions of U.S. workers.
• When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute.
• The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed.
Within one business day of filing the Form ETA 9035 – Labor Condition Application (LCA), the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
What is the next step with the H1-B Temporary Work Visa?
The H-1B visa petition must be filed with the U.S. Citizenship and Immigration Services (USCIS) demonstrating the following:
• The employer’s bona fide need for an H-1B specialty worker. As a general rule, large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. Problems can be encountered if the employer is small, or if the business was recently started. In such cases USCIS has requested evidence relating to the stability of the business such as tax returns, payroll records and other evidence of the company’s bona fide business activities.
• The position must actually be a Specialty Occupation – Demonstrating that a position is in a specialty occupation is rather straightforward with some jobs such as engineers and physicians. With many positions, however, it is not as straightforward. In these situations, the petition must carefully define and describe the job.
• The H-1B Candidate Qualifies for the Job Offered – To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent in a specific field or narrow range of closely related fields, and the H-1B candidate must have a corresponding bachelor’s (or higher) degree. Therefore, one of the most important parts of an H-1B Visa petition is documenting the alien’s education and/or experience.
While possession of a degree is the most common way of establishing a person’s ability to work in the United States in a specialty occupation, a degree is not required to obtain a temporary H-1B work visa. The applicant may demonstrate through work experience or a combination of education and experience that they have the equivalent of a bachelor’s degree. If work experience will be used, the USCIS will require affidavits from former employers outlining the alien’s responsibilities and skills learned while there. Under the rules, three years of work experience is equal to one year in college. Some positions require additional documented proof, such as when the job requires state licensure.
What is the Duration of Stay?
Under current law, an individual may maintain H-1B status for a maximum period of six years. After this time, the individual must remain outside the United States for one year before another H-1B petition can be approved. However, certain individuals may extend their status beyond the 6-year period:
• If 365 days or more have elapsed since the filing of a labor certification application (ETA 9089) on the individual’s behalf, extensions may be granted in one year increments; or
• In the case of an immigrant with an approved Form I-140 Petition, an extension may be granted in three-year increments.
Is the H-1B employer specific?
Yes. H-1B holder is granted permission to work in the U.S. for the petitioning U.S. employer only. Additionally, this visa to the U.S. requires the visa holder to limit his or her activities to the activities described in the petition. H-1B holders may work for more than one US employer, but must have a Form I-129 petition approved by each employer. For example, an individual may hold two part-time H-1B visas at the same time but must go through the petition process with each employer.
What is ‘H-1B Portability’?
In October 2000, former President Clinton signed the American Competitiveness in the Twenty-First Century Act (AC21). One of the most sought after provisions in Twenty-First Century Act (AC21) is the “portability” provision, which eases the process of changing jobs. Under it, H-1B workers may begin working for a new employer as soon as the new employer files an H-1B petition for the worker. In the past, the worker had to wait for the petition to be approved before he or she could begin working for the new employer. Because this provision applies to petitions for new employment filed before or after the enactment of AC21, workers, for whom a new petition was filed, can begin work in the US for the new employer immediately.
The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact. To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission, and must not have engaged in unauthorized work in the U.S. since that admission.
How does the H-1B cap affect an immigrant who requests a change in employers?
USCIS has stated that the limit on the number of H-1B visas does not apply in this situation. However, if one works for a cap-exempt employer and then switches to an employer that is not exempt from the cap, the cap will apply.
L-1 INTRACOMPANY MANAGERS & EXECUTIVES
What is an L-1 intracompany transfer visa?
L-1 intracompany transferee visas are non-immigrant visas available to persons coming to work in the United States for a qualifying U. S. employer.
What are the advantages of an L-1 intracompany transfer visa as opposed to the H-1B visa?
This visa category offers a number of advantages that make it worth considering over other types of visas. For example, there is no annual limit on the number issued; one may pursue lawful permanent residency while on an L-1 visa, and for many L-1 visa holders, there is a matching green card category that allows the L-1 a rather straightforward way to obtain lawful permanent resident status.
What are the requirements for an L-1 intracompany transfer visa?
• The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years.
o The one year cannot be fulfilled by working part of the year for an affiliate in the United States.
• The company for which the employee has worked for a year abroad must be related to the U.S. company in a specific manner. The most frequently asked question about this particular criterion is whether the company abroad is related to the United States company in the correct way. The points listed below generally fit within United States Citizenship and Immigration Services (USCIS) prescribed rules:
o If both companies are branch offices of the same corporation, a qualifying relationship exists.
o If the United States company owns more than 50% of the overseas company, or if the overseas company owns more than 50% of the United States company, a qualifying relationship exists.
o If both the U.S. company and the overseas company are majority-owned (50%+) by a third company, a qualifying relationship exists.
o If the U.S. company is a joint venture (50% owned by each of two companies), or if the U.S. company is one of the joint ventures (50% owner) of the foreign company from which the employee will come, a qualifying relationship exists as long as each company effectively has control of the joint venture through its veto power over corporate decisions of the joint venture.
o If the U.S. company and the company abroad have no legal corporate relationship, or a third company has no ownership interest in both the U.S. company and the company abroad, there is no qualifying corporate relationship for L-1 visa purposes.
o Large organizations often document their ownership through a statement by a corporate officer or authorized official, supported by the company’s annual report, or a Security Exchange Commission filing listing the subsidiaries. This rule should apply to any publicly-traded company.
o Small businesses can evidence their ownership relationship through a statement by a corporate officer, supported by stock ownership records, accountant reports, tax returns, and corporate papers.
o Sole proprietors can evidence their ownership through a statement of the owners, supported by documents identifying the owner of the proprietorship. Such documents may include business licenses, Internal Revenue Service registration, and business tax returns.
• The company must be a qualifying organization (e.g. one that is doing business in the United States and one other country during the whole period of the transfer). This requirement is a result of the USCIS’ concern that small business owners who transfer themselves to the United States will cease doing business abroad.
• The term doing business means more than mere presence of an agent or office abroad. It requires the regular or systematic provisions of goods or services.
• The employee to be transferred must have been employed abroad in an “Executive” or “Managerial” capacity or a position involving “Specialized Knowledge.”
o Executive capacity means an assignment in an organization in which the employee directs the management of the organization or a major component or function; establishes goals and policies; exercises discretion in decision-making; and receives general supervision only.
o Managerial capacity means an assignment in which the employee personally manages the organization, department, or component; supervises and controls the work of other supervisory personnel, or manages an essential function within the organization; hire and fire authority; and exercises discretion over the day-to-day operations of the activity or function.
o Specialized knowledge refers to an employee who has special knowledge of the company product and its application in the international markets or possesses an advanced level of knowledge of the company’s procedures and processes. This individual is granted L-1 US visa status.
• The employee must be coming to work in the U.S. company as an Executive, Manager, or individual with Specialized Knowledge. The employee may be coming to the United States to fill a position different from the position they filled abroad. For example, a “manager” may come to the United States as a “specialized knowledge” employee.
• The employee must be qualified for the position by virtue of his or her prior education and experience. Therefore, it is necessary to submit proof of the employee’s qualifications at the time the L-1 petition is filed.
• The employee must intend to depart the United States upon completion of his or her authorized stay. However, the employee may pursue lawful permanent resident status (green card) at the same time.
How long may executives and managers stay in L-1 status?
Executives and managers may stay in L-1 visa status for up to seven years. This visa is known as the L-1A. Those who wish to apply for a green card from the L-1A visa category are not required to obtain a labor certification.
How long may “specialized knowledge” employees stay in L-1 status?
Specialized knowledge employees may stay and work in the U.S. for up to five years. This visa is known as an L-1B. Those who wish to apply for a green card from the L-1B visa category must generally first obtain a labor certification.
What about people coming to open up a new office in the US?
Persons coming to the U.S. open up a new office will be granted a one-year stay in the U.S. The USCIS will typically require additional information about the plans for the new office, such as proof that office space has been obtained, that the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant’s transfer to the U.S. If the company desires to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.
The USCIS will also more closely scrutinize cases where the transferred employee also has an ownership interest in the company, since the USCIS requires evidence of a legitimate employee-employer relationship. Additionally, the U.S. employer will need to show that the U.S. company’s need for the transferee is not indefinite and that the transferee’s foreign business interests are a strong lure for the person to return upon the expiration of the transferee’s stay in the U.S.
How do I apply for an L-1 visa to the United States?
The employer must send the Form I-129, Application and L Supplement, petitioner’s letter, supporting documentation and filing fees to the designated USCIS Service Center. It is wise to seek the advice of a knowledgeable U.S. immigration lawyer, as L-1 visa cases are scrutinized carefully by the USCIS, the Agency under the Department of Homeland Security that adjudicates visa petitions.
Are there any benefits available to L-2 spouses of L-1 visa holders?
The spouse of an L-1 visa holder is eligible to file for the L-2 beneficiary classification. These individuals may seek a U.S. work permit by submitting the Form I-765 after acquiring L-2 status. Applicants for employment authorization should remember, however, that it could often take up to three or more months to get this work authorization.
O-1 PERSONS OF EXTRAORDINARY ABILITY
What is an O-1 visa?
The O-1 visa temporarily allows foreign nationals to work in the U.S. if they have “extraordinary ability in the sciences, arts, education, business or athletics” which “have been demonstrated by sustained national or international acclaim.” This visa to the U.S. is also available to those in motion pictures and television, who can demonstrate a record of “extraordinary achievement.” The USCIS interprets the statute broadly to encompass many fields of creative endeavor. For example, chefs, rendering artists, photographers, and others can all obtain O-1 visas. The person entering the U.S. must apply for this U.S. work permit in their field of ability, but the position need not require the services of a person of extraordinary ability.
How can I qualify for an O-1 visa based on extraordinary ability in science, education, business or athletics?
To obtain a USA visa as an O-1 to work in the sciences, education, business or athletics, the O-1 candidate must demonstrate that he or she possess “a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor.” There are two ways of demonstrating this expertise. One method is through receiving a major internationally recognized award such as a Nobel Prize. The other way, the more common way of demonstrating extraordinary ability, is by providing documentation in three of the following categories:
• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field which require outstanding achievements of their members
• Published material about the alien
• Participation as a judge of the work of others in the same or allied fields
• Evidence of original contributions of significance in the field
• Authorship of scholarly articles
• Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation
• Evidence that the alien has or will command a high salary
• Comparable evidence that does not fit within these categories may also be submitted.
How can I qualify for an O-1 visa based on extraordinary ability in the arts?
Extraordinary ability in the arts means that the O-1 candidate has attained “distinction.” Distinction is defined as “a high level of achievement in the field of arts evidence by a degree of skill and recognition substantially above that ordinarily encountered.” Distinction has also been defined as prominence in the field of endeavor. The applicant can demonstrate distinction by being the nominee or recipient of an important national or international prize such as an Academy Award, Emmy, or Grammy, or by submitting documentation in at least three of the following categories:
• Evidence that the individual has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts, or endorsements; Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
• Evidence that the individual has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
• Evidence that the individual has a record or major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
• Evidence that the individual has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or
• Evidence that the individual has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.
Comparable evidence may also be submitted.
How can I qualify for an O-1 visa based on extraordinary achievement in television or motion pictures?
Similar criteria are used to determine extraordinary achievement as are used in determining distinction in the arts. The difference is in the way the evidence is weighed.
What is an O-2 visa?
An O-2 visa can be obtained for those accompanying the O-1 visa holder who will assist the O-1 alien in their performance. To qualify for an O-2 visa, the applicant 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
• Evidence must be submitted to establish the applicant’s essential role, and that they have skills and experience not possessed by an immediately available US worker.
What steps need to be taken to achieve an O-1 approval?
Before a person will be granted either an O-1 or O-2 visa, U.S. Citizenship and Immigration Services (USCIS) requires an advisory opinion from a US-based organization.
• For applicants in the television and motion picture industries, there must be a consultation with both the appropriate labor union and management organization. This opinion must state the applicant’s achievements in the field, and must state whether the position offered requires a person of extraordinary achievement.
• For all other O-1 and O-2 applicants, the petition must include an advisory opinion from a peer group, labor union, or person with expertise in the applicant’s field. This opinion can either state simply that the group has no objection to the issuance of the visa, or can detail the applicant’s achievements. If the achievements are detailed, the letter should also address the applicant’s ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.
• Advisory opinions for O-2 applicants should outline the essential role to be played by the support personnel, as well as their relationship to the O-1 visa holder. It should also state whether there are available U.S. workers.
• If an O-1 applicant with extraordinary ability in the arts category has obtained a consultation within the past two years, they need not obtain a new one. Nor is a new consultation required when seeking an extension of any O visa.
Can an O visa be extended?
An O visa may be extended in one-year increments for an indefinite period of time.
• P-1 Athletes and Entertainers
• R-1 Religious Workers
• Canadian and Mexican Professionals Under NAFTA (TN)