When Immigration Matters

H-1B Visa Application Season Starts on April 1 2013

Posted by Karen-Lee Pollak on Mon, Feb 04, 2013 @ 4:22 PM

H1-B; H-1B visa non immigrant visaOn April 1, 2013, the United States Citizenship and Immigration Service (USCIS) begins accepting H1-B visa applications for the 2014 fiscal year (which starts on October 1, 2013).   In 2008, U.S. Citizenship and Immigration Services (USCIS) received approximately 163,000 petitions during the five-day filing period and conducted a random lottery to select the 65,000 petitions that would be eligible for processing.  In 2007, the USCIS reached its H-1B visa quota in one day.  Due to the slump in the economy, last year all H-1B visas were not taken until the end of June 2012.   While we cannot predict how quickly these visas will be taken, since the economy has picked up, we guesstimate that the cap will be reached well before June 2013.

The H-1B  visa program enables U.S. employers to hire highly educated foreign professional workers for “specialty occupations” — jobs that require at least a bachelor’s degree or the equivalent in the field of specialty.  These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise.  Holders of these visas can stay in theUnited Statesfor up to six years.

 Employers seeking H-1B visas should start planning ahead.  Unlike in previous years, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online.  Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA.  The LCA contains several attestations by the employer including an attestation that they will pay the H1-B employee the prevailing wage for the job position.

Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer’s tax identification number and requires additional documentation before providing an approved LCA. 

Prudent employers need to start considering and planning their H-1B visa needs for the upcoming fiscal year.  It is also advisable for employers to start making contingency plans for bringing temporary professional workers to theUnited Statesif the H1-B cap is reached. 

 WHY THE EARLY H-1B VISAS CUT-OFF?

 H-1B visas are limited to 65,000 per year.  However, certain cases are exempt from the cap.  This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H1-B visas for nationals ofSingaporeandChilemaking only 58,200 visas available in the standard H-1B pool. 

 WHO IS EXEMPT FROM THE H1-B CAP?

 The following cases are exempt from the H1-B cap: 1) extensions for current H1-B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H-1B position; 3) amended petitions; 4) H-1B employment for nationals of Chile or Singapore, 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated non-profit entity and 6) 20000 H-1B visas for graduates of U.S. universities who have earned a Master's or higher degree.

 IMPACT OF THE EARLY CUT-OFF OF H1-B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2012 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

 WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

 The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to aU.S.branch, parent, subsidiary, or affiliated entity.  This visa allows aU.S.company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for theU.S.company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in theUnited States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but theU.S.company must control the employee’s performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in theUnited States.  There is a five-year limit on L-1B employees with specialized knowledge staying in theUnited Statesand a seven-year limit for L-1A managers and executives.

 Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

 The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

 E or treaty visas are available to persons or entities engaging in trade between theUnited Statesand their home country or persons and entities coming to theUnited Statesto develop and direct enterprises in theUnited Statesin which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between theU.S.and the applicant’s home country.  For treaty traders, the company set up in theUnited Statesmust be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a “substantial” flow of trade (either goods or services) between theU.S.business and the treaty national’s home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

 With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to theU.S.for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

 TN Status

 Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

 

The O Visa

 Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

 The J-1 Exchange Visitor Visa

 This visa is available to foreign nationals to enter theUnited Statesas exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter theUnited Statesfor the purpose of doing research, gaining training or studying.  Depending on the foreign national’s qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

 MAKING THE H1-B CUT-OFF FOR FY 2014The prudent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year.  Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,225.00 premium processing fee to have your H1-B visa applications adjudicated in fifteen days. 

 Unless Congress raises the annual H1-B visa cap, employers will have to file their H1-B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2014.  Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.

 

What is a L-1 Intracompany Transferee Visa?

Posted by Michael Pollak on Mon, Jan 14, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to work in the United States with an L-1 visa.

L-1 visaThe L-1 or intracompany transferee visas are non-immigrant visas available to employees of an international company with offices in both the United States and abroad. The visa allows such foreign workers to relocate to the corporation's US office after having worked abroad for the company for at least one continuous year within the previous three prior to admission in the US.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

Non Immigrant Visas | USCIS Revises Form I-129

Posted by Karen Pollak on Thu, Nov 11, 2010 @ 3:39 PM

USCIS has revised the Form I-129, which employers use toUSCIS petition for temporary workers in a variety of nonimmigrant visa classifications including H-1B professionals, L-1 inter-company transfeees and E-2 investors. The revised version of the form will be published on the same day that the final fee rule becomes effective: November 23, 2010. Once the revised version of the Form I-129 is published, USCIS will accept previous editions of the form for 30 days or until December 21, 2010.

Free Consultations Available | 800-969-5529

 

US Immigration Basics for South Africans | Nonimmigrant Visas (Part 2)

Posted by Karen Pollak on Thu, Sep 09, 2010 @ 4:33 PM

What is a Temporary (Nonimmigrant) Visa?

US ImmigrationPeople who want to come to the United States for a limited time need what is called a "nonimmigrant" visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce.  Most South Africans obtain a nonimmigrant visa first.  Most of these visas are valid for three years and then may be renewed for three years.  During that six year period, most South Africans apply for a green card especially if they were not initially eligible for permanent residency when they applied for their nonimmigrant visa.

Applying for a U.S. Visa
After figuring out what type of visa or green card you're eligible for, you'll need to figure out how to get it. Most people must obtain a visa at a U.S. consulate in Johannesburg before departing for the United States. You will need an appointment at the Consulate.  If you're already in the United States legally, you may be able to apply to "adjust" your status to permanent resident, or "change" your status to another type of visa.

What are the most Common U.S. Visas issued to South Africans?

The Most Common Non-Immigrant Visas Issued to South Africans

B-1/B2 Visa Business or Tourism Visitors
These visas are issued to persons wishing to visit the U.S. or conduct business, including such things as a need to consult with business associates, negotiate a contract, buy goods or materials, settle an estate, appear in a court trial, and participate in business or professional conventions or conferences or, where an applicant will be traveling to the United States on behalf of a foreign employer for training or meetings. The individual may not receive payment (except for incidental expenses) from a United States source while on this visa.

The following activities require a working visa, and may not be carried out by business visitors:

  • Running a business 
  • Gainful employment
  • Payment by an organization within the US
  • Participating as a professional in entertainment or sporting events

Student Visas -The F or M Visa
Are granted to nonimmigrant’s coming to the US to participate in a full time course of study. As with all nonimmigrant classifications, the most important requirement to obtain a student visa is the demonstration of nonimmigrant intent. The student must maintain a home abroad that they have no intention of abandoning. The student must be coming to the US to pursue a full course of academic study at a community college or accredited university in order to qualify for an F-1 student visa and must pursue a full time course of study in vocational or other on academic programs, other than language training to qualify for an M-1 visa.  In either case, the student must demonstrate that they possess the financial resources to allow them to study without the need to engage in unauthorized employment. Most students are able to get approved for a stay equal to the duration of their studies in the US and can study in any pre-approved institution.

The H-1B Visa or Professional Visa
Is for foreign workers who will hold specialty occupations. Generally speaking, a specialty occupation is one which " which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States." However specialized knowledge may be acceptable in lieu of a degree. The foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

You must have a job offer from a qualified U.S. employer for work to be performed in the U.S., The application process for the H-1B visa includes the employer filing a Labor Condition Application (LCA) with the U.S. Department of Labor certifying that the employer will pay the prevailing wage.  It also includes filing a petition with the USCIS. This process usually takes several months. However, the USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days or less.

The L-1 Visa or Inter-company Transfer Visa
Is granted to people who have worked outside of the U.S. as a manager, executive, or in a position involving specialized knowledge, and are now seeking to come to the U.S. to work in a related U.S. company in a same capacity. Many international companies use an L visa to transfer their executives, managers, or workers who are in position involving specialized knowledge, to the U.S.

L-1 Visa Requirements

  • Worker is an executive, manager, or in a position involving specialized knowledge, 
  • Worker has been employed continuously for at least 1 year within 3 years preceding the time of the L visa application, 
  • The company outside the U.S. is related to the U.S. company in some form (parent-company, branch, affiliate, subsidiary, etc.), 
  • Worker seeks to enter the U.S. temporarily, and 
  • Worker will continue to work for that company as an executive, manager, or in a position involving specialized knowledge

A spouse and minor children of an L-1 beneficiary may be granted L-2 visa status. An L-2 visa beneficiary may become a student in the U.S.  They also may work in the United States.

J-1 Exchange Visitor Visa (Cultural Exchange Training Visa)
In order to obtain a J-1 visa for an employee, a company must either become designated by the Department of State as a J-1 visa program sponsor or initiate an application through an approved third party training sponsor organization.

There are dozens of organizations that are authorized by the Department of State to act as a third party sponsor of J-1 training programs. These organizations review and approve the application and training program of a proposed employer and issue a Certificate of Eligibility for J-1 training. Each of the third party program sponsors has different requirements, filing fees and procedures. Almost all third party sponsor applications require that the employer submit a detailed training program. The training program must spell out in explicit detail the type and chronology of training which will be accomplished, even if it will take place through on-the-job training.

Since the J-1 visa is a nonimmigrant visa, applicants must demonstrate that they have a residence abroad which they do not intend to abandon. As is the case with the F-1 student visa or the B-2 visitor visa, applicants for a J-1 visa must prove to the US Consulate that they have strong enough family, economic and social ties to their own country

The O Visa for Aliens of Extraordinary Ability 
Is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, certain aliens accompanying or helping those aliens, and their family members. There is no quota on the number of O visas issued each year.  The O-1 visa can be given only on the basis of individual qualifications. There are three standards for the O-1 visa. The most difficult standard applies to those persons in the sciences, education, business, and athletics; a much less difficult standard applies to individuals in the arts, and a medium-level standard applies to those of extraordinary achievement in the motion picture or TV industries.  This visa is usually issued for three years and may be renewed for three years. 

P Visa for Athlete/Entertainer
The P category covers entertainers and athletes who cannot meet the standard for extraordinary ability in the O category.  The P visa is given to athletes, artists and entertainers who compete individually or as part of a team at an national or internationally recognized level, and also to aliens who perform with, or are an integral and essential part of the performance of an entertainment group that has received international or national recognition as “outstanding” for a “sustained and substantial period of time.”  These visas are issued for the duration of the performance events. 

R-1 Religious Visa
This visa allows religious workers to come to the U.S temporarily to work in religious occupations. Examples of R visa religious workers are monks, nuns, missionaries, and religious brothers and sisters.

R Visa Requirements

  • The religious worker must have been a member of a religious denomination for at least 2 years immediately preceding the filing of the R-1 visa application
  • The religious denomination must have an affiliation in the United States 
  • The petitioning U.S. organization must be a non-profit religious organization that is tax exempt, or one that would be tax exempt if it had applied 
  • The religious worker must enter the U.S. to pursue religious vocation or occupation, and prove that there are sufficient funds to support the religious worker’s financial needs without recourse to employment other than the religious work for which the visa is granted
  • The R-1 visa is usually issued for 3 years with an option of one 2 year extension

H-3 Training Visa
Is issued to foreign nationals to receive training which is not available in their country.  These visas are issued to special exchange visitors to receive training in educating children with physical, mental or emotional disabilities and to Multinational companies to send their foreign employees to the U.S. for on-the-job training. 

Next up...The most common Green Cards issued to South Africans. 

Alternative Visa Options Once H-1B Cap Is Reached

Posted by Michael Pollak on Sat, Feb 27, 2010 @ 8:45 AM

IMPACT OF THE EARLY CUT-OFF OF H-1B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2011 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

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