WORK VISAS [Professionals, Intracompany Transferees, Investors, Trade NAFTA, Trainees]

There are several visas that allow you to work here. If you are a professional, someone with a college degree, a nurse or specialty worker, an employer can petition for you. These visas can last up to 6 years. In most cases the position required at least a college degree, but there are exceptions. These types of visas are employer dependent and subject to strict regulations and fees.  Many foreign companies that establish or have existing subsidiaries in the U.S. can transfer key employees to the American office. These visas are currently highly scrutinized by the CIS because fraud is becoming rampant. 

 

Professional Work Visas (H-1B)

The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. This visa is subject to a quota.  Each petition may only include one worker.  The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the I-129 petition.

There are specific terms and conditions of the H-1B classification which limit its use such as: (1) Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner); (2) A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant; (3) Multiple employers require multiple H-1B petitions; (4) The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment and (5) H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Document Requirements for H-1B1 Classification Petition
The petition (Form I-129) should be filed by the U.S. employer with:

·         A certified labor condition application from the Department of Labor;

·         Copies of evidence that the proposed employment qualifies as a specialty occupation;

·         Evidence the alien has the required degree by submitting either:

·         A copy of the person's U.S. baccalaureate or higher degree which is required by the specialty occupation;

·         A copy of a foreign degree determined to be equivalent to the U.S. degree; or

·         Copies of evidence of education and experience which is equivalent to the required U.S. degree;

·         A copy of any required license or other official permission to practice the occupation in the state of intended employment; and

·         A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

Documents required for H-1B2 Research and Development Project [Note: this category does not require an LCA. ] The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

The petition (Form I-129) must be filed by the U.S. employer and must be filed with:

  • A description of the proposed employment and evidence the services and project meet the above conditions; and
  • A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.

Documents required for the H-1B3 Fashion Model The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.

The petition (Form I-129) should be filed by the U.S. employer with:

    • A certified labor condition application from the Department of Labor;
    • Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
      • Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
      • Has performed and will perform services as fashion model for employers with a distinguished reputation;
      • Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
      • Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
    • Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
      • Involve an event or production which has a distinguished reputation; or
      • The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.

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Intracompany Transferees (L-1)
The L-1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees who are coming temporarily to perform services either

·         in a managerial or executive capacity (L-1A) or

·         which entail specialized knowledge (L-1B)

for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify. There is currently no annual cap on L-1 visas.

Note: The employer is not required to obtain a labor certification prior to petitioning in this category. Compensation level is not prescribed, but U.S. income must be sufficient to prevent the alien from becoming a public charge.

Dependents
Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L-2 status, however, dependents may not be employed under the L-2 classification.

Petition Document Requirements
A U.S. employer or foreign employer may file the I-129 petition, but a foreign employer must have a legal business in the U.S. The petition must be filed with:

·         Evidence of the qualifying relationship between the U.S. and the foreign employer which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements, or stock certificates;

·         A letter from the alien's foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the alien worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge; and

·         A detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.

If the alien is coming to the U.S. as a manager or executive (L-1A) to open or to be employed in a new office, also file the petition with evidence that:

·         Sufficient premises to house the new office have been secured;

·         The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and

·         The intended U.S. operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding:

      1. the proposed nature of the U.S. office (size and scope, organizational structure, and financial goals),
      2. financial information about the foreign entity (the size of the U.S. investment and the financial ability to remunerate the beneficiary and to commence doing business in the U.S. ), and
      3. the organizational structure of the foreign entity.

If the alien is coming to the U.S. in a specialized knowledge capacity (L-1B) to open or to be employed in a new office, also file the petition with evidence that:

·         Sufficient premises to house the new office have been secured;

·         The business entity in the U.S. is or will be a qualifying organization

·         The petitioner has the financial ability to compensate the alien beneficiary and to begin doing business in the U.S.

Extending an Individual L-1 Petition
A petitioner may apply for an extension of an individual L-1 petition using Form I-129. Supporting documentation is not required, except in those cases involving new offices or when requested.  

Blanket L Petition
Employers who regularly file L petitions may wish to consider filing for a blanket L petition in order to obtain continuing approval for itself (and some or all of its parents, branches, subsidiaries and affiliates in the U.S.). This simplifies the process of approving and admitting additional individual L-1A and L-1B workers.

The blanket L petition must be filed by a U.S. employer who will be the single representative between INS and the qualifying organizations and must be filed with copies of evidence that the:

·         Petitioner and its branches, subsidiaries, and affiliates are engaged in commercial trade or services;

·         Petitioner has an office in the United States that has been doing business for one year or more;

·         Petitioner has 3 or more domestic and foreign branches, subsidiaries, or affiliates;

·         Petitioner and its qualifying organizations have obtained approved petitions for at least ten L-1 professionals during the previous year or have U.S. subsidiaries or affiliates with combined annual sales of at least 25 million dollars, or have a U.S. work force of at least 1,000 employees.

After approval of a blanket petition, the petitioner may file for individual employees to enter as L-1 professionals under the blanket petition. If the alien is outside the U.S. , submit a completed Form I-129S and a copy of the Form I-797 (INS approval notice). If the alien is already in the U.S., the petitioner may file an I-129 to request a change of status, based on this blanket petition. An I-129 petition for a change of status must be filed with:

·         A copy of the approval notice for the blanket petition;

·         A letter from the alien's foreign employer detailing the alien’s dates of employment, job duties, qualifications and salary for the 3 previous years; and

·         If the alien is a specialized knowledge professional, a copy of a U.S. degree, a foreign degree equivalent to a U.S. degree, or evidence establishing the combination of the beneficiary's education and experience is the equivalent of a U.S. degree.

Extending a Blanket L Petition
A petitioner may file an I-129 to extend an expiring blanket petition. The extension petition must be filed with:

·         A copy of the previous approval notice for the blanket petition; and

·         A summary of the employment of L-1 aliens admitted under the blanket petition during the preceding three years, listing, for each alien: his or her name; Position(s) held during the period; Employing entity; Date of initial L-1 admission under the blanket; Date of final departure, if the alien has been transferred outside the United States, and; Documentation of any changes in approved relationships and additional qualifying relationships.

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INVESTORS (E-1/2)

 Another popular visa is the E-Visa for investors. Foreigners who substantially invest in our country or who conduct substantial trade with us can reside here on an E visa provided the U.S. has a treaty with their country permitting such investments. The E visa is valid for as long as the investment is valid.  Read MoreBack to Top

Employing Canadian and Mexican Professionals Under NAFTA (TN Visa)


The 1994 North American Free Trade Agreement (NAFTA) makes temporary employment in the U.S. easier for certain Canadian and Mexican workers. NAFTA created a new classification, “TN,” for eligible Canadian and Mexican professional workers and also affected terms of admission for Canadians admitted to the U.S. under other nonimmigrant classifications.

TN employment must be in a profession listed in Appendix 1603.0.1 to NAFTA and the TN employee must possess the credentials required. There is no annual limit on TN-1 admissions from Canada. There is a yearly cap for Mexican TN professionals of 5,500 admissions.

Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the U.S., but may not be employed under the TD status.

Petition Document Requirements  

For a Canadian citizen:
This classification does not require a petition for employment if the alien is a Canadian citizen and is outside of the U.S. Canadian citizens need not obtain TN-1 consular visas, and may apply directly at Class A U.S. ports of entry. They must provide:

·         A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;

·         Evidence that the beneficiary meets the education and/or alternative credentials for the activity;

·         Evidence that all licensure requirements, where applicable to the activity, have been satisfied;

·         Evidence of Canadian citizenship.

For a Mexican citizen:
An employer in the United States must file the I-129 petition and must file it with:

·         A statement from the employer with a a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for pay or reward;

·         Evidence that the beneficiary meets the education and/or alternative credentials for the activity;

·         Evidence that all licensure requirements, where applicable to the activity, have been satisfied;

·         Evidence of Mexican citizenship; and

·         A certification from the Secretary of Labor that the petitioner has filed the appropriate labor condition application or labor attestation for the specified activity.

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Alien Trainees (H-3)
The H-3 classification applies to aliens (beneficiaries) coming temporarily to the U.S. to participate in a training program from an employer in any field other than graduate education or training. There are general H-3’s, and those coming for special education training. There is currently no annual cap on H-3 admissions to the U.S.

The petitioning employer or sponsors must demonstrate that the:

  • Proposed training is not available in the beneficiary’s home country
  • Beneficiary will not be placed in a position which is in the normal operation of the business, and in which citizens and resident alien workers are regularly employed
  • Beneficiary will not be productively employed except as incidental to training
  • Training will benefit beneficiary in pursuing a career outside the U.S.

Note: H-3 status is not appropriate for graduate education, including medical training, except under special circumstances. Petitioning employers may not use H-3 classification for training programs primarily designed to benefit the U.S. companies and/or where U.S. workers would be employed but for the trainees’ services.

Dependents (spouses and unmarried children under 21 years of age) of H-3 principal trainees are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 status.

Petition Document Requirements
The petition should be filed by the U.S. employer with:

  • A detailed description of the training program, including the number of classroom hours per week and the number of hours of on-the-job training per week;
  • A summary of the prior training and experience of each alien in the petition; and
  • An explanation of why the training is required, whether similar training is available in the alien's country, how the training will benefit the alien in pursuing a career abroad, what benefits the employer will derive from the training, and why the employer will incur the cost of providing the training without significant productive labor from the trainee(s).

The H-3 classification also applies to an alien coming temporarily to participate in a special education training program in the education of children with physical, mental, or emotional disabilities. Back to Top