Employment Based Non-Immigrant Visas

One of the most commonly recognized employment based nonimmigrant visas is the H1B visa. The H1B visa/status is an employer-sponsored process intended for individuals who will work in a specialty occupation, fashion model of distinguished merit and ability, or person providing service related to Department of Defense cooperative research and development project or co-production project.

Specialty occupation is defined as an occupation that requires the minimum of a bachelor’s degree or equivalent. “Or equivalent” may be considered work experience equivalent to a bachelor’s degree or a combination of academic and work experience that is deemed equivalent to a bachelor’s degree.

H1B’s are issued in three-year increments and may be extended up to a total of six years. Extensions beyond the six years are available in certain circumstances.

To qualify for an H1B, you must establish the following:

• The qualifying position requires the minimum of a bachelor’s degree or equivalent;

• The employer will petition the foreign national in the process and will pay all required DHS filing
  fees;

• The employer has the ability to pay the prevailing wage or actual wage as determined by the
  U.S. Department of Labor;

• The foreign national has the required academic, experiential or combination credentials;

• The required labor condition application has been obtained prior to filing.

H1B’s are capped at 65,000 visas per fiscal year less free trade visas for Chile and Singapore, resulting in
an actual H1B cap of 58,200. Some categories of H1B applications are NOT counted toward the cap,
such as:

•  J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal

  program;

• Individuals of employment offers/petitions from institutions of higher education or related or

  affiliated nonprofit entities, or nonprofit research organizations, or governmental research
  organizations;

• Persons who possess a U.S. earned master’s or higher degree (up to 20,000);

• Individuals that were already counted toward the H1B cap within the past 6 years.

New H1B’s that are counted toward the cap are processed in an annual lottery that opens on April 1st of each year. Within the first week of each open filing period, USCIS receives approximately 2-3 times more applications than are visas available. When the filing period closes, typically on April 5th or 6th, USCIS begins the random lottery selection. Any applications not selected in the lottery will be returned to the petitioning employer or legal representative.

Applications that are selected in the lottery and ultimately approved, will receive an approval notice with a validity date beginning October 1st of the initial filing year. In other words, an H1B filed on April 1st, that is selected in the lottery and approved, will reflect a start date or valid from date of October 1st.

There are also other categories of H visas, as provided below:

– H1B1: Chile and Singapore:

• The U.S.-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement provide for H1B1 visas. This category primarily maintains the same requirements as the H1B discussed above with some subtle differences, such as the H1B1 may be applied for directly at a U.S. consulate or embassy without filing an I-129.

• H1B1’s are granted in one-year increments, aside from a new LCA (labor condition application) every three years. H1B1’s are not subject to the 6-year limit associated with H1B’s.

• H1B1’s are capped annually at 1,400 for Chile and 5,400 for Singapore.

– H-2A: Temporary agricultural workers:

• Employment may be temporary (lasts no more than one year) or seasonal in nature.

• Requires a test of the job market through job candidate recruitment.

• Only DHS designated countries are eligible for H-2A visas. A list of currently designated countries may be found HERE

• Period of admission is the temporary or seasonal time frame designated on the petition plus a 30-day grace period after and one week before.

– H-2B: Skilled/unskilled workers where U.S. Citizens and Lawful Permanent Residents are not available

• Employment may be for a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.

• The position must be full-time (at least 35 hours per week).

• Requires the employer’s registration with the Department of Labor.

• Requires a test of the job market through job candidate recruitment.

• Only DHS designated countries are eligible for H-2A visas. A list of currently designated countries may be found HERE

• Period of admission is the time frame designated on the petition.

• Subject to a fiscal year cap of 66,000. The cap is divided between the first half of the fiscal year, 10/01-03/31 (33,000) and the second half of the fiscal year, 04/01/-09/30 (33,000).

– H-3: Trainees:

• Applies to temporary workers invited by an individual or organization for purposes of receiving instruction and training “in any field of endeavor … other than graduate medical education or training.” The training program must be one “that is not designed primarily to provide productive employment.”

• Primary requirements:

  • Proposed training is not available in the foreign national’s home country;

  • Foreign national will not be placed in a position that is in the normal operation of the business in which citizen and resident workers are regularly employed;

  • No productive employment unless it is incidental and necessary to the training and pursuing a career outside the U.S.;

  • The training will benefit the foreign national in pursuing a career outside the U.S.

• Period of admission is the time frame designated for the training program but no longer
  than two years.

Spouses and children accompanying an H1B, H2A, H2B or H3 may be granted derivative H4 status. The 6-year limit applies to H4’s also. However, if an H1B receives an extension beyond the 6-years, the H4 will receive a similar extension.

L – Intracompany Transferee Visas/Status

The L visa is available to intracompany transferees in an executive, managerial or specialized knowledge capacity. Intracompany transferee could be an option when a foreign company wishes to “transfer” one of its executives, managers or specialized knowledge workers to one of its U.S. branches, subsidiaries or affiliates. The nature and process of this visa/status has become quite challenging with USCIS questioning all facets of the application in spite of overwhelming evidence. Therefore, the effort to successfully obtain an L1A or L1B is significant and we could not possibly cover all of the nuances in this material. However, the general requirements are described below:

• An L-1 is available to a foreign worker who has been employed full time by the foreign company for one year within the 3 years preceding the application for admission;

• Is coming to the U.S. to work in an executive, managerial or specialized knowledge capacity for the foreign company’s U.S. branch, affiliate or subsidiary;

•  If coming to the U.S. as a manager, the manager will primarily engage in the following duties:

  • 1. Manages the organization, department, subdivision or component;

  • 2. Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;

  • 3. Has the authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed; and

  • 4. Exercises discretion over day-to-day operations of the activity or function.

•  If coming to the U.S. as an executive, the executive will primarily engage in the following duties:

  • 1. Directs the management of the organization or a major component or function;
  • 2. Establishes goals & policies;
  • 3. Exercises wide latitude in discretionary decision making; and
  • 4. Receives only general supervision or direction from higher level executives, board of directors or stakeholders.

• If coming to the U.S. in a specialized knowledge role, the individual must show that s/he possesses some of the following characteristics:

  • 1. Possesses knowledge that is valuable to the employer’s competitiveness in the market place;

  • 2. In uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;

  • 3. Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position; and

  • 4. Possesses knowledge that can be gained only through extensive prior experience with that employer;

  • 5. Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

Specialized knowledge is a unique category and involves more than ordinary personnel. It may require proprietary knowledge of the petitioning company’s procedures or techniques. Yet, proprietary knowledge is not always required and depends on the circumstances of the petitioning employer.

Finally, a distinctive trait to the L1 visa/status is the “new office” provision. This provision applies when the U.S. branch, affiliate or subsidiary wishes to employ a manager or executive but has not been doing business for at least one year. In this case, the petitioner must show:

• Sufficient physical premises for the office have been secured;

• The beneficiary meets the one-year continuous employment, within the last three years requirement;

• The intended U.S. operation will support an executive or managerial position within one year.

A “new office” petition may be approved for only one year. Subsequent extensions are available in twoyear increments upon showing that the business is active and operating, including showing the number of employees, presence of clients or customers, cash flow and overall growth of the company.

Outside of the “new office” context, L1’s may be granted in 3-year increments. L1A’s are subject to a 7- year maximum and L1B’s are subject to a 5-year maximum.

Derivative spouse and children under the age of 21 receive L2 status. L2 status allows the derivative spouse to apply for an unrestricted employment authorization card.

P Visas

P visas/status is available to individuals who perform as athletes (P-1A) or a person who performs with or is an integral or essential part of an entertainment group that has been internationally recognized in the discipline for a sustained and substantial period of time (P-1B). For performers in entertainment groups, s/he has to show a sustained and substantial relationship with the group for a period of at least one year. P1’s are not for individuals, though a group may be as few as two (2) people.

• Circus performers coming to participate as part of a circus or circus group are exempt from the international recognition and one-year requirements provided that they are part of or are joining a circus with sustained national recognition.

P-1 athletes may be admitted for up to 5 years with an extension up to 5 years.

P-1 athletic team or entertainment group may be admitted for up to 1 year.

P-2 Reciprocal Exchange Program

P2 visa/status is available to an individual artist or entertainer or as part of a group, who will perform under a reciprocal exchange program between an organization or organizations in the U.S. and one or more foreign organizations, that provides for the temporary exchange of artists, entertainers or groups.

P-3 Culturally Unique Program

P3 visa/status is available to an individual artist or entertainer or as part of a group, who perform, teach or coach in a “culturally unique” commercial or noncommercial program that will further the understanding or development of the art form.

P-2/P-3 and essential support personnel are granted admission for the time necessary to complete the
event, up to one year, and extensions for a similar period.

All P visas/status must be seeking to enter the United States temporarily and solely for the purpose of performing in a competition, event or performance. In addition, P’s must have a foreign residence that they do not intent to abandon.

Derivative spouse and children under the age of 21 may receive P-4 status. No employment is authorized for any P-4 and the duration of admission is the same as the primary P beneficiary.

Q-1 Cultural Exchange Programs

Q-1 visa/status is available to participants in an international cultural exchange program for the purpose of providing practical training, employment and sharing of the history, culture and traditions of the country of the person’s nationality. Q-1’s are admitted for up to 15 months.

Further, a Q-1 must show:

• S/he has a foreign residence s/he does not intend to abandon;

• S/he is at least 18 years of age;

• S/he has the ability to communicate cultural attributes of country;

• S/he has resided and been physically present outside the U.S. for the last year if previously admitted as a Q.

R Religious Workers

R visa/status applies to ministers or religious workers described as follows:

• Ministers

  • Fully authorized and trained in religious denomination to conduct religious worship and perform other duties normally performed by clergy of denominations;

  • – Is not a lay preacher or a person not authorized to perform clergy’s duties;

  • – Performs activities rationally related to being a minister; and

  • – Works solely as a minister in the U.S. which may include incidental administrative duties.

• Religious Workers

  • Member of a religious denomination for at least 2 years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.;

  • Must be coming to work at least in a part-time position. Part time is defined as 20 hours;

  • Must be coming to perform a religious vocation or occupation in either a professional or nonprofessional capacity.

R visa/status is limited to a maximum of five years with an extension available for an additional 30 months. Derivative spouse and children under the age of 21 are admitted in R-2 status for the same duration as the primary beneficiary. R-2’s are not eligible for employment authorization.