IMMIGRATION OUTLINE: NONIMMIGRANT VISAS FOR PROFESSIONALS AND SPECIALTY OCCUPATIONS

Transcription

1 IMMIGRATION OUTLINE: NONIMMIGRANT VISAS FOR PROFESSIONALS AND SPECIALTY OCCUPATIONS I. H-IB (Specialist Visas) General: H visas are available to people coming temporarily to work in the United States as professionals or in specialty occupations. 1 The H-1B visa category includes persons in specialty occupations, fashion models of distinguished merit and ability, or persons participating in Department of Defense cooperative projects. 2 H-1B visas allow beneficiaries to live and work in the United States for three-year periods, with a maximum of six consecutive years. Basic Requirements for H-1B Eligibility: In addition to assessing admissibility, three general requirements must be met to receive an H-1B visa. 1) It must be determined whether the position the noncitizen will fill is a professional or specialist occupation; 2) The petitioner must prove that the foreign national is a professional or specialist qualified for the position based on his or her education and/or work experience; and, 3) The wages and working conditions offered the noncitizen must satisfy the labor condition application (LCA) criteria. Application Procedures: H-1B visas are acquired by having a prospective employer for the noncitizen submit a petition on Form I-129 with H Supplement, Form I-129W, a description of the terms of employment, proof of the noncitizen s education and/or work experience or training, and a certified LCA with the required filing fees. 3 U.S. Employers and Company Owners: A self-employed noncitizen cannot obtain an H-1B visa. He or she must have a U.S. employer (with a tax identification number) file a petition to sponsor them for H-1B status. o NOTE: A corporate owner may have the firm file an H-1B petition for his or her employment even if the noncitizen is the sole proprietor of the business. If the petition is approved, the Bureau of Citizenship and Immigration Services (BCIS) issues a Notice of Action of approval on Form I Other specialty categories include professional nurses in health profession shortage areas (H-1C), temporary agricultural workers (H-2A), skilled and unskilled workers in occupations where U.S. citizens or residents are unavailable (H-2B), trainees (H-3) and accompanying family members (H-4). 2 NOTE: this outline focuses only on the H-1B category of Specialty Occupations, and excludes from discussion those of Fashion Models and Department of Defense employees. 3 Generally, the petition is filed at a BCIS regional service center having jurisdiction over the place where the noncitizen will work at.

2 o NOTE: a noncitizen who is already in the United States in another valid status may simultaneously apply to change status to H-1B on the I-129 petition To obtain the H-1B visa stamp, the noncitizen must submit the original I-797 petition approval notice to an American consulate abroad with Form DS-156, his or her passport, the required filing fee, and other documents specified by the consulate. On admission to the United States, he or she will receive an I-94 card with the time limit that generally ends at the time the H-1B petition is no longer valid. Persons Eligible for H-1B Visas: The H-1B visa category includes, among other categories, persons in Specialty Occupations. The Definition of Specialty Occupations: under the Statute is generally defined as an occupation that requires the application of highly specialized knowledge and a bachelor s degree or higher in a particular specialty. 4 o The Licensure Requirement: In addition to completion of a bachelor s degree or higher in the specific specialty area, the statute also requires full state licensure to practice in the occupation, when such licensure is required in the occupation. o Immigration regulations also explain that Specialty Occupations are those that require both theoretical and practical application of a highly specialized knowledge in areas where one needs a bachelor s degree or higher in the specific specialty as a minimum for entry into the occupation in the United States. 5 NOTE: This includes a broad range of professions including, but not limited to: engineering, mathematics, architecture, physical sciences, social sciences, medicine and health, education business specialties, accounting, law, theology and the arts. 6 NOTE: This law and regulations interpreting what counts as a Specialty Occupation are complex and require careful evaluation by the applicant s counsel. Additional Information on Selected Professional Occupations for H-1B Visas o Chefs and Cooks: Chefs may qualify for H-1B status if it is employment by a large hotel or prestigious restaurants. Usually the noncitizen must be primarily engaged in the management duties as opposed to working directly with the preparation or cooking of food. 4 For a complete definition under the Statute and Regulations, refer to: INA 214(i)(1), and 8 C.F.R (h)(4)(ii). 5 8 C.F.R (h)(4)(ii). 6 Id.

3 o Hospitality and Management: The BCIS will sometimes grant H-1B visa petitions for hotel managers, assistant managers, night managers, food and beverage managers, stewards and other related positions. Extensive evidence is needed to prove why these jobs need a degreed worker. o Nurses: Nurses may qualify for H-1B visas only if the position they will fill requires at least a bachelor s degree. Only high-level nursing positions such as administrators, nurse practitioners, midwives and other positions requiring advanced degrees or equivalent work experience will qualify for H-1B visas. o Computer Positions: The BCIS recognizes that software engineers, system analysis, system engineers, database administrators, and other computer/information technology positions are either professional or specialty occupations. o Technical Translators: The INS has recognized that technical translator (in computer programing, technical or scientific publications and other related matters) are a professional or specialty occupations when those positions require a degree. Labor Condition Application (The Labor Attestation Requirement) After a noncitizen-applicant is found admissible, the position is a specialist occupation, and the applicant is a specialist, the next step is to verify and document that the wage and working conditions satisfy the Department of Labor (DOL) rules. o H-1B Visas require that the applicant submit a LCA, also known as an attestation to the U.S Department of Labor (DOL) before the H-1B may be filed with the BCIS. 7 o Generally, the application must state the following: That the employer will offer the greater of the actual wage paid to similar employees OR the prevailing wage paid for the occupation in the area to the applicant seeking a visa; That the working conditions of similarly situated workers will not be affected; That there is not a strike or a lockout at the place of employment; That the employer has provided notice of the fling of the visa application to the appropriate bargaining representative, or by public posted to the affected employees; The employer must attest that it is not displacing and will not displace a U.S. worker within the period beginning 90 days before the filing and ending 90 days after the filing of the application; The employer must show that it has taken good faith steps to recruit U.S. workers at the same or greater salary as is being offered to the noncitizen and has offered the job to any U.S. worker who applies and is equally or better qualified; 7 INA 212(n).

4 o While the employer must show that it filed the attestation, DOL approval is not required. o The LCA is a liability document. Potential liability exists for the full validity period of the LCA plus one year, whether or not any H-1B worker remains employed under it. o Filing the LCA Forms ETA-9035/ETA A-9035E: The LCA form ETA-9035 or FORM ETA 9035E must be filed with the DOL s Employment Training Agency (ETA0 no earlier than six months before the date of intended employment as stated on the LCA. Part-Time/Full-Time Work and Changing Employers: H-1B may be for part-time or full-time work. However, it is likely that a noncitizen with potential employment that is for a few hours at a low or modest salary may need to provide evidence to show that he or she will not need to rely on the salary for support. 8 o Changing hours: to change from part-to full-time or vice versa, the petition must be amended. o H-1B Portability (Changing Employers): Generally, an H-1B worker may change employers, but must submit a new H-1B petition. How Soon can the H-1B Employee Start the New Job? The immigration statute states that an H-1B may begin new employment upon filing of the new H-1B petition. NOTE: practitioners advise the noncitizen not to begin work until the service center issues an I-797 receipt notice for the new petition. 9 Multiple H-1B Sponsors: noncitizen-petitioners may have more than one H-1B petition, and may therefore hold more than one job concurrently. o NOTE: A noncitizen cannot hold two different visa statuses simultaneously (i.e. an L visa holder cannot work part-time for another employer with an H- 1B visa) H-1B Filing Fees: There is a $1,000 H-1B filing fee that most employers must pay for the first H-1B petition by an applicant and the first extension. In addition, there is a BCIS I-129 filing fee. o Generally, the regulations bar the applicant from paying this fee or reimbursing the employer. o Exemptions from the $1,000 Filing Fee: Some employers may be exempt from having to pay the $1,000 H-1B filing fee. Employers that are exempt include: 8 A letter with evidence of income from a spouse or parent providing support may help demonstrate that the applicant will not work illegally for another employer. 9 If the applicant starts work after the new petition is received at the BCIS service center, but the petition is rejected for any reason, the applicant will be working without authorization at the new employer, because the application has not yet been properly filed.

5 1) Those engaged in primary or secondary education; 2) Higher education institutions and non-profit entities related to or affiliated with such institutions (i.e. university hospitals); 3) Non-profit organizations engaged in curriculum-related clinical training at the institution; and, 4) Non-profit research and government organization. 10 Pending Change of Status to Other Visas (B-2, F-1 or H-4): A noncitizen who is about to be laid off may apply for a change of status to another visa such as: tourist status (B-2), student status (F-1), or if married to an H-1B holder, H dependent status (H-4). o NOTE: If the noncitizen finds a new job before the BCIS takes action on the pending change of status application, the noncitizen (under the portability rules) may take up the new job upon filing a new H-1B petition. o However, the new petition should include a letter from counsel alerting the BCIS examiner of the pending change of status for the non-h-1b (B-2, F-1 or H-4). Otherwise, if the H-1B extension is followed by the approval of the non-h-1b visa, the noncitizen will no longer be in H-1B status, but in the status of the last visa granted (B-2, F-1, H-4), and H-1B employment would not be authorized. Further, if the non-h-1b visa is granted before the new H-1B petition is approved, portability employment authorization may be terminated because the noncitizen is no longer in H-1B status. Caps on H-1B Visas Congress, has set a current limit, or cap, of 65,000 new H-1B visas issuable annually. 11 o The BCIS must allocate an H-1B visa number to each new noncitizen before the petition is granted. o A noncitizen already working with an H-1B visa does not need a new number to extend status, obtain a visa stamp, or move to a new employer. o NOTE: Leaving employment and departing from the United State for one year or more, requires a new visa number to return with a new petition. o Exhaustion of Cap Limits: In certain years when visa numbers were exhausted and the petitioner requested a start date before the beginning of the following fiscal year (October 1), the petitions were held in abeyance to be adjudicated after the beginning of the new fiscal year; resulting in delays for the petitioner. 10 INA 214(c)(9) 11 INA 214(g)(1)(A); 8 U.S.C. 1184(g)(1)(9A) Further, noncitizens working for higher education institutions and affiliates, government and nonprofit research organizations are not included in the numerical limit of new H-1B petitions issues. However, H-1B workers who have advanced degrees or salaries of over $60,000 are not exempt from inclusion in the numerical cap.

6 o NOTE: Noncitizens on another status (i.e. L-1 or B-2) who apply for change of status to H-1B when visa numbers are unavailable will be denied a change of status if his or her current status expires before October 1 of the new fiscal year. The denial of the change of status renders the non-citizen out of status and begins the accrual of unlawful presence. Duration of an H-1B An H-1B may be valid initially for up to three years. The maximum stay for a noncitizen under H-1B status is up to six years. 12 o NOTE: After exhausting the six years maximum time limit, the noncitizen may go abroad for a period of one year and then return with a new H-1B petition and will be eligible for a new H-1B and eligible for up to another six years time. II. E (Treaty Trader and Investor Visas) TO BE COMPLETED III. E-B5 TO BE COMPLETED IV. L-1 (Intracompany Transferee Visas) General: L-1 visas are granted to executives, managers and specialized knowledge employees of multinational organizations. They function similarly to H-1B visas, but are reserved for intracompany transferees who are entering the United States to further the business needs of foreign or multinational corporations. L visas, therefore facilitate transfers of executives or employees with specialized knowledge between foreign-based offices to those in the United States. Basic Requirements for an L-1 Eligibility To obtain the L visa, the applicant is required to render services, in a capacity that is managerial, executive or involves specialized knowledge. 13 Each of the following criteria must be met: The petitioner must be a multinational firm or corporation (this includes nonprofit and religious organizations); 12 8 C.F.R (h)(13(ii). 13 INA 101(a)(15)(L).

7 Immediately preceding the time of the application for admission to the United states, the non citizen must have been employed abroad with the qualifying organization continuously for one year in the past three years; The transferee must be coming to work for the transferring organization or its subsidiary, affiliate, or branch; and, The transferee must be a manager or executive or be coming to work in a position requiring specialized knowledge. Blanket L Petitions: Certain multinational corporations are eligible to obtain approval of a blanket L petition. 14 Getting such approval means that the entities included in the petition are qualifying organizations. Once the blanket petition is granted, it may be used as a basis to seek entry of executives, managers and specialized knowledge professionals as intracompany transferees between the recognized qualifying organizations. The advantage of utilizing the blanket L petition is avoiding the delay of BCIS adjudication or avoiding the substantial fee for premium processing. Further, employers with a blanket L program may seek L-1 status for employees who have six months (rather than one year) of work experience with the qualifying organization abroad. 15 Procedures for Filing L-1 Visas: Individual L-1 Visa Petitions: An L-1 visa petition is filed with Forms I-129 and I-129L Supplement. These forms must be filed in duplicate with the BCIS service center with the following: Proof that the petitioner is a qualifying multinational organization; Evidence to show the noncitizen is an eligible employee; and, The appropriate filing fee. o By the statute, L-1 petitions are supposed to be decided within 30 days. o Proof of the qualifying relationship between the company abroad and the petitioner, as well as proof of the employee s qualifications, must be provided and described in detail in a supporting letter by the petitioner. o If the petition is approved, a Notice of Action of approval (Form I-797) is granted. The noncitizen will then submit the approval notice to an American consulate upon applying for a visa, along with Form DS-156, and any other documents required by the consulate. Blanket L Petitions: An employer with an approved blanket petition must issue Form I-129S (with two copies) to the prospective L-1 transferee and retains one copy for its records C.F.R (1)(4). 15 See the Provide Work Authorization for Nonimmigrant Spouses of Intracompany Transferee Act of 2002, Pub. L. No , amending INA 101(a)(15)(L) and 8 C.F.R. 214(1)(ii)(A).

8 o A copy of the blanket petition approval notice (Form I-797) must be attached to the original and each copy of Form I-129S. o The noncitizen then must apply directly to the U.S. consulate for an L-1 visa. o The consul must determine if he or she meets the L-1 standard. Managerial and Executive Capacity: the criteria for L-1 executives and managers are substantially similar to EB-1 executives and managers, which are discussed above. Specialized Knowledge: The INA defines this category as special knowledge of the company product or its application in international markets or... an advanced level of knowledge of the processes and procedures of that company. 16 o NOTE: The BCIS regulatory definition is separate from the INA definition and is even broader. It defines specialized knowledge as special knowledge possessed by an individual of the petitioning organization s product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization s processes and procedures. 17 o Proving Specialized Knowledge : as a baseline, specialized knowledge is proven through the employer s supporting documentation. In a supporting letter, the employer should describe each element necessary for establishing eligibility. The letter should include: The nature of the company s work; Whether the enterprise is a new or existing one; The transferee s complete education and work history, including positions held, number of employees overseen, and special skills he or she possess; A detailed description of the job duties the foreign worker will perform in the United States; The uniqueness of the specific skills and a description of why this does not represent knowledge commonly held in the industry; Prior training needed to perform the contemplated duties; Prior significant assignments and knowledge that has been gained only through extensive prior experience with the company (and, if possible, how that has enhanced the employer s position); Evidence that knowledge of a product or process cannot easily be transferred or taught to another; and, Evidence of the qualifying relationship between both companies (the employer abroad and petitioner) and proof 16 INA 214(c)(2)(B) C.F.R. 214(l)1)(ii)(D).

9 that they are engaged in the regular, systematic, and continuous provision of goods and/or services. Duration of the L-1 Visa L visa holders are granted up to three years stay and can extend their stay for up to seven years (with L-1A status) for managers or five years (with L-1B status) for those with specialized knowledge. 18 Petitions are approved in three-year increments. NOTE: immigration regulations permit only a one-year L-1 for a foreign national employed by a new company doing business less than one year in the United States. 19 No Caps on L-1 Visas Unlike the H-1B visas, there are no numerical limits on L-1 visas. 18 INA 214(c)(2)(D); 8 C.F.R (1)(7); 8 C.F.R (1)(15)(ii) C.F.R (1)(7)(i)(A)(3).