The H-1B specialty occupation visa classification is reserved for a position that requires completion of a specific university degree (or its equivalent in terms of post-high school education and experience) in order to perform the work. Some obvious examples include Structural Engineer, Financial Analyst, or Medical Technologist. The steps involved for an employer to obtain approval of this temporary visa classification for up to six years (three years initially) include the following:
- If the person to be employed obtained his or her university degree from a college or university outside of the United States, an education evaluation equivalency (degree is recognized as equivalent to U.S. degree) must be obtained. Copies of the potential employee’s university diploma and transcript courses, with translations, are required.
- Obtain a prevailing wage determination from the state employment agency or a recognized industry wage source. This wage figure is required for the labor condition application. The employer must pay the prevailing wage, or more.
- Obtain labor condition application approval from the U.S. Department of Labor, which establishes the job will satisfy prevailing working and salary conditions; no advertising or test of the U.S. job market is required for most employers but internal postings at the job site are required.
- Submit visa petition, visa classification supplement and evidence about the position to be filled to U.S. Citizenship and Immigration Services’ (USCIS) regional adjudication center.
Once the petition has been approved, the approval notice should be sent to the person the company will employ. He or she will then apply for the H-1B visa to be stamped into the passport and will then be eligible to enter the United States to be admitted to work for the petitioning company. If this person is in the United States in valid visa status, USCIS may approve a change of his or her visa status in the United States. The approval of the visa petition itself does not mean that your company is required to employ this individual for three years, but it does permit such employment once the individual has been admitted to the United States in H-1B status. If the proposed employee has been or now is in H-1B status, then she or he will be able to begin work upon issuance of the Immigration Service receipt for the petition filing fee.
The H-1B1 program allows employers to temporarily employ foreign workers from Chile and Singapore in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore.
The E-3 program allows employers to temporarily employ foreign workers from Australia in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an E-3 visa to 10,500 Australian nationals seeking temporary work in specialty occupations.
The L-1 visa classification, designed for “Intracompany Transferees,” is a temporary, non-immigrant category which allows a person to work in the United States. To qualify for this category, a person must show that he or she will be transferred to a U.S. parent, branch, affiliate, subsidiary or joint venture of a foreign company for which he or she has worked at least one year within the past three years prior to entry in the U.S.
For L-1A classification, the person must have worked in an executive or managerial capacity in the company abroad and must be coming to the U.S. temporarily in order to serve in a similar capacity. For L-1B classification, the person must have had “specialized knowledge” particular to the company and must be coming to the U.S. temporarily in order to work in a similar capacity. “Specialized knowledge” is defined as knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interest and its application within international markets, or an advanced level of knowledge in the organization’s processes and procedures.
The foremost important issue in the L-1 process is proving the proper relationship between the U.S. and foreign companies. The U.S. company must be the same employer, or its affiliate or subsidiary. Affiliation and subsidiary relationships include: 1) A majority of stock ownership in both companies; 2) Control over management and policy when there is less than the majority of stock ownership; and 3) Ownership by a common group or the same individuals, in the same share or proportion of each entity, so that there is no danger of one group controlling the foreign entity and another the U.S. one. Note that a mere contractual relationship (e.g., licensing/franchising) is not sufficient, generally, to establish the necessary relationship. Factors which the INS may consider in making its determination are 1) Common name; 2) Regular sharing and exchange of personnel; 3) Cross directorship; 4) Sharing of technical, financial and research skills; and 5) Size and general recognition of the organization. Attached to this memo is a generic list of ideal documents, if available, used to support an L-1petition, including documentation necessary to prove the required relationship.
Second, the most important issue for the L-1A is proof that the positions both abroad and in the U.S. are executive or managerial in nature. For the L-1B, it is that the beneficiary has obtained the specialized knowledge and the U.S. position requires someone with such knowledge. Though the L-1 petition process is rather straight forward, extensive documentation must be assembled in order to prepare the petition properly.
Representatives of the foreign media who wish to travel to the United States on assignment may be eligible an I visa. INA § 101(A)(15)(I), 8 U.S.C. § 1101(A)(15)(I). A representative of the foreign media includes, but is not limited to, members of the press, radio, or film. INA § 101(A)(15)(I), 8 U.S.C. §1101(A)(15)(I). A representative of the foreign media includes, but is not limited to, members of the press, radio, or film whose activities are essential to the foreign media function, such as reporters, film crews, editors and persons in similar occupations. 9 FAM § 41.52 n. 1. The visa is only for those who are actually involved in the newsgathering process. 9 FAM § 41.52 n. 1.
EB-1B Immigrant Visa
An “Outstanding Researcher or Professor” EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer. The outstanding researcher/professor alien must have the sponsorship of his/her employer throughout the petitioning process. The employer is the petitioner and the outstanding researcher/professor is the beneficiary for the EB-1B process.
There are three (3) main requirements for someone seeking a petition as an “Outstanding Researcher/Professor”, including:
- International recognition for being outstanding in a specific academic field;
- At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his or her work history with letters from current and/or former employers describing work duties and years of employment; and
- A job offer for a permanent research position or a tenured or tenure-track teaching position from the sponsoring employer: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.
EB-2 Immigrant Visa
The EB-2 immigrant visa category for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business generally requires a job offer and a labor certification issued by the Department of Labor (DOL). The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing qualified U.S. workers.
As DOL regulations prohibit the issuance of labor certifications in self-employment scenarios, an entrepreneur will generally be unable to file an EB-2 visa petition unless he or she qualifies for a National Interest Waiver (NIW) exempting the entrepreneur from the job offer requirement and, thus, the labor certification. Even if you are not self-employed, it may still be challenging for you to obtain a labor certification if you have a significant ownership interest in the company, if there is a familial relationship between you and the stockholders, corporate officers, incorporators, or partners, or if you are one of a small number of employees. If any of these factors apply, your employer must be able to demonstrate that a bona fide job opportunity exists such that the position is open and available to U.S. workers.
EB-3 Immigrant Visa
The EB-3 immigrant visa category for skilled workers, professionals, or other workers generally requires a job offer and a labor certification issued by the Department of Labor (DOL). The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing qualified U.S. workers.
- “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature
- “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions
- The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.
P visa is a type of temporary employment visa of the United States, granted to alien athletes, artists, and entertainers, and their spouses and children.
P visa classifications are as follows:
- P-1 applies to individual or team athletes, or members of an entertainment group (P-1B) that are internationally recognized. A maximum of 25,000 P visas are issued annually.
- P-2 applies to artists or entertainers who will perform under a reciprocal exchange program.
- P-3 applies to artists or entertainers who perform under a program that is culturally unique.
- P-4 is for the spouse, or child under the age of 21, of a P-1, P-2, or P-3 alien and who is accompanying, or following to join, the alien.
Entertainers must be part of an entertainment group to obtain a P-1 visa. Individual artists cannot usually obtain a P-1 visa, except when joining the rest of their foreign entertainment group already in the United States. Like athletes, entertainers must be “internationally recognized” as outstanding in their area to be granted P visas, and have a sustained period of achievement no less than one year. Additionally, a minimum for 75 percent of the group’s individual members must have a substantial relationship to the group, generally satisfied by at least one year of membership.
To establish “international recognition,” a petitioner may rely either on documentation of a major, one-time achievement by the group, such as the nomination for, or receipt of, a significant international award or prize, or at least three of the following:
- Has and will perform as leading/starring group in productions/events with distinguished reputations;
- International recognition/acclaim for outstanding achievements;
- Has and will perform as leading/starring group for organizations with distinguished reputations;
- Record of major commercial/critically acclaimed success;
- Significant recognition from organizations, critics, governments, other recognized experts;
- Commanded/will command high salary/other substantial remuneration relative to others similarly situated.
Conrad 30 Waiver Program
The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. The program addresses the shortage of qualified doctors in medically underserved areas.
Although each state has developed its own application rules and guidelines, the following program requirements apply to all J-1 medical doctors.
The J-1 medical doctor must:
- Agree to be employed full-time in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP).
- Obtain a contract from the health care facility located in an area designated by HHS as a HPSA, MUA, or MUP
- Obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program
- Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date his or her J-1 visa expires