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Temporary work visas



H1B VISAS: TEMPORARY SPECIALTY WORKER

The H-1B visa is a nonimmigrant visa that is issued for three years and can be subsequently extended for another three years; it allows a foreign professional to work in the United States in a professional position.

An H-1B holder who worked in the United States for six years can be eligible for another six years term if he leaves the United States for a full year between the two applications or if the work that he was performing in the United States was seasonal, intermittent or continued for less than six months per year. Extension over the period of six years can be granted if the applicantís labor certification application or immigrant visa petition has been pending for one year; or the I-140 is approved and a visa number is unavailable.

The H-1B visa holder can switch employers without leaving the country but the new employer would have to file a new H1-B for the employee. The applicant though can start working for the new employer once the petition is filed.

The applicant for an H1-B visa needs to have a Bachelorís degree in a field related to the profession; degree requirement can be substituted by related working experience, where every three years of experience cover one year of education. The employer must prove that he shall pay to the applicant at least the prevailing wage.

H1-B CAP

At this point there is a limitation on the amount of H1-B visas that can be issued per fiscal year: 65,000 visas are available and additional 20,000 are reserved for holders of a Master or higher degree from a United States institution.

Certain employees and certain employers are exempt from the cap requirement:

  • universities and affiliated nonprofit entities as employers;
  • H1-B visa holders who were already been counted against the cap within the past six years Ė unless he is eligible for a new six months visa through a new petition.
  • Visa holders who are extending the H-1B status; and
  • Holders of J-1 visa who has obtained State 30 program waiver.

The numbers become available on October 1st of each year.

H1-B APPPLICATION PROCEDURE

In order to file of an H-1B the applicant needs to go through a two-step process:

  1. Submit an LCA application to the U.S. Department of Labor, in order to show that the employer meets the wage requirements and working conditions;
  2. File the actual petition and documents with the Service Center proving that the employer and the individual meet the criteria for the H-1B visa.

An applicant can file for H1-B as a change of status if he is in the United States or though the embassy or consulate if he is outside.

Full-time students holding an F-1 visa can file change status well in advance, because he cannot start working pursuant to the H-1B visa until the petition is approved and a visa number is available. The student does not have to leave the United States after his petition is approved and the visa number is out; also, under the so-called cap-gap rule, the studentís F-1, optional practical training and the work authorization connected with the latter shall be extended if the October cap applies and the student has maintained his status. If the student changes status to H-1B in the United States and leaves the United States, he would need to obtain a new visa in his passport before reentering the U.S., except for those who fall under the automatic revalidation rule.

If a student has violated his status at any point and a formal finding to that effect was issued, he must obtain a new H-1B visa abroad through consulate process.

EMPLOYERíS RESPONSIBILITIES

The employer, unless exempt from paying the fees, must pay the petition filing fees and may not request reimbursement from the H-1B employee. The employee is only allowed to pay the attorneys fees, and only where his wage exceeds the prevailing wage by the amount of the fees: otherwise, the employer or a third party have to take care of the fees.

The employer must pay the beneficiary alien when nonproductive, with limited exceptions.

The H-1B petition can be filed via premium processing, whereby an additional $1,225 fee is paid and the US CIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame becomes available.

SPOUSES AND KIDS

Spouses and unmarried children of H1B visa applicants qualify for an H4 visa, which does not allow them to work in the United States, but they can attend school or college.

L-1 VISAS: INTRACOMPANY TRANSFEREES

The L-1 visa is a nonimmigrant visa that is issued for executives, managers and employees with specialized knowledge transferring from the company overseas to the parent, affiliate, branch or subsidiary office of the same company in the United States.

The L-visa is issued for three years and can be subsequently extended; the period of extension for L-1A is four years, and for L-1B - two years. L-visa is a so-called dual intent visa, i.e. the applicant can subsequently apply for a green card.

It is also possible to obtain a visa when opening a new branch of an overseas corporation in US. In that case the applicant needs to hold a managerial position in the overseas corporation and arrive in a managerial capacity here as well. The L-1 visa for a new corporation can be opened for a year and subsequently converted into a long-term L.

Executives and managers apply for L-1A and professionals with specific knowledge apply for L-1B.

In order to apply for L-1A (executives and managers) the applicant needs to show that he supervised professional staff or performed some major function in the company. Supervision of lower level employees is not sufficient; the applicant must have influenced the companyís policies as opposed to directly performing the work. No labor certification is required for L-1A.

In order to apply for L-1B (professionals with specific knowledge) the applicant needs to demonstrate that he has information about companyís policies, research, and procedures that have to do exclusively with the petitionerís business organization as opposed to the general knowledge of the standards in the area. Professionals with specific knowledge need to go through the PERM process.

Regardless of the category in which he applies, the applicant has to show he worked for the sponsoring company for at least one year out of the three last years. He does not have to be an employee; as long as the sponsor company managed and controlled his work during that year he could be paid through a separate agency and be employed as an independent contractor.

An applicant can file for L-1 as a change of status if he is in the United States or though the embassy if he is outside.

Benefits of applying for an L-visa as compared to H1B is that there is no cap on the number of visas issued.

L-2: SPOUSES AND KIDS

Spouses and unmarried children of L-1 visa applicants qualify for an L2 visa, which allows them to work in the United States, or attend school or college.

O-1 VISAS: ALIENS WITH EXTRAORDINARY ABILITY

O-1 visa applicant needs to prove that due to his extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements within motion picture and/or television he achieved sustained or international acclaim; i.e. that the applicant is one of a small percentage at the top of his field. Extraordinary ability can be proven through contracts, awards, nominations, published material about the applicant and other documentation reflecting the nature of his achievement. O-visa is renewable in annual extensions and can be granted for up to three years or until the project is finished.

The work performed by the O-1 visa holder has to be temporary; otherwise it makes sense to apply for an EB type of visa. The petition cannot be filed more than six months before the applicantís services are needed in the US.

The applicant can prove outstanding achievements by showing that he either was awarded an internationally recognized award in the area, or by proving with documents and evidence at least three of the following:

  1. The applicant received some nationally or internationally recognized prizes or awards for excellence;
  2. The applicant is a member in an associations in the field which demand outstanding achievement of their members;
  3. Some international or major national media made publications about him and his achievements;
  4. The applicant was a judge of the work of others in the same or similar field of endeavor;
  5. Something else that would prove his contributions of major significance to the field;
  6. The applicant wrote scholarly articles in professional journals or other major media; displayed his work at artistic exhibitions or showcases, or something of that nature;
  7. The applicant is highly respected by other professionals and scholars in the field;
  8. The applicant was employed by organizations or establishments that have a high reputation in the field.

If the above standards do not readily apply to your occupation, you may submit comparable evidence in order to establish your eligibility.

You will also need to provide a contract between you and your employer that describes the terms and conditions of services to be performed, or a summary of the terms of an oral agreement. For specific events, you should provide a specific itinerary showing the schedule and ending date of events.

EMPLOYERíS RESPONSIBILITIES

O-1 applicant cannot petition on his own: he needs a sponsoring employer or an agent, in case he plans on working for several employers (for instance, a performer coming for a tour.) Once the employer or agent gets his petition approved, the applicant shall get his O-1 visa at the embassy or consulate.

O-2: ASSISTANTS AND STAFF

The O-2 visa is reserved for the people who assist the O-1 visa holder in the performance. In order to qualify as an assistant the person must be an integral part of the actual performance, possess critical skills and experience that cannot be performed by others (skills that an immediately available US worker would not have) and, when it comes to television and motion pictures, have a long-standing working relationship with the O-1 holder.

The applicant for O-2 also has to show that he has such skills and experience that an immediately available US worker would not have.

O-3: SPOUSES AND KIDS

Spouses and dependent children of O-1 visa applicants qualify for a O-3 visa, which does not allow them to work in the United States, but they can attend school or college.

E-1 AND E-2 VISAS: TREATY TRADERS AND TREATY INVESTORS

At this point fifty countries that have treaties of commerce with the United States, which makes their citizens eligible for treaty visas.

Applicant for E-1 Treaty Trader visa needs to prove that between his country and the United States there is currently trade, i.e. commercial exchange of goods or services in the international market.

Qualifying countries for E-1 visas are:

Argentina, Australia, Austria, Belgium, Bolivia, Bosnia-Herzegovina (Yugoslavia), Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Croatia (Yugoslavia), Denmark, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Korea, Latvia, Liberia, Luxembourg, Macedonia (Yugoslavia), Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Slovenia (Yugoslavia), Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, U.K. and Yugoslavia.

The E-2 Treaty Investor must show that he either made a substantial investment or is in process of arranging for a substantial investment in a treaty enterprise. There is no definition of the amount that is considered substantial investment, but the requirement is that these funds or assets are be irrevocably committed to the investment.

Qualifying countries for E-2 visas are:

Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bosnia-Herzegovina (Yugoslavia), Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Croatia (Yugoslavia), Republic of Congo, Democratic Republic of Congo (former Zaire), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Macedonia (Yugoslavia), Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Republic, Slovenia (Yugoslavia), Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, UK, and Yugoslavia.

TN VISAS FOR PROFESSIONALS FROM CANADA AND MEXICO

TN is a visa available for citizens of Canada and Mexico who come to the United States to work for a US employer in one of several specifically designated professional positions. There is no limit on the number of renewals; the visa is valid for three years.

The TN applicant needs to prove that his profession is listed on the NAFTA list, provide a letter from the US employer and prove that he has necessary qualifications.

Below are the professions on the NAFTA list along with the requirements:

Accountant - Bachelorís degree or foreign equivalent thereof; or C.P.A, C.A., C.G.A., or C.M.A.

Architect - Bachelorís degree or foreign equivalent thereof; or state/provincial license

Computer Systems Analyst - Bachelorís degree or foreign equivalent thereof; or Post-Secondary Diploma or Post Secondary Certificate and three years of experience

Disaster Relief Insurance Claims Adjuster - (Claims Adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) Bachelorís degree or foreign equivalent thereof and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years of experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

Economist - Bachelorís degree or foreign equivalent thereof

Engineer - Bachelorís degree or foreign equivalent thereof; or state/provincial license

Forester - Bachelorís degree or foreign equivalent thereof; or state/provincial license

Graphic Designer - Bachelorís degree or foreign equivalent thereof; or post-secondary diploma and three years of experience

Hotel Manager - Bachelorís degree or foreign equivalent thereof in hotel, restaurant management; or post-secondary diploma or post-secondary certificate in hotel, restaurant management and three years of experience in hotel/restaurant management

Industrial Designer - Bachelorís degree or foreign equivalent thereof; or post-secondary diploma or post-secondary certificate, and three years of experience

Interior Designer - Bachelorís degree or foreign equivalent thereof; or post-secondary diploma or post-secondary certificate, and three years of experience

Land Surveyor - Bachelorís degree or foreign equivalent thereof or state/provincial/federal license

Landscape Architect - Bachelorís degree or foreign equivalent thereof

Lawyer - (including Notary in the province of Quebec) L.L.B., J.D., L.L.L., B.C.L., degree or foreign equivalent thereof (five years); or membership in a state/provincial bar

Librarian - M.L.S. or B.L.S. (for which another Bachelorís degree or foreign equivalent thereof was prerequisite)

Management Consultant - Bachelorís degree or foreign equivalent thereof; or equivalent professional experience as established by statement or professional credential attesting to five years of experience as a management consultant , or five years of experience in a field of specialty related to the consulting agreement

Mathematician - (including statistician) Bachelorís degree or foreign equivalent thereof

Range Manager/Range Conservationist - Bachelorís degree or foreign equivalent thereof

Research Assistant - (working in a post-secondary educational institution) Bachelorís degree or foreign equivalent thereof

Scientific Technician/ Technologist - Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research

Social Worker - Bachelorís degree or foreign equivalent thereof

Sylviculturist - (including forestry) Bachelorís degree or foreign equivalent thereof

Technical Publications Writer - Bachelorís degree or foreign equivalent thereof, or post-secondary diploma or post-secondary certificate, and three years of experience

Urban Planner - (including Geographer) Bachelorís degree or foreign equivalent thereof

Vocational Counselor - Bachelorís degree or foreign equivalent thereof

MEDICAL AND HEALTH PROFESSIONALS

Dentist - D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or state/provincial license

Dietitian - Bachelorís degree or foreign equivalent thereof; or state/provincial license

Medical Laboratory Technologist (Canada) / Medical Technologist (Mexico and the United States) - Bachelorís degree or foreign equivalent thereof; or post secondary diploma or post secondary certificate, and three years of experience

Nutritionist - Bachelorís degree or foreign equivalent thereof

Occupational Therapist - Bachelorís degree or foreign equivalent thereof; or state provincial license

Pharmacist - Bachelorís degree or foreign equivalent thereof; or state provincial license

Physician - (teaching or research only) M.D., Doctor en Medicina; or state/provincial license

Physiotherapist / Physical Therapist - Bachelorís degree or foreign equivalent thereof; or state/provincial license

Psychologist - State/provincial license; degree or foreign equivalent thereof

Recreational Therapist - Bachelorís degree or foreign equivalent thereof

Registered Nurse - State/provincial license degree or foreign equivalent thereof

Veterinarian - D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license

SCIENTISTS

Agricultural (Agronomist) - Bachelorís degree or foreign equivalent thereof

Animal Breeder - Bachelorís degree or foreign equivalent thereof

Animal Scientist - Bachelorís degree or foreign equivalent thereof

Apiculturist - Bachelorís degree or foreign equivalent thereof

Astronomer - Bachelorís degree or foreign equivalent thereof

Biochemist - Bachelorís degree or foreign equivalent thereof

Chemist - Bachelorís degree or foreign equivalent thereof

Dairy Scientist - Bachelorís degree or foreign equivalent thereof

Entomologist - Bachelorís degree or foreign equivalent thereof

Epidemiologist - Bachelorís degree or foreign equivalent thereof

Geneticist - Bachelorís degree or foreign equivalent thereof

Geochemist - Bachelorís degree or foreign equivalent thereof

Geophysicist (including Oceanographer in Mexico and the United States) - Bachelorís degree or foreign equivalent thereof

Horticulturist - Bachelorís degree or foreign equivalent thereof

Meteorologist - Bachelorís degree or foreign equivalent thereof

Pharmacologist - Bachelorís degree or foreign equivalent thereof

Physicist (including Oceanographer in Canada) - Bachelorís degree or foreign equivalent thereof

Plant Breeder - Bachelorís degree or foreign equivalent thereof

Poultry Scientist - Bachelorís degree or foreign equivalent thereof

Soil Scientist - Bachelorís degree or foreign equivalent thereof

Zoologist - Bachelorís degree or foreign equivalent thereof

TEACHERS

College - Bachelorís degree or foreign equivalent thereof

Seminary - Bachelorís degree or foreign equivalent thereof

University - Bachelorís degree or foreign equivalent thereof