H-1B Visa

H1-B – Information:

This non-immigrant visa classification applies to an alien who will be employed temporarily in a specialty occupation (one which typically requires a Bachelor’s degree) or as a fashion model of distinguished merit and ability. Under current law, there is an annual limit of 65,000 aliens who may be issued a visa or otherwise provided H-1B status. As many as 20,000 additional H-1B slots are available to graduates of U.S. Master’s degree (or higher) programs.

The basic requirement for approval of an H-1B petition by United States Citizenship & Immigration Services (USCIS) is to show that the job involves a specialty occupation. This is generally defined as a job requiring at least a bachelor’s degree or equivalent work experience in a specialist field. The person being sponsored (the beneficiary) must meet this standard. If a license is required to perform the duties, then the beneficiary must also have the appropriate license.

The H-1B process involves two steps. First, the employer submits a Labor Condition Application (LCA) to the Department of Labor (DOL) for certification. Second, the employer files a petition with the Immigration Service (USCIS) to obtain H-1B classification for the alien.

By filing the LCA with DOL, the employer is attesting to the following four labor condition statements:

1. That for the entire period of authorized employment (typically, three years), the employer will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:

a. The actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific position in question; or

b. The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position. DOL will accept a State Employment Service Agency (SESA) wage determination as per se correct and will not investigate a prevailing wage complaint where there is such a determination.

2. That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.

3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in thecourse of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.

4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations inthe employer’s establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.

The LCA procedure is primarily complaint-driven; that is, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration.

When employing an alien worker on a H1-B classification the employer must maintain a “Public Access” folder on behalf of the alien worker and the employer must make available for inspection certain documentation about the LCA. This folder must be retained for one year beyond the end of the period of employment specified on the LCA.

The “public access file” for this LCA should contain the following items:

A.) A signed original of the certified LCA, Form ETA-9035;

B. ) Documentation that provides the wage rate to be paid the H-1B nonimmigrant such as an offer letter, employment contract, or relevant parts of a collective bargaining agreement;

C. ) A full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid and will pay for the occupation(s) in which the H-1B nonimmigrant is to be engaged (a salary chart or memorandum to the file summarizing the pay system sufficiently detailed that a third party could use it to determine the wages of each worker in the occupation). Payroll records are not required in the public examination file;

D. ) A copy of the documentation the employer used to establish the “prevailing wage” for the occupation. In your case, the file should contain a copy of the enclosed relevant pages from the OES Survey;

E. ) A summary of benefits offered to U.S. workers in the same occupational classification and a statement as to how any differentiation in benefits is made (without divulging proprietary information) where there are differences;

F. ) Where the employer undergoes a change in corporate structure (e.g. a successor corporation or “spin off”) a sworn statement by a responsible official of the new employing entity that accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and the EIN of the new employing entity. The sworn statement should be completed before the H-1B is employed.

G. ) A copy of the document(s) with which the employer has satisfied the union/employee notification requirement: Copies of the ETA 9035E Posting Notices, with a notation of where and when it was posted, should be retained in the file.

H. ) A copy of the certified LCA must be given to the H-1B Employee no later than the date he/she begins work on H-1B status. As documentation of this, please include in the file a signed letter from the H-1B Employee acknowledging his/her receipt of the certified LCA prior to the start date.

I. ) In addition to the public access documentation, the employer must maintain certain records for DOL to review in the event of a complaint. The employer must maintain payroll records for the alien and any other individuals with experience and qualifications similar to those of the aliens who are in the same position at the place of employment. The employer must maintain the payroll records for a period of three years from the date of the creation of the records.

J. ) Once the LCA has been certified, we will complete and file the H-1B petition with USCIS. The USCIS filing fee for the petition is $325. The petition will consist of the Form I-129, the employer’s letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the employer. It typically takes two to four months for USCIS to approve the petition.

K. ) Under current regulations, in the event the employer dismisses the alien from employment before the end of the period of authorized admission, the employer is expected to accept liability for the reasonable costs of return transportation to his or her residence abroad.

New Reforms to the H1-B effective December 8, 2004.

Before October 1, 2003, employers who used the H1-B program were required to pay an additional $1000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, this $1000 fee was utilized to pay for U.S. Citizens, Lawful Permanent residents and other U.S. workers to attend job training and receive low-income scholarships etc. On December 8, 2004 by the H1-B Visa reform Act of 2004 this fee was raised to $1500. Employers who employ no more than 25 full time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. These fees became effective from December 8, 2004. In addition, the new Act creates a new Fraud Prevention and Detention Fee of $500 which must be paid by employers seeking a beneficiary’s initial grant of H1-B classification or those petitioners seeking to change a beneficiary’s employer within those classifications. This fee became effective from March 8, 2005.

U.S. Permanent Residency (Green Card)

U.S. Permanent Residency (Green Card)

Obtaining a “green card”, lawful permanent residency in the U.S. This is the primary goal of many who enter this country because having lawful permanent residency status enables to live, travel and work in the U.S indefinitely. Permanent Residency could be obtained in two ways. One is through employment and the other is through immediate family relatives.

The process for obtaining permanent residency based on employment is comprised of three phases: the labor certification, the visa petition, and the application for Adjustment of Status.

(1) Labor Certification Application (PERM)

A “labor certification” is a certification by the United States Department of Labor that a shortage of qualified, willing and able U.S. workers exists to fill a job offer. One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job opportunity. Once an employer identifies the need to fill a job vacancy with a foreign notational the employer first must test the labor market to see whether there are any United States Citizens or Permanent Residents who are able, willing, qualified, and available to perform the duties of the job offer and whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed. Therefore, the first step, in an employment based green card process is to have the Department of Labor certify that a shortage of qualified, willing and able U.S. workers exists to fill the job offer.

Under current regulations this labor certification application is called PERM (Program Review Electronic Management) application. This is the first step in the employment based Green Card process. This application is filed electronically. Prior to filing a PERM application the employer must complete certain procedures. These are obtaining the prevailing wage determination (PWD) from the State Workforce Agency (SWA), advertising the job offer, and completing recruitment.

Labor certification is really an application by the employer and applying for a labor certification does not bind the employer legally. The employer remains free to dismiss the employee or take other personnel action with regard to him, as it would with regard to any other employee. Also, the labor certification application may be withdrawn by the company at any time. On the other hand, the application does not bind the employee to the employer either.

(2) The Immigrant Visa Petition (I-140 petition)

Upon receiving an approved labor certification, the visa petition must be submitted to the U.S. Citizenship and Immigration Service (USCIS). The purpose of the visa petition is to prove to the Immigration Service that: (1) The employee’s job has been certified by the Department of Labor, (2) she/he meets all of the requirements listed on the labor certification, and, (3) company has sufficient resources to pay the proffered wage.

During the visa petition phase, it is necessary for the employer to submit documentation demonstrating its ability to pay the proffered wage. This will usually be federal tax returns, or for larger companies with over 100 employees, a letter from CFO or audited annual reports. In addition, it is at this step that documentation regarding proof of employee’s education and experience is submitted to the USCIS.

(3) Application for Permanent Residence (I-485 petition)

The last phase in the process is applying for permanent residency. If the foreign alien is in the U.S. and is applying for the permanent residency it is called applying for “adjustment of status.” If applied from outside the United States, it is called applying for an “immigrant visa.” Most people who are applying for adjustment of status in the United States are not being required to attend an interview. Persons who process outside the United States are always required to attend an interview. At the end of this phase, the foreign national will be granted permanent resident status and be issued a “green card.”

The process for obtaining permanent residency through family member:

One can obtain a green card through an immediate relative. An immediate relative is a U.S. citizen spouse, U.S. citizen parent(s) or U.S. citizen children over 21. Obtaining permanent residency based on family is comprised of two phases: Filing the immediate relative petition, and the application for Adjustment of Status.

For more information please visit www.USCIS.gov

B-1 Business Visa

B1/B2 – Business/Pleasure visas

Business travelers may enter the United States using a B1, or ‘Visitor for Business’ Visa. In practice these visas are invariably issued as jointly with B2, or ‘Visitor for Pleasure’ (i.e. Tourist) visa. This practice means that, if a candidate has an old US tourist visa, it may be valid for a planned business trip. For those who come under the visa-waiver scheme, there is usually no need to apply for a US visitor visa at all if the candidate wishes to visit the US for three months or less.

Those entering on US visitor visas will generally be granted 6 months permission to be in the country (the maximum allowable is one year) on entry. It may be possible to obtain a six-month extension to the visit visa as long as the candidate will be maintaining visitor status, and there are good reasons to do so. It is sometimes possible to change status to another longer-term visa whilst in the US as a visitor, as long as the candidate advised the relevant US Embassy or Consulate of this possibility beforehand, or there was no pre-conceived intent to do so.

L-1 Visa

L1 – Information – Intra Company Transfers

The L-1 visa category permits multinational companies to transfer high-level and essential employees from their international offices to the United States. The non-immigrant would work at the affiliate or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity

Requirements for Obtaining L-1 Status:

  1. One year work experience with the overseas company in the preceding 3 yrs.
  2. Overseas company must be related to the U.S. Company
  3. Company must be a qualifying organization
  4. Employee must have worked for the overseas company as an executive, manager or  in a position specialized knowledge.
  5. Employee must be coming to the U.S. to fill one of these capacities
  6. Employee must be qualified for the position.

Evidence of Alien’s Employment Abroad:
A letter signed by an authorized official of the petitioner describing the prospective employee’s employment abroad for at least the prior year and the intended employment in the United States, including the dates of employment, job titles, specific job duties, number and types of employees supervised, qualifications for the job, level of authority, salary, and dates of time spent in the United States during the previous year. It may also be helpful to submit other evidence, such as wage and earning statements or an employment letter from an authorized official of the employing company abroad.

Qualifying Corporate Relationship:

Large, established organizations. Such companies may submit a statement by the company’s president, general counsel, corporate secretary, or other authorized official describing the ownership and control of each qualifying organization, along with other evidence such as a copy of the most recent annual report, SEC filings or other documentation which lists the parent and its subsidiaries.

Small business and marginal operations. In addition to the statement from the authorized official regarding ownership and control of each qualifying organization, other evidence of ownership and control should be submitted, such as records of stock ownership, profit and loss statements or other account’s reports, tax returns, and/or articles of incorporation, by-laws, and minutes of board meetings.

Partnerships. To establish who owns and controls a partnership, a copy of the partnership agreement must be submitted. To establish what the partnership owns and controls, other evidence may be necessary.

Proprietorships. In cases where the business is not a separate legal entity from the owner(s), the petitioner’s statement of ownership and control must be accompanied by evidence, such as a license to do business, record of registration as an employer with the Internal Revenue Service, business tax returns, or other evidence which identifies the owner(s) the businesses.

New offices. If the beneficiary is coming to the United States to open a new office, proof of ownership and control, in addition to financial viability, is required. The petitioners’ statement of ownership and control should be accompanied by appropriate evidence such as evidence of capitalization of the company or evidence of financial resources committed by the foreign company, articles of incorporation, by-laws, and minutes of board of directors’ meetings, corporate bank statements, profit and loss statements or other accountant’s reports, or tax returns.

E Visa

E-1 (Treaty Trader):

The E-1 visa allows an individual to enter the United States on a non-immigrant basis for the sole purpose of carrying on substantial trade between his or her country and the United States. The home country of the non-immigrant must have a treaty with the United States

Requirements:
Must be a national of a treaty country, or must share the same treaty nationality as the employing company;

  1. The trade between the U.S. and the treaty country must be substantial (>50%) and must already exist;
  2. The trade may be in goods, services, or technology;
  3. If employed, the E-1 must work as an executive or supervisor or have highly specialized skills.
  4. The principal E visa holder may not take on other employment activity;
  5. Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien.
  6. Spouses can work, though children cannot; They all can be full-time students;
  7. E visas are issued for two years at a time, and can be extended in two-year increments indefinitely;
  8. No annual limit on E-1/E-2 visas.

Application procedure:
Generally, the initial visa application is made directly to the U.S. consulate and the applicant will be admitted for up to two years. Application for E visa extension or change of status to E is made to the USCIS.

The treaty trader countries are:
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Serbia & Montenegro, Slovenia, Spain, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, and the United Kingdom.

E-2 (Treaty Investor):
If you come the U.S. to run an enterprise in which you are invested, you may obtain the non-immigrant visa status of E-2 treaty investor. If you are an employee of a treaty trader investor you may also be qualified as an E visa holder if your duties require special qualifications essential to the business. The non-immigrant must have the same nationality as the alien employer and the home country of the non-immigrant must have a treaty with the United States.

Requirements

  1. Must be a national of a treaty country;
  2. Investment must be substantial: It must be sufficient to ensure the successful operation of the enterprise. The percentage in investment required for a low-cost business enterprise is generally higher than the percentage of investment required for a high-cost enterprise.
  3. The investment must be in a real operating commercial enterprise: Speculative or passive investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  4. The investment may not be marginal
  5. Must have Control of Funds and Bear the Risk of loss: Although an investor can usually show that the funds are at risk by purchasing an existing business, or starting a new business by having a lease agreement signed and/or purchases of equipment and supplies, funds placed in escrow with disbursement contingent only on visa issuance, and then irrevocably committed to the enterprise, will satisfy the requirement, because the investor will have “progressed to the point of no return.”
  6. Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien.
  7. Spouses can work, though children cannot; They all can be full-time students;
  8. E visas are issued for two years at a time, and can be extended in two-year increments indefinitely;
  9. No annual limit on E-2 visas.

Application procedure:
Generally, the initial visa application is made directly to the U.S. consulate and the applicant will be admitted for up to two years. Application for E visa extension or change of status to E is made to the USCIS.

The treaty trader countries are:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, the Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.

E3 Visa

E3 Visa

To qualify for E-3 classification, a foreign national must, among other things, be an Australian national who is seeking employment in a specialty occupation requiring possession of a bachelor’s degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the alien wishes to work. E-3 nonimmigrant status is initially granted for a period of no more than two years. Extensions of stay may be granted indefinitely in increments not to exceed two years.

A foreign national seeking to be admitted in E-3 nonimmigrant classification at a U.S. Port-of-Entry must possess a valid E-3 visa issued by the U.S. Department of State.

Foreign nationals who are already in the United States on a different visa classification may request a change of status to E-3 or if on E3 classification then to extend their E-3 status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the USCIS.

O1 Visa

O-1 Visa

This category is available to foreign nationals who have achieved a high level of expertise in their own field of studies in science, art, education, business, or athletics and has risen to the very top in their field. Foreign national’s achievements in the field must be recognized through extensive documentation and the foreign national must seek entry to the U.S. to continue work in the area of extraordinary ability and must demonstrate that entry will substantially benefit the U.S. An O-1 petition has an initial period of stay of up to 3 years. Subsequent extensions may last for no more than one year at a time. There is no limit to the number of extensions. Foreign nationals who are already in the United States on a different visa classification may request a change of status to O-1 or if on O-1 classification then to extend their O-1 status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the USCIS.

R1 Visa

R1 – Religious Worker (R) Visa

Religious Worker (R) visa category is available for foreign nationals who wish to enter the United States temporarily to work in a religious occupation or vocation. The R-1 religious worker visa is a nonimmigrant visa given for a maximum period of five years. The maximum initial stay for an R-1 is granted for 30 months and is extendable for another 30 months. Once the foreign national’s five years of lawful R1 status expires he or she must depart the U.S. and must be physically outside of the United States for one year in order to be eligible to enter the U.S. again on this visa category.

Religious workers are persons who conduct religious worship and perform religious duties usually performed by ordained or authorized members of religious denominations and engage in religious vocation or occupation. To be eligible for this type of visa category, the foreign national must be a member of the religious denomination for two years immediately preceding the religious worker petition; planning to work as a minister or in a religious occupation or vocation of that religious denomination, for a bona fide, non-profit religious organization; must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary; and the foreign national must be coming to work for at least 20 hours a week on average for the petitioning entity.

Irrespective of where the foreign national is, that is whether in the U.S or in a foreign country, to apply for this classification first an I-129 petition needs to be filed with USCIS. All religious worker petitions are adjudicated by the California Service Center and it takes 4 to 5 months for the Service to adjudicate this type of petition. Prior to adjudicating a R1 petition USCIS conducts a site visit of the petitioning entity to ensure that it is a bona fide functioning religious organization.

TN Visa

TN – Visa

A Canadian citizen seeking admission to the U.S. on TN status must apply for admission with a US Immigration Officer at a “Class A” port of entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. As pre-flight Inspection may delay flight bordering, the TN applicant should allow additional time for this procedure. It is recommended calling in advance to the pre-flight Inspection station to inquire how much time it takes. Canadians should be aware that TN status is not processed at every U.S.-Canadian border crossing; It is recommended to call the USCIS Inspection station at the applicant’s planned port of entry ahead of time to verify that TN applications are accepted.

For Mexican citizens as part of the TN visa application process, an interview at the embassy consular section is required. Interviews are generally by appointment only. The waiting time for an interview appointment for most applicants is a few weeks or less.

The TN status is now given for 3 years.

F-1 Student Visa

F1- Student Classification:

The Immigration and Nationality Act provides two nonimmigrant visa categories for persons wishing to study in the United States. The “F” visa is reserved for non-immigrants wishing to pursue academic studies and/or language training programs, and the “M” visa is reserved for non-immigrants wishing to pursue nonacademic or vocational studies. Foreign students seeking to study in the U.S. may enter the U.S. in the F-1 or M-1 category. The F-1 category includes academic students in colleges, universities, seminaries, conservatories, academic high schools, other academic institutions, and in language training. The M-1 category includes vocational students. Exchange students are also allowed.