H-1B Visa Snapshot

The H-1B is a nonimmigrant classification used by a foreign national who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Deadline issues: Typically due to limitations on the numbers of H-1B visas available, H-1B petitions (and related job offers) are prepared for new hires from January through the end of March. See below for exceptions to the rule.

What is a specialty occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Is there an annual limit on the number of H-1B foreign nationals?
Yes. The current law limits to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status in FY2004. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.)
The H-1B limit, or “cap,” has become a severe problem for more and more employers. Unless Congress raises the number of H-1B visas significantly, employers should be ready to file their H-1B cases on or as soon as possible after April 1 of each year (the first day an H-1B Petition may be filed).

How does one apply?
H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus filing fees. Based on the USCIS petition approval, the foreign national may apply for the H-1B visa, admission, or a change of nonimmigrant status.

How long can a foreign national be in H-1B status?
Under current law, a foreign national can be in H-1B status for a maximum period of six years at a time. After that time the foreign national must remain outside the United States for one year before another H-1B petition can be approved. However, and H-1B visa holder could apply for L-1A status and stay one (1) more year if he or she can meet all the requirements for L-1A status. Also, certain foreign nationals working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain foreign nationals may obtain an extension of H-1B status beyond the 6-year maximum period, when:

1. 365 days or more have passed since the filing of any Labor Certification Application that is required or used by the foreign national to obtain status through an employment based case, or
2. 365 days or more have passed since the filing of an employment based Immigrant Visa Petition.
   

Note: this exception only applies if the Labor Certification Application, or the Immigrant Visa Petition, is filed before the end of the foreign national’s 5th year in H-1B status.

Also, individuals with an approved I-140 Petition and confirmation of a “visa backlog” in their permanent residency priority date category may be able to obtain a three-year H-1B extension, even if 365 days have not passed. (This is rather complicated and timelines and case strategies must be managed by a qualified immigration attorney to obtain a positive result).

Who can an H-1B foreign national work for?
H-1B foreign nationals may work only for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B foreign nationals may work for more than one U.S. employer, but must have a Form I-129 petition approved by USCIS for each employer.

What if the foreign national’s circumstances change?
As long as the foreign national continues to provide H-1B services for a U.S. employer, most changes will not mean that a foreign national is out of status. An foreign national may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the foreign national before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the foreign national’s status in many instances, but each case must be reviewed on its own facts.

Must an H-1B foreign national be working at all times?
As long as the employer/employee relationship exists, an H-1B foreign national is still in status. An H-1B foreign national may work in full or part-time employment and remain in status. An H-1B foreign national may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B foreign national travel outside the U.S.?
Yes. An H-1B visa allows a foreign national holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Can an H-1B foreign national intend to immigrate permanently to the U.S.?
Yes. An H-1B foreign national can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (“LPR”) status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an foreign national may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

Due to the speed with which USCIS is approving employment-based green card cases, we recommend that the foreign national keep his or H-1B visa valid and obtain separate travel permission (“Advance Parole”) based on the green card case.

The L Visa (L-1A and L-1B) Snapshot

The L-1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employees from its foreign operations to the USA operations for up to seven (7) years. The employee must have worked for a subsidiary, parent, affiliate or branch office of the US company outside of the US for at least one year out of the last three years prior to filing the L-1 Petition.

Companies operating in the US can apply to the relevant USCIS service center for an L-1 visa to transfer someone to the US from their overseas operations. Employees in this category initially will be granted an L-1 visa for up to three years, unless the US office has only been in existence for less than one year. In that “new office” kind of case, the initial L-1 visa will be limited to one (1) year.

There are two types of employees who may be sponsored for L-1 visas:

A. Managers/Executives (L-1A)
The legal standard for management and executive roles for these purposes is exacting, so a detailed description of the duties for the position will be required. In particular, the executive or manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the company. Such managers/executives are issued an L-1A visa, initially for a three (3) year period, which can be extended in (2) year increments to a maximum of seven (7) years.

B. Specialized Knowledge Staff (L-1B)
This category covers those with advanced, unique, and unusual knowledge of the company's products/services, research, systems, proprietary techniques, management, or procedures. Staff in this category are eligible for an L-1B visa, initially for three (3) years, which can be extended to a maximum of five (5) years.

On completing the maximum allowable period in L-1A or L-1B status, the employee must work outside the United States for a minimum of one year before a new application is made for L or H status. However, an L-1B employee who reaches his or her five (5) year maximum may apply for a change of status to H-1B, and stay for one more year if he or she can meet the H-1B requirements (and if an H-1B visa is available).

The Blanket L Snapshot

The "Blanket" L-1 allows a petitioning multinational corporation to transfer managers, executives, and specialized-knowledge professionals to the U.S. on work assignments under a single, "blanket" petition. The Blanket L eliminates the need to separately petition for each individual whom the company desires to bring to the U.S.

The L-1 employee must have worked for the company abroad for one continuous year out of the preceding three years in a qualifying position. The work must have been performed in the three (3) years immediately preceding filing for the L visa. This requirement had been reduced to six months in 2001, but increased to one year in 2005.

Those individuals on L-1s based upon the six-month requirement are eligible to extend their status for the allowed 5- or 7-year period, but all new L-1s will need to meet the one-year requirement for work abroad.

The blanket petition is initially valid for a 3-year period and can then be extended. Employees are admitted for the same periods as for regular L-1s, with extensions possible up to the maximum allowable time periods. These time periods are the same as with the individual L: a seven-year maximum for managers and executives and a five-year maximum for specialized knowledge.

TN (Trade NAFTA) Visa Snapshot

The North American Free Trade Agreement (NAFTA) Professional (TN) visa permits professionals who are citizens of either Mexico or Canada to work temporarily in the U.S. The professional position the foreign national holds in the U.S. must be on the NAFTA Professional Job Series List, which includes:

• Medical and allied professionals, such as doctors, veterinarians, and registered nurses;
  
• Scientists in fields including chemistry, biology and genetics;
  
• College, university and seminary teachers;
  
• Degree-holding professionals, such as architects, accountants, social workers, and many others;
  
• Professionals who may not have a degree, but possess experience or licenses/certificates, such as hotel managers and land surveyors; and
  
• Scientific technicians/technologists, who possess (a) theoretical knowledge of 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; and
  
• Other professionals.
  

The foreign national must meet the educational, licensure and/or experiential requirements on the NAFTA list to qualify for a TN visa.

Canadian citizens do not need a visa as a NAFTA Professional. Instead, they can apply for admission in TN status at a U.S. port of entry (e.g., at the border) with their supporting documentation in hand.

By contrast, Mexican citizens must obtain a TN Visa at a Consulate or Embassy before applying for admission to the U.S.

TN status for may be renewed or extended each year, and there is no stated limit on the number of years a TN visa holder can stay in the U.S. However, the TN visa status is not intended to be used by individuals to reside permanently in the U.S. Thus, after multiple renewals have been granted, the USCIS may infer immigrant intent and deny the most recent TN application on that basis.

Visitors (B-1) Visa Snapshot

Certain kinds of "business" related travel, is permitted using a B-1 Visa. The definition of "business" under immigration law is limited, and does not generally allow for gainful employment, labor for hire or productive activity such as operating a business or consultancy work.

Specifically, in the B-1 concept, the term "business" is limited to the negotiation of contracts, consultation with business associates, litigation, and participation in scientific, educational, professional or business conventions, conferences or seminars and other legitimate activities of a commercial or professional nature.

This visa (or the Visa Waiver for eligible foreign nationals) can be used for certain trips during with the foreign national will engage in what otherwise appears to be qualified employment. The rules that govern these trips are very limited, and each situation requires individual analysis.
The B-1 Visa is often appropriate for short-term travel in the U.S.

Visa Waiver Program - Participating Countries

Please note that "WB" and "WT" are not visa designations. To the contrary, they are non-visa designations which indicate that the foreign national did not need a visa to enter the United States under certain circumstances (e.g., B-1/B-2 type travel).

Currently, 27 countries participate in the Visa Waiver Program, as shown below:

The Dept. of State regularly updates their website with technical information about using the visa waiver program, such as machine readable passport requirements. For example, if you obtained a passport in 2005 or 2006, you may want to review the following website:

http://travel.state.gov/visa/temp/without/without_1990.html

Please consult an attorney regarding use of the visa waiver program, particularly when you wish to use it for business purposes.

Conclusion

As the summary of the various U.S. temporary (non-immigrant) visa categories above indicates, there are many pathways to the U.S. for foreign nationals. Each visa category has specific requirements, and the visa processing times and procedures vary greatly depending on the type of visa one seeks. Also, some non-immigrant visas leave open a path to permanent residency and, eventually, citizenship, whereas other non-immigrant visas preclude immigrant intent.

Because of this, it is important to evaluate each situation on a case-by-case basis, taking into account the foreign national’s background, the purpose of the trip to the U.S., the company’s needs, the employee’s needs, critical time frames, long- and short-term goals, and cost. Once the appropriate visa category is chosen, one must work within the tightly regulated Immigration Service (USCIS), Consular, and other government organizations to obtain the visa and admission to the U.S. in a lawful status.