WORK AND INVESTMENT VISAS
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Bromberg, Kohler Maya & Petre, PLLC has a long history of assisting clients requesting work and investment visas. Our attorneys and support staff are capable of assisting you through all the process.
Most work visas are for limited time periods, although some individuals may qualify for employment-related Lawful Permanent Residence (a green card). It is important to discuss short- and long-term plans with an attorney, because most temporary visas require demonstrating non-immigrant intent. Work or investment-related visas allow the visa-holder and his or her spouse and minor children to live in the U.S. for the period of time allotted to that type of visa. These initial periods of stay are between 1 and 5 years and most can be extended in increments of 1 to 3 years, depending on the kind of visa. Some work visas can be extended indefinitely (no limit on the number of extensions). The principal visa holder’s business activities must comply with the requirements of the specific visa. Depending upon the kind of visa, family members may or may not be eligible for employment. In certain cases, temporary visas may permit a broader definition of “family” than spouse and minor children.
There are many kinds of business-related visas, each of which has its own requirements and benefits. A full list of visa categories is available at https://travel.state.gov/content/travel/en/us-visas/employment.html and https://travel.state.gov/content/travel/en/us-visas/business.html.
The categories of business-related visas most commonly applied for by our clients are as follows:
Please note that significant changes to the H-1B visa process, including the introduction of an electronic registry for potential sponsors have been proposed. Please follow us on Facebook to find out the latest updates and developments on this and other important immigration matters.
The H1-B visa is a non-immigrant visa that allows US companies to employ foreign individuals in professional assignments on a temporary basis. An individual hired on an H1-B visa can stay in the US for a period of up to three years, which can be extended to a maximum of six years. Additional extensions may be possible for certain individuals who have pending PERM applications.
Strict eligibility requirements, which govern the nature of the job as well as the professional qualifications of the prospective employee, must be met in order to obtain an H1-B visa. The job must qualify as a “specialty occupation” and therefore has to require, at a minimum, a bachelor’s degree or equivalent in a related field. This degree may have been earned in the United States, or, if obtained abroad, it has to be at least the equivalent of a U.S. bachelor’s degree. If the degree is deemed less than the equivalent of a U.S. bachelors degree, three years of well-documented specialized training or employment in the field may be “substituted” for each year of education that the foreign employee is considered to lack.
In order to obtain an H1-B visa, the employer needs to file a certification of a Labor Condition Application from the United States Department of Labor. The Labor Condition Application attests to the employer’s compliance with the salary, notice, and work conditions required by law. The employer must certify that the H1-B recipient will receive the same salary and benefits package as U.S. workers in similar positions, and demonstrate that the offered compensation is equal to or more than the “prevailing wage” in the field. Once the Department of Labor certification is obtained, the employer must submit this certification along with Form I-129, Petition for Nonimmigrant Worker to the United States Citizenship and Immigration Services (USCIS). The prospective employee may either change status from an existing immigration status in the U.S., or present the approved H1-B petition (I-129) at a U.S. consulate abroad to receive an H1-B entry visa.
Please note that the employer must not only pay the employee the required wage, but must also pay many of the costs and fees associated with the petition process.
H1-B numerical cap
The amount of H1-B visas granted annually is limited by statute. Currently, the number of available H1-B visas is limited to 65,000 for each fiscal year. However, the first 20,000 beneficiaries who have obtained a U.S. Master’s Degree are exempt from this cap. Also, there are other exceptions related to the nature of the employer. For example, institutions of higher education, certain governmental research institutions or nonprofit organizations are not subject to the numerical cap. An employer may file no more than six months prior to the anticipated start date for the position. If the statutory cap for the current fiscal year has been met than the earliest start date possible would be the first day (October 1) of the following fiscal year. Thus many employers submit their applications on April 1st.
Family of H1-B visa holder
H1-B workers can bring their spouse and children under the age of 21.
These family members are granted H-4 nonimmigrant status. With limited exceptions, a person holding H-4 status is not eligible for a work permit.
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INTRACOMPANY TRANSFEREES (L-1) VISA
The L-1 visa allows companies or organizations operating both in the US and abroad to transfer certain key employees to the U.S. for up to seven years. To qualify for this visa, the employee must have been employed by the same company/organization (or an affiliate, branch, parent or subsidiary entity) outside of the US for at least one year out of the last three years, and must have served in either a “managerial/executive” or “specialized knowledge” capacity.
L-1 visas apply to two types of high-level employees:
The legal definition of management and executive roles for these purposes is quite rigid, and a detailed description of the duties attached to the position will be required. In particular, a manager should have supervisory responsibility for at least two “layers” of other employees, and/or responsibility for a key function, department or subdivision of the employer. Executives must be responsible for directing a major component or function and establishing goals and policies with minimal supervision. Managers/executives are issued a visa initially for up to a three-year period, which may be extended to a maximum of seven years.
Specialized Knowledge Employees (L-1B)
“Specialized knowledge” covers individuals who have knowledge that bolsters the company’s competitiveness, who are uniquely qualified to inform the U.S. employer of foreign operating conditions, who have been utilized as key employees abroad, and have enhanced the employer’s performance, and/or who have specialized knowledge that contributes to the uninterrupted operation of the business. Employees in this category are issued an L-1B visa, initially for three years, which may be extended to a maximum of five years.
The employee’s past responsibilities and division of time may well be different from those that the employee will have in the U.S. In fact, an individual who in the past was a “Specialized knowledge employee” may apply for a “Manager/executive” visa, or vice versa. However, the importance of carefully documenting both past and future duties cannot be overstated.
Family members of L-1 employees
An L-1 employee may bring both a spouse and children below age 21 to the United States in L-2 status, and the spouse may apply for a work permit. Children are eligible to study in public or private schools, but are not permitted to work.
Blanket L-1 petitions
Large companies that regularly file L-1 petitions may wish to explore the “blanket petition” option. This is a procedure that allows a company to transfer its employees through a single petition, without having to file a separate petition for each employee. To qualify for this option, the company must have annual sales of $25 million, a U.S. staff of at least 1,000 individuals, or have received at least 10 approved L-1 petitions within the past year.
Requirements/opportunities after L-1 status
Unlike the majority of nonimmigrant visas, an L-1 holder is NOT subject to the INA 214(b) presumption of immigrant intent. Thus, an L-1 visa holder may be the beneficiary of a pending immigrant visa petition. However, the I-129 petition must still include evidence of temporariness. As with all other visas, the employee must be careful not to violate the terms of the current visa.
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TREATY AND TRADER/INVESTOR VISAS (E-VISAS)
This nonimmigrant visa category applies to individuals involved with businesses that are engaged in trade between the United States and a foreign state, or that represent a major investment in the United States. These individuals should pursue an E visa in order to remain in the United States for extended periods of time to oversee or run business operations here.
The E visa category was created to reciprocate similar visa categories of foreign countries with which the United States has trade treaties. Thus, a treaty that allows nonimmigrant entries by U.S. citizens must exist in a given foreign state in order for a citizen of that country to be eligible for the E visa.
There are two types of E visas:
- The E-1 visa permits an individual to conduct trade between the U.S. and the country of majority ownership of the company
- The E-2 visa allows the individual to oversee investments in the United States.
The E visa can be used by companies small and large, and can apply to a company’s principals or its employees, though there are additional rules and regulations concerning the functions an individual must perform in order to eligible for an E visa.
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NONIMMIGRANT – ALIEN OF EXTRAORDINARY ABILITY (O-1) VISA
A person who can demonstrate “extraordinary ability” in sciences, arts, education, business, or athletics and has an offer of employment in the corresponding field may be eligible for an O-1 visa. Extraordinary ability can be based on: Receipt of a Nobel Prize-caliber award, or Documentation showing extraordinary ability in your field, including awards, prizes, publications, participation in panels or associations, media coverage and/or affidavits.An applicant must also show proof of an existing job offer in your area of expertise. Once the petition is approved, an O-1 visa may be approved for a period of stay up to 3 years.
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RELIGIOUS WORKER VISA (R-1)
A R-1 Religious Worker visa is a temporary visa which permits an individual to enter the United States, or to change from another nonimmigrant status, in order to work in a religious capacity, upon the petition of a church or other religious body that wishes to employ the worker. R-1 visas may be granted for up to 30 months, and may be renewed for up to a total of five years.
Religious workers may include pastors, ministers, imams, rabbis, priests, or other clergy authorized to conduct religious services for a specific denomination, as well as other workers engaging in a religious vocation or occupation.
- The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.;
- The religious denomination and its affiliate, if applicable, must be qualified for tax-exempt status; and
- The beneficiary must have been a member of the denomination for at least two years immediately preceding applying for religious worker status.
The petitioning church or religious organization must file Form I-129, Petition for Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS). The petitioning employer will need to file substantial documentation as to its finances, location, doctrine, activities, and personnel. It will need to provide a detailed job description, including the salary and duties for the beneficiary. The religious organization will also need to provide an organizational chart demonstrating the relationship between the church abroad and the church in the United States, and to demonstrate that the beneficiary has been affiliated with the denomination for at least two years, and/or is recognized as a cleric of the relevant denomination. Generally, copies of religious credentials of the beneficiary, as well as a resume and/or educational transcripts are needed to demonstrate the beneficiary’s qualifications.
The petitioner should expect a site visit from a contractor to verify that the religious institution exists and appears to be an active congregation. Staff should be alerted to the possibility of a visit, and should be informed of the pending petition. The petition must be approved by DHS/USCIS before the prospective religious worker can apply for a visa at a U.S. Embassy or Consulate abroad. If the beneficiary is in another valid status in the U.S., the I-129 approval will contain an I-94 card indicating the change to R-1 status.
Maintaining R-1 status
The beneficiary must not work for anyone other than the petitioner, and must work a minimum of 20 hours per week. (If two petitioning organizations have approved petitions for work as a minister or religious worker, the beneficiary may work for both of them, but may not work in any capacity other than as a minister or religious worker.)
It is extremely important that the beneficiary avoid working for the petitioner while waiting for the R-1 approval, as violating the visa requirements can easily cause a denial of an extension or of a later application for permanent residence, even if not discovered immediately.
Family Members – R-2 Visa
A nonimmigrant religious worker’s spouse and unmarried children under 21 years of age may be issued a religious worker visa to accompany or follow to join the R-1 beneficiary. They are permitted to study, but will not be authorized to work in the U.S. Therefore, evidence of their financial support while in the U.S. will be crucial at the visa interview. Thorough preparation and documentation of benefits other than salary (such as free housing, for example) is extremely important. If the salary of the R-1 beneficiary does not appear adequate to support the family members, and they do not have documentation of housing, savings, or other resources, family members’ visas may be denied.
Possibilities after R-1 status
An R-1 status, initially issued for up to 30 months, may be extended to up to five years. Religious workers may also qualify to change to a different temporary or permanent status. Unlike most temporary visas, there is no requirement that individuals applying for “R” visas specifically demonstrate that they have a residence abroad that they have no intention of abandoning. Thus, an R-1 visa holder may apply for permanent residence as a special immigrant religious worker or through any other provision, while in valid R-1 status. An R-1 visa holder is eligible to apply to change to nearly any other visa. However, it is strongly recommended that extension or change of status be sought as soon as possible, so as to avoid falling out of status due to immigration delays. One exception to the general flexibility of the R-1 visa is that after five years as an R-1 visa holder, the individual must spend at least one year abroad before applying again for R-1 status.
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