The following visas require prior petition and approval by the USCIS. Alien may work in the U.S. from 1- 7 years and in most cases must depart the U.S. and stay outside the U.S. for at least one year before coming back to work in the U.S. again.
H-1B Persons in Specialty Occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. (65,000). This category also includes fashion models and Government-to-Government research and development, or co-production projects administered by the Department of Defense (100).
You may file to change your status from other non immigrant visa to H-1 status without ever leaving the United States. If you are outside of theU.S., you may take the approval notice and apply for H-1 visa at U.S. embassy or consulate.
H-1B status is valid for a maximum of six years. An initial approval for H-1B status may not exceed three years. However, if the employment terminates prior to the H-1B expiration date, the H-1B status is no longer valid. If a new employment is offered, a change of employer H-1B petition must be submitted to the USCIS. There are limited circumstances where H-1B validity may be extended beyond the 6 year limit, such as when I-140 visa petition has been approved but I-485 cannot be filed due to visa number shortages.
When to file
If you plan to change your status to H-1B, you must do so before your current status expires. You may continue to remain in the United States after your employer files the petition but you may not start working until the H-1B validity date starts(usually on or after October 1 of each year). Petitions for H-1B status may be filed no sooner than 6 months before the intended beginning effective date of employment. This process is very long and requires much documentation from both the employer and applicant.
What do you need to file the H-1B petition?
1) an approved labor condition application from the Department of Labor;
2) completed Form I-129;
3) evidence the alien has the required degree by submitting either:
a) a copy of the person’s U.S. baccalaureate or higher degree which is required by the specialty occupation,
b) a copy of a foreign degree, translation, and evidence it is equivalent to the U.S. degree, or
c) education and experience that is equivalent to the required U.S. degree;
4) a copy of any required license or other official permission to practice the occupation in the state of intended employment;
5) letter from the employer containing required information. Evidence of a bona fide position and proof of employer’s sound financial status;
6) a copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
For small companies, more documents proving the job offered is a specialty occupation, employer’s organizational structures and employer’s financial ability to pay the offered salary may be needed.
If you are currently in the U.S. in H-1B status with another employer, it is possible for the applicant to begin working for the new employer after you receive the filing receipt, or the Form I-797. The new employer and H-1B applicant do not have to wait for the new petition to be approved in order to begin employment.
What is Labor Condition Application(LCA)?
An employer seeking to employ an alien in a specialty occupation on an H-1B visa is required to file a labor condition application (LCA) with the Department of Labor (DOL) before the USCIS may approve an H-1B petition. The LCA Form must be filed with the regional office of the Employment Training Administration having jurisdiction over the state in which the position is located. The employer is required to attest that:
1) it will pay H-1B non-immigrants no less than the greater of the prevailing wage or actual wage for the occupation;
2) it will provide working conditions that will not adversely affect the working conditions of U.S. workers similarly employed;
3) there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
4) it has publicly notified the bargaining representative of its employees in the occupational classification at the place of employment of its intent to employ an H-1B nonimmigrant, or, if there is no bargaining representative, that it has posted such notice at the place of employment.
A copy of each labor condition application and accompanying documents must be made available for public examination at the employer’s place of business or place of employment. The employer is required to develop and maintain supporting documentation regarding the actual wages, the prevailing wage, and the required notice to employees. This information must be maintained for a period of one year beyond the end of the period of employment specified on the labor condition application. Payroll records must be maintained for three years from the date of the record.
1) Documentation which provides the wage rate to be paid the H-1B nonimmigrant and a description of the system that the employer used to set the “actual wage,”
2) A copy of the documentation the employer used to establish the “prevailing wage” for the occupation – e.g. a copy of the State Employment Service Agency (SESA) wage determination; and
3) A copy of the posting notice.
The Department of Labor’s review of a labor condition application is limited to determining whether it is complete or contains no obvious inaccuracies. An investigation of an employer will only occur if a complaint is received from an aggrieved party about an employer’s failure to meet a specific condition or misrepresentation of a material fact in the application.
If a complaint is filed and the employer fails to meet the applicable standard regarding wages, working conditions, notification of bargaining representatives or employees, or misrepresentation of a material fact in the application, it may result in the following administrative remedies:
1) civil money penalties not to exceed $1,000.00 per violation;
2) employers being barred from filing applications or attestations for a least one year; or
3) employers being ordered to provide payment of back wages.
If Your Employer Did Not Pay You Salary Specified Under LCA
An H-1B employer must pay the prevailing wage specified in LCA and stated in the petition. Failure to pay the required wages will make the employer liable to sever penalties. Employee can also sue the employer in civil court and if prevail, collect attorneys fees and costs. Lack of work or financial difficulties are NOT defense for failure to pay.
We have represented many H-1B employees in their lawsuits to collect salaries specified in LCA with great success. If you have questions as to whether you may be entitled to payment from your H-1B employer, please contact us for Consultation.
H-1C Foreign Nurses coming to perform nursing services in medically under served areas for a temporary period up to three years. The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) has been reauthorized for an additional three years, and will expire on December 20, 2009.
H-2A Seasonal Agricultural Workers; Notice: USCIS revised H-2A program requirements and regulations, which applies to all petitions filed.
H-2B Temporary or Seasonal Nonagricultural Workers. This classification generally requires a temporary labor certification issued by the Department of Labor (66,000). This classification is very useful for any unskilled worker, such as chef, landscaping, summer camp workers to work in the U.S.
H-3 Trainees (other than medical or academic). This visa type also applies to practical training in the education of handicapped children (50).
L Intracompany Transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive(L-1A), or specialized knowledge capacity(L-1B).
The foreign company for which the L-1 Beneficiary has worked for must be related to the US company in a particular way. The general rule is that one of the companies should have effective control over the other company.
- The L-1 Beneficiary to be transferred to the U.S. must have worked for one year in the last three years at the foreign company.
- The US company and the foreign company must continue to do business during the entire period of the L-1 Beneficiary’s stay in the US on L-1 status.
- The L-1 Beneficiary must be qualified for his job duties by virtue of his education and work experience. The L-1 Beneficiary to be transferred should be working in the foreign company in either a “managerial”, “executive” or “specialized knowledge” position (these terms are defined below in detail) and should continue to work in the same position upon transfer to the US on L-1 status.
- The L-1 Beneficiary must have the intention to depart the US upon completion of L-1 status stay in the US but can apply for and obtain Permanent Residency status during L-1 status stay in the US.
Managerial capacity is defined as:
Managerial capacity means an assignment with the organization in which the employee personally:
- Manages the organization, department, subdivision, function or component;
- Supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization or subdivision of the organization;
- Has the authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level and
- Exercises discretion over day-to-day operations of the activity or function.
- Executive capacity is defined as:
- Directs the management of the organization or a major component or function;
- Establishes goals or policies;
- Exercises wide latitude in discretionary decision making and
- Receives only general supervision or direction from higher-level executives, board of directors or stockholders.
Specialized knowledge is defined as:
- Someone who has special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.
Additional information regarding L-1A visas and L-1B visas
- Managers and executives are given L-1A visas and can stay on L-1A status in the US for seven (7) years. L-1A visa holders have a fast track to Permanent Residence status, which is not available to the L-1B visa holders.
- Specialized knowledge personnel are given L-1B visas and can stay on L-1B status in the US for five (5) years.
- Both L-1A and L-1 B visa do not require Labor Condition Applications (LCAs) to be filed with the INS as is required for H-1B visa.
- L-1A and L-1B visa holders can be transferred to any work site in the US without the requirement of any additional documentation being filed with the INS. In the case of H-1B visa holders, the employer is required to file for a new H-1B visa in the event the H-1B worker is sent to work at a work site, which is not covered under the existing H-1B application and LCA.
O-1 Individuals with Extraordinary Ability or Achievement in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field.
An O-1 visa is initially granted for up to three years. Subsequently, it can be extended for one year at a time; there is no limit to the number of extensions that may be granted. Spouses and dependent children of O-1 visa holders do not receive the status, but instead qualify for O-3 visas.
Generally, to qualify for O-1 classification, aliens of extraordinary ability in the sciences, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
Receipt of a major, internationally recognized award, such as the Nobel Prize; or at least three of the following forms of documentation:
- Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
- Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
- Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
- Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
- Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
O-2 Persons Accompanying an O-1 to assist in an artistic or athletic performance for a specific event or performance.
P-1 Individual or Team Athletes, or Members of an Entertainment group that are internationally recognized (25,000).
P-2 Artists or Entertainers who will perform under a reciprocal exchange program.
P-3 Artists or Entertainers who perform under a program that is culturally unique.
Q-1 Participants in an International Cultural Exchange Program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien’s home country.
R Visas. The Religious Worker (R) visa is for persons seeking to enter the United States (U.S.) to work in a religious capacity on a temporary basis, under provisions of U.S. law, specifically the Immigration and Nationality Act.
Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and 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, are either exempt from taxation or qualifies for tax-exempt status; and
The applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that individuals applying for “R” visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary. The applicant has resided and been physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.