H-1B Work Visa
“As an immigration practitioner and an H-1B expert, I can attest that the current H-1B landscape is quite challenging. With the “Buy American and Hire American” executive order, we have seen an increase in H-1B RFEs (Request for Further Evidence), visa denials at US Consulates abroad, and overall stricter H-1B regulations imposed by the USCIS. Some of our clients’ biggest challenges are lengthy RFEs based on novel issues we have not seen before, request for robust job descriptions, valid employer-employee relationship in third party client sites arrangements, specialty occupation, and RFEs raising issues where a Level 1 wage is indicated on the labor condition application (LCA).”
Each year, 65,000 H-1B visas are awarded to foreign workers with at least a bachelor’s degree. An additional 20,000 are allocated to noncitizens with advanced degrees from U.S. universities. To hire employees through the H-1B program, companies with operations in the United States must file petitions confirming that foreign workers will be paid the prevailing wage for their positions and their working conditions will be similar to other employees. H-1B workers must then remain employed at the companies which sponsored them for the duration of their visas or their lawful status will be terminated.
Who Qualifies for H-1B Visa
To hire a foreign worker on an H-1B visa, a job must be professional position that requires, at a minimum, a bachelor’s degree in the field of specialization. Not necessarily any profession qualifies for an H-1B. A foreign worker must be in a “specialty” occupation. Generally speaking, qualifying occupations are those requiring highly specialized and technical knowledge in fields including, but not limited to:
- Healthcare and medicine
- Information technology
- The arts
- The physical and social sciences
With one limited exception, foreign nationals cannot self-petition for H-1B visas. Aliens cannot Rather, employers serve as the petitioners, with their foreign workers as the beneficiaries.
H-1B Filing Process
Employer submits Labor Condition Application (LCA) to the Department of Labor (DOL) for certification. After the LCA is certified, the employer submits completed Form I-129 to USCIS.
The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models).
Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Family of H-1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status.
DLO’s managing partner, Dobrina Dobreva, is uniquely positioned to understand and assist you and your corporation with winning H-1B and immigration strategies, as she has worked as an in-house immigration attorney for one of the largest IT consulting companies in the U.S. With that experience, DLO is here to guide professionals through the complicated H-1B process and the ever-changing legal landscape. We can help you with the following:
- Develop the best H-1B filing strategy for your company by understanding your business model, goals and long-term strategy.
- Establish a robust immigration compliance program by auditing and reviewing your company’s public access files, I-9, and E-Verify. If you are a start-up or this is your first H-1B filing, we will work with you on policies and procedures as required by the USCIS and DOL.
- Review and develop robust RFE (Request for Further Evidence) responses. We have worked on and responded to thousands of H-1B RFEs successfully. During the RFE drafting process, we will work with your organization to collect the most relevant evidence as requested by the USCIS.
For more detailed information or to schedule a consultation, please contact our office at firstname.lastname@example.org or 214-609-0793
E-2 – Investor Visas
“By far, E-2 visas are some of the most diverse visa types we handle at our office. Our clients come to the United States to open variety of businesses such as restaurants, gas stations, e-commerce enterprises; online travel platforms just to name a few. Despite the different types of businesses, I see one common issue, which is always raised by the U.S. Consulates abroad and USCIS and that is the “source of funds.” Knowing the importance of showing how the funds “traveled” from the foreign country to the U.S., we work closely with our clients to overcome this hurdle. This requires an in-depth review of each transaction, wire transfer, and deposit.”
E-2 Brief Description
The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)
See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.
- Nationality- you must be a citizen of a treaty country: The treaty trader or investor must, whether an individual or business, possess the nationality of the treaty country. The nationality of the individual is determined by the authorities of the country of which the alien claims nationality. The nationality of a business is determined by the nationality of the individual owners of that business.
- Investment must be substantial: Investment of a substantial amount of capital for E-2 visa purposes constitutes an amount that is:
1) substantial in relationship to the total cost of either enterprise under consideration; (2) Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
(3) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. No set dollar figure constitutes a minimum amount of investment to be considered “substantial” for E-2 visa purposes.
- Enterprise must be real and operating: The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. If the investment relates to a new enterprise, then you must be convinced that it will be a real and active commercial or entrepreneurial undertaking that will produce some service or commodity if the visa is issued. It cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. The investment must be a commercial enterprise; thus it must be for profit, eliminating non-profit organizations from consideration.
- Investor must have control of the funds, and investment must be “at-risk”: the alien must demonstrate possession and control of the capital assets, including funds invested. If the investor has received the funds by legitimate means, e.g., savings, gift, inheritance, contest, etc., and has control and possession over the funds, the proper employment of the funds may constitute an E-2 investment.
- Investor must have controlling interest, and intend to develop and direct the enterprise: An equal share of the investment in a joint venture or an equal partnership of two parties, generally does give controlling interest, if the joint venture and partner each retain full management rights and responsibilities.
- Enterprise must be more than marginal: A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.
- Business Plan: An E-2 complaint business plan complete with 5 Years of financial projections showing company growth, a personnel plan showing employees being hired, accompanied with executive summary, comprehensive market research and competitor analysis is required.
We welcome the opportunity to guide you through the E-2 visa process. As E-2 experts, DLO is pleased to offer you the following services:
- Provide advice and counsel regarding your E-2 petition and guide you through the various phases of the visa process.
- Prepare your E-2 visa packet as required by U.S. consulates abroad. We will review your DS-160 application that the consulate will require.
- Prepare you for your E-2 visa interview.
- Prepare and file your E-2 Change of Status (this apply for E-2 applicants who are already in the U.S. on a non-immigrant visa).
- Upon request, we can draft your business plan from scratch or you can provide us with one. If you provide us with a business plan, we will review and comment on your business plan.
For more detailed information or to schedule a consultation, please contact our office at email@example.com or 214-609-0793.
TN Visa – NAFTA Professionals
Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. to work temporarily under nonimmigrant TN status.
The following are the requirements to be eligible for the TN Visa:
• The profession must be on the NAFTA list.
• The foreign national must possess the necessary training for that profession.
• The proposed position must be classified as a professional position.
• The foreign national must work for a U.S. employer.
L-1A Visa – Intracompany Transferee Executive or Manager
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing businessas an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacityfor a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:
- The employer has secured sufficient physical premises to house the new office;
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
O-1 Visa – Individuals with Extraordinary Ability or Achievement
The O-1 non-immigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:
- O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
- O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
- O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
- O-3: individuals who are the spouse or children of O-1’s and O-2’s
General Eligibility Criteria
To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.