Nonimmigrant Visa and Status Concepts - Part I
As the tech field becomes more and more innovative, the United States will continue to be a melting pot for immigrants and non-immigrants to share their knowledge, skills and abilities. Prior to joining Function1 , I practiced immigration law at a small law firm where most of the firm’s clients were small to large employers seeking to recruit and/or retain foreign nationals in one of their offices in the U.S. Of these employers, many were small information technology companies. Accordingly, I thought it may be of interest to employers and employees alike to write a series of posts on various topics in employment-based immigration. This post will focus on three common types of non-immigrant (those who come to the U.S. for a short duration) work visas in the information technology field:
- B visa
- H1-B visa
- L-1 visas
The B visa and status category allows foreign nationals to visit the U.S. for business or pleasure for brief periods. There are two types of B visas – B-1 and B-2. The B-2 is the visa given to individuals who come to the U.S. primarily for vacation and tourism activities. The B-1 visa is the visa granted to individuals who come to the U.S. to undertake short-term business activities such as consulting with business associates, attending business conventions/conferences, or negotiating contracts. The B-1 visitor must not be coming to the U.S. for the purpose of obtaining employment or engaging in employment here.
The visitor seeking a B-2 visa must show that the purpose of the U.S. visit is to engage in lawful business activities, the visit will have a specific duration of time, the visitor has a foreign residence s/he does not intend to abandon, and that the visitor has sufficient funds for the visit. Also, documents evidencing the proposed activities in the U.S. will be required with any B visa application. Examples of documentation include a letter from the U.S. company describing the activities the applicant will be involved in, or handouts for the proposed convention the applicant will attend attached with applicant’s confirmation of attendance. The B visa differs from the non-immigrant visas listed below in that U.S. Citizenship and Immigration Services (USCIS) does not make a determination of eligibility – no application is made to USCIS, but is made instead to a Consular officer, often at the Port of Entry.
The H-1B visa and status allows foreign nationals in “specialty occupations” in fields requiring “highly specialized” knowledge to work with U.S. employers. To be eligible for the H-1B visa, an individual must have at least a 4-year BS/BA degree, or an equivalent, the field of study must be related to the job being offered and the industry generally requires that the job offered at minimum requires a BA/BS. The employer is required to obtain approval from the Department of Labor – through the filing of a Labor Condition Application -- prior to the filing of H-1B petition.
If an individual has an H-1B visa, s/he can only work for the sponsor of that visa. The visa can be transferred to another employer, a process commonly called the “H-1B transfer” if the non-immigrant wants to work for a new employer. A petition to transfer the visa must be filed with USCIS, who will adjudicate the petition as a new petition.
The visa remains valid for a total of 6 years, available in two, three-year segments. Additional time may be given if the H-1B non-immigrant has a valid PERM application pending for more than 365 days or if they are waiting for their Adjustment of Status application to be adjudicated (these two topics will be discussed later in the series). When the non-immigrant travels outside the U.S., they are not considered to be in H-1B status. Only days of physical presence in the U.S. in H-1B status are counted towards the maximum time limitation – thus, anytime outside of the U.S. – can generally be recaptured for purposes of six-year limitation on the visa, provided sufficient documentation (ie., entry/exit stamps, I-94s) is included in a petition to the extend the H-1B visa. However, a continuous absence of over one year creates a presumption that the non-immigrant intended to abandon their H-1B non-immigrant status and a new petition must be filed to re-enter.
Federal law mandates an annual cap on the number of initial petitions in this category to 65,000 (“regular cap”) and an additional 20,000 with advanced degrees are exempt from the cap. Historically, the caps were met by the filing deadline of April 1; in more recent years, petitioners have been able to file past this deadline and have their petitions adjudicated.
In recent years, nearly 50 percent of all H-1B petitions approved by USCIS have been for workers in computer-related occupations. At the same time, USCIS adjudicators have strict guidance to review petitions – especially those of computer related petitioners – to assure the employee-employer relationship is maintained for the duration of the H-1B relationship. Thus, it is critical for petitioner employers to include clear documentation, such as an Employment Agreement/Offer Letter in petitions to demonstrate this. For example, employment agreements should clearly state the non-immigrant worker is an employee of the petitioner and the petitioner will maintain the right to control the employee’s work assignments for the duration of the H-1B period requested, as well as include the employee’s job duties, job title and the location of the employer.
The L-1 visa and status allows for the intracompany transfer of employees and managers of foreign entities to US parents, affiliate and subsidiary companies. There are two types of L visas: L-1A and L-1B.
The L-1A visa, known as the Intracompany Transferee - Executive or Manager” 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 U.S. In addition, it permits a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the U.S. for the purpose of establishing one. The L-1B, “Intracompany Transferree – Specialized Knowledge” allows the employer to do the same with an employee with specialized knowledge and training related to the company’s interests. Similar to L-1A category, this specialized employee may be to sent to the U.S. to establish a U.S. office.
The U.S. employer must have a “qualifying relationship” with the foreign company. The relationship requires that ownership of the two entities should be 50% or more the same, which means the owners must have equal control and veto power by the sponsoring company.
The eligibility requirements are similar to those of the H-1B visa and status, while duration of stay differs. L-1As have a maximum stay of 7 years while L-1Bs have a maximum of 5 years. Qualified employees entering the U.S. to establish a new office are entitled to a maximum initial stay of 1 year, while all others may be granted up to three years. Similar to the H-1B category, L-1s are able to recapture the time spent outside of the US while they are still valid.
Still awake?? Stay tuned for more… My next post will discuss TN, student visas and other non-immigrant concepts. :-)