H-1B Visa (Specialty Occupations)
The H-1B visa is the most common temporary working visa available. It requires a U.S. employer sponsoring the foreign national for a specialty occupation, that is, an occupation requiring at least a U.S. Bachelor’s degree or foreign equivalent degree, to perform the job demands. There are three steps in obtaining H-1B visa status: (1) a Labor Condition Application (LCA) filed with the U.S. Department of Labor; (2) an H-1B visa petition that will be filed with the U.S. Citizenship & Immigration Services; and (3) in some cases, an H-1B visa application that requires the employee to appear in person at a U.S. consulate outside the U.S. There is an annual limit or “cap” on the number of new foreign workers who can be granted the H-1B visa status (the current cap is 65,000). The annual limit does not apply when: (1) people who already have H-1B visa status and are seeking an extension of stay or a visa to allow them travelling; (2) people who already have H-1B visa status, seeking to change employers; (3) physicians seeking H-1B visa status for working in a medically underserved area; and (4) people seeking to work for an institution of higher education or a related nonprofit entity, a nonprofit research organization, or a government research organization. H-1B visa status is initially granted for a period of three years. It can be extended for additional three years and up to a total period of six years. Extensions of H-1B visa status beyond six years may be granted to employees who remain outside the U.S. for more than one year or who have spent less than half of their time in the U.S. Extensions beyond six years are also available for employees that have applied for permanent resident status before the end of their fifth year under H-1B visa status. The spouse and unmarried minor children (under 21) of an H-1B worker are admitted under H-4 visa status for the same duration of stay as the H-1B worker, but are not allowed working in the U.S.
L-1 Visa (Intra-company Transferees)
L-1 visa status is available to those individuals who have continuously worked for a company abroad for at least one year within the three years prior to applying for L-1 visa status, and in managerial or executive positions (L-1A), or in a position which requires highly specialized knowledge of company’s business (L-1B), and who will be working in the U.S. for the same company, or a U.S. subsidiary, affiliate or parent of the foreign employer. Usually, the U.S. company must sponsor the foreign worker by filing an L-1 visa petition to the U.S. Citizenship & Immigration Services (USCIS) and obtain USCIS approval before the employee obtains an L-1 visa at a U.S. consulate abroad or change to L-1 visa status from another status. The maximum initial duration of L-1 visa status is three years, or one year if the sponsoring company in the U.S. has been doing business in the U.S. for less than one year at the time of filing this visa application. L-1 visa status can be extended for a maximum of five years when dealing with specialized knowledge employees (L-1B) or seven years for managers and executives (L-1A). The spouse and minor children (under 21 years of age) of an L-1 worker are admitted in L-2 status for the same duration of stay as the L-1 worker. A spouse under L-2 visa may obtain work authorization in the U.S., but children in L-2 visa status are not authorized to work.
E-1 Visa (Treaty Investor)
The E-1 visa allows executives, managers, and other workers, with highly specialized skills, to enter U.S.A. for handling investments in the U.S. The company in the States and the foreign person must have the same nationality. For example, a French citizen can only obtain an E-1 visa if he or she shall work for an at least 50% French owned company in the U.S., and France is one of the countries that share the required treaty that allows E-1 visas with the U.S.A. To qualify for an E-1 visa, a citizen from a treaty country must be engaged in a substantial volume of trade, principally (at least 51%) between the U.S. and the treaty country. “Trade” is defined as including the sale of goods and services, i.e. transportation, banking, advertising, accounting, technology and management consulting. E-1 visa holders are granted visas valid for five years that can be renewed indefinitely. Spouse and children of an E-1 visa holder are granted derivative E visa status. A spouse of an E-1 visa holder may apply for working permit in the U.S., but his children are not authorized to work.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
