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Temporary Work Visas

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Temporary Work Visas

A temporary work visa is often the right approach, whether your company is a start-up, a multinational, or somewhere in between. We will find the right solution based on your needs and your candidate’s qualifications.

Options 

      • B-1 visas in lieu of H-1B visas for employees who are employed abroad;
      • E visas for business investors, traders, and their employees;
      • E-3 visas for certain professional workers from Australia;
      • F-1 OPT Post-Completion Optional Practical Training (OPT) and 24-Month STEM OPT Extension for F-1 Students
      • H-1B visas for specialty occupation workers;
      • H-1B1 visas for certain professional workers from Singapore and Chile;
      • H-2B visas for temporary or seasonal workers;
      • H-3 visas for trainees;
      • J visas for exchange visitors;
      • L-1 visas for intracompany transferees;
      • O visas for extraordinarily talented individuals in science, the arts, business, or athletics;
      • P visas for performing artists and athletes;
      • R visas for religious workers; and
      • TN visas for certain professional workers from Canada and Mexico.

L-1A

 A manager is an employee who primarily:

 * 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 a department or subdivision of the organization;

* Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; and

* Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

The term “executive capacity” means an assignment within an organization in which the employee primarily:

  1. Directs the management of the organization or a major component or function of the organization;
  2. Establishes the goals and policies of the organization, component, or function;
  3. Exercises wide latitude in discretionary decision-making; and
  4. Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. 8 CFR Sec. 214.2(l)(1)(ii)(C).
  • One continuous year of employment abroad for a parent, branch, affiliate, or subsidiary of the U.S. petitioning company.   
  • The employment abroad must have been in a  managerial or executive capacity.
  • 3-year initial approval + 2-year extensions up to a total of 7 years.

L-1B

If a qualified beneficiary will be rendering services in a capacity that involves “specialized knowledge,” the beneficiary may be classified as an L-1B nonimmigrant alien.

Section 214 (c) (2)(B) of the Act. 8 U.S.C. §1184 (c)(2)(B) provides the statutory definition of specialized knowledge:

For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity involving specialized knowledge concerning a company, if the alien has a 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.

Furthermore, the regulation at 8 C.F.R. §214.2(l)(1)(ii)(D) defines specialized knowledge as:

Special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interest and application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

According to USCIS Policy Memo issued on August 21, 2015, to qualify for an L-1B visa, an employer must demonstrate that the relevant employee meets at least one of two standards:

(1) “special” knowledge or (2) an “advanced” level of knowledge.

To demonstrate “special” knowledge, employers must compare the beneficiary’s knowledge to that of other similarly situated workers in the specific industry. USCIS defines “special” knowledge as:

knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon compared to that generally found in the particular industry (emphasis in original).

Employers may instead elect to establish the employee’s “advanced” knowledge. To meet this burden, the employer must present evidence that the beneficiary’s knowledge of the processes used specifically by the company surpasses the basic level of knowledge obtained by others in the company and the industry. USCIS defines “advanced” knowledge as:

knowledge or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the employer (emphasis in original).

In determining whether an employee has specialized knowledge, be it “special” or “advanced,” USCIS has identified a non-exhaustive list of factors that adjudicating officers should consider. These include the time sensitivity of the employer’s business need and the employee’s record of improving the employer’s business.

The memorandum clarifies that the beneficiary’s knowledge need not be proprietary in nature or narrowly held within the petitioning organization. However, suppose a company employs many employees with the same claimed specialized knowledge. In that case, the agency will question whether the knowledge is, in fact, specialized.

  • One continuous year of employment abroad for a parent, branch, affiliate, or subsidiary of the U.S. petitioning company. 
  • Employment abroad must have been in a specialized knowledge capacity.
  • 3-year initial approval + a 2‑year extension for a total of 5 years.

O-1A

O-1A is for scientists, athletics, and business.

Employer or Agent Sponsor. The O-1 visa requires a contract with a U.S. employer or agent. Therefore, you may not self-petition for an O-1.

Advisory Opinion. O-1 visa petitions must also include an advisory opinion from a trade or consulting organization, or a reputable peer group stating that the individual does have a sustained reputation of extraordinary ability.

Extraordinary Ability. To qualify for an O-1A temporary visa, the individual must have extraordinary ability in science, athletics, or business.

CRITERIA FOR O-1A “EXTRAORDINARY ABILITY”

The individual must either demonstrate a one-time achievement at the caliber of an Olympic Medal or Nobel prize or satisfy at least three of the following criteria:

  1. Receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Membership in associations in the field which require outstanding achievements of their members, as judged by experts in the field;
  3. Published materials about the individual in professional or major trade publications, or appearance/published materials about the individual in other major media;
  4. Participation, either individually or as part of a panel, as a judge of the work of others in the field (including having served as a reviewer/referee for articles to be published, on discussion and advisory panels, etc.);
  5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  6. Authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media;
  7. Serving in a critical or essential capacity for organizations or establishments that have a distinguished reputation; and/or
  8. Commanding a high salary or other significantly high remuneration for services compared to others in the field.
  • The job offer must demonstrate that you are coming to work in your area of extraordinary ability.
  • Up to 3-year initial approval + 1-year extensions, with no maximum duration of status and no annual numerical limit.

O-1B

O-1B is for artists.

Employer or Agent Sponsor. The O-1 visa requires a contract with a U.S. employer or agent. Therefore, you may not self-petition for an O-1.

Advisory Opinion. O-1 visa petitions must also include an advisory opinion from a trade or consulting organization, or a reputable peer group, stating that the individual does have a sustained reputation of extraordinary ability.

Extraordinary Ability. To qualify for an O-1B temporary visa, the individual must have extraordinary ability in art.

CRITERIA FOR O-1B “EXTRAORDINARY ABILITY”

For O-1B purposes, extraordinary ability is defined as “distinction” in the arts. The distinction can be shown through a one-time major achievement such as an Academy Award, Emmy, Director’s Guild Award, or evidence of at least three of the following:

  1. Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by reviews, advertisements, publicity releases, publications, contracts, or endorsements;
  2. Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
  3. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about you in major newspapers, trade journals, magazines, or other publications;
  4. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating, or standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
  5. Received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which you are engaged, with the testimonials indicating the author’s authority, expertise, and knowledge of the alien’s achievements;
  6. As shown by contracts or other reliable evidence, a high salary or other substantial remuneration for services in relation to others in the field.
  • The job offer must demonstrate that you are coming to work in your area of extraordinary ability.
  • Up to 3-year initial approval + 1-year extensions, with no maximum duration of status and no annual numerical limit.

Comparison of H-1B and L-1 Visa

 

                     

H-1B

L-1A &

L-1B

Who is eligible Certain foreign professionals in “specialty occupations.” Certain foreign workers employed by certain entities abroad that are related to U.S. employers, whose services are being sought by their employers in the United States.
Are there any numerical annual limits? 65,000 per year, plus 20,000 more for foreign professionals with a U.S. master’s or higher degree. No annual limit.
Duration Initially admitted for a period of up to three years; may be extended for a maximum of three additional years. Initially admitted for up to three years; may be extended for a maximum of two additional years for an L-1B and four additional years for an L-1A.
Employer requirements

The employer must attest that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers must comply with wage requirements.

 

 

No requirements regarding adverse effects, wages, housing, etc.
May the foreign workers bring their spouses and children under 21? Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work. Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to work.

Question on immigration status during an interview

Q: What can employers ask about immigration status during the interview process? A: The question must focus on the job applicant’s ability to work legally in the United States. The question should not ask about the applicant’s immigration status or citizenship. Therefore, an employer may ask: Are you authorized to work lawfully in the United States for our company; do you need, or will ever need, sponsorship to work in the U.S.?

H1B stay in the U.S.

Q: How long can one stay in the USA on H1-B Visa?

A: The H1B visa duration is limited to 6 years. If required to come again on H1B, one has to stay outside the USA for at least one year before re-entering. You may be eligible for an extension beyond six years if your green card process and your labor is pending.

 

 

Does an H1B petition guarantee admission to the U.S.?

Q: Does an H1B petition guarantee admission to the U.S.?

A: No. The USCIS’ approval of your H1B petition does not automatically grant you admission to the

U.S. in H1B status. You will need to attend an interview at a U.S. Consulate near you to get your

visa stamp. The Consular Officer will verify your education background, work experience, details

of your U.S. employment, and other relevant information and will issue your visa only when they

find all the information you provide to be genuine as stated in your petition.

Who can file H1B Petition?

Who can file H1B Petition?

A: You cannot file your H1B visa petition. Only your prospective employer who has given you a

job offer may file your H1B petition on your behalf.

H-1B processing time

Q: How long does it take for the H1B approval process?

A:  The standard processing for any H1b Visa application can vary from 1 to 6 months, sometimes longer. Employers who do not want to wait such a long time for processing can choose premium processing. Premium processing guarantees that the petition will be processed within 15 days of submission. If it is not processed within that time, USCIS refunds the fees.

 

Step after LCA approval

Q: What is the next step after LCA approval?

A: After the LCA has been approved, the employer may submit a copy of it to the USCIS to request an H-1B nonimmigrant classification on behalf of the foreign worker.

Petition-based employment visa

Q: What is a petition-based employment visa?

A: Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period and are not considered permanent or indefinite. Each visa requires the prospective employer to file a petition with U.S. Citizenship and Immigration Services (USCIS).

Employing a foreign worker

Q: How do I employ a foreign worker?

A: Whether you can employ a foreign worker depends upon the type of employment and the alien’s status and qualifications. Please get in touch with us to discuss your company’s sponsorship of employment immigration visas for the temporary hiring of professional/skilled workers under the H-1B, L-1, and the TN visa program designated specifically for Canadian & Mexican workers.

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