H-1B Visas: Temporary Workers

There are three types of individuals who may have petitions filed on their behalf under the H-1B category.

Specialty Occupations. Typically, companies file for individuals to come to the United States to perform services in specialty occupations. These positions normally require bachelor’s degrees (or higher) in a specialty field.

Department of Defense Cooperative Research and Development Projects. Individuals who will be engaged in cooperative research and development projects administered by the U.S. Department of Defense are eligible.

Fashion Models. Individuals who are fashion models of distinguished merit and ability are eligible.

Below are some key requirements that you must meet to be classified as an H-1B Temporary Worker:

You must have an employer-employee relationship with the petitioning U.S. employer.

Your job must qualify as a specialty occupation by meeting one of the following criteria:

A bachelor’s or higher degree, or its equivalent is normally the minimum requirement for the particular position;

The degree requirement is common for the position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Your job must be in a specialty occupation related to your field of study.

The petitioning employer must submit evidence that a labor condition application (LCA) has been certified by the U.S. Department of Labor.

You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.

An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

L-1 Visas: Intra-Company Transferees

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.  The employer must file a Form I-129, Petition for a Nonimmigrant Worker, with fee, on behalf of the employee.

The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.

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 business as 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 capacity for 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.

New Offices

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.

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests 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 a specialized knowledge employee to the United States to help establish one.  The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.

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 business as 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 services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

L-1 Visa Reform Act of 2004

The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an of an employer other than the petitioning employer or its affiliate, subsidiary, or parent.  In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that:

The employee will not be principally controlled or supervised by such an unaffiliated employer; and

The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.

Spouses of L-1 visa holders are allowed to work without restriction in the US (using an L-2 visa) once EAD is granted, and the L-1 visa may legally be used as a stepping stone to a green card under the doctrine of dual intent.

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