H-1B Specialty Occupation

The H-1B is a nonimmigrant classification allowing U.S. employers to seek temporary employment authorization for certain professional foreign workers to work for the U.S. employer in a specialty occupation. The position in which the foreign worker will be employed must meet the definition of “specialty occupation” (i.e., require a minimum of a bachelor’s degree or its foreign equivalent to perform the job duties). Additionally, the foreign worker must have a U.S. Bachelor’s Degree or its foreign equivalent in a relevant field and be otherwise qualified to perform the job duties of the specialty occupation position.

An H-1B petition can be approved for up to three years, and extended for an additional three years for a maximum of six years. Extensions beyond the six year limit may be possible for certain employees who have also been sponsored by their employer for lawful permanent residence.

                H-1B Cap Cases
There is an annual limit on the number of H-1B visas that can be approved each Fiscal Year (FY) of 65,000 for foreign nationals with a Bachelor’s Degree, and an additional 20,000 for foreign nationals with a U.S. Master’s Degree.  This is known as the “H-1B Cap.”

If accepted and approved, cases submitted under the H-1B Cap will authorize employment of the foreign national beginning on the first day of the Fiscal Year (October 1). The U.S. Citizenship & Immigration Service accepts H-1B petitions six (6) months in advance of the beginning of the next fiscal year. This means that each year on April 1, U.S. employers scramble to file petitions on behalf of professional foreign national workers. In most recent years the demand for H-1B visa numbers has far exceeded the number of available H-1B visas. As a result, the USCIS has received many more petitions than available visas during the first week of April. The USCIS then conducts a random lottery of submitted petitions. Petitions that are selected under the lottery are reviewed and adjudicated; rejected petitions are returned to the petitioning employers.

                 H-1B Cap Exemptions

There are a limited number of employers and employees that are exempt from the H-1B cap. These organizations include:

• Institutions of higher education
• Non-profit entities related or affiliated with an institution of higher education
• Non-profit Research Organizations, and
• Governmental Research Organizations 

Employers falling within one of the categories listed above are not subject to the annual H-1B Cap and may file an H-1B petition on behalf of a specialized worker at any time of year. In addition, certain employees may also be exempt from the H-1B cap. These employees include:

• Employees extending or transferring an H-1B petition that has previously been counted under the H-1B Cap
• Employees counted under the H-1B Cap within the preceding 6 years
• Employees who have received “Conrad 30” J-1 Waiver

            H-4 Status for Spouses and Children of H-1B Foreign Workers

The spouse and children of an H-1B foreign worker may be able to reside in the United States in H-4 status. However, most spouses and children in H-4 status are not authorized for employment in the United States. In May of 2015, certain H-4 spouses became eligible to apply for employment authorization. In order to qualify, the H-4 spouse must be in the United States and their H-1B spouse must also be the beneficiary of an approved I-140 (Immigration Visa Petition) filed by their employer.

Children on H-4 are eligible to attend school in the United States.

H-2A Temporary Agricultural Workers

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs for which U.S. workers are not available.  H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis.

H-2B Temporary Non-Agricultural Workers

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.  H-2B visas are issued to foreign nationals to work temporarily in jobs for which employers can prove a shortage of qualified American workers. 

L-1 Intra-Company Transferees

The L-1 visa and status permits U.S. companies with foreign parents, subsidiaries or affiliates to transfer needed employees from the foreign company to their U.S. facilities. 

In order to qualify, two basic thresholds must be met. First, the foreign entity and the U.S. entity must have a qualifying parent, subsidiary, or affiliate relationship. Second, the foreign national worker must have been employed for the foreign entity for at least one continuous year during the past three (3) years.

L-1A: Executive or Manager

The L-1A intra-company transferee visa and status is for individuals coming to the United States to serve in an executives or managerial role for the U.S. company. This classification also enables a foreign company which does not yet have a U.S. office to send an executive or manager to the United States with the purpose of establishing a new office. 

A qualified L-1A executive or manager can hold L-1A status for up to seven (7) years.

L-1B: Employee with Specialized Knowledge

The L-1B classification permits a U.S. employer to bring on an employee with specialized knowledge in the company product and its application in international markets or advanced knowledge in processes and procedures of the company.

A qualified L-1B specialized knowledge employee can hold L-1B status for up to five (5) years.

Spouses and children of L-1 Intra-Company Transferees may be eligible to reside in the United States in L-2 status. Spouses in L-2 status are eligible to apply for an employment authorization document (EAD) in order to work in the United States. Children on L-2 status are eligible to attend school in the United States.

O-1 Foreign Nationals with Extraordinary Ability

The O-1 visa and status is a nonimmigrant classification allowing U.S. employers to seek temporary employment authorization for foreign nationals who have demonstrated extraordinary ability in science, education, business, athletics, arts and entertainment. The O-1 is also available to bring certain foreign nationals who have a demonstrated record of extraordinary achievement in the motion picture of television industry to the United States.

O-1A: Extraordinary ability in science, education, business or athletics

Employers seeking to sponsor foreign nationals with extraordinary ability in science, education, business or athletics must demonstrate that the foreign national has a level of expertise indicating that he or she is one of the small percentage of people who has risen to the very top of the field. The foreign national’s extraordinary ability can be evidenced by either the receipt of a significant national or international award or prize, or evidence that the foreign national meets at least three (3) of the following criteria:

• Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
• Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
• Published material in professional or major trade publications or major media about the foreign national;
• Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
• Original scientific, scholarly, or business-related contributions of major significance;
• Authorship of scholarly articles in professional journals or other major media;
• Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
• Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

O-1B: Extraordinary ability in the arts

Employers seeking to sponsor foreign nationals with extraordinary ability in arts, (including, but not limited to, performing arts, culinary arts, visual arts or fine arts) must demonstrate that the foreign national has a level of international or national distinction, prominence or renown.

The foreign national’s distinction or prominence cane be evidenced by either the receipt of a significant national or international award or prize, or evidence that the foreign national meets at least three (3) of the following criteria:

• Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements;
• National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals, magazines, etc.;
• Has performed in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;
• Has a record of major commercial or critically acclaimed success;
• Has achieved significant recognition from organizations, critics, government agencies, recognized experts;
• Has commanded or will command a high salary or other remuneration in relation to others in the field.

Foreign nationals intending to travel to the United States temporarily to assist with the O-1B principal’s performance may be able to receive an O-2 visa and status if the petition is filed in conjunction with the O-1B petition filed on behalf of the foreign national with extraordinary ability in the arts.

An initial petition of O-1 status may be approved for up to three (3) years. Although the O-1 visa and status is for a temporary period of time, there is no maximum period of time during which an individual may be in the United States in O-1 status.

Spouses and children of O-1 Extraordinary Aliens may be eligible to reside in the United States in O-3 status. Family members in O-3 status are not eligible for employment authorization in the United States. Children on O-3 status are eligible to attend school in the United States.

Treaty National (TN)

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. 

The Treaty National (TN) nonimmigrant classification allows U.S. employers to seek temporary employment authorization for certain professional Canadian or Mexican workers to work for the U.S. employer in a designated professional position. TN status is only available to citizens of Canada and Mexico.

The position in which the foreign worker will be employed must meet the definition of “NAFTA Professional” and the foreign worker must be qualified to perform the job duties of the NAFTA position.

Although it is possible for an employer to submit a petition to the U.S. Citizenship and Immigration Service (USCIS) on behalf of a qualified employee for TN status, there is no requirement that USCIS approve a petition for TN status. Canadian nationals may be able to present their application or TN status directly to a Customs and Border Protection (CBP) official at the U.S. Border. Mexican nationals must apply for a TN visa at a U.S. Embassy abroad in order to be admitted to the United States in TN status.

An individual may be admitted to the United States in TN status for up to three (3) years at a time. Although the TN is a temporary visa and status, there is no limit on the amount of time that an individual may hold TN status in the United States.

Spouses and children of TN holders may be eligible to reside in the United States in Treaty Dependent (TD) status. Spouses and children in TD status are not eligible for employment in the United States.

E-3 Australian Specialty Occupation Visa

The E-3 is a nonimmigrant classification is specific to citizens and nationals of Australia. The E-3 allows U.S. employers to seek temporary employment authorization for certain professional Australian workers to work for the U.S. employer in a specialty occupation.

The position in which the Australian worker will be employed must meet the definition of “specialty occupation” (i.e., require a minimum of a bachelor’s degree or its foreign equivalent to perform the job duties). Additionally, the foreign worker must have a U.S. Bachelor’s Degree or its foreign equivalent in a relevant field and be otherwise qualified to perform the job duties of the specialty occupation position.

Australian workers may be approved for E-3 status for two (2) years at a time. However, there is no maximum period of time in which an individual can be employed in E-3 status.
There is an annual limit on the number of E-3 visas of 10,500. However, this maximum has never been reached.

A U.S. employer may file a petition with the U.S. Citizenship and Immigration Service (USCIS) requesting E-3 status for an Australian professional worker in a specialty occupation. However, qualified Australian workers with an employment offer from a U.S. employer in a specialty occupation can apply for an E-3 visa directly at a U.S. Embassy abroad without first having a petition approved by USCIS.

Additionally, the spouse and children of an E-3 Australian Specialty Worker may be eligible for E-3 Dependent status. Spouses in E-3 Dependent status are eligible to apply for an employment authorization document (EAD) in order to work in the United States. Children on E-3 Dependent Status are eligible to attend school in the United States.

For more information on temporary work visas, please contact Kolko & Casey, P.C. to schedule a consultation.