U.S. WORK VISAS

Employment-related problems can cost you time and money. At Gateway Professional Services, we’re dedicated to helping businesses and professionals navigate the immigration system quickly and efficiently. We work with a broad spectrum of professionals and businesses.

H-1B Visas

The H-1B Visa is a non-immigrant worker’s visa, who will be employed in the United States temporarily and employed in a specialty occupation. It is used for professionals who have at least a bachelor’s degree in a specific field of study that is required by the occupation. H1-B visas are the most commonly used visa for employment-related entrance to the United States, and as a result, there are annual quotas that limit the number that are issued every year.  H-1-B visas are the most commonly used visa for employment-related entrance to the United States, and as a result, there are annual quotas that limit the number that are issued every year.

What is an H-1B Visa?

The H-1B visa is for non-immigrant workers who will be in the United States temporarily and employed in a specialty occupation. It is typically used for professionals who have at least a bachelor’s degree in a specific field of study that is required by the occupation.

H-1B

The H-1B program allows companies and other employers in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty,or its equivalent. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education,business specialties, accounting, law, theology, and the arts.

Obtaining an H-1B Visa

The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. An advanced degree exemption is an exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher and is available until the number of beneficiaries who are exempt on this basis exceeds 20,000. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related non-profit entities or a non-profit research organization, or a government research organization are not subject to this numerical cap. Foreign Nationals who have not been granted H-1B visas or admitted to the U.S. in H-1B status previously are subject to the cap and must undergo an electronic registration process, usually conducted in the month of March. The registration process simply requires basic information on the prospective petitioner and each required worker, and is completed by potential petitioners (also known as registrants) and their authorized representatives. Each fiscal year, USCIS opens an initial registration period for a minimum of 14 days. Then, using correctly submitted electronic registrations, the H-1B selection procedure is carried out. The only people allowed to submit H-1B cap-subject petitions are those who have chosen registrations.

H-1B Term

A H-1B non-immigrant may be admitted for a period of up to three years. The time period may be extended but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

The employer will be liable for the reasonable costs of the worker’s return transportation if the employer terminates the worker before the end of the worker’s authorized stay. The employer is not responsible for the costs of the worker’s return transportation if the worker voluntarily resigned the position.

H-1B Dependents

The worker’s spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States, with the exception of spouses when the H-1B holder has completed part of the permanent residence process.

How to Apply for the H-1B Visa?

  1. The employer must apply for and receive DOL certification of an LCA. The application requires the employer to attest that it will comply with the following labor requirements:
    The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
    The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer’s place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
  2. The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.
  3. Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

L-1 Visas

L-1 visas are available to non-immigrant employees of international companies with offices in the United States and other countries. There are two specific types of L-1 visas:

  • The L-1A visa for executive or management employees;
  • The L-1B visa for specialized knowledge employees.

These visas allow international companies to transfer talent from one office to another. One of the benefits of the L-1 visa is that there is no quota, unlike with H-1B visas.

What is an L-1 VISA?

There are two types of L visa categories:

L-1A nonimmigrant classification is a business immigration visa which 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.

This visa category has a maximum time period of seven (7) years after which they must depart the U.S. and may only qualify for L-1 status again by returning and working abroad for at least 1 year for the parent, subsidiary, affiliate or branch office of the U.S. company.

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 visa category unlike the L1A has a maximum time period of five (5) years after which the foreign national must depart the U.S. to return to work abroad for at least 1 year for the parent, subsidiary, affiliate or branch office of the U.S. company.

CAN L-1 VISA HOLDERS SPONSOR DEPENDENTS?

Spouses and children who are under the age of 21 of the primary L-1 Beneficiary may be issued L-2 visas. Unlike the H-4 visa for Dependents, the L-2 spouse is provided with a means to work in the United States. Spouses can apply for the I-765 Request for Employment Authorization and work. Although some say it is not required to file for this document our immigration attorney recommends that the L-2 applies for this document for I-9 purposes. A copy of the marriage certificate and maintenance of the Principal L1 holder’s status will have to be submitted.

HOW DO I QUALIFY FOR AN L-1 VISA?

In order to qualify under this visa category a company 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. U.S. Citizenship & Immigration Services often looks for the relationships between the US and foreign company in one of four ways: parent and subsidiary; branch and headquarters; sister companies owned by a mutual parent; or ‘affiliates’ owned by the same or people in approximately the same percentages

In addition the named employee must also have been working in appropriate capacity (managerial/specialized knowledge) for the qualifying organization abroad for at least one continuous year within the three years immediately preceding his or her admission to the U.S. If you are unsure if you meet the qualifications for L1 nonimmigrant status we encourage you to contact a qualified business immigration lawyer who can provide an assessment of which category L1 would be right for you.

HOW DO I APPLY FOR AN L-1 VISA?

There are two types of L-1 procedures:

  • Regular L-1 visas, which must be applied for and approved for each individual by the USCIS;
  • Blanket L-1 visas, which are available to employers that meet certain criteria.

Most L1 Visas must be filed at the corresponding U.S. Citizenship & Immigration Services service center (Vermont Service Center, or California Service Center depending on job location). The company must file a petition for an international transfer on form I-129 with the USCIS. The service will review the documentation for both the Foreign Company, and the U.S. company as well as the proffered position. For L-1A visas these positions must be in an Executive, Managerial, or Essential Function to the organization. Petitions are usually approved in three year increments, with the exception of new office petitions. In this case the immigration petition would only be approved for one year. After the USCIS approves the petition, the L-1 worker/transferee must apply at the U.S. Consulate for the visa.

In the case of a blanket L-1 visa petition, it has already been determined by USCIS that the company qualifies for the issuance of Intracompany Transferee visas on wide scale basis. Larger international corporations will usually have a blanket approval on file with a consulate. In these cases the individual visa applicant need only file a copy of the approved blanket petition approval notice, along with documents supporting their personal qualifications, with the U.S. consulate or embassy having jurisdiction over their place of residence proving the applicant’s qualifications.

L-1A visas have strict requirements as to what the Service will consider to be a manager or executive position. It is important to have an immigration attorney family with this type of business immigration review your case to ensure it meets federal guidance for L-1 status.

Canadian and Mexican Professionals (TN Visa)

Available only to citizens of Canada and Mexico, TN visas were created as part of the North American Free Trade Agreement (NAFTA). However, it is available only to specific professions such as the following:

  • Accountants
  • Architects
  • Engineers
  • Lawyers
  • Consultants

What is a TN Visa?

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers It is typically used for professionals who have at least a bachelor’s degree in a specific field of study that is required by the occupation.

TN Visa

  • TN visas are issued for three years, and there is no limit to how many times the visa can be renewed. 
  • Spouses and unmarried children under 21 accompanying a TN will be admitted under a TD status. Spouses and children will not be allowed to work but may attend school full-time while in a TD status.

Eligibility Criteria

  • If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.
  • If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN nonimmigrant.

What are the qualifying educational requirements for TN ?

One of the basic requirements for TN is education. To qualify for the TN visa category, the prospective TN employee must hold a U.S. bachelor’s or higher degree, or the equivalent. The person must hold a U.S. equivalent 4 years; bachelor’s or higher degree from an accredited college or university. If the foreign degree is a 3 year; bachelor’s degree, a 3 years of work experience in the same or a similar field /occupation can be considered to be one year additional education.

What type of Jobs/occupation qualify for the TN visa?

TN visas are available for various types of specialty occupations that require theoretical or technical expertise in fields such as in IT, architecture, engineering, mathematics, science, and medicine.
  • IT/Computer professionals 
  • University professors and teachers 
  • Engineers 
  • Healthcare workers 
  • Accountants 
  • Financial analysts 
  • Management consultants 
  • Lawyers 
  • Architects 
  • Nurses 
  • Physicians 
  • Surgeons 
  • Dentists 
  • Scientists 
  • Systems analysts 
  • Journalists and editors 
  • Foreign Law advisors 
  • Psychologists 
  • Technical publications writers 
  • Market research analysts 
  • Teachers in elementary or secondary schools, colleges

Temporary Business Visitors: The B-1 Visa

The B-1/B-2 “visitor” visa is a nonimmigrant visa for people desiring to enter the United States temporarily for business (B-1) or for leisure or medical treatment (B-2). Travelers from certain eligible countries may be able to visit the U.S. without a visa on the Visa Waiver Pilot Program.

B2 Visitor Status Extension

If you want to extend your I-94 date or extend a US visitor visa stay in the United States, you must file a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. Check for the dates online to determine when your authorized stay expires. USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires.
  • You have a valid legitimate reason to request for visa extension, under the visa category.
  • You were lawfully admitted into the United States with a non-immigrant visa
  • Your non-immigrant US visa status remained valid
  • You have not committed any crimes that make you ineligible for a visa
  • You have not violated the conditions of your admission to the USA
  • Your passport is valid and will remain valid for the duration of your stay.
  • You have definite plans to leave the US at the end of the proposed visa extension period.
  • Proper evidence for financial support is provided

Those admitted into the US on a B visa can generally be admitted for up to 6 months and can be extended for an additional 6 months. 

Student Visa (F Visa)

International students (Student Visa/F-1 Visa) may enroll in a full course load to attend a U.S. university or college. Undergraduates must enroll in 12 units to maintain their F-1 student status and graduate students may enroll in whatever the school determines to be a full course load.

Please be aware that international students may not enroll in F-1 student status to attend kindergarten through eighth grade at a public school. For grades nine through 12, attendance at a public high school is possible only if the student pays tuition for his or her enrollment. The student may attend for only one year at a public high school. These rules do not apply to those attending private schools.

Students enrolled at a college or university may be eligible to work on campus during school and off-campus during periods of optional practical training (OPT) or curricular practical training (CPT) with permission of the institution. It is essential to consult with your international student adviser before accepting any type of employment or requesting a reduction in course load. If a student works without proper authorization of either the school or U.S. immigration, the person can be deported.

You may apply for a change of visa status from B-2 tourist to F-1 student on form I-539 while you are still in the U.S. However, the regulations prevent a tourist from enrolling in school until the application is approved. If you enroll prior to the approval, the application will be denied. Normally, it can take approximately four to nine months to have the application decided. Please consult the international student adviser before you attempt this type of application.

To make this type of application even more challenging, the potential student must continue to maintain his or her status during the process. This means that the B-2 authorized period of stay must be maintained to a period within 30 days of the start of the I-20 issued by the school.

The alternative to the change of status application from B-2 to F-1 is to apply for the F-1 student visa at a U.S. consulate. In that case, the decision of whether to issue the student visa is made quickly.

The E-Visa: Traders and Investors

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

To qualify for an E-2 Visa as a foreign investor, you must demonstrate that:

  • You are from one of the treaty countries; (highlight this…. treaty countries and let a list open up) (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html) Take the list from here.
  • The amount of your investment in the U.S. business enterprise is “substantial”. The amount invested must be sufficient to ensure that the business will be successful. While the law does not necessarily require you to meet a specific amount of investment, certain embassies or consulates do require the investment to meet a certain amount
  • The operation must be an actual, operating one, rather than a speculative one;
  • The funds you plan to commit to the business must actually be at risk, as opposed to just promises or sitting in a bank account from which you can withdraw at any time. Real property owned by the investor will not qualify;
  • The investment may not be “marginal”, meaning it must produce revenue in addition to just a living for the investor and his or her family;
  • The investor must be coming to the U.S. to develop and direct the enterprise and must either be the principal investor or employed in a supervisory, executive, or highly specialized category. The investor is not supposed to engage in everyday labor and tasks.

Immigration for Professionals Who Are Leaders in Their Fields (O-1A Visa)

O-1A visas are available to professionals who are at the top of their field, having demonstrated extraordinary abilities or international success in their chosen fields. O-1A visas are generally available only to those who are recognized as the top of their field in athletics, arts, business, education, or the sciences.

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