Associate — Berry Appleman & Leiden LLP
FALL 2018 ISSUE:
SMALL BUSINESS MATTERS
The H-1B visa type is the most popular among employers.
- The sponsored position, also known as a “specialty occupation,” requires at least a bachelor’s degree in a related field of study to be able to perform the duties of the position. For example, if the employer has an open position for a software engineer, a related degree would likely be Electrical Engineering rather than English Literature.
- The employer must also agree to pay what is called the “prevailing wage,” which is essentially the minimum wage for the sponsored position in the employee’s specific work location.
- A typical H-1B petition consists of the required United States Citizenship and Immigration Services (“USCIS”) forms; the signed agreement by the company to pay the minimum wage; a company support letter which outlines the employer, the sponsored position, and how the employee meets those requirements; documents showing that the employee meets the qualifications; and employer documents illustrating its business and its ability to pay the prevailing wage. This petition is filed with USCIS for approval.
- A first-time H-1B visa status holder is eligible for a three-year stay with the option of a single three-year extension, for a maximum of six years. If certain steps of the Green Card process are completed, the H-1B visa status may be extended beyond those six years.
- The main drawback to this visa type is that there are a limited number of new H-1B visas available each year, so employers who want to sponsor employees for this visa type are subject to an H-1B lottery each government fiscal year and must apply on April 1. The lottery remains open until all H-1B numbers are chosen. These numbers are typically filled within the first week of the year.
- There is a special H-1B visa type available for Chilean and Singaporean nationals. This visa type has the same basic requirements as the H-1B, but is subject to a different numerical limit each year.
This visa type is available to citizens of Mexico or Canada under the current North American Free Trade Agreement (“NAFTA”) program.
- This visa type has some similarities with the H-1B visa, but the biggest difference is that there is a specific list of acceptable jobs that are allowed. The minimum qualifications for each job are also outlined by NAFTA. Some of the most common job types are: Engineer, Computer Systems Analyst, Accountant, Economist, and Mathematician.i
- An employer may file their request with USCIS, or the employee may present their application abroad. Mexican TN workers are required to first obtain a visa. A Canadian TN worker does not need to obtain a visa first and may either present their application at the U.S.-Canadian border or at the airport prior to flying into the U.S.
- A basic TN package must have the following documents: proof of Canadian or Mexican citizenship (usually in the form of a passport); letter of employer sponsorship outlining the company, the TN position, that the employee meets the minimum qualifications outlined in the regulations, and the salary to be paid in the U.S.; and documents showing that the employee meets those position requirements.
- A TN visa type is valid for an initial three years and may potentially be extended indefinitely for three-year increments.
- The TN visa type does not allow for what is called “dual intent,” which is the ability to have a temporary visa and to work toward a Green Card at the same time. This does not mean that the Green Card is impossible, but there are certain risks associated with moving forward, which should be discussed with an attorney.
The E-3 visa type is also very similar to the H-1B, but it is only for Australian nationals and has no numerical cap each year.
- The sponsorship must be for a “specialty occupation” as defined above, and the employer has to make the same agreements concerning wages as in an H-1B case.
- An employer may file the request with USCIS, or the employee may present his application to a U.S. consulate abroad.
- A basic E-3 package consists of: the signed agreement by the company to pay the minimum wage; a company support letter which outlines the employer, the sponsored position, and how the employee meets those requirements; documents showing the employee meets the qualifications; and employer documents illustrating their business and their ability to pay the prevailing wage.
- The initial E-3 visa is eligible for a two-year stay with an unlimited number of two-year extensions.
- Like the TN visa type, the E-3 does not allow dual intent.
The L-1 visa type is for employers who have offices overseas and in the U.S. The basic requirement for an L-1 visa is that the employee has been working at an affiliate office abroad for at least a year in a specific role and will be working in the U.S. in a specific role.
- The “specific roles” for the U.S. or abroad must be a specialized knowledge role or a managerial role:
- A specialized knowledge role is one that requires unique, usually technical, experience in the company’s processes, tools, or technologies.
- A managerial role is one in which the employee manages people or what the government considers an essential function of the company. To be a functional manager, the employee must delegate the work required and not perform the work himself.
- The specific role type will determine the maximum stay in the U.S. If the U.S. position is for a specialized knowledge role, the maximum stay is five years. If the position is for a managerial role, the maximum stay is seven years.
- For many employers, the L-1 package is filed with USCIS which will include: the required forms, the company support letter outlining the U.S. company and foreign entity’s relationship, the U.S. role, and the foreign role; documentation showing specialized knowledge (such as patents, technical presentations, etc.) or showing a managerial role (such as organizational charts, pay statements of reportees, etc.).
- Some employers are eligible for the company Blanket L program, which allows L-1 employees to take their applications directly to a U.S. consulate without waiting for a USCIS approval first. Employers must obtain pre-approval from USCIS for a company L Blanket.
- L-1 visa holders are eligible for an initial stay of three years with extensions in two-year increments.
- The L-1 visa type has dual intent, like the H-1B visa, but once the maximum period of stay has been reached for the L-1 holder, he must have either received a Green Card or changed to another visa type. He is not eligible to extend beyond the maximum allotted L-1 time. Also, any time in H-1B status will count against the maximum time allowed for L-1 time, and vice versa.
The visa types outlined above are only a small sampling of the possible options an employer has when deciding to sponsor a foreign worker, but are a good starting point when considering acquiring a visa.
1 H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models, US Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/temporary-workers/h-1b-speci....
2 TN NAFTA Professionals, US Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/temporary-workers/tn-nafta-p....
3 E-3 Certain Specialty Occupation Professionals from Australia, US Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/temporary-workers/e-3-certai....
4 L-1A Intracompany Transferee Executive or Manager, US Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intra....