H-1B Specialty Worker Non-Immigrant Visa Petitions
The H-1B Specialty Worker Non-Immigrant Visa category has long been the most sought-after longer-term skilled worker visa in the USA. It allows persons with bachelor’s degrees or equivalent up to six years of continuous authorization to be employed in professions and specialty occupations by specified petitioning U.S. firms.
There are 65,000 new visas available annually in this category with an additional 20,000 for foreign students who have graduated with a Master’s degree from a U.S. University. Renewals, transfers, and H-1Bs issued to employees of universities and research institutions do not count toward these caps. Like the L-1 and O-1 categories, holders of H-1B visas may have a “dual intent” visa allowing for simultaneous pursuit of an immigrant visa without violating any of the terms and conditions of the temporary visa status.
H-1B workers must be paid 100 percent of the actual wage paid workers in the same occupation or the local prevailing wage for the occupation as certified by the US Department of Labor Employment & Training Administration (USDOL-ETA), whichever wage rate is greater.
The H-1B job offered must meet one of the following criteria to qualify as a specialty occupation:
- A Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position;
- 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. [See, 8 CFR §214.2(h)(4)(iii)(A)]
Minimum qualifications for a specialty occupation require one of the following:
- Graduation from a U.S. bachelor’s or higher degree program in the specific specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes the holder to fully practice the specialty occupation and be engaged in that specialty in the U.S. State of intended employment;
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. [See, 8 CFR §214.2(h)(4)(iii)(C)]
H-1B Application Process
Before the USCIS Form I-129 petition with H Attachment can be submitted, the applicant must first obtain a certified Labor Condition Attestation (LCA) certifying to the USDOL-ETA the higher of the actual or prevailing wage is to be paid and related certifications. The employer is required to keep a Public Inspection File (PIF) with this documentation.
The prevailing wage determination can be done in one of three ways: by determining the prevailing wage by: 1) consulting the DOL OES wage databank on-line: 2) by submitting a prevailing wage determination request to DOL; or, 3) by a private wage survey that meets the DOL specifications in data collection for the position. The petitioner will then need to electronically register and file the LCA with the ETA section of the DOL. Typically, it takes up to 7 business days for the DOL to certify the LCA.
Upon receiving a certified LCA from the ETA, the petitioner may then file the I-129 petition and H supplement with the USCIS. This must be accompanied by an employer’s support letter detailing the proposed job duties, the aliens’ qualifications, along with credentials demonstrating qualification to perform the job duties. The petition will also normally by accompanied by an employment contract and organizational chart. In addition, the petitioner usually submits brochures, financial documents, and other descriptive company information.
The USCIS takes several months to adjudicate the case and in all likelihood will do a background check of the petitioner and the beneficiary. Often, the Service Center examiner will issue a Request For Evidence (RFE). The RFE must state any and all deficiencies and or issues that may result in an unfavorable determination. The petitioner is required to respond in a complete manner or the USCIS will make a decision based on the submission rendered.
If the case is approved, then the employee abroad may schedule an appointment with the designated consulate. If the employee is in the USA then the employee is permitted to commence work immediately or within 30 days if there was a change of status or 60 days is this was a transfer from another H1B employer. If the worker enters the US, the CBP will again review the basis and justification for entry at the port of entry.
If the petition is denied by USCIS, the petitioner has the right to request a Motion to Reconsider or to appeal provided the request is filed within 30 days.
The employee is typically given an I-94 valid for 3 years. This status may be extended for an additional three years with an aggregate of 6 years total. Any periods outside of the USA do not count against the 6 year allotment.
L-1 Visa Category
The L-1 category is used by U.S. companies to bring foreign workers to the United States for a temporary period to engage in employment. There is no limit on the number of L-1 visas that may be issued each year by the government, like there is for the H-1B category. In addition, unlike the H-1B category, there is no prevailing wage or actual wage requirement, and the source of the foreign national’s compensation may be from the U.S. company or the overseas company. The L-1 category is also divided into two subcategories: L-1A and L-1B. The L-1A category is for managers and executives. The L-1B category is for personnel who have specialized knowledge of the company’s product, service, procedure, or other interest.
The U.S. company must be a “qualifying organization.” A qualifying organization is one that is doing business in the United States and one other country during the whole period that the foreign national is in the U.S. “Doing business is defined to mean the “regular, systematic and continuous provision of goods or services.” It does not include the mere presence of an agent or office abroad, if no actual business is being conducted.
The U.S. company and the overseas company, for which the foreign national has worked, must have a qualifying relationship. This is often a complex issue, and requires some in-depth analysis. However, generally, if the U.S. company and the overseas company are branch offices of the same corporation, a qualifying relationship exists. A “branch office” is defined to mean an operating division or office of the same organization housed in a different location. A qualifying relationship may also be established if both the U.S. company and the overseas company are majority owned by a third company or by the same individual or group of individuals. In addition, a qualifying relationship may be established if the U.S. company owns more than 50% of the overseas company, or if the overseas company owns more than 50% of the U.S. company.
The foreign national must have worked abroad for the overseas company for a continuous period of one year within the last three years at the time of submission of the petition. Additionally, the foreign national must be qualified for the position by virtue of his or her prior education or experience.
The foreign national that is being transferred from the overseas company to the U.S. company must be coming to the United States to work in a “managerial capacity” or “executive capacity” or “specialized knowledge capacity.” The meaning of these terms is quite complex, but, generally, employees in an “executive capacity” are those whose primary duties are to direct the management of an organization or a major component of an organization or a function in the organization, and establish organizational goals and policies, and exercises wide latitude of discretionary decision making, and receives only general supervision or direction from higher level executives. Employees in a “managerial capacity” perform duties that direct the organization, department or subdivision, and control the work of other professional, supervisory or managerial employees. These employees have the authority to hire and fire workers, and exercise wide discretion over the day-to-day operations. Employees in a “specialized knowledge” capacity are those that have specialized knowledge or an advanced level of knowledge of the company’s products, procedures, methodologies, services, or other interests. The issue of what constitutes “specialized knowledge” is a very complex issue, and the government has begun to scrutinize the L-1B category very closely within the last year or two.
L-1 Visa Application Process
Unlike the H-1B category, the L-1 category does not require the U.S. employer to submit a Labor Condition Application (LCA). Rather, the U.S. employer begins the L-1 petition process by filing a Petition for a Nonimmigrant Worker (Form I-129) with the U.S. Citizenship and Immigration Services (USCIS). Evidence of the qualifying relationship, as well as the foreign national’s credentials, are included with the Form I-129 petition filing. The government takes approximately 60 to 120 days to adjudicate the petition. Unlike the H-1B category, there is only one filing fee of $320.00 that needs to be paid to the government when submitting a Form I-129 petition. However, if the U.S. employer would like the government to issue a decision on the petition within 15 days, the government requires an additional fee of $1,000.00 for premium processing service.
Once the petition is approved, the foreign national will need to apply for an L-1 visa stamp at the U.S. embassy or consulate abroad. There are several application forms that need to be completed and submitted to the U.S. consulate, as well as a visa application fee. The foreign national will be interviewed by a consular official, and a background check will be conducted. Once the visa application process has been completed at the U.S. embassy or consulate, the foreign national will be issued an L-1 visa stamp in his or her passport.
Once issued the L-1 visa stamp, the foreign national will need to travel to the U.S. and present the L-1 visa stamp to an U.S. inspecting officer at a U.S. port of entry. The inspecting officer will issue the foreign national an I-94 card at the port of entry and admit the foreign national into the United States in L-1 status. The I-94 card evidences the foreign national’s L-1 status, and is proof of the foreign national’s authorization to work in the U.S.
Once the L-1 petition is approved, spouses and children of the L-1 worker are eligible to apply for L-2 visas directly at a U.S. embassy or consulate, which will allow immediate family members to accompany the L-1 worker to the U.S. Unlike the H-4B category, L-2 visa holders may apply for a work authorization card after being admitted into the U.S. H-4B visa holders may not engage in employment of any kind.
The foreign national may be admitted to the United States in L-1 status for the period of time required by the employer, up to a maximum initial period of stay of three years. The total period of stay may reach seven (7) years for L-1A managers and executives, and five (5) years for L-1B specialized knowledge personnel.Country Guides are available by request. Please contact us.