H-1B, H2 and L1 Employment Visas
H-1B TEMPORARY SPECIALTY WORKERS VISA
The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. The FY2001, 2002, and 2003 cap on H1-B admissions is 195,000 workers.
Labor Condition Application
The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the Petition for Alien Worker.
Some terms and conditions of the H-1B classification:
Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner);
A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a "nonfrivolous" H1-B petition for the nonimmigrant;
Multiple employers require multiple H-1B petitions;
The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment;
H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.
Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification;
Including more than one worker in a petition: Each petition may only include one worker.
H-1B1 Specialty Occupations
The H-1B1 category applies to an alien coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education.
Document Requirements for H-1B Classification Petition
The petition (Form I-129) should be filed by the U.S. employer with:
- A certified labor condition application from the Department of Labor;
- Copies of evidence that the proposed employment qualifies as a specialty occupation;
Evidence the alien has the required degree by submitting either:
- A copy of the person's U.S. baccalaureate or higher degree which is required by the specialty occupation;
- A copy of a foreign degree determined to be equivalent to the U.S. degree; or
- Copies of evidence of education and experience which is equivalent to the required U.S. degree;
- A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
- A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
H-1B2 Research and Development Project
The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
Petition Document Requirements
The Petition for Alien Worker must be filed by the U.S. employer and must be filed with:
- A description of the proposed employment and evidence the services and project meet the above conditions; and
- A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.
H-1B3 Fashion Model
The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.
Petition Document Requirements
The Petition for Alien Worker should be filed by the U.S. employer with:
- A certified labor condition application from the Department of Labor;
- Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
- Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
- Has performed and will perform services as fashion model for employers with a distinguished reputation;
- Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
- Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
- Involve an event or production which has a distinguished reputation; or
- The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.
H-2 TEMPORARY ALIEN LABOR TO MEET SPECIAL NEEDS VISA
U.S. employers may petition for skilled or unskilled alien workers to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. It is important to note that the employer's need for such services must be temporary. There is currently an annual cap of 66,000 visas for H-2B workers. There is currently no annual cap on visas for H-2A workers.
Labor Certification
The first step to hiring an H-2 worker from outside the U.S. is for the employer to apply for a temporary labor certification with the Department of Labor. These certificates are designed to ensure that the admission of aliens to work in this country on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers. The employer is required to file the labor certification with the Petition for Alien Worker.
Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-2 workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.
Including more than one alien in a petition
A single petition may cover multiple workers if:
- they will perform the same services;
- they will work in the same location;
- they are included on the same labor certification; and,
- they come from places that are served by the same U.S. consulate, or, if visa exempt, they will enter at the same port of entry.
It is not necessary to identify requested H-2A beneficiaries by name (unless only a single worker is needed) if they are unnamed on the underlying labor certification. H-2B beneficiaries must be named unless circumstances (e.g. emergencies) make identification by name impossible. The number of unnamed beneficiaries must always be stated on the petition.
H-2A Agricultural Worker
The H-2A classification applies to an alien coming temporarily to engage in temporary or seasonal agricultural employment.
Petition Document Requirements
Before filing this petition an employer must first apply for a labor certification from the Department of Labor to demonstrate that U.S. workers are not available and that the wages and working conditions meet regional standards. The Petition must be filed by a U.S. employer or an association of U.S. agricultural producers named as a joint employer on the certification. It should be filed with: An original valid temporary agricultural labor certification from the Department of Labor. If the application is denied because it is determined that U.S. workers are available but they do not subsequently appear at the work site, the petition should be filed with a copy of that agency's denial or a certification and appeal, and evidence that qualified domestic labor is unavailable; and copies of evidence that each named alien met the requirements as stated when applying for the labor certification.
H-2B Skilled or Unskilled Worker
The H-2B classification applies to an alien coming temporarily to engage in non-agricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence.
Petition Document Requirements
Before filing this petition the U.S. employer must first apply for a temporarylabor certification from the Department of Labor to demonstrate that U.S. workers are not available and that wages and working conditions meet regional standards. The U.S. employer should file the Petiton for Temporary Woker with:
(a) Either an original single valid temporary labor certification from the Department of Labor (or the Governor of Guam if the proposed employment is solely in Guam), indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
(b) an original notice from such authority stating that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and Copies of evidence, such as employment letters and training certificates, demonstrating that each named alien meets the minimum job requirements stated in the certification.
L-1 INTRACOMPANY TRANSFEREES
The L-1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees who are coming temporarily to perform services either:
(a) in a managerial or executive capacity (L-1A) or which entail specialized knowledge (L-1B) for a parent, branch, subsidiary or
(b) affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify. There is currently no annual cap on L-1 visas.
Note: The employer is not required to obtain a labor certification prior to petitioning in this category. Compensation level is not prescribed, but U.S. income must be sufficient to prevent the alien from becoming a public charge.
Dependents
Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L-2 status, however, dependents may not be employed under the L-2 classification.
Petition Document Requirements
A U.S. employer or foreign employer may file the Petition, but a foreign employer must have a legal business in the U.S. The petition must be filed with:
- Evidence of the qualifying relationship between the U.S. and the foreign employer which address ownership and control, such as an annual report, copies of articles of incorporation, financial statements, or stock certificates;
- A letter from the alien's foreign qualifying employer detailing his or her dates of employment, job duties, qualifications and salary and demonstrating that the alien worked for the employer abroad for at least one continuous year within the three-year period before the filing of the petition in an executive or managerial capacity or in a position involving specialized knowledge; and
- A detailed description of the proposed job duties and qualifications and evidence the proposed employment is in an executive or managerial capacity or in a position involving specialized knowledge.
If the alien is coming to the U.S. as a manager or executive (L-1A) to open or to be employed in a new office, also file the petition with evidence that:
- Sufficient premises to house the new office have been secured;
- The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and
- The intended U.S. operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding:
- the proposed nature of the U.S. office (size and scope, organizational structure, and financial goals);
- financial information about the foreign entity (the size of the U.S. investment and the financial ability to remunerate the beneficiary and to commence doing business in the U.S.), and
- the organizational structure of the foreign entity.
If the alien is coming to the U.S. in a specialized knowledge capacity (L-1B) to open or to be employed in a new office, also file the petition with evidence that:
- Sufficient premises to house the new office have been secured;
- The business entity in the U.S is or will be a qualifying organization;
- The petitioner has the financial ability to compensate the alien beneficiary and to begin doing business in the U.S. Extending an Individual L-1 Petition.
A petitioner may apply for an extension of an individual L-1 petition. Supporting documentation is not required, except in those cases involving new offices or when requested.
Blanket L Petition
Employers who regularly file L petitions may wish to consider filing for a blanket L petition in order to obtain continuing approval for itself (and some or all of its parents, branches, subsidiaries and affiliates in the U.S.). This simplifies the process of approving and admitting additional individual L-1A and L-1B workers.
The blanket L petition must be filed by a U.S. employer who will be the single representative between BCIS and the qualifying organizations and must be filed with copies of evidence that the:
- Petitioner and its branches, subsidiaries, and affiliates are engaged in commercial trade or services;
- Petitioner has an office in the United States that has been doing business for one year or more;
- Petitioner has 3 or more domestic and foreign branches, subsidiaries, or affiliates;
- Petitioner and its qualifying organizations have obtained approved petitions for at least ten L-1 professionals during the previous year or have U.S. subsidiaries or affiliates with combined annual sales of at least 25 million dollars, or have a U.S. work force of at least 1,000 employees.
After approval of a blanket petition, the petitioner may file for individual employees to enter as L-1 professionals under the blanket petition. An I-129 petition for a change of status must be filed with:
- A copy of the approval notice for the blanket petition;
- A letter from the alien's foreign employer detailing the alien's dates of employment, job duties, qualifications and salary for the 3 previous years; and
- If the alien is a specialized knowledge professional, a copy of a U.S. degree, a foreign degree equivalent to a U.S. degree, or evidence establishing the combination of the beneficiary's education and experience is the equivalent of a U.S. degree.
Extending a Blanket L Petition
A petitioner may file an I-129 to extend an expiring blanket petition. The extension petition must be filed with:
- A copy of the previous approval notice for the blanket petition; and
- A summary of the employment of L-1 aliens admitted under the blanket petition during the preceding three years, listing, for each alien:
His or her name;
Position(s) held during the period;
Employing entity;
Date of initial L-1 admission under the blanket;
Date of final departure, if the alien has been transferred outside the United States, and;
Documentation of any changes in approved relationships and additional qualifying relationships.
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