Share

Working in the United States

Nonimmigrants - Dual Intent

Each year thousands of employers in the United States hire foreign nationals to join their businesses and organizations. These foreign workers often bring highly specialized knowledge to their respective fields, add cultural diversity to the workplace and help US employers maintain competitive advantage in the global market. Despite the many benefits that these foreign nationals bring to the US economy, business immigration procedures are often complex and the legal processes are overwhelming.

Our firm will guide you through the maze of immigration processes, from the hiring to the transfer of foreign workers. With our experience working with all types of organizations and businesses and our vast knowledge of United States citizenship and immigration law, we can help you explore the options for work authorization and assist you with the documentation requirements necessary to obtain the appropriate visa.

Individuals with Extraordinary Ability: O Visa
Businesses may hire foreign employees with “extraordinary ability in the sciences, arts, education, business, or athletics” to come work temporarily in the United States. A genetic engineer who has written extensively on modified food or an Olympic athlete who has won multiple medals in their respective sport are examples of qualified applicants for the O-1 Visa.

There are several different types of visas in the O category:

  • O-1A:  Individuals with an extraordinary ability in the sciences, education, business, or athletics.
  • O-1B: Individuals with an extraordinary ability in the arts or the extraordinary achievement in the motion picture or television industry.
  • O-2: Individuals who will accompany an O-1 individual to assist in a specific event or performance.
  • O-3: Individuals who are the spouse or children of O-1s and O-2s.

To be eligible for this visa program, the foreign national must be sponsored by a US employer (or a US agent, or a foreign employer through a US agent on behalf of the applicant) and prove their high level of expertise in a given field by winning an internationally-recognized award, such as the Noble Prize, or by meeting three of the following criteria to prove extraordinary ability:

  • Receipt of lesser nationally (not necessarily US) or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;
  • Published material in professional or major trade publication or in the major media about the alien and relating to the alien's work in the field of endeavor;
  • Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien's field;
  • Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;
  • Evidence of authorship of scholarly articles in the field, in professional journals or other major media;
  • Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;
  • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
  • Other comparable evidence

The O-1 Visa is granted for an initial stay of three years; however, the Visa may be extended in one year increments for the duration of the foreign employee’s work in the United States. Unlike most of the temporary nonimmigrant visas, there is no maximum length of stay in the U.S. for holders of the O-1 Visa. The O-1 visa is a Dual Intent visa, meaning that the applicant may simultaneously seek Lawful Permanent Resident status (Apply for a Green Card) while in the US on O-1 visa.

Our firm attorneys can assist you in obtaining an advisory opinion to prove eligibility and aid in the preparation of the O-1 petition and supporting documentation.    

Specialty Workers: H - 1B Visa
One option available to employers is the H-1B Visa which allows businesses to sponsor highly skilled foreign nationals in specialized occupations to come work in the United States on a temporary basis. These specialty occupations include, but are not limited to: IT, Computing, Finance, Accounting, Banking, Engineering, Teaching, Medical, Legal, and Telecommunications. To qualify for the H-1B Visa, foreign nationals must have a minimum of a Bachelors degree in their specialized fields.

In order to obtain an H-1B Visa, the employer must obtain Certification from the United States Department of Labor (known as Labor Certification) by establishing that:

  • the employment of the foreign national will not displace American workers;
  • the foreign worker will be paid the prevailing wage for the industry in which they will work; and
  • the employer will not employ the foreign national in the event of a strike or lock-out.  

Once Labor Certification is granted, the employer must file a petition with the United States Citizenship and Immigration Services.

The requirement of obtaining Labor Certification can be waived under National Interest Waiver if a three-part test established in In re New York State Department of Transportation is met. The test calls for an issuance of a waiver when:

  • an immigrant works in an area of substantial intrinsic importance;
  • such employment provides a benefit that is national in scope; and
  • the immigrant must be capable of serving the national interest better than qualified US worker would.

Although the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as Dual Intent. This means that a holder of H-1B visa at some point will be able to adjust his or her status to that of Lawful Permanent Resident ((LPR) apply for and obtain the Green Card). Because of a huge backlog it now takes many years for skilled professional from some countries to obtain LPR status. Since the duration of the H-1B visa remained the same, H-1B visa holders must continue to renew their visas in order to maintain their legal status while the Green Card application is in process.

The United States Government places a cap on the number of foreign workers, issuing a limited number of H-1B Visas per year. With great demand and limited supply, it is important that you consult an attorney who understands the extremely detailed process of obtaining work authorization in the U.S. We assist in the preparation of the petition, application and review all supporting documentation to ensure that you do not fall victim to the common H-1B Visa pitfalls which lead to the rejection of many applications each year.

Nurse Workers: H - 1C Visa
The H-1C Visa program allows foreign nurses to work in the United States for a maximum of three years in a health professional field where there is a labor shortage. In order to obtain the H-1C Visa, the nurse must be fully licensed in the country of his/her professional education and pass the NCLEX-RN exam. Just a few hundred H-1C Visas are issued to qualified candidates each year. It is important to note that individual states also impose a cap on H-1C Visas dependent upon the latest population figures. Our firm can help you determine specific state restrictions, demonstrate eligibility and assist you in the preparations of all H-1C documentation.

Temporary or Seasonal Workers: H - 2 Visa
The H-2 Visa allows employers to bring temporary workers to the United States to fill a job opening for a specified time period up to one continuous year. The employment must be a one-time need based opening due to a labor shortage in the United States, or be fulfilling a temporary or cyclical need. In order to obtain an H-2 Visa, the employer must obtain a Temporary Labor Certificate from the United States Department of Labor asserting that no American workers will be displaced by the hiring of foreign nationals, and that the foreign national will be paid the prevailing wage for American workers in the same position. Once the employer has obtained the Temporary Labor Certificate, a petition must be filed with United States Citizenship and Immigration Services verifying that the position is temporary. The H-2 Visa process varies depending on whether the foreign worker is an agricultural or non-agricultural worker. Contact our firm to discuss the necessary requirements to obtain temporary worker authorization through the H-2 Visa program.

Professional Training: H - 3 Visa
Companies that have training programs to educate individuals in a specific industry are able to sponsor foreign participants by obtaining the H-3 Visa. The H-3 visa allows foreign nationals to temporarily live in the United States for a specified period of time (the duration of their training) in order to train with a U.S.-based  company in various occupations including commerce, agriculture, finance, government and business. It is important to note that individuals receiving medical training are not eligible for this Visa program.

In order to qualify for the H-3 Visa, an individual must be invited by an organization, company or American citizen for training which is not available in the foreign national’s home country. Applicants seeking the H-3 Visa must file a petition proving that they will not be employed in the United States beyond what is necessary for their training and that the experience will benefit the trainee in pursuing a career outside the U.S. upon the completion of the program. Although there is no cap on the number of H-3 Visas issued each year, it is important to consult with an attorney who has experience with business immigration to ensure the proper steps are taken in each phase of the application and petition process.

Multinational Corporation Employee: L - 1 Visa
Multinational companies with multiple locations in the United States and abroad may sponsor foreign employees to join a U.S. branch by obtaining the L-1 Visa. In order to be eligible for this visa, an individual must have worked abroad for the company for at least one continuous year prior to relocating to the United States. Two types of employees may be eligible for the L-1 Visa:

  • Managers and Executives who hold a supervisory role within the company may apply for the L-1A Visa for a maximum of seven years.
  • Employees with specialized knowledge of the company’s products, services, research, systems, management, operations or procedures which is not widely held or available in the United States may be eligible for the L-1B Visa. These individuals may remain in the United States for a maximum of five years.

Employers may petition for foreign national employees through the regular L-1 Visa procedure, submitting a petition for each individual employee, or by filing a Blanket L-1 Visa petition which allows the employer to apply for the L-1 Visa on behalf of multiple employees under a single petition. Generally, blanket petitions are only available for larger corporations as certain criteria must be met. Once the Blanket L-1 is approved, employers have greater flexibility in transferring employees to the United States.
One of the benefits of the L-1 visa, as opposed to many other nonimmigrant visas, is that it is a Dual Intent visa. In other words, the L-1 visa holder may adjust to a Lawful Permanent Resident status (obtain a Green Card) without jeopardizing his or her L-1 visa status or their visa applications from a US consular office abroad.
Our immigration attorneys can assist you in determining if your business qualifies for the regular or blanket L-1 Visa petition        

Treaty Visas: E - 1 & E - 2 Visa
United States has special treaties related to commerce with a number of countries.  These treaties allow individuals from such countries who need to travel to the US for substantial trade and business - related activities to obtain Treaty Trader (E-1) or Treaty Investor (E-2) visas.

Requirements: E-1 Treaty Trader: Individuals from qualifying treaty countries who want to apply for an E-1 Treaty Trader Visa must meet certain requirements, such as:

  • The company which is seeking to conduct trade in the US must be based in the same treaty country of the individual;
  • There must be a significant amount of international trade between the US and the treaty country;
  • The individual must have specialized skills and be in a management position of the company which is conducting trade.

Requirements: E-2 Treaty Investor: Individuals from qualifying treaty countries who want to apply for an E-2 Treaty Investor Visa must meet certain requirements, such as:

  • There must be sufficient amount of investment to ensure the success of the underlying business. It should also have a significant economic impact in the US;
  • The investment must be for an active, operating business and not a passive or speculative investment;
  • If the individual applying for the visa is not the investor, he or she must be in a management position at the company making the investment.

 


Attorney Advertising



© 2017 The Litvak Law Firm, PLLC | Disclaimer
1701 Avenue P, Brooklyn, NY 11229
| Phone: 718-989-2908

Overview of Services | Criminal Defense | Immigration | Debt Solutions |

Law Firm Website Design by
Amicus Creative