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AN OVERVIEW OF MAJOR EMPLOYMENT BASED NONIMMIGRANT VISAS

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May 2003
AN OVERVIEW OF MAJOR EMPLOYMENT BASED NONIMMIGRANT VISAS

Specialized knowledge is defined to include a person who has ?special knowledge of the company or product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

B-1 Visitor for Business: A foreign national may obtain a B-1 visa if s/he is engaging in commercial transactions not involving gainful employment ? such as negotiation contracts, litigation, consulting with clients, etc. This visa may also be obtained in order to participate in scientific, educational, professional, religious, or business conventions. The principal place of business, as well as the actual accrual of profits, must be in a foreign country, and any salary made to the B-1 visitor must come from a foreign source. The foreign national must have a clear intent to continue his/her foreign residence.

H1-B Visa:

The H1B visa is available to a person in a specialty occupation, who is coming temporarily to the US to work for a petitioning employer. This visa does not require the maintenance of a foreign residence, and allows for ?dual intent?, in that a person may be on an H1B yet also be the beneficiary in an immigrant petition. A specialty occupation is defined as one requiring the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a Bachelor?s Degree or higher degree (or its equivalent) in the specific specialty.

Education: If a person has not attained a Bachelor?s Degree, but has many years of work experience, typically a substitution of 3 years of experience may be allowed for each year of college. Thus, a person with no college experience at all would need 12 years of work experience in the field. An educational and work evaluation would be done by a reliable credentials evaluation service to ensure that the degree equivalency requirement is met.

Specialty Occupation: To be classified as a specialty occupation, a bachelor?s degree must normally be the minimum requirement for the position, or the nature of the specific duties must be so complex that the ability to perform those duties would require knowledge normally associated with a Bachelor?s Degree. Positions which have been defined as ?specialty occupations? include Accountants, Computer Programmers, General Managers (but only where the business is complex), Hotel Managers, Journalists, Ministers, and Pharmacists. Nurses may qualify for the visa usually only if the nursing position is in a specialty field.

An H1 extension is approved for a maximum of 3 years, and renewable for 3 additional years. A person may remain in the US for a maximum of 6 years on an H1 visa, unless they have a labor certification pending, in which case it may be renewed in one-year increments. Immediate family members of the H1 holder may come to the US on an H4 visa, which does not allow employment. If the petitioning employer (or any US employer) wishes to sponsor the H1 employee for a Green Card they may do so, typically through a labor certification petition, which will be discussed in upcoming issues of Immigration Update. Family members may accompany the H1 employee in H4 status, which does not allow work authorization.

L1 visa:

L1 visas are available to employees of multinational companies who (1) have specialized knowledge of the company or (2) are executives or managers of the company. An individual can stay in the U.S. for a maximum of five years in the specialized knowledge category and a maximum of seven years in he executive or manager category. The employee must have been continuously employed abroad for 1 (of the past 3) years by a parent, affiliate, or subsidiary of the U.S. company, and must continue to work in a capacity that is managerial, executive, or involves specialized knowledge.

Specialized knowledge is defined to include a person who has ?special knowledge of the company or product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.? This does not apply simply to skilled workers, but to those with an advanced level of expertise.

The nature and size of the company is irrelevant for purposes of receiving the L1 visa, although our firm?s experience has been that once a new company is established, several employees should be hired to ensure subsequent L1 extensions. Like the H1B visa, the L1 visa allows the ?dual intent? to both be a nonimmigrant and to have a desire to immigrate to the US. Furthermore, a person in an L1 can be sponsored for a Green Card one year after the establishment of the U.S. company, and no labor certification is required. Families of L1 visa holders may accompany them in the L2 status, and L2 spouses can also petition for work authorization.

E2 Visa:

The E2 Treaty Investor visa is available to those person entering the US based upon a treaty between this country and the country of which the person is a national, and allows admission to the US for an indefinite time to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing a substantial amount of capital. Admission is for 2 years, and extensions of stay for up to 2 years at a time are granted indefinitely (i.e. there?s no limit to how many years a person may stay in the US on this visa.) The investment must be ?substantial,? and substantiality is determined by the nature of the company in which investment is being made. The person on the E2 visa must be managing the business, and must have controlling interest in the business. Families of E2 investors may accompany the principal investor. E2 spouses may petition for work authorization.


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