Employment Visas

Nonimmigrant in a Specialty Occupation
H-1B Visa

Eligibility

H-1B employment visas are granted to individuals who want to perform services in a specialty occupation in the United States. The qualification of ‘specialty occupation’ is determined by the job duties, requirements, and the Department of Labor’s classification of the intended position. The basic rule is – To qualify for the H-1B visa category, the prospective H-1B employee must hold at least a U.S. bachelor’s degree, the equivalent of a 4 years bachelor’s or higher degree from an accredited college or university.

There is an annual quota of 65,000 H-1B visas plus an additional 20,000 visas for advance degree holders that achieved their degree in the US.

In recent years there are more applicants than visas due to the annual quota, and therefore the government conducts a “Lottery” system between the applicants. Only those who “win” the lottery have their cases processed. Others are rejected and are welcome to try again the next year.

H-1B can be submitted once a year on April first. Upon approval, commencement of the employment is on October first of the same year.

Requirements

The USCIS requires documentation and written explanation of the purposes, functions and criteria of the specialty occupation. They also require the applicant’s educational and work history. These documents should include:

  • At minimum a bachelor’s degree or equivalent;
  • A clear list of job duties specific to the nature of the employer’s business; and
  • A description of the nature of the employer’s business.

To be eligible for an H-1B visa, there are specific criteria that both the employer and employee must meet.

An employer must prove that the job is, in fact, a specialty occupation by satisfying at least one of the following criteria:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum education level for the position;
  • The requirement of a bachelor’s degree or higher is common to the industry;
  • The employer normally requires this level of education for this position;
  • The skills and knowledge required to complete the specific, specialized duties of the position are normally associated with the attainment of a bachelor’s degree or higher.

The employee must show that he or she has completed a bachelor’s degree or higher as required by the specialty occupation; or has a foreign degree equivalent to a U.S. bachelor’s degree or higher; or has received education, training, or “progressively responsible experience” that is recognized to be equivalent to the obtainment of a bachelor’s degree.

H-1B visa holders must work exclusively for the petitioning employer, unless they have applied for and been granted an H-1B “Concurrent Petition” that will allow them to work concurrently for another employer.

Validity / Extensions

The H-1B visa allows admittance to the United States for a period of up to three years and can be extended for an additional three years.

Please note that any day spent out of the United States will not be counted in the validity time. Therefore, if you were outside the US during the six years of the H-1B visa validity, you may use those days to extend your H-1B visa beyond the six-year limit.

H-1B visa can be extended beyond six years only if:
  • The H-1B employee is the beneficiary of an approved I-140 petition;
  • The H-1B employee is the beneficiary of a PERM petition or I-140 petition that was filed over a year ago; or
  • The H-1B employee is recapturing time spent outside the US during the past six years in H-1B status.
Family Members

Spouses and unmarried children up to 21 years old may be admitted to the United States under the classification of H-4 visa holders. H-4 visa holders cannot legally work unless they fall under narrow exceptions.

Jurisdiction

H-1B’s are processed directly with USCIS.

Since a H-1B grants only a nonimmigrant status, the holder of the H-1B must maintain their intention to depart the United States and/or return to their home country when their status is terminated throughout the entirety of their stay.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration attorneys directly and set up an appointment.

Nonimmigrant Intracompany Transferee Specialized Knowledge
L-1B Visa

Eligibility

L-1B visas are granted to individuals who want to relocate to work in the United States in an executive or managerial capacity and have been offered such a position at the United States affiliate, subsidiary, or parent company of their foreign place of employment. The position offered needs to be for a specialized function specific to the visa-holder based on his or her specialized knowledge.

L-1B visas also allow for a foreign company, which does not yet have an office within the United States, to relocate an employee possessing specialized knowledge to the United States to establish an office within the U.S.

Requirements and/or Materials:

The USCIS will require documentation and written explanations of the nature, scope and activity of the foreign entity and the United States entity, the qualifying relationship between the two and the qualifying specialized nature of the position offered. These documents should include:

  • Evidence that the foreign entity is doing business abroad and establishes the need for the specialized position;
  • Evidence that the employee has worked for at least one year in the past three years at the foreign entity in an executive or managerial position; and
  • Evidence that the United States’ position requires an employee that possesses special knowledge of the entities’ product, services, research, equipment, management, and other such aspects, and their application in the international market, or an advanced level of expertise in the organization’s processes and procedures.

There must be a qualifying relationship between the foreign entity and the United States entity. Otherwise, the applicant is not qualified for the position and the business in the United States cannot financially support the proffered position.

Validity / Extensions

Those entering the United States to establish a new office for the foreign company are generally given a stay of one year. All other employees entering the United States under an L-1B classification are generally granted a stay of three years.

Extensions of stay may be granted in increments of up to two years, until the employee has reached the maximum limit of five years.

Family Members

The L-1 holder may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. The family members may seek L-2 non-immigrant classification, and in most cases will be granted the same period of stay as the L-1 holder.

Spouses of L-1 holders may apply for work authorization. There are no restrictions on where a L-2 spouse may work.

Jurisdiction

L-1’s are processed directly with USCIS.

Since a L-1 grants only a nonimmigrant status, the holder of the L-1 must maintain their intention to depart the United States and/or return to their home country when their status is terminated throughout the entirety of their stay.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration attorneys directly and set up an appointment.

Nonimmigrant Intracompany Transferee Executive or Manager
L-1A Visas

Eligibility

L-1A visas are granted to individuals who want to work in the United States in an executive or managerial capacity and have been offered such a position at the United States affiliate, subsidiary, or parent company of their foreign place of employment.

L-1A visas also allows for a foreign company, which does not yet have an office within the United States, to relocate an executive or manager to the United States to establish an office within the U.S.

Requirements and/or Materials:

USCIS will require documentation and written explanations of the nature, scope and activity of the foreign entity and the United States entity, the qualifying relationship between the two and the qualifying specialized nature of the position offered. These documents should include:

  • Evidence of the nature, scope and activity of the foreign entity and the United States entity;
  • Evidence that the employee has worked for at least one year in the past three years at the foreign entity in an executive or managerial position; and
  • Evidence that the United States’ position will be either executive or managerial.

There must be a qualifying relationship between the foreign entity and the United States entity. Otherwise, the applicant is not qualified for the position and the business in the United States cannot financially support the proffered position.

Validity / Extensions

Those entering the United States to establish a new U.S. office for the foreign company are generally given a stay of one year. All other employees entering the United States under an L-1A classification are generally granted a stay of three years. The visa can be extended upon approval by USCIS in increments of two years; however, there is a maximum stay of seven years allowed with the L-1A visa.

Family Members

The L-1 holder may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. The family members may seek L-2 non-immigrant classification, and in most cases will be granted the same period of stay as the L-1 holder.

Spouses of L-1 holders may apply for work authorization. There are no restrictions on where a L-2 spouse may work.

Jurisdiction

L-1’s are processed directly with the USCIS.

Since a L-1 grants only a nonimmigrant status, the holder of the L-1 must maintain their intention to depart the United States and/or return to their home country when their status is terminated throughout the entirety of their stay.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration attorneys directly and set up an appointment.

Nonimmigrant Temporary Religious Workers
R-1 Visa

Eligibility

R-1 visas are granted to individuals who enter the United States temporarily for employment as a minister, or another religious vocation or occupation for at least 20 hours per week. Religious occupations are those that require habitual work in activities of religious significance. This includes but is not limited to religious instructors, missionaries, liturgical workers, missionaries, cantors, and many more.

Qualifying individuals may be employed by a non-profit religious organization, a tax-exempt religious organization, or a non-profit religious organization that is affiliated with a religious denomination in the United States. For immigration purposes, religious denominations are a group bound by an ecclesiastical governing or administrative body and the members have an agreed upon place of worship, method of worship, and/or set of beliefs.

Requirements and/or Materials:

The USCIS will require documentation and written explanations of the non-profit organization’s activity, and of the specific duties and schedule of the R-1 position. These documents should include:

  • Evidence of the non-profit organization’s activity and legitimate non-profit status;
  • Evidence that the applicant is qualified for the position;
  • Evidence that the applicant has been affiliated with the non-profit organization for at least two years before filing the visa application;
  • Proof that the applicant is going to the United States with the sole purpose of performing a religious occupation; and
  • Evidence of the organization’s ability to support the applicant or evidence of the applicant’s ability to support him/herself within the United States.

The organization must qualify as a religious non-profit organization, the applicant must be primarily performing a religious vocation, and the applicant must work in a religious vocation for two years immediately before filing the application.

Validity / Extensions

R-1’s grant admittance for 30 months and can be extended for up to an additional 30 months upon approval by the USCIS. After a total of 60 months, or 5 years, the R-1 can no longer be extended. There are some exceptions to this rule that allow for an additional extension, but generally the maximum period of stay allowed under an R-1 visa is 5 years.

Family Members

The R-1 holder may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. The family members may seek R-2 non-immigrant classification, and in most cases will be granted the same period of stay as the R-1 holder.

Spouses of R-1 holders may not work in the United States.

Jurisdiction

R-1’s are processed directly with the USCIS.

Since an R-1 grants only a nonimmigrant status, the holder of the R-1 must maintain their intention to depart the United States and/or return to their home country when their status is terminated throughout the entirety of their stay. However, given that the R-1 is a duel intent visa, USCIS may not deny a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification solely on the basis of a filed or an approved permanent labor certification application or a filed or approved immigrant visa petition.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration lawyers directly and set up an appointment.

Non-Immigrant Certain Specialty Occupation Professionals from Australia
E-3 Visas

Eligibility

The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires both theoretical and practical application of a body of knowledge that you garnered in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.

The E-3 visa was created in 2005 as part of the Australia-United States Free Trade Agreement.

Since the inception of the E-3 status between 2,000-3,000 E-3 visas have been issued by US Consulates.

Requirements and/or Materials:

To apply for E-3 status, you must be a national of Australia, have a legitimate offer of employment in the United States, possess at least a bachelor’s or its equivalent, an be (temporarily) relocating to America to fill a specialty occupation.

To receive E-3 classification you must be able to show:

  • A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application. Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
  • Academic or other credentials demonstrating qualifications for the position
  • Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
  • If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation
Validity / Extensions

An E-3 visa grants admittance for an initial period of stay for 2 years. Extensions are for increments of up to 2 years. There is no maximum number of extensions allowed, except in rare cases.

Family Members

Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization. Children are not allowed to work.

Jurisdiction

E-3’s are processed directly with the USCIS. While E-3 holders must maintain an intention to depart the United States upon the expiration of their authorized E-3 stay, guidelines issued by USCIS states applications for E classification including extensions cannot be denied on the basis of a filed or an approved permanent labor certification application or a filed or approved immigrant visa petition.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration lawyers directly and set up an appointment.

Non-Immigrant NAFTA Professionals
TN Visa

Eligibility

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Among the types of professionals who are eligible to seek admission as TN non-immigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN non-immigrant status, if:

  • You are a citizen of Canada or Mexico;
  •  Your profession qualifies under the regulations;
  • The position in the United States requires a NAFTA professional;
  • You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
  • You have the qualifications to practice in the profession in question.
Requirements and/or Materials:

If you are a Canadian citizen, you are not required to apply for a TN visa at a U.S. consulate.

You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection officer at certain CBP-designated U.S. ports of entry or at a designated pre-flight inspection station. You must provide the following documentation to the CBP officer:

  • Proof of Canadian citizenship;
  • Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and
  • Credentials evaluation (which is not always necessary), together with the fees.

Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting a petition to USCIS. In that case, at the border you will only need to provide proof of Canadian Citizenship and the approved petition.

If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN nonimmigrant. You will (with the help of our immigration lawyers) apply for a TN visa directly at a U.S. embassy or consulate in Mexico.

Validity / Extensions

The initial period of stay is for up to 3 years. To apply for an extension, your employer must file a petition on your behalf.

Family Members

If the spouse is a Canadian citizen he or she does not need a visa. If the spouse is a Mexican citizen he or she need to apply for a TD visa, the visa to join your TN visa holder spouse. Spouses and children are not permitted to work but are permitted to study.

Jurisdiction

Canadian citizens can apply for TN status at the border or at an airport. A petition can also be filed with USCIS through their employer. A Mexican citizen must apply for a visa at the embassy or consulate.

Remember that each case is unique. To find out whether you qualify for this visa, please contact our immigration lawyers directly and set up an appointment.

CONTACT

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Fax: 888.820.3250
Email: info@atashlaw.com

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New York NY 10019

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