Tag Archives: nonimmigrant visa

L-1 versus H-1B

L-1 Visa Overview: Temporary, Nonimmigrant Visas for Intra-company Transferees

As you may be aware, bringing a foreign worker to the US on an H-1B temporary work visa is difficult because there are a limited numbers available each year, and the visa is so over-subscribed that only about 1 out of 3 are picked up in the lottery.  If there is a company with an overseas subsidiary, another possible visa for a foreign worker is an L-1 (intra-company transferee) which is a non-immigrant petition filed by a company on behalf of an employee coming to the United States temporarily to work for the company in a managerial, executive, or specialized knowledge capacity.  The employee must have worked for the company or its related entity overseas for at least one year, either in a managerial, executive, or specialized knowledge capacity within the three years preceding application for admission.

Qualifying Relationship Between Overseas Company and U.S. Company:  the overseas company and U.S. company must show a qualifying relationship such as parent, subsidiary, affiliate, joint venture, proprietorship ,or branch office.

L-1 Requirements: The L-1 individual may work in either a Managerial/Executive or Specialized Knowledge capacity, and the individual must have worked for the foreign entity at least one year in the prior three years.  Note:  If the individual wishing to come to the United States on L-1 is an owner or major stockholder of the petitioning company, the USCIS requests evidence that the individual is coming to the United States temporarily, and will be transferred to an assignment abroad, after completion of the temporary assignment in the U.S.

L-1A:  Managerial Capacity:   First line supervisors are not considered managerial unless they are supervising professional-level employees.   Therefore, to be managerial, the person must either be managing other managers or managing professional-level employees who have at least a bachelor’s degree or its equivalent. An L-1A managerial capacity employee may work for a maximum of 7 years in L-1A status.

L-1A Executive Capacity:  The person must direct the management of the company or one of its major functions; he or she must establish policies and goals; he or she must exercise wide latitude in discretionary decision making; and must only receive general supervision or direction from higher level executives.  An L-1A executive capacity employee may work for a maximum of 7 years in L-1A status.

L-1B: Specialized Knowledge:  For specialized knowledge capacity, the individual must have specialized knowledge in the company’s products, processes or procedures.  If individual is coming to the US in a specialized knowledge capacity, then the individual can only be located off-site, if the sponsoring company will continue to maintain control over the individual’s work.  Specialized knowledge of the company’s products or processes must be necessary for the job.  An L-1B specialized knowledge employee may work for a maximum of 5 years in L-1B status.  L-1B status is very difficult to get.

Blanket L-1’s:  A blanket L-1 allows a company to pre-qualify for L-1 status for its qualified employees.  With an approved blanket petition, there is no need for the company to file a separate petition for each L-1 employee.  Only certain companies can qualify for blanket petitions.  Namely, a company must meet normal L-1 requirements, plus have 3 or more branches, affiliates or subsidiaries and must have combined U.S. annual sales of at least $25 million, at least 1,000 employees (U.S.), or received approval of at least 10 L petitions in prior year.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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H-1B REQUESTS FOR EVIDENCE: The Basics

Requests for Evidence are issued by the USCIS service center where the petition was filed.  A Request for Evidence (RFE) may follow virtually any type of petition but the scope of this article will focus on requests for evidence on an I-129 Petition for an H-1B Nonimmigrant Worker.

First and foremost, the best way to avoid getting the dreaded RFE is to include enough documentation with the original H-1B petition to keep from getting one!  For this reason, we recommend working with an experienced immigration attorney.  Although the I-129 petition form seems simple enough to complete at first blush, working with an experienced immigration attorney will help to ensure not only that it is completed properly, but that the correct additional evidence is included, and is the best opportunity for getting an approval.  Most immigration attorneys agree, however, that there is no guarantee that even the most thorough I-129 petition will get approved without an RFE.    An RFE is issued if the USCIS feels that it has not received sufficient information to approve the case as it was originally filed.

Sample of an RFE cover page

Sample of an RFE cover page

An RFE may be issued on an I-129 that seeks a new H-1B classification filed in the quota, i.e. a new petition, seeking to grant a beneficiary H-1B status, as well as petitions that seek to:

  • Extend H-1B status
  • Transfer (change of employer)
  • Transfer and extend
  • Amend (changed project/position), and amend & extend

 

 

Time frames

Once a case is received by the USCIS, the service center will normally process the H-1B petition and come to a decision within approximately 5-8 months—which will result in an approval, a denial or an RFE.  If the petitioner elects to have the H-1B petition processed under premium processing, the time frame will be expedited and something will be issued within 15 calendar days.  Premium processing involves an additional fee but the fee will be refunded if the USCIS fails to act within the 15 day period.  There is always the danger with premium processing is that an RFE will be issued just to make the clock stop.  Once an RFE is issued, the clock stops until a response is sent back to USCIS.

Even though an RFE may not seem like good news, it is best to think of it as an additional opportunity to secure an approval.

Definitions

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers who have the equivalent of a US Bachelor’s degree to work in a “ specialty occupation”. An H-1B visa is granted for a period of up to 3 years, and is renewable once for an additional period of 3 years, for a total of 6 years.

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Immigration and Nationality Act (INA) §214(i)(1)(A)-(B).

Two Most Common H-1B RFE Issues

The two most common types of Requests for Evidence on H-1B’s, are (1) Is this job a Specialty Occupation? And (2) Does the employer have control over the employee?

From the above definition of specialty occupation, two major issues arise.  First, whether the position itself qualifies as a specialty occupation position (one which requires that type of specialized education/knowledge), and second, whether the beneficiary qualifies for the position, in other words, does his education prepare him to work in that type of occupation, or does he have some work experience or training to qualify him.

The next additional common H-1B RFE issues include whether the employer is the actual entity which has the right to direct and control the person’s work, and arises most often in the context of IT professionals who are placed at a client site for temporary assignments.  The USCIS seeks proof that the employer who pays them has the right to control and supervise their work, even though they are not working at the employer’s office.

In order to address these concerns, we have developed a list of possible documents and proofs to demonstrate the appropriate level of control.  Our goal is to work with the employer and employee in question, and prepare the documents which are needed in order to assure the USCIS that the position qualifies for an H-1B.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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How the new Visa Waiver program rules will affect my Wedding

Iraqi passports, military documents and

Iraqi passports, military documents and Iraqi-Palestinian travel documents are sold in a street market in Baghdad, 11 June 2003. US Iraq overseer Paul Bremer set his sights on tackling Iraq’s chronic… Get premium, high resolution news photos at Getty Images

How the new Visa Waiver Program Rules will affect my Wedding

By Sam R. Saif

This year, I am getting married to an Iraqi-American. As an Iraqi-American myself, I have many close family members living all around the world. You can imagine that after the Gulf War, and then later the 2003 Iraq War, many people fled Iraq in search of a better, more stable life. That’s what my family and my Fiancée’s family did. The nice thing about our families is that they are willing to come from all parts of the world (i.e. Australia, Sweden, Denmark, Holland, England, Canada, and the list goes on) to get together to celebrate our wedding. However, many of them do not know that it will not be an easy process for them to come to the US as visitors.

Most of the countries listed above are Visa Waiver Program participant countries. That means that it would usually be very easy for them, as citizens of those countries, to travel to the United States. They would simply complete a short application online, receive an approval, and take that approval to any airline to get on a plane to the US. However, the new VWP rules require that those with dual nationality of VWP countries and four other countries – Iraq, Iran, Sudan, and Syria – must apply for a B1/B2 visitor visa. Applying for a B1/B2 visa means that they must go through a more complex and stringent process. There are other new rules to the VWP, but we will just focus on the one just mentioned.

These are the general steps and issues with applying for a B-1/B-2 nonimmigrant visitor visa:

  1. Complete a long and complicated DS-160 application online;
  2. Pay the $160 application fee;
  3. Gather the required documentation, including:
    • Passport that is valid for travel to the US – Valid for at least 6 months
    • Non-immigrant Visa Application, Form DS-160 confirmation page
    • Application fee payment receipt
    • Passport photos (Usually uploaded while completing the online DS-160 form)
    • Documents establishing the individual is qualified for the B1/B2 nonimmigrant visa:

a) Showing the purpose of the trip;

b) That the individual intends to depart the US after the trip;

c) The individual’s ability to pay all costs of the trip;

d) Otherwise not inadmissible (ineligible) from entering the US;

e) Mainly, an individual must show ties to their home country such that they can convince a consular officer that they are in fact planning on returning to that country upon completion of the purpose of the trip.

  1. Schedule and attend an appointment to have fingerprints and photo taken with the Visa Application Center;
  2. Schedule and attend an Interview at the US consulate/embassy:
    • The consular officer will review the application and necessary documents and will make a determination whether the individual is eligible for the visa.
    • The consular officer has wide discretion to approve or deny an application.

Instead of just filing a short application online, getting an approval within minutes, and easily traveling to the US, my family members must now apply for a B-1/B-2 visa simply because they are still Iraqi citizens. Most of them arrived to their respective countries as refugees, fleeing the violence in Iraq. Most, if not all, have not been to Iraq in decades. They also no longer have any ties to Iraq since all of their family members and friends have traveled to other countries and sought asylum. They are simply coming to the US temporarily to attend my wedding. Yet, they are being singled out for being Iraqi citizens.

Not all of our family members are necessarily willing to go through the expense and stringent process of applying for a B-1/B-2 non-immigrant visa. And should one of them be unable to produce documentation showing strong ties to his/her resident country (no bank account, no school, temporary jobs, not married, no children, etc.) he/she will have a much more difficult time overcoming the presumption that he/she intends to depart the US after fulfilling the purpose of the trip.

For more information on the new VWP rules, please follow these links:

http://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq

http://www.nytimes.com/2016/01/22/us/politics/us-tightens-visa-rules-for-some-european- http://gty.im/2091633 visitors.html?_r=0

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