California Immigration Lawyer Attorney Shah Peerally – Some Common Non-Immigrant Visas
Some Common Non Immigrant Visas
Foreign nationals may enter the United States as nonimmigrants in order to engage in academic studies and there are two categories for those persons wishing to study in the US.
The students, who can range from elementary school students to doctoral students and persons engaged in post-doctoral studies, are classified in the F visa category. A student with an F-1 visa may not accept off-campus employment at any time during the first year of study; however, the U.S. Immigration and Naturalization Service may grant permission to accept off-campus employment after one year. No permission is required for on-campus employment.
Aliens coming to the United States to perform services in “specialty occupations” for which the aliens hold the requisite qualifications, as well as alien fashion models of distinguished merit and ability,” are classified as nonimmigrant under Section 101(a)(15)(H)(I)(B) of the INA, 8 U.S.C.Section 1101 (a)(15)(H)(I)(B). The term “specialty occupation” is defined in basically the same manner as “professional” was defined by INS regulation prior to the extensive revision of the H-1B category by the 1990 Act and the 1998 Omnibus Act. Excluded from the H-1B category are entertainers and athletes, who must seek classification in the H-2B, O or P categories.
The H-1B category also includes aliens of exceptional merit and ability who will work on cooperative projects under government to government agreements administered by the Secretary of Defense. The new American Competitiveness Act in the Twenty-First Century Act (AC21) raised the number of available H1-B visas (the “cap”) to 195,000 for each fiscal year from 2001 through 2003. In addition to the usual petition requirements applicable to all H-category non-immigrants, the H-1B category has the additional requirement of a labor condition application (LCA) which must be filed with the DOL prior to the filing of a petition with INS.
The L1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the US operations. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US company outside of the US for at least one year out of the last three years.
Employees in this category will be granted an L1 visa, initially for a three year period, extendible to a maximum of 7 years. On completing the maximum allowable period in L1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L status.
There are two types of employee who may be sponsored for L1 visas:
The legal definition of management and executive roles for these purposes is quite strict, and a detailed description of the duties attached to the position will be required. In particular, the executive or manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer. Such personnel are issued an L1A visa, initially for a three year period extendible in 2 year increments to a maximum of 7 years.
This category covers those with knowledge of the company’s products/services, research, systems, proprietary techniques, management, or procedures. Staff in this category are issued an L1B visa, initially for three years extendible to a maximum of five years.
The transferee must have worked abroad for the US Company for a continuous period of one year in the preceding three years
Company operating in the US must have employeed the transferee in its overseas branch.
The transferee must be coming to the United States to fill one of the “Executive/Managerial” position or in a position involving “Specialized Knowledge” and provide proof that they are qualified for the position.
The company must be operating in US for at least one year.
NOTE: The company must be actively doing business with good track record of revenue.
The US company should continue to carry on doing overseas business for the duration of the transferee’s L1 status.
Qualifying Relationships between US and Overseas company:
Overseas parent company must own at least 50% of a US subsidiary, and have veto powers over the subsidiary’s actions; or
US parent company must own must own at least 50% of the overseas subsidiary, and have veto powers over the subsidiary’s actions; or
Affiliate US and overseas companies must each be at least 50% owned by the same ultimate parent; or
US company with a branch office overseas qualifies, as does a overseas company with a US branch (though this must be more than simply an agent or representative); or
A US organization which employs (e.g. sales personnel) overseas can sponsor such employees for L1’s even if there is no overseas office
NOTE: the ownership requirements are not as strict in the case of vary large corporations, where a substantial minority shareholding will be a qualifying relationship.