Visa Options: Adventures In Selecting The Best Work Authorization Category

• The proposed training is not available in the foreign national's own country;
• The foreign national will not be placed in a position in which United States workers are normally employed;
• The foreign national will not engage in productive employment unless the employment is incidental and necessary to the training; and
• The training will benefit the foreign national in pursuing a career outside the United States.

Common Questions About H-3 Status:

• We have an employee who is in H-3 status as part of a training program. The employee has great potential, and we would like to hire him as an employee once he completes his training. Could we petition for H-1B or another nonimmigrant status?

  Probably not in the immediate future, but perhaps after the employee returns abroad for a reasonable period of time. One of the requirements for H-3 status is that the employer must confirm that the purpose of the training is to make the employee qualified for employment abroad; not to train the employee to work in the United States. If the H-3 trainee is still in the United States, the INS would most likely deny an H-1B petition.

  However, if it would be possible for the employee to work abroad even for just a few months after the period of H-3 status ends, this should satisfy the "work abroad" requirement of his H-3 status. He would then be more likely to obtain an INS approval of H-1B or another nonimmigrant status.

• Is H-3 status the only nonimmigrant status available for trainees?

  No. In certain circumstances, foreign nationals may come to the United States for brief periods of training in B-1 status. This is referred to as "B-1 in lieu of H-3" status. In order to qualify for training in B-1 status, the trainee must not receive a salary or other reimbursement from a United States source, except for an expense allowance or reimbursement for incidental expenses. The foreign national must be employed by, and receive salary from, an entity located abroad.

  For citizens of countries that fall under the Visa Waiver Program (see discussion under "B-1" Temporary Visitors for Business above), B-1 status has the advantage that the trainee will not be required to obtain a visa from the Consulate for training programs with a length of 90 days or less.

  Additionally, the J-1 category may be available. (See discussion of "J-1" Exchange Visitors below.)

"L-1" Intracompany Transferees

L-1 status is available to persons who have worked abroad for one full year (within the past three years) in an executive, managerial, or specialized knowledge capacity for a qualifying related business entity, and who are being transferred temporarily to the United States to work in an executive, managerial or specialized knowledge capacity for the related United States company. The L-1 visa category is perhaps the most commonly used nonimmigrant category for multinational companies.

• Managers and executives may work in L-1A status for up to seven years; specialized knowledge workers in L-1B status have a cap of five years.

• L-1A status – Executives, or persons in a "managerial capacity": Employees in L-1A "managerial capacity" either supervise the work of other supervisory, professional, or managerial employees, or if there are no subordinates, they manage an "essential function" within the organization. As discussed below, the L-1A category is particularly advantageous because the basic requirements are virtually the same as for the First Preference (EB-1) multinational executive/manager immigrant visa category.

• L-1B status – "Specialized knowledge capacity": Employees in L-1B status must serve in a capacity where the person has special knowledge of the company's product and its application in international markets or has an advanced level of knowledge of the processes and procedures of the company.

• Special Rules for Canadians: NAFTA allows Canadian citizens the option to have the L-1 petition adjudicated at a port of entry to the United States or at pre-flight inspection. The petition is adjudicated immediately, and if approved, the Canadian citizen may enter the United States and start working in L-1 status. Canadians can, therefore, avoid the delay of having the petition filed by mail and adjudicated at an INS regional service center.

• L-1 employees who are being transferred to the United States to open a "new office" must present additional evidence, including documentation of the office's business plan, the securing of office space, and the company's ability to pay the offered salary. An L-1 employee will initially be granted only up to one year of approval.

Common Questions About L-1 Status:

• Our company would like to bring a foreign executive to the United States from one of our subsidiaries, but she told us that she'll consider the transfer only if her husband will be able to pursue his career in the United States. Will it be possible for her spouse to work here?

  Yes! Immigration laws were amended in January 2002 to allow the spouses of people in L-1A and L-1B status (as well as the spouses of treaty traders and investors in E-1 and E-2 status) to apply for an Employment Authorization Document (EAD), which will allow the spouse to work for any employer in any type of job in the United States. The spouse must first enter the United States in L-2 dependent status before applying for the EAD, and it normally takes approximately 3 months to receive the EAD.

  Before spouses in L-2 status were eligible for EADs, the only way they could work in the United States would be to obtain their own sponsorship for an employment-based visa status (e.g., H-1B, TN, L-1, etc.)

• We brought a manager to the United States in L-1A status, and now that she's here, we would like to sponsor her for a green card. How long will this take?

  This employee may be eligible for a fast-track to permanent residence. Under the EB-1 (Employment-Based 1, or "first preference") category, an employer may immediately file an Immigrant Visa Petition (Form I-140) with the INS on behalf of a multinational manager or executive. For employees who qualify for the EB-1 category, the employer can skip the often time-consuming labor certification process that is required for most other categories of employment-based permanent residence processing.

  Depending on the region of the country where the I-140 must be filed, processing times will vary. Under current processing times, the I-140 should be approved within 3 to 6 months. The employee's Application to Adjust to Permanent Resident Status (Form I-485) can be filed concurrently with the I-140, or at any time after the I-140 is filed. The I-485 should be processed within 12 to 24 months. Processing times could change at any time, however, subject to INS staffing.

• Will it be as easy for our company to pursue permanent residence for an L-1B specialized knowledge employee?

  Probably not. Generally, L-1B employees do not fall into the EB-1 multinational manager category for pursuing permanent residence. Therefore, in order to pursue permanent residence, the employer will normally need to start with the labor certification process, which will require a test of the labor market (i.e., advertising) to prove that there are no qualified U.S. workers available and willing to accept the position. Only after the labor certification application is approved by the DOL will the employer be able to file the Immigrant Visa Petition (Form I-140) with the INS.

  Sometimes, an employee will be transferred to the United States in L-1B status to perform a job that requires specialized knowledge, and will later be promoted to a managerial or executive position. In this situation, it is important to look closely at the job that the employee performed with the company abroad. If you can demonstrate that the employee's position abroad meets the INS's definition of a "managerial" position, the employee may qualify for the EB-1 multinational category for permanent residence after the U.S. promotion. You may want to file a petition to change the employee's status to L-1A, or you may decide to simply file an I-140 Immigrant Visa Petition explaining to the INS that the employee now qualifies as a multinational manager.

  Additionally, if there is no way that the employee could qualify as a multinational manager, you should review the employee's qualifications and accomplishments to consider whether the L-1B employee may be eligible for any of the other more advantageous categories for permanent residence (e.g., whether the employee has achieved the type of accomplishments and acclaim that could qualify the employee for permanent residence in the EB-1 category for aliens of extraordinary ability).

• Our company has numerous L-1 intracompany transfers each year. How can we make the process as quick and easy as possible?

  Your company may be qualified to file an L-1 blanket petition. This means that you may be able to file a single L-1 petition with the INS Service Center that will cover all of your related foreign entities (e.g., subsidiaries, branch offices, etc.). In the blanket petition, you would identify all of your related foreign entities. You would be asking that the INS approve that all of the related entities meet the definition of a "qualifying organization" under the L-1 regulations. If the L-1 blanket petition is approved, then throughout the duration of the blanket approval, you will not need to submit an L-1 petition to an INS service center for any of the executive, managerial, and specialized knowledge professional employees of your related foreign entities that are identified in the L-1 blanket petition. Instead, the employees will submit an L-1 petition (with a copy of the blanket approval notice) directly to the U.S. Consulate in the country where they reside. The employee will be able to receive an L-1 visa in as little time as it takes the particular Consulate to issue the visa – in some countries, a matter of hours; and in other countries, a matter of days or perhaps a week. (Canadian citizens do not need to visit a U.S. Consulate. Instead, they simply submit the L-1 documents at the port of entry or preflight inspection.)

  L-1B specialized knowledge employees who apply under the blanket must meet one additional requirement, in comparison with "regular" L-1B employees. In order to qualify for L-1B status under a blanket petition, an L-1B employee must be a "professional"; that is, the employee must have at least a bachelor's degree in the field in which he or she will be working.

  In order to qualify to file an L-1 blanket petition, an employer must meet the following requirements:

  • The employer and each of the qualifying entities are engaged in commercial trade or services;

  • The employer must have an office in the United States that has been doing business for at least one year;

  • The petitioner must have three or more domestic and foreign branches, subsidiaries or affiliates; and

  • Among all of the qualifying organizations within the petitioner's organization, one of the following must be present:

    At least ten L-1 approvals in the past year for executive, managers, or professionals with specialized knowledge, or

    United States sales of at least $25 million, or

    United States work force of at least 1,000 employees.

"O-1" Extraordinary Ability

Foreign nationals who have demonstrated extraordinary ability in the arts, athletics, entertainment, medicine, business, and other fields may qualify for O-1 status. The person must prove the achievement of national or international acclaim by providing extensive documentation of past accomplishments (e.g., awards, recognition, publications, etc.)

The INS will initially grant 3 years of O-1 status, with year-to-year extensions available.

Common Question About O-1 Status:

• We would like to hire a candidate who might be eligible for H-1B or O-1 status. Which option should we pursue?

  O-1 status is normally preferable because it makes the employee eligible for a fast-track (the EB-1 category) for permanent residence, and because the employer will not be subject to the LCA requirements that would be imposed if the employer files a petition for H-1B status. However, the employer should be prepared for the fact that more time and effort are normally required to prepare an O-1 petition. Depending on how long it takes the candidate to collect the necessary supporting documentation and supporting letters for the O-1 petition, it can take several months to prepare an O-1 petition.

"J-1" Exchange Visitors

J-1 visas are available for certain students, scholars, trainees, teachers, professors, researchers, medical school graduates, and other various exchange visitors who wish to come to the United States to participate in a cultural or educational exchange program. An exchange visitor may be authorized to teach, observe, research, consult, or receive training. The exchange visitor must be sponsored by a government agency, university, or an organization that has been approved by the government to serve as a J-1 sponsor, and must be able to show that he or she has sufficient funds to pay for the stay in the United States or that the sponsoring agency will provide a scholarship or stipend.

• A foreign medical graduate (FMG) who travels to the United States on J-1 visa to participate in a fellowship or other graduate medical training will be required to return to his or her home country for a period of two years after completing the J-1 fellowship or training. The two-year home residence requirement can be avoided only in very limited circumstances. One of the ways to obtain a waiver of the two-year home residence requirement is through the "Conrad 30" program, a program that exists to grant waivers of the two-year home residence requirement for FMGs who will be working full-time for at least three years in "primary care" in a health professional shortage area (HPSA) or medically underserved area (MUA). Some states will make a limited number of waivers available for specialists, if the employer can prove that hiring the specialist will have a beneficial impact on primary care. Up to 30 FMGs per state per year may obtain waivers under the Conrad 30 program.

• Unless he or she receives a waiver, a FMG in J-1 status is prohibited from changing to H status, L status, or from becoming a permanent resident of the United States without first fulfilling the two-year home residence requirement.

Common Question About J-1 Foreign Medical Graduates:

• We would like to hire a physician who has been in J-1 status and is subject to the 2-year home residence requirement. Is there any way that we can hire her now, without waiting for her to spend 2 years in her home country?

  It may be possible to have the physician start working immediately after her period of J-1 status ends. There are five possible options:

  If the physician will be working in a HPSA or MUA, the physician may qualify for a Conrad 30 waiver based on a waiver request submitted by the state Department of Health. Normally, the physician must intend to perform primary care for a period of 3 years. (In Minnesota, the following fields would qualify as "primary care:" family practice, internal medicine, pediatrics, and obstetrics/gynecology. Fellowship trained sub-specialists normally will not qualify as primary care physicians.) However, in limited circumstances that vary on a state-by-state basis, some fellowship-trained specialists may be able to obtain a waiver through the Conrad 30 program in order to work in a HPSA or MUA in their area of specialty. If the waiver is granted, the physician can be approved for H-1B status.

  If an interested government agency (e.g., Veteran's Administration) requests a waiver of the two-year home residence requirement in order for the physician to work for the agency, the physician may be able to obtain a waiver and thus become eligible for H-1B status.

  If the physician can demonstrate that she would suffer persecution in the home country, or if her United States citizen (or permanent resident) spouse and/or children would face exceptional hardship (other than merely economic hardship) as a result of returning to the home country for two years, then a waiver of the two-year home residence requirement may be available.

  If the physician will not qualify for a waiver, it may be possible for the physician to work in the United States without first fulfilling the two-year home residence requirement if she can qualify for O-1 status. (See discussion above regarding "O-1" Extraordinary Ability.) Only a small percentage of physicians would have the type of accomplishments, published articles, etc. to qualify for O-1 status, but if the physician meets the standard for O-1 status, this would be an excellent way to avoid the two-year home residence requirement in the near future. However, if the alien ever wishes to pursue United States permanent residence, she would first need to fulfill the two-year home residence requirement before she could become a permanent resident.

  If the physician is a citizen of Canada or Mexico, will be doing teaching or research, and will not be engaging in patient care, then the physician may qualify for TN status. The physician would need to fulfill the two-year home residence requirement, however, before she could apply for permanent residence or change to H or L status.

"E" Treaty Traders/Investors

There are two types of treaty visas: E-1 and E-2. These categories allow foreign nationals to enter the United States to oversee or work in enterprises which (a) are engaged in trade between the United States and certain foreign countries (E-1 traders); or (b) entail a major investment in the United States (E-2 investors). These visas are available to the actual investors and certain employees who will work in executive, managerial, supervisory or "essential skill" capacities.

• There are three basic requirements for E-1 or E-2 status:
  • Treaty: The foreign country has a trade or bilateral investment treaty with the United States.
  • Owners/Investors: A majority of the owners/investors of the enterprise are citizens of the treaty country.
  • Beneficiary: The beneficiary of the E-1 or E-2 petition must be a citizen of the treaty country.

• The E nonimmigrant category is available only if a proper trade or bilateral investment treaty exists between the United States and the foreign state. The United States currently has such treaties with more than 40 countries.

• The E-2 investor visa is an attractive visa option when the investor wishes to manage and direct his or her own business, but does not intend to maintain a foreign affiliated company.

• There is no limit on the duration of stay in the United States in E-1 or E-2 status. The foreign national will be granted a two-year period of E-1 or E-2 status, which will be renewed for another two years each time the person enters the United States. Alternatively, a petition for a two-year extension of status can be filed by mail with an INS Service Center. The foreign national may remain in the United States as long as he or she continues to work in connection with the foreign trade or investment.

• Canadian treaty traders and treaty investors must obtain an E-1 or E-2 visa stamp in their passports. Although Canadians are normally exempt from the visa requirement, this exemption is not available for Canadians in E status.

• If the E-1 or E-2 petitioner is abroad, then the application and supporting documents requesting E status are filed directly with the U.S. Consulate abroad. There is no need to file a petition with an INS service center and, thus, there is no delay in waiting for the petition to be adjudicated by the INS in the United States.

• Spouses of foreign nationals in E-1 or E-2 status are eligible to apply for an Employment Authorization Document (EAD) after the spouse arrives in the United States, based on a law adopted in January 2002.

Common Questions About E-1 Status:

• We know of someone abroad who would like to open his own business in the United States and work in the United States to manage the business. He is able to make a substantial investment. Can he do it?

  Yes, he should be able to qualify for E-2 status, as long as he is from one of the countries with which the United States has a trade or investment treaty and he meets the other requirements for E-2 status.

  Another possibility that should be considered is L-1A status. If the foreign national already has a business abroad that has been in operation for more than one year, and if the business that he intends to open in the United States would be related to the foreign entity, then he may be qualified to file an L-1A "new office" petition (see discussion above under "L-1" Intracompany Transferees). An advantage of L-1 status is that there is no treaty requirement.

• Can a person in E-1 or E-2 status seek permanent residence in the United States?

  Yes, but there is no closely connected category for permanent residence as there would be for a person in L-1 or O-1 status. Instead, the foreign national in E-1 or E-2 status will need to consider whether he or she might qualify for permanent residence under the EB-1 (multinational manager) category, which is the same category that is commonly used by foreign nationals in L-1A status. If the EB-1 (multinational manager) category is not available, the foreign national will want to consider whether he or she would be eligible EB-1 (extraordinary ability) category, or under a National Interest Waiver, or through the labor certification process.

  Additionally, there is a special permanent residence category for immigrant investors, the Employment-Based 5 (EB-5), or Fifth Preference, category. The EB-5 category is not directly related to the E-2 category, and does not require that the investor be a citizen of a treaty country. In order to qualify for the EB-5 category, the investor would be required to meet several requirements, including:

  • The investor intends to engage in a commercial enterprise that will benefit the United States economy and create at least ten full-time jobs.

  • The jobs must be for U.S. citizens, permanent residents or other immigrants who are authorized to work in the United States. (Members of the investor's family do not count toward the "ten jobs" requirement.)

  • An investment of $1 million is usually required, but a $500,000 investment may be sufficient if the investment is made in a "targeted area" (a rural area, or an area with high unemployment).

    There is also a related EB-5 pilot program that will be in effect until September 30, 2003 and may be extended beyond that date. To qualify for the EB-5 pilot program, investors must intend to invest in a commercial enterprise in a regional center which is involved with the promotion of economic growth, including export sales, and to demonstrate how jobs will be created indirectly through increased exports, among other requirements.

    In 1998, the INS determined that it had been too lenient in approving EB-5 petitions, and since that time, EB-5 petitions have been subject to a higher level of scrutiny.

Conclusion

As employers prepare for the number of available H-1Bs to decrease on October 1, 2003, now is the perfect time for a refresher on all the available work visa categories. Although popular and versatile, the H-1B visa should not automatically be assumed to be the best visa option for all foreign workers. There are many other visa categories, and, in some circumstances, these other categories may provide advantages over the H-1B category. For example, the availability of work authorization for spouses of L-1 intracompany transferees has tipped the scales in favor of L-1 status in situations where an H-1B, O-1, or TN might also be available. It continues to be worthwhile for U.S. employers to have a general working knowledge of these visa categories so that the most advantageous visa category can be pursued on behalf of foreign national employees.