L1 intra-company transfers
Intra-company transfer visas (called L-1 visas) are available to foreign nationals who have been employed outside the United States for one continuous year within the three years immediately prior to their transfer to the United States by a parent, branch, affiliate, or subsidiary of the US petitioning company. The foreign national must have served the company in an executive, managerial or specialized knowledge capacity and be transferring to the United States in a similar capacity.
Both companies, the current former employer, and the US entity, must be doing business or intending to do business for the duration of the employee’s stay in the United States as an L-1. Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
|Executive skills (L1A)||An executive is defined as someone who:
· directs the management of the organization;
· establishes the goals and policies of the organization;
· exercises wide latitude in discretionary decision-making; and,
· receives only general supervision or direction from higher-level executives.
|Managerial skills (L1A)||A manager is defined as someone who:
· manages the organization or a department, subdivision or function of the organization;
· supervises the work of other professional employees;
· has the authority to hire and fire; and,
· exercises discretion over the day-to-day operation of the activity or function for which he is responsible.
|Specialized knowledge skills (L1B)||Specialized knowledge is defined as knowledge of the company’s products, services, research, equipment, techniques and management; or an advanced level of knowledge or expertise in the organization’s processes and procedures.
|Duration of L-1 Visa||If the US company is a start-up, the L visa will be issued for an initial period of one year. For an established company, the petition should be approved for 3 years. For senior manager/executives (L1A), the visa can be extended up to a total of 7 years, in increments of three years and for L1B applicants (specialized knowledge employees), the visa can be extend up to a total of five years.
|Spouses and Children of L-1 Visa Holders||A spouse or unmarried child under the age of 21 is entitled to an L-2 visa and the same length of stay as the principal applicant. Spouses can work provided they obtain an Employment Authorization Document (“EAD”) from the USCIS. Applications for Employment Authorization can be filed online and the current processing time is approx 3 months. Dependent minor children cannot work, but they can attend school in the United States.
H1-B PROFESSIONALS IN SPECIALITY OCCUPATIONS
The H1B program is utilized by US businesses to employ foreign workers in speciality occupations that require theoretical or technical expertise in a specialized field, such as scientists, engineers, or computer programmers.
As part of the H1B program, the Department of Homeland Security (DHS) requires US employers to meet specific labour conditions to ensure that American workers are not adversely impacted, while the Department of Labour’s Wage and Hour Division safeguards the treatment and compensation of H1B workers.
This classification applies to persons in a “speciality occupation”, which is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree (or equivalent) as the minimum requirement for the entry into the occupation.
To obtain an H-1B classification, the US employer must obtain a certified Labour Condition Application (“LCA”) from the US Department of Labour, which certifies that the employer will pay the foreign national a salary that is within the prevailing wage for similar positions and will not adversely affect the working conditions of similarly employed US workers. (The prevailing wage is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment). After obtaining the LCA, the US employer must submit a petition to the USCIS along with evidence of the foreign national’s qualifications and documentation that the position qualifies as a specialty occupation. If a license is required to practice an occupation, evidence of this must also be submitted
Congress has established an annual cap of 65,000 on H1B visas. On December 8, 2004, President Bush signed the Omnibus Appropriations Act for Fiscal Year 2005, including the H1B Visa Reform Act of 2004, which added 20,000 visas to the H1B annual quota for foreign nationals with qualifying advanced degrees from US universities.
Individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have attained a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements, may qualify for an O1 visa.
- O1-A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
- O1-B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
- O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance
I visas are for representatives of the foreign media, including members of the press, radio, film, and print industries, travelling temporarily to the United States to work in their profession engaged in informational or educational media activities, essential to the foreign media function. Activities in the United States while on an I visa must be for a media organization having its home office in a foreign country. The activities in the United States must be informational in nature and generally associated with the news gathering process and reporting on current events.
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada, and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico who are professionals, to work in the United States in prearranged business activities for U.S. or foreign employers.
The E3 visa applies to nationals of Australia who are going to the United States to work in a specialty occupation.