H1-B VISA
Professional Work Visa

The H1-B Visa category was established by the Immigration Act of 1990. It is issued to professional people enabling them to work in the United States in what the Immigration & Naturalization Service calls a specialty occupation. The H1-B is a temporary visa category for non-immigrant workers involved in specialty occupations requiring a Bachelor’s Degree or higher or a position involving an occupation of distinguished merit and ability, i.e., Orchestra Conductor, Medical Researcher, etc. Typical H1-B occupations include architects, engineers, computer programmers, doctors, and college professors.

Initially, the maximum period is three years. A renewal for an additional three years can be made at that time which makes the H1-B valid for a total maximum of six years. The H1-B Visa requires an employer to petition the INS and is valid only as long as the person is employed by the company in the position detailed in the H1-B Visa application. The candidate may not work for the petitioning employer until a written approval notice is received from the INS.

The Visa take approximately 4 - 6 weeks to be approved after it has been filed with the INS. However, there is an initial step required by the Department of Labor (DOL) which has been taking as much as a month to complete. Because this step is handled at the State level, the length of time varies dependent on the efficiency of the State’s processing methods. Due to a nearly 100% increase in numbers of new Visas being issued and the fact that the INS still has only four Processing Centers, the total timeframe from application to approval is about two to two and a half months. This timeframe can be somewhat shortened by the use of Overnight Mail and with the assistance of a qualified Immigration Attorney.

Once the candidate has his/her H1-B authorization, they may want to begin the process of pursuing Permanent Residency and, ultimately, their Green Card. The Green Card process can take as long as 5 to 6 years. Once the applications have been filed and the process started, the candidate has a strong commitment to remain with that sponsoring employer. Should the H1-B candidate decide 3 years into the process that they want to change jobs, another H1-B Visa Petition would have to be filed and the Green Card process would have to start all over again from the beginning.

THE PROCESS OF APPLYING FOR THE H1-B VISA
WHAT DOES THE EMPLOYER DO?

Determine Qualifications as a U.S. Employer
The employer must first qualify as a U.S. employer and meet certain standards set by the Department of Labor. Foreign businesses not established in the U.S. cannot use this visa to bring employees here. The following is a list of information your client will have to provide to the Immigration and Naturalization Services (INS) in preparation for filing a petition for transfer or a new application for an H1-B candidate. Much of this information can be satisfied by providing the INS with a copy of the company’s most recent Annual Report.

• Name, address, telephone, fax number of the company and the name and title of the person who will be responsible for signing the INS petition.
• The year the company was established.
• The IRS tax identification number.
• The total number of employees.
• The gross annual income for the previous year.
• The net annual income for the previous year.
• If full-time employees receive any type of compensation other than salary, i.e., health insurance, retirement plan, etc., a description of that compensation and its estimated annual value.

Obtain an Approved Labor Condition Application
The employer or its legal representative must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site. The form requires the employer to describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions, and the giving of notice. The LCA will only be approved if the employer agrees to pay the Prevailing Wage or 5% less.

Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service. The employer must document that the position requires the services of a person in a “specialty occupation.” This means a person who is working in a professional position and who has a minimum of bachelor’s degree or its equivalent. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL’s Wage and Hour Division.

WHAT DOES THE EMPLOYEE DO?

The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree (minimum 4-year degree) is the equivalent to a US degree by obtaining a credentials evaluation of his or her education.

In order to begin the filing process, the candidate must provide the following information to either the company, its legal representative or their own Immigration Attorney:

• A photocopy of the candidate’s I-94 card, both front and back.
• A letter of support from the prospective employer (a photocopy of the Offer Letter).
• A photocopy of their diploma(s).
• A transcript of their academic performance.
• A current copy of their resume.
• A written description of job duties including job title and salary.
• If a transfer, a copy of their prior approval notice.

DOCUMENTS AND FORMS NEEDED
FOR H-1 VISA PETITION

The following list of documents is required for application for an H1-B Visa. Some are the responsibility of the candidate, some the employer. Those items marked with an “X” are the responsibility of the candidate. Working through an Immigration Attorney, a company can minimize their involvement in the filing process and, in some cases, significantly reduce their costs.

1. I-94 Card front and back (photocopy) (X)
2. Letter of Support from Employer
3. Form I-129H Petition to Classify Non-immigrant as Temporary Worker or Trainee
4. Diploma from University (photocopy is fine) (X)
5. Transcript of grades (X)
6. Current resume (X)
7. Any information or brochures about the company or employer
8. Form I-539 Application for Change of Non-immigrant Status (for spouse and children)
9. Prevailing wage
10. Labor Attestation approval (LCA)
11. E.A.D. card (photocopy)
12. All I-20’s - front and back (photocopy)
13. Financial data employer - Annual Report or Income & Expense Statement
14. Filing fee _________ made out to INS
15. Description of job duties including Job Title & Salary (X)
16. Marriage Certificate (if applicable)
17. Birth Certificate for minors (if applicable)
18. J-Waiver (if applicable)
19. IAP-66’s
20. Prior approval notice (X)

TN VISAS (For Professionals covered by NAFTA Trade Agreement)

The category “Professionals Under the North American Free Trade Agreement” (NAFTA) is available only to qualified citizens of Canada and Mexico. Under the NAFTA agreement a citizen of a NAFTA country may work in a professional occupation in another NAFTA country provided that:

1. The profession is on the NAFTA list.
2. The alien possesses the specific criteria for that profession.
3. The prospective position requires someone in that professional capacity.
4. The alien is going to work for a U.S. employer.

For citizens of Canada, a TN Visa may be obtained at the Canadian-U.S. border or port of entry in approximately forty-five (45) minutes if the individual brings the correct documents with him/her. The following information is required to gain TN status.

1. A request for TN status.
2. A copy of the applicant’s college degree and employment records which establish qualification for the prospective job.
3. A letter from the alien’s prospective U.S.-based employer offering him or her a job in the United States. The job title/description must be included on the Professional Job Series as described by NAFTA.
4. A fee of $50.00.

Canadian citizens are not required to obtain a Visa but instead receive “TN” status with the Immigration and Naturalization Service (INS) at the port of entry.

For citizens of Mexico, the requirements are as follows:

1. The prospective employer or their legal representative must file a Labor Condition Application (LCA).
2. Once the LCA is filed, the applicant’s prospective employer must file an I-129 “Petition for Non-Immigrant Workers” with the INS.
3. After the petition has been approved, the alien must apply for a non-immigrant TN Visa at the U.S. Embassy or Consulate in Mexico.

Applications for Extensions

The TN Visa is similar to the H1-B except that there is no statutory limitation on stay such as exists with the H1 and L1 Visas. The TN Visa does not require that the employer pay a Prevailing Wage. The payment of a Prevailing Wage (or 5% less) is a requirement for the H1-B Visa. The TN Visa is valid for only one (1) year but may be renewed for an indefinite period of years. Self-employment is prohibited. Spouses and unmarried children may accompany the TN Visa holder but are not allowed to obtain employment in the U.S.

F1 VISA
Student Visa

Applicants for an F-1 Student Visa should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. If an individual is in the United States on another type of Visa, he/she may apply for a change of status to an F-1 Visa.

Required documentation at a Consulate or Embassy includes:

• An application Form OF-156, completed and signed.
• Payment of a non-refundable $45 processing fee and a Visa fee.
• A passport valid for travel to the U.S. and with a validity date at least six months beyond the applicant’s intended period of stay in the U.S.
• One photograph 1 ˝ inches square showing full face, no head covering and against a light background.
• A completed Form I-20A-B from the university.
• Evidence of sufficient funds.
• Evidence of ties to a residence in a foreign country.
• A signed statement that the student will depart the U.S. upon completion of their studies.

Filing for Extensions

The initial period of admission to the U.S. on the I-94 allows for completion of the academic program, any authorized Practical Training and a sixty day grace period to leave the U.S.

L-1 VISA
Intracompany International Transferee Visa

The L-1 Visa is for executives, managers or persons with specialized knowledge employed in a company abroad and who are transferred to their employer’s U.S. branch, affiliate, or subsidiary to assume a similar position within the company. An L1-A Visa is for executives and managers and the L1-B Visa is for candidates with specialized knowledge. To qualify, the candidate must have been employed in a similar position for the foreign-based company during one of the past three years before entering the United States. Maximum duration of status is seven years for executives and managers and five years for persons with specialized knowledge.

The Visa takes approximately four weeks to obtain after filing with the INS. The L1 Visa has no requirement for a prevailing wage as with the H1-B Visa but the position must be proven to be managerial, executive, or one that requires specialized knowledge.

B-1 VISA
Business Visa

This type of Visa requires a business need to be in the United States but the foreign national is paid from outside the U.S. The business need is usually established by the presentation of a letter of invitation from a U.S. company and is issued for an initial period of time which can be extended upon with proof and proper documentation showing a continued business need. A person may transfer from the B-1 to the H1-B Visa from within the United States provided that the H-1B Visa Application is filed prior to the expiration date of the B-1 Visa and other qualifications are met.