Temporary (Nonimmigrant) Workers / Individuals Seeking Employment in the United States

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For corporations, nonprofit entities, small businesses, and professional sports organizations, it is necessary and at times, essential to bring an individual worker or a team of workers to the United States from overseas temporarily, to complete a specific project or task. There are also a large number of organizations that seeks to expand operations into the United States and require foreign-born workers to temporarily reside and work in the United States. There are various options for organizations and employers to use to bring foreign-born employees, volunteers, and experts within their field to the United States, depending on the nature of the work or the expertise of the foreign-born beneficiary.

In order for a foreign-born individual to come to the United States lawfully as a nonimmigrant to work temporarily in the U.S. then you or your employer must file a petition for nonimmigrant employment with United States Citizenship and Immigration Services (USCIS). There are several avenues that you or your prospective employer may take to pursue the American Dream. Spouses and children can also qualify for dependent nonimmigrant classification either outside of the United States or can accompany the principal beneficiary to the United States and request to change status once here. Diver Law Firm has a history of representing large biotech corporations to small technology-based startups, professional sporting organizations, World Cup winners and National Basketball Association athletes. We can hep find the most appropriate immigration solution from a range of options. The most common nonimmigrant visa classifications used are, but not limited to:

O-1 / EB-1 Extraordinary Ability Visa

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An O-1A nonimmigrant/temporary visa or EB-1 permanent visa/green card is for an individual foreign worker who has an extraordinary ability in the sciences, education, business, or athletics. An O-1B visa is for a foreign worker who has extraordinary ability in the arts, motion picture, or television industry. The foreign worker must have a U.S. employer that will employ the worker in his/her area of extraordinary ability. Extraordinary ability in an O-1A or EB-1 context is proven by demonstrating “sustained national or international acclaim.” Sustained national or international acclaim is a matter of meeting defining criteria set by U.S. immigration law (this varies with respect to the O-1A and the EB-1). In general, the documentation is to establish that the worker’s expertise places them among the very best in their field of endeavor. A record of extraordinary achievement is likewise, a matter of meeting defining criteria set by U.S. immigration law. Moreover, the documentation must establish that the worker has obtained a high level of accomplishment which has gained significant recognition. Unless the worker will be employed in the field of arts, entertainment, or athletics, and the service has determined that a petition merits expeditious handling, a written consultation is required. A consultation is a written advisory opinion from a designated peer group and includes a description of the persons of expertise in the field or qualified organizations.

The most important difference between the O-1 and EB-1 is duration; the EB-1 is a permanent visa whereas the O-1 is temporary. Because of this, the scrutiny used to adjudicate an EB-1 is more intense than its temporary counterpart. Though they are judged with a different standard and levels of scrutiny, each of these categories requires a major internationally recognized award, such as a Nobel Peace Prize or an Olympic medal. In the alternative, both also list “lesser” evidentiary criteria, of which at least three must be satisfied.

Further, USCIS allows for O and P visa petitions filed by a petitioner that is acting as a U.S. agent on behalf of the employer and beneficiary or beneficiaries who will be working for more than one employer within the same time period. This also applies to O and P petitions where the petition being filed is on behalf of multiple employers. Quite simply, a petition involving multiple employers may be filed by a person or company in business as an agent and that acts as an agent for both the employer(s) and beneficiary. Diver Law Firm has pioneered agent-based immigration representation for individual professional athletes while helping the employer and foreign worker navigate this complex U.S. immigration process. Contact today for a free case evaluation to determine if you qualify for an agent-based O or P visa.

 

P-1 Exceptional Ability Visa

working on the P visa

Statutes and regulations governing the P-1 visa are confusing on this subject, with facially contradictory provisions. Sponsorship and side jobs were considered legally permissible under 8 C.F.R. § 214.2(p)(3), which defines “Competition, event, or performance” as:

“…an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances A group of related activities will also be considered an event.”

However, several P-1 petitions that include ancillary employment are denied on the basis of section 8 U.S.C. § 1184(c)(4)(A)(ii)(I), which says that P-1 athletes must:

“…seek to enter the United States temporarily and solely for the purpose of performing as such as athlete with respect to a specific athletic competition.”

Agent-based petitions

USCIS allows P petitions to be filed by a number of interested parties including the U.S. employer, a sponsor, a U.S. agent, or a foreign employer through a U.S. agent. Of these options, agent-based petitions offer the most versatility and benefit to the athlete. Where an agent is the petitioner, multiple employers, sponsors, and events can be included into a single itinerary and the agent can submit a single Form I-129 petition to cover all intended activities and employment opportunities. A change in employers or other substantial change will require an amendment petition to be filed, but the agent will remain the petitioner.

Family dependents of P visa holders

The P-4 classification is for spouses and children of those on any P status. They will be granted the same length of stay as the principal P-visa holder however, P-4 dependents do not qualify for work authorization.

dual intent

P-visas, with the exception of the P-1s for support personnel, allow dual intent. Consequently, there is no regulatory prohibition against filing the paper work for a Green Card or permanent residency while on a P-visa. Nonetheless, USCIS still expects P-visa holders to maintain a residence abroad because it is a nonimmigrant status.

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Helpful links

The P Visa category includes internationally recognized athletes (P-1A) or entertaining groups (P-1B), exchange artists (P-2), culturally unique artists (P-3), support staff (P-1S), and family or dependents (P-4). All P nonimmigrant visas have a duration of 1-5 years depending on the elected classification. While P visa petitions do not require correspondence with the U.S. Dept. of Labor, they do require consultations with the labor organization or governing body if one exists in the United States.

Internationally-Recognized Athletes (P-1A)

The P-1A subcategory is for competitive athletes with international recognition. It is a nonimmigrant (temporary) visa that can be issued with a validity period up to five years with extensions after that. All P-1 petitions require a contract with a major U.S. sports league or team that is commensurate with an internationally recognized athlete. Each competitor must submit an itinerary showing the events they will participate in for each year of requested validity period. The events on the athlete’s itinerary must have distinguished reputations within the sport and require the participation of internationally recognized competitors. If an itinerary only lists a year of events, for example, the USCIS will not grant the P-1 visa for longer than a year.

P-1A athletes must demonstrate that they are internationally recognized in their particular discipline. This can be done via two methods: one is through participation on a professional sport team in a league, and the other is through playing in high-level competitions and fulfilling two out of seven evidentiary criteria provide by USCIS. Often an athlete can qualify through both methods but can only choose one, in which case a consultation with an experienced immigration attorney is recommended to determine the strongest path forward.

The first option for demonstrating international recognition is through the COMPETE Act (Creating Opportunities for Minor League Professionals, Entertainers, and Teams Through Legal Entry Act of 2006). The COMPETE Act facilitates the approval of athletes affiliated with Major League teams in leagues with at least six teams and combined revenues exceeding $10M, or a Minor League team affiliated with such an association.

The second option for demonstrating international recognition is found in 8 C.F.R. § 214.2(p)(4)(ii)(B)(2), which enumerates seven criteria indicative of international recognition and requires documentation showing the satisfaction of at least two of them. The evidentiary criteria are as follows:

  • Significant participation in a prior season with a major United States sports league;

  • Significant participation in international competition with a national team;

  • Significant participation in a prior season for a U.S. college or university in intercollegiate competition;

  • A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;

  • A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;

  • Evidence of your international rankings;

  • Evidence that you or your team has received a significant honor or award in the sport.

The P-1 analysis is a largely subjective judgment made by USCIS and the presentation of evidence can be key. Often, a particular piece of evidence will fall into two or more of the above criterion. Depending on the weight of that evidence, it may or may not benefit the athlete to claim that evidence under multiple criteria. Also, the expert evaluations and governing body statements are important pieces of evidence that must assess and explain all the other pieces of documentary evidence.

Entertainment Groups (P-1B)

The P-1B subcategory is for entertainment groups that are internationally recognized as outstanding. P-1B visas are granted for increments not to exceed one year, but one-year extensions are allowed. This subcategory is not meant for individual performers, but can be used for an individual coming to the United States to join an internationally recognized group. Solo artists with a consistent group of backup musicians can qualify as a group. The regulations requires “groups” to have been established and performing for at least a year, during which time the group maintained at least 75% of the current members. Similar to P-1A standards, the P-1B regulations list six evidentiary criteria, only three of which must be satisfied to meet the international recognition standard. The criteria used to determine whether a group is internationally recognized include:

  • Has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

  • Reviews in major newspapers, trade journals, magazines or other published material;

  • Has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;

  • Major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;

  • Has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field;

  • Has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence.

Essential Support Personnel (P-1S)

Support personnel include highly skilled individuals who are integral to the performance of a P-1, P-2, or P-3 principal because of services that cannot be readily performed by a U.S. worker, and which are essential to the principal’s performance. This requires the P-1S to have the required skills and at least one year of providing such support to the principal. This subcategory requires there to be a principal in valid P status.

There has been new guidance on the duration of stay provided to P-1S visa holder and has been published at AFM 33.5(a). The duration of stay for P-1S essential support personnel for P-1A athletes was initially addressed in a July 14, 2009 USCIS Policy Manual (PM) issued by Donald Neufeld, entitled “Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes' Essential Support Personnel.” This new publication provides additional guidance on the original 2009 memorandum.

The new policy provides additional clarity to USCIS’ interpretation of 8 C.F.R. 214.2(p)(14), which provides an exception to the one-year limitation for P-1S visa holders. It states that the five-year extension of stay for P-1S essential support personnel aliens for P-1A athletes “is only available when the petition extension requests an extension of stay to continue or complete the same event or activity (and not consulate notification) for a beneficiary who is in the United States in P-1A at the time the petition extension is properly filed, and the extension of stay request is approved.” P-1 petitions for essential support personnel for P-1A athletes remain restricted to a one-year validity period when approved initially. Five-year extensions are only available when the extension request is for the P-1S essential support alien for the P-1A athlete to continue in or complete the same event or activity for which the initial petition was approved.

Requirements for Agents

Agent-based O and P petitions must include the following:

  • Supporting documentation including a complete itinerary of the event or events which specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed;

  • Contracts between the actual employers and the beneficiary; and

  • An explanation of the terms and conditions of the employment with required documentation.

Agent-based O and P visa petitions can provide significant benefit to the foreign worker. It can also help avoid costly filing fees, multiple procedural obstacles and wait times, and complications or confusion with authorized employment. For years, Diver Law Firm has helped world-class professional athletes and businesspeople benefit from agent-based O and P visa petitions allowing for multiple sources of income and itineraries. In most cases, Diver Law Firm will serve as agent-petitioner for no additional charge, giving our clients the most versatility and benefit from their O or P immigration status.

The regulations on the O and P visas are largely based on subjective evaluations and require a careful and deliberate preparation and presentation of evidence. As previously discussed, the EB-1 green card is also subjected to similar standard though, significantly higher scrutiny. The procedures are too complex for most busy athletes or entertainers to casually navigate and often have contradictory provisions that further complicate an O/EB-1 or P visa analysis. Contact Diver Law Firm today at (405) 896-8080 to discuss your case and have an experienced and accomplished immigration attorney properly review, prepare, and submit your case.

Speciality Occupations:

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H-1B / E-3 Visas

H-1B costs and filing fees

The cost of an H-1B will depend largely upon the complexity of your case, the size and composition of the petitioning company, and whether the filing is an initial petition, amendment, and/or extension.

Initial cap-subject H-1B petitions for somebody who is not already on H-1B will require the following checks to the USCIS:

  • Filing fee for I-129 ($460);

  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;

  • Fraud prevention and detection fee ($500).

Amendment H-1B petitions are those filed by the same Petitioner and Beneficiary to request approval of a material change in the work location, job duties, conditions, etc. An amendment for somebody already in H-1B status that is not requesting an extension of the status will only require the I-129 filing fee, which is currently $460.

Amendment plus Extension H-1B petitions are those filed by the same Petitioner and Beneficiary to request approval of a material change in the original petition and also request an ending date beyond that originally granted. This type of petition will be subjected to the same filing fees as if it was an extension, see below.

First Extensions by the same Petitioner and Beneficiary will be subject to the ACWIA Fee but not the anti-fraud fee, requiring the following checks to the USCIS:

  • Filing fee for I-129 ($460);

  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;

Second and Subsequent Extensions by the same Petitioner and Beneficiary will not be subject to either the ACWIA fee or the anti-fraud fee, requiring only the $460 I-129 filing fee.

Change of Employer, meaning a new Petitioner filing for a Beneficiary already in H-1B status (including concurrent employment where the Beneficiary will keep both jobs). In this scenario, the USCIS will require the following fees:

  • Filing fee for I-129 ($460);

  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;

  • Fraud prevention and detection fee ($500).

There are also significant fees in place for organizations that rely heavily on H and L workforces. USCIS considers employers dependent if they employ 50 or more employees in the United States if more than fifty percent (50%) of these employees are in H-1B, L-1A or L-1B nonimmigrant status. The above-referenced fees do not take into consideration these large fees for dependent employers.

H-1b spouses and dependents

Dependents include the spouse and/or unmarried children (under 21 years old) of the H-1B worker, or “principal.” They qualify for H-4 dependent status. If processing the H-1B visa at a consulate the dependents can simply file DS-160s and join the principal H-1b applicant at the visa interview. The dependents should bring proof of their relationship to the principal. Upon a successful interview, the consulate should take a short processing period before returning the passport with H-visas stamped inside. If already in the United States in H-4 status, extensions will require the filing of I-539 to the USCIS.

H-1B dependents typically do not get authorization to work, though there are some exceptions. The spouse of an H-1B worker can apply for an Employment Authorization Document (EAD) if the H-1B spouse is either of the following:

  • H-1B spouse is the principal beneficiary of an approved Form I-140, Green Card Petition for EB-3, EB-2, or EB-1; or

  • H-1B spouse has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act (AC21), under which H-1B workers with pending Green Card applications can work in H-1B status beyond the typical six-year limitation.

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For H-1B visa or status news, information, complexities, and options, see Murthy Law Firm’s Worker page. There, you can also search for a particular topic and use this relied secondary source for additional information.

For H-1B visa or status news, information, complexities, and options, see Murthy Law Firm’s Worker page. There, you can also search for a particular topic and use this relied secondary source for additional information.

The H-1B visa classification is for specialty occupations with U.S. employers, Department of Defense projects, and fashion models. The specialty occupation subcategory is by far the most used H-1B visa classification. The H-1B visa provides employer-specific work authorization for up to three years at a time, with extensions possible after that. This category of work permit is limited by the government and is in high demand. It is important to note that this visa category is highly regulated with complicated rules governing both the substantive qualification of each case as well as procedural and evidentiary requirements for employers and foreign workers.

H-1B Visa Requirements for U.S. Employer

The H-1B visa has different requirements for the U.S. employer and for the foreign worker or beneficiary. The employer must show, among other things, that the position qualifies as “specialty” under USCIS standards, and the beneficiary must show, among other things, that he/she is qualified for the position.

H-1B employers can demonstrate a specialty occupation using any of four standards set forth in 8 CFR § 214.2(h)(4)(ii), which are:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

  3. The employer normally requires a degree or its equivalent for the position; or

  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

An employer can demonstrate the qualifying nature of the position by providing evidence for any and all of these criteria, and the government only has to acknowledge one for your position to qualify. H-1B employers are required to uphold certain wage and labor standards, as governed by the Department of Labor. This compliance is documented through a Labor Condition Application (LCA) for which the employer must attest that the worker will be paid the average salary for the position, location, and wage level. The last factor, wage level, has become particularly important with the recent influx of Requests for Evidence (RFEs) issued on level 1 wage petitions that question both whether the position is a specialty occupation and whether it was properly certified as a level 1 wage by the Department of Labor. The wage levels are ordered from level 1, entry level positions, to level 4, fully competent. This newly implemented barrier for H-1B approval makes the job duties and requirements a delicate balancing act to ensure that the position is not deemed too entry-level to be specialized, nor too advanced to justify the level 1 wage.

Another important requirement for H-1B employers is to maintain a valid employee-employer relationship with the beneficiary and to have specialized work available for the duration of the visa period. This evidence is simpler in the traditional scenario with one work location, but the USCIS has a high evidentiary requirement where the work will be done at one or more offsite location belonging to a third-party. The recent USCIS Memo PM-602-0157 discusses these type of arrangements and makes clear that certain documents from the end-user of the beneficiary’s services, or third party, will be required to show that there is actual, not speculative, work available and that the petitioner will be the true employer of the H-1B worker and not just a staffing or placement agent. The evidence requirements include documents such as contracts, work orders, or purchase orders between the H-1B petitioner and the end-user. This evidence will show that there is an actual assignment and not a speculative need for work. Ideally, these contracts or orders will have a term that is as long as the requested H-1B period. Further, USCIS will want evidence that the work at the third-party location will be specialty, which can be satisfied with a statement from an official of the end-user company describing the position duties with sufficient complexity to be considered specialty with consideration for the assigned wage level.  This letter must be from the end-user, and cannot be from an intermediary vendor company.

H-1B Requirements for Foreign Worker

The provisions in 20 C.F.R. § 655.715 require H-1B beneficiaries to fit into one of the following categories:

  • Full state licensure to practice in the occupation, if required in the jurisdiction of intended employment;

  • Completion of a U.S. bachelor’s degree, or a properly evaluated equivalent foreign degree, in a field of study related to the job duties of the proffered position, or;

  • Related experience with progressively increased responsibility. 8 CFR § 214.2(h)(4)(iii)(D)(5) dictates that each three years of such experience will replace a year of undergraduate education.

These requirements are held to a high degree of scrutiny under President Trump’s “Buy American Hire American” policy. For example, USCIS might question whether a bachelor’s degree in electronics engineering is reasonably related to a computer programmer position. The best way to demonstrate a nexus between degree and job duties is to break down the candidate’s class transcript and show how each class he took will contribute to his ability to perform certain listed job duties for the proffered position.

If the candidate is filing on the basis of foreign degrees only then the degree will have to be reviewed by an accredited evaluation service and certified to be equivalent to a U.S. degree in a certain subject-matter. Without this, USCIS will not accept a foreign degree as the basis of your H-1B qualification. There are numerous agencies that will perform such evaluations, but they must be able to review a transcript with a full class listing to give a full evaluation.

If the H-1B petition is being filed as a change or extension of status (as opposed to consular processing) then the beneficiary should also include evidence of maintained status. This can vary depending on what status the beneficiary is in at time of filing. This can include visa, I-94, I-20, OPT card, and pay stubs, if applicable, to show you’ve only been working with the properly authorized employer. The particular documents you should submit as evidence can differ if you are an F-1 student, extending a previous H-1B, or changing status from another nonimmigrant category.

H-1B Lottery System

Congress has capped the number of new H-1B visas that can be issued each year to 65,000 plus an extra 20,000 for candidates who graduated from an accredited U.S. Master Degree program. The demand has consistently outran these limitations in all recent years, causing USCIS to determine “lottery” style which of the ~200,000 filings will be accepted and adjudicated.

Cap-subject petitions (initial H-1Bs that are subject to lottery) must be filed during the first week of April. Generally, USCIS will begin issuing receipt notices and rejection notices as early as late April, but sometimes as late as June. If you are rejected, USCIS will not even look at the merits of your case and will return the petition and filing fees. If you are accepted, USCIS will process the filing fees and your case will then undergo adjudication to determine if an H-1B can even be issued. In other words, the lottery is only the first hurdle.

There are several ways to increase your chance of surviving the H-1B lottery and getting your petition accepted for adjudication. First, having a Master’s Degree from an accredited U.S. university will increase your chances by entering you into the Master’s cap. The Master’s cap includes cap-subject petitions which are then put into the secondary Master’s cap lottery to select 20,000 more petitions.  There are other benefits to attending a U.S. university for your Master’s degree, such as the ability to perform paid work under an Optional Practical Training (OPT) program and the cap-gap extension if you file for H-1B while on OPT. Another way to increase chances of H-1B petition acceptance is to be the beneficiary of multiple petitions. The same U.S. employer cannot file multiple petitions for the same beneficiary, but it is perfectly legal for more than one U.S. employer to file petitions to hire the same person for different jobs.  Any or all of them can be accepted, and if approved the Beneficiary can work them at the same time if filed properly. The hardest part of this method is convincing multiple U.S. employers to sponsor you, as some people struggle to find even one willing U.S. sponsor employer. However, for those with multiple employer sponsors, your chances of having at least one of your petitions selected will increase. If you submit two petitions and only one is accepted, you can submit an amendment petition to reflect the change in employers and begin working for the new employer upon receipt notice of your approval amendment petition.

It is also important to consider that you can totally skip the lottery and filing deadlines by gaining an employment offer from certain “cap exempt” entities, such as universities and government research institutions.  If your petitioner is cap exempt, they will be able to file your petition at any date without being bound to the April filing window.  Also, cap exempt petitions go straight to adjudication without the need to go through a “lottery” because they are exempt from the cap on H-1B visas.  This can be a good option to entertain if your current status is ending and the regular H-1B filing window is too far in the future to change status.

H-1B Visa Extension

You can extend your H-1B if the job offer still exists, but there are numerous regulations regarding whether you can extend. H-1B status is granted for up to three years at a time, with extensions up to three years. Employers are responsible for return transportation if the employee is terminated before the end of the employment period, unless the employee voluntarily resigns.

Typically, duration of stay in H-1B status (and/or L status) is limited to six years, after which a year abroad would be needed before readmission in H-1B status—but this rule is subject to few exceptions. First, a worker can recapture time spent abroad or in another status (except L status) during this six-year period. For example, a worker was granted three years of status in 2011 and a three year extension in 2014, but spent an aggregated two years abroad (as proven by passport stamps). In this case, the worker could request an extra two years after 2016  based on the recaptured time spend abroad. The same would apply if that employee spent two years in the USA in H-4 status. In addition to recapturing time, an H-1B worker can request extensions of his H-1B status beyond six years under two circumstances:

H-1B worker has a pending Form I-140 or Form I-485 for EB-1, EB-2, or EB-3 status.

  • This exception comes from section 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). These extensions can be granted in one-year increments until a final decision is made on the I-140 petition. Be aware that to qualify, the I-140 or Labor Cert must have been filed at least a year before using all six years of H-1B status.

H-1B worker has approved Form I-140 and would qualify for Adjustment of Status but not for per-country limitations.

  • This exception comes from section 104(c) of the AC21. This type of extension can be granted for up to three years until a final decision is made on the Form I-140 petition. To determine if this exception applies, consult your attorney for a close assessment of your I-140 priority date and the DOS Visa Bulletin.

240-Day Work Extension Rule

If your H-1B petition is filed on time you will benefit from an automatic extension of your work authorization that lasts 240 days from the expiration of your current H-1B status or until your extension petition receives a final decision. It is important to note, H-1B workers should not travel during this 240-day automatic work authorization extension. Doing so will be considered an abandonment of the extension petition, causing the worker to fall out of status. Workers must be the beneficiary of a non-frivolous petition with the same employer and continue following all immigration regulations to qualify for this automatic extension. Work is not authorized after the 240 days, even if the extension petition is still pending. Employers may not know how to annotate this extension in their I-9 employment authorization form, in which case they should consult an experienced immigration attorney.

E-3 Visa for Certain Speciality Occupation Professionals from Australia

The E-3 visa is a special classification for Australian professionals coming to the United States to perform services in a specialty occupation, i.e., an occupation that requires a Bachelor's degree as a minimum for entry into that occupation. An employee must sponsor an individual for the E-3 visa classification. This designation is similar to the H-1B visa category and those regulations are used to determine what constitutes a "specialty occupation." An E-3 visa is issued in two-year increments and may be renewed indefinitely. To qualify for an E-3 visa, you must be able to demonstrate the following:

  • Are a citizen and national of Australia;

  • Have a legitimate offer of employment in the U.S.;

  • Possess the necessary academic or other qualifying experience; and

  • Will fill a position that qualifies as a specialty occupation.

Spouses and minor children may accompany the E-3 principal beneficiary. In addition, spouses of E-3 visa holders are also allowed to obtain work authorization using Form I-765, Application for Employment Authorization. An E-3 applicant may apply for a visa directly at the U.S. Consulate abroad or file for a change of status in the U.S. 

Diver Law Firm has represented a wide array of H-1B clients from non-profit medical research institutions and philanthropic groups to professional sporting organizations, scientific and design engineering firms, and computer systems engineers and so…

Diver Law Firm has represented a wide array of H-1B clients from non-profit medical research institutions and philanthropic groups to professional sporting organizations, scientific and design engineering firms, and computer systems engineers and software developers. Know your complex immigration case is in the hands of an experienced immigration attorney that has successfully petitioned countless cap-subject and cap-exempt H1B visa petitions. Contact Diver Law Firm today for your free case evaluation.

The globalization of the American workforce has opened the doors to immigration. United States immigration law is a complex body of law and involves bureaucratic processes that are often times, not customer friendly. As the demand for highly trained and specialized labor becomes increasingly strained, the recruitment of foreign labor will continue to be a controversial topic in light of AC21. Living the American Dream and immigrating to the United States can be challenging and difficult to achieve. Diver Law Firm and its team will help you overcome current H-1B challenges as well as adapt your current practice to better prepare your organization for the next policy change. Contact Diver Law Firm today or call us at (405) 896-8080 and schedule your free consultation with an experienced and accomplished immigration attorney that can help navigate the upcoming H-1B Fiscal Year (FY) 2020 Cap Season.

The process of applying for a visa or green card based on employment is a very complicated process. Hiring an experienced immigration lawyer can help ensure the petition is prepared correctly and can avoid issues that can lead to delay or denial.

The process of applying for a visa or green card based on employment is a very complicated process. Hiring an experienced immigration lawyer can help ensure the petition is prepared correctly and can avoid issues that can lead to delay or denial.

L-1A, Intracompany Transferee

duration

L-1 visas may be granted for an initial period of up to 3 years and may be renewed for a maximum of 7 years for an L-1A and a maximum of 5 years for an L-1B. Any time spent under an H-1 visa status will count towards this maximum.

However, for L-1A’s, if after the 7 year period, the employee resides at least one complete year abroad, the clock starts counting again and the alien may be granted another 7 years in L-1A status. There is no time limit for aliens who reside intermittently in the U.S., or an aggregate of six months or less per year.

spouses & dependents

Spouses and unmarried children under 21 are allowed as dependents under an L-2 Visa. L-1 Visa dependents are allowed to legally live and study in the U.S. without any additional permits, and the spouse of the L Visa holder may obtain work authorization.

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Diver Law Firm can help guide you through the process of becoming an E2 Treaty Investor or Trader. If you have always dreamed of opening a business and living in the United States, an E2 Visa may be right for you. Contact Diver Law Firm today and sc…

Diver Law Firm can help guide you through the process of becoming an E2 Treaty Investor or Trader. If you have always dreamed of opening a business and living in the United States, an E2 Visa may be right for you. Contact Diver Law Firm today and schedule a free consultation with an experienced immigration attorney and business consultant.

TN - North American Free Trade Agreement

requirements:

All petitions must include, at a minimum:

  • A detailed statement from the U.S. employer with a full description of the proffered position and nature of the beneficiary’s proposed duties, the anticipated length of stay in the U.S., and remuneration;

  • Evidence that the beneficiary meets the required education, licensure requirements, and/or alternative credentials for the NAFTA position; and

  • Evidence of Canadian or Mexican citizenship.

Duration

TN status may be admitted to the U.S. for an initial period of stay not to exceed three years. TN professionals can receive extensions of stay for up to a three-year period. There is currently no annual limit on the number of TN admissions/extensions that may be granted. However, as TN status is a nonimmigrant category, the purpose of the foreign national’s stay in the U.S. must continue to be demonstrably temporary throughout the duration of status.

spouses & dependents

Spouses and unmarried children under 21 years of age of TN professionals may obtain TD status with the same restrictions as the principal. Dependents may attend school as students in the U.S., but they may not be employed while in TD status.

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General Employment Visa Solutions

Often times, individual employment solutions may not fit one of the above-referenced visa categories and U.S. immigration policy makes it difficult for typical visa categories to be continue to function. However, Diver Law Firm utilizes innovative approaches to immigration problems that provides employers and prospective employees with additional avenues to explore when transitioning their employment to the United States. Professionals also have the option of seeking lawful permanent residency (LPR), or the green card based on employment. People seeking to immigrate on the basis of employer can apply for labor certification through the Program Electronic Review Management system or pursue admission under an employment-based preference. The following however, are additional employment-based and non-immigrant visa categories that can be tailored to your specific circumstances.

What is the L-1 Visa?

There are two kinds of L visas:

  • L-1A Visa- for employees in an executive or managerial position; and

  • L-1B Visa-for employees in a specialized knowledge capacity.

The L-1 Visa is a non-immigrant work visa for employees in a specialized knowledge capacity or an executive or managerial position who are being transferred from a foreign company to a U.S. subsidiary, branch, affiliate or parent of the original foreign company. There are no limits to the number of L-1 visas that the U.S. Immigration Service can issue per year and the petitioning company does not have to obtain a prevailing wage approval or file any documents with the Department of Labor. L-1 visa beneficiaries may possess dual intent, allowing them to apply for a permanent residency concurrently with the L Visa application. L-1A visa holders do not need to go through the labor certification process when applying for permanent residency, however, L-1B recipients do.

There is a premium processing option for L visa petitions filed in the U.S., which for an additional filing fee, USCIS will commit to process the application within 15 calendar days from receipt of the application. This does not mean that there will necessarily be a final decision in 15 days, but that there will be a response by this time. This response may be a visa approval, a denial or it may also include a request for additional documentation. By working with an experienced L1 Visa attorney, you can help streamline the sometimes complex L-1 and L-2 visa processes.

L-1 Requirements for Foreign Worker

To be eligible for L classification, the prospective worker who is being transferred from a foreign subsidiary, branch, affiliate, or parent of a U.S. company must be in a specialized knowledge capacity, or an executive or managerial position and have been employed for at least one continuous year during the past three years, with the foreign subsidiary, branch, affiliate, or parent of the U.S. company applying for them. Because L classification requires significant vetting of the foreign and domestic organization, be prepared to provide business and financial records for both, the petitioner/employer and prospective employee. The following documentation is required, but not limited to:

  • Articles of organization for foreign and U.S. company affiliates

  • Company brochures with description and addresses

  • Number of employees of parent company and affiliate

  • Financial Statements of both U.S. and foreign affiliates

  • Documentation showing evidence of connection between the affiliates

    1. Letter of Support from Employer

    2. Alien’s title and detailed job description with any special skills relevant to the position

    3. Salary and benefits offered

    4. Name and title of person who will be signing petition

  • Copy of Beneficiary’s Passport

  • Copy of Alien’s U.S. visa and I-94 (if alien already in the U.S.)

  • Alien’s resume or work history

  • Alien’s Diplomas and transcripts

  • Alien’s pay stubs or tax forms showing at least one year within the past three years of prior engagement with foreign affiliate

E-1 Treaty Trader Visa: the E-1 Treaty Trader Visa is for foreign nationals from a qualifying country who conduct a significant amount of international trade with the United States and may qualify for a temporary or nonimmigrant E-1 treaty trader visa. The volume of the international trade must be sufficient to justify the trader and their employees being in the United States to manage the trade.

E-2 Treaty Investor Visa: the E-2 Treaty Investor Visa is for foreign nationals from a qualifying country who have invested a substantial amount of capital into a business in the United States. The E-2 Investor Visa allows the individual to enter and work in the U.S. and manage the investment. While the E-2 Treaty Investor Visa must be renewed every two (2) years, there is no limit on the amount of times it can be renewed meaning it can be extended indefinitely.

The E-2 Treaty Investor visa is available to foreign nationals of over 80 participating countries who invest a substantial amount into a U.S. enterprise. Different nations are subject to various E-2 regulations and require different procedural steps to apply. The E-2 visa is good valid for up to two years at a time however, there no limit on the number of extensions allowed. Once an E-2 investor is approved, the business can also petition for E-2 specialized workers from the same country. The E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Dependents of E-2 visa holders can also enjoy work authorization when accompanying the principal visa holder. The E-2 visa is a popular precursor status for investors who wish to eventually gain permanent residence through the EB-5 Investor Visa Program.

General Qualifications for E-2 Visa Classification

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation

  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States

  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

You can also find more information about the E-1 Treaty Trader Visa, E-2 Treaty Investor Visa, and the EB-5 Investor Green Card here. If you are considering one of these options for you and your business in the United States, contact Diver Law Firm and schedule your free consultation today.

Employing Canadian and Mexican Nationals Under NAFTA

The TN Visa category was created under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico.

Canadians and Mexicans may be eligible to work in the U.S. as a nonimmigrant NAFTA professional under the following conditions:

  • The applicant is a citizen of Canada or Mexico;

  • The prospective job offer is a profession on the NAFTA list;

  • The applicant will work in a prearranged full-time or part-time job for a U.S. employer (self-employment is not permitted); and

  • The applicant has the required NAFTA qualifications, meeting the specific education and/or experience requirements of the profession.

With some exceptions, each profession requires the applicant to possess a Bachelor’s degree as an entry-level requirement. In some professions, an alternative to a Bachelor’s degree is listed, such as related experience or special licensing.

For a complete list of professions and minimum requirements under NAFTA, see Appendix 1603.D.1 of NAFTA Chapter 16. Among the list of designated TN professions are: Accountants, Computer Systems Analysts, Mathematicians, Economists, Management Consultants, Registered Nurses, Engineers, Lawyers, Research Assistants, Graphic Designer, Librarians, Hotel Managers, and more.

  • Management Consultant - this category is one of the most popular, but also one of the most scrutinized TN occupations. It is intended for professionals who are retained by a U.S. corporation to look at the “big picture” of its organization and make suggestions or recommendations for change or improvement. As set forth by the U.S. Bureau of Labor Statistics, management consultants “propose ways to improve an organization’s efficiency” and “advise managers on how to make organizations more profitable through reduced costs and increased revenues.”

  • Scientific Technician/Technologist - this category and employment must involve the use of scientific principles, research and development, and/or scientific observations and calculations. Traditional duties include: set-up, operate, and maintain technical instruments; monitor experiments, make observations, calculate and record results and often develop conclusions.

  • Physicians - seeking admission to the U.S. as a Physician under the NAFTA treaty has very strict limitations. A Physician may enter in TN status to engage in a teaching or research position only. Direct patient care is prohibited however, a caveat to this general condition – patient care that is incidental to a teaching and/or research position is permissible.

  • Registered Nurse - regulations allow a professional to enter the U.S. to render pre-arranged professional services as a Registered Nurse (RN). Typically, a RN coordinates patient care, educates patients and the public about various health conditions, and provides advice and emotional support to patients and their family members.

  • Computer Systems Analyst - sometimes called systems architects, study an organization’s current computer systems and procedures, and design solutions to help the organization operate more efficiently and effectively. They bring business and information technology (IT) together by understanding the needs and limitations of both.

  • Economist - to qualify for this category, the applicant must engage in activities consistent with the profession. This includes conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.

  • Engineer - applicants should have a U.S. job offer to work in one of the many engineering specialties (i.e., mechanical, chemical, civil, electrical, software, etc.). The regulations do not specifically list the job duties that are required for an individual to qualify under this category, so applicants should refer to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) for guidance.

  • Graphic Designer - graphic designers create visual concepts, by hand and/or using computer software, to communicate ideas that inspire, inform, and captivate consumers. They develop the overall layout and production design for various applications such as advertisements, brochures, magazines, and corporate reports.

  • Occupational/Physical Therapists - occupational therapists treat injured, ill, or disabled patients through the therapeutic use of everyday activities. They help patients develop, recover, improve, and maintain the skills necessary for daily living. Physical therapists, sometimes called PTs, help injured and/or ill individuals manage pain and improve movement. These therapists are often an important part of rehabilitation, treatment, and prevention of patients with chronic conditions, illnesses, or injuries.

  • Pharmacists - Pharmacists dispense prescription medications to patients and offer expertise in the safe use of prescriptions. They also may conduct health and wellness screenings, provide immunizations, oversee the medications given to patients, and provide advice on healthy lifestyles.

Diver Law Firm prides itself on providing world-class immigration representation while utilizing innovative approaches to solve complex business and immigration matters. Diver Law Firm’s nonimmigrant and special projects portfolio is always searching for the leading edge in business and immigration. Diver Law Firm is skilled in identifying the appropriate nonimmigrant petitions for the offered position and employment circumstances. We will properly evaluate the candidate as well as tailor the needs of the employer to better situate itself for immigration benefits in the future. Diver Law Firm will prepare petitions that encompass a wide variety of industries and occupations while consulting with both the employer and employee to discuss their options and responsibilities. Contact Diver Law Firm today at (405) 896-8080 to discuss your options for nonimmigrant visa classification for temporary employment in the United States.

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