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Selecting the “best” available visa classification for the authorization of U.S. employment or entry of foreign executives and managers can be extremely challenging. U.S. immigration laws provide a veritable cornucopia of temporary employment classifications for foreign executives and managers. Whether or not a certain classification is available and/or appropriate depends upon a number of factors such as: 1) the desired length and purpose of the employment or visit; 2) the desired expediency of U.S. entry; 3) the executive’s individual credentials; and 4) whether the employer or executive desire the employment to be permanent. While the above-mentioned factors are clearly important considerations, the starting point of the visa selection process is to focus on the sponsor employer’s nationality and whether it has U.S. or international connections. The number of available visa classifications is contingent upon these factors. The diagram below sets forth the four basic types of sponsoring employers and the visa classifications most likely to be available under each scenario. For an analysis of the various nonimmigrant classification options for executives and managers, please refer to the Analytical Flowchart of Options for Executives/Managers.
Analytical Flowchart of Options for Executives/Managers
L-1A status is for intracompany employee transfers. The L-1A category is one of the most useful temporary visas because it allows multinational corporations to rotate or transfer executives and managers to the U.S. Moreover, the L-1A status provides a quick pathway for a multinational manager or executive to obtain employment-based lawful permanent resident status (“immigrant visa” or “green card”). Qualifying Requirements In order to qualify for L-1A status, the foreign national must have employment abroad by an affiliate (parent, branch or subsidiary) of the petitioning employer, the employment abroad must have lasted for a period of one continuous year during the previous three years of employment, the employment abroad must have been in a managerial or executive capacity position, and the proposed employment in the United States must also be a managerial or executive position. Traits of Managerial Capacity
Traits of Executive Capacity
Duration or Length of Stay
L-1 status may be initially approved for up to three years with a maximum
period of stay seven years for the L-1A subcategory and five years for
the L-1B subcategory. Periods of stay in H status count toward the
maximum 7-year L-1A stay.
Examples of L-1A Executives/Managers
Procedure The L-1A process is a one-step process (sometimes 2-step process): Step 1: Determine whether the foreign and U.S. entities are affiliated. Determine whether the foreign transferee has the qualifying one year of experience in an executive or managerial capacity. Determine whether the proposed U.S. position also qualifies as executive or managerial. Step 2: File the employer’s nonimmigrant visa petition with the U.S. Immigration & Naturalization Service. The employer must specify whether the offered employment is: 1) “new employment” or 2) a “continuation of previously approved employment without change” or 3) a“ change in previously approved employment” or 4) “new concurrent employment”. The selection or the appropriate choice among these terms or art is critical as discussed below. Canadian and Mexican L-1 professionals may bypass this step and apply directly at a Class A Port of Entry or Pre Flight Inspection station or U.S. airport handling international flights. Step 3: If the foreign professional is not currently in the U.S. or a “change of status” or “extension of status” cannot be granted, he or she must first apply for an L-1A visa stamp at the U.S. Consulate or Embassy in his or her home country. For a more detailed discussion about applying for nonimmigrant visa stamps, please see Consular Matters. “New Office” L Cases If the foreign national is being transferred to the U.S. for the purpose of establishing a new office, the petitioning employer must submit additional evidence such as office leases or purchases and business plans. If approved, the L-1A petition is valid for one year and may be extended with additional evidence. Blanket L Petitions If an employer has an approved “blanket” petition, its L-1A intracompany transferees may apply for L-1 visas at U.S. consulates abroad without having to file an individual L-1 petition with the INS. A petitioning employer may qualify for the “blanket”L if the following conditions are met:
Spouse and Children of L-1A Executives and Managers The spouse and unmarried minor children of the L-1A executives and managers may reside temporarily in the U.S. in L-2 derivative status. The L-2 status now authorizes the spouse and children for U.S. employment. A separate application for employment authorization must be filed with the INS. Also, the derivative spouse and children may attend accredited schools and universities in L-2 status.
The H-1B visa is a useful temporary visa for employing noncitizens in professional and other “specialty occupations” requiring a Bachelor’s Degree or the equivalent education and/or experience. The annual limitation of INS petition approvals notwithstanding, the H-1B visa is the most versatile of all temporary employment visas for foreign professionals. Qualifying Requirements
The job offered must be a “specialty occupation”, one that requires the theoretical and practical application of a body of highly specialized knowledge that can only be performed by an individual with a bachelor’s degree (or higher) or equivalent education or experience. Also, the degree requirement must also be common to the industry and the employer must normally require such a degree or its equivalent for the position. Thus, sales and technician positions sometimes do not qualify for H-1B classification because a bachelor’s degree or equivalent is not necessarily a minimum requirement for such occupations. An experienced foreign professional not possessing a formal bachelor’s degree may establish equivalency by showing three years of experience for each year of college-level education he or she lacks. For example, a professional with the equivalent of 2 years of college education and 6 years of experience in the profession may be able to establish bachelor’s degree equivalency. Duration or Length of Stay
The H-1B status may initially be approved for up to three years with extensions available for an additional three years. The maximum period of stay for any noncitizen person under H-1B status is six years. Periods of stay in L status count toward the maximum 6-year H-1B stay. Examples of H-1B positions:
Procedure The H-1B process is a three-step process (sometimes 4-step process): Step 1: Determine whether the occupation is a specialty occupation and whether the foreign worker possesses a bachelor’s degree or equivalent. Also, an accurate job title should be strategically selected. Step 1 culminates with the submission of a formal prevailing wage request to the local state’s Department of Labor (State Employment Security Agency or “SESA”). The wage offered must meet actual and prevailing wage thresholds. Step 2: File the employer’s Labor Condition Application (LCA) with the U.S. Department of Labor. For a more detailed discussion of LCAs and the employer’s retention and record-keeping requirements, please see Employers & HR Directors. Step 3: File the employer’s nonimmigrant visa petition with the U.S. Immigration & Naturalization Service. The employer must specify whether the offered employment is: 1) “new employment” or 2) a “continuation of previously approved employment without change” or 3) a“ change in previously approved employment” or 4) “new concurrent employment”. The selection or the appropriate choice among these terms or art is critical as discussed below. Step 4: If the foreign professional is not currently in the U.S. or a “change of status” or “extension of status” cannot be granted, he or she must first apply for an H-1B visa stamp at the U.S. Consulate or Embassy in his or her home country. For a more detailed discussion about applying for nonimmigrant visa stamps, please see Consular Matters. Annual Limitations (“H-1B Cap”) There is a limit on the number of new H-1B petition approvals that INS may issue in a given fiscal year. The fiscal year begins on October 1 and ends on September 30. Avoiding this annual limit or “cap” has become the employer’s, alien’s and attorney’s primary strategic consideration in most H-1B cases. For what it is worth, “change of employer” and “extension” H-1B cases are not “new H-1B petitions” and thus do not count toward the annual cap. Prior to 1997, the H-1B “cap” had never been reached. The Immigration Act of 1990 placed an annual cap of 65,000 new H-1B petition approvals per fiscal year. The “cap” was reached in August in 1998 (two months to go) and in April in 1999 (6 months to go). In fiscal years 1998 and 1999, many change of status and “new employment” H-1B cases were put on hold until the beginning of the next fiscal year. In October 1998, President Clinton signed the FY99 Omnibus Appropriations Bill which contained many broad-sweeping immigration provisions. One of the provisions was the increase in the number of new H-1B petition approvals to 115,000 for fiscal years 1999 and 2000. The annual limit for fiscal year 2001 will drop to 107,500 and thereafter (2002 and beyond) the cap will revert to 65,000. Despite the cap increase for fiscal year 1999 to 115,000, the cap was nevertheless reached in April 1999. After the cap was reached, no new H-1B petitions were adjudicated until late September 1999. The cap for fiscal year 2000 will be reached on or before April 2000. While the annual “cap” is a source of added pressure for employers, aliens and attorneys (and the INS), it also creates opportunities for skillful business immigration practitioners to showcase their talents. HR directors, In-house counsel and part-time immigration attorneys are increasingly summoning the services of outside business immigration experts to formulate unconventional and creative (yet meritorious) strategies for obtaining alternative temporary visa classifications. Unexpected New Locations or Job Sites An employer cannot move an H-1B worker to a new location not listed in the approved LCA for more than unless a new LCA covering the new location is approved by the U.S. DOL. In addition, the movement of the worker to a new location not previously covered by an approved LCA is deemed a “material change” in employment and a new H-1B petition must be filed with the INS. For purposes of requiring a new LCA and/or INS petition, a new “location” is defined as a new Metropolitan Statistical Area (“MSA”) where the alien will be working for at least 90 days. Thus, if the successor job site is still within the MSA or if the employee is not going to be working at the job site for more than 90 days, a new LCA or petition is not required. A temporary (less than 90 days) assignment at a new worksite not listed on the LCA does not require a new LCA if the employer meets certain conditions. The employer must be in total compliance of the terms of the LCA. There must be no strike or lockout at the new location. The employer must pay the higher of the actual wage or prevailing wage. Within the past 3 years, the employer’s H-1B professionals have not performed work at the job site for more than 90 days. “Roving” or Multiple Location Workers As noted above, an employer cannot move an H-1B worker to a new location not listed in the approved LCA for more than 90 days unless a new LCA covering the new location is approved by the U.S. DOL. In addition, the movement of the worker to a new location not previously covered by an approved LCA is deemed a “material change” in employment and a new H-1B petition must be filed with the INS. To avoid the inconvenience of filing new LCAs and new INS petitions each time an H-1B professional is placed at a new MSA job site for 90 days or more, an employer can file a multiple location LCA with the U.S. DOL. Spouse and Children of H-1B Professionals The spouse and unmarried minor children (under 21) of the H-1B professional may reside temporarily in the U.S. in H-4 derivative status. Although the H-4 status does not authorize the spouse and children for U.S. employment, they may be able to change to H-1B or some other work-authorizing status if they meet the qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in H-4 status.
 B-1 Business Visitors
B-1 Business Visitor classification is probably the most useful of all temporary visa classifications. Business visitors may be admitted for the purpose of engaging in business but not for gainful U.S. employment. The term “business” encompasses many legitimate commercial and professional activities but specifically does not include local employment or labor for hire. B-1 visas are issued by the U.S. Consulates and Embassies and the Department of State’s Foreign Affairs Manual is a primary source for determining B-1 eligible activities. Types of B-1 Activities
Factors in Determining Entitlement to B-1 Visitor Classification In determining whether an alien is entitled to B-1 Visitor Classification, consular officers look at the following factors:
The consular officer will look to see if the applicant has adequate funds to avoid unlawful employment. In addition, the officer will also consider the applicant’s ties to the home country and the likelihood of the applicant’s return to the home country at the end of the proposed stay.
Coasting officers and crew members of private yachts sailing out of foreign home ports that will be cruising in U.S. Waters for more than 29 days are properly classifiable as B-1 business visitors, not as D-1 crewmen. However, in contrast to these and other crewmen, OCS workers are unique for a multitude of reasons. The main difference is that the actual issuance of a B-1 OCS status designation involves the concurrent governance under the Outer Continental Shelf Lands Act (OCSLA), Coast Guard Regulations, and the INA. Generally, employers engaged in OCS activity may only employ U.S. citizens or LPRs necessary for the unit's routine functioning unless there are not sufficient USCs or LPRs qualified and available or the unit is over 50% owned by citizens of a foreign nation. The unit's routine functioning personnel generally includes marine officers and crew; industrial personnel; and support personnel. This generally will not include specialists, professionals, or other technically trained personnel.
O visa status is for artists, entertainers, athletes, scientists, and certain business professionals with extraordinary ability in their field, and persons needed to accompany and assist them. O status may be initially granted for the time necessary to complete the event or activity for which the noncitizen was admitted with a cap of three years on the initial period of stay. Extensions may be granted in one-year increments to continue or complete the event or to complete additional events not contained within the original petition. For example, an O-1 noncitizen athlete could qualify for this status and the event could be designated as the contract itself. Examples of O-1 positions/situations:
Canadian and Mexican professionals and highly skilled workers may qualify for TN status to work in the U.S. Qualifying Requirements Canadian and Mexican professionals with occupations listed in the North American Free Trade Agreement (NAFTA) may qualify for TN classification if they possess the necessary credentials for an occupation on the NAFTA list (see abridged list below). The TN is often an available option for Canadian
and Mexican professionals who may not otherwise qualify for H-1B status. H-1B
status is for degreed professionals (or possess degree equivalent) who are being
sponsored by a U.S. employer for a position that requires the services of a
person with a bachelor's degree. Common
TN positions (Annex 1603, p.1. of NAFTA):
Duration of Status TN status is granted in one-year increments and may be extended indefinitely. However, INS regulations require TN's to have "pure nonimmigrant intent" i.e., the intent to remain in the United States only temporarily. The longer a person remains in TN status the more likely it is that the INS will infer that the person intends to remain in the United States permanently and deny the application for an extension. Application Procedure Canadian professionals may apply for TN status at any Class A Port of Entry (POE) or at a Pre-flight Inspection station (PFI). Thus, a Canadian may obtain TN status in one day (without first having to apply with the INS or Embassy or Consulate). By contrast, Mexican professionals seeking TN status must file an I-129 petition with the INS Nebraska Service Center. In addition, the U.S. employer must offer at least 95% of the prevailing wage to the Mexican TN professional. U.S. employers of Canadian TN workers are not required to offer prevailing wages. Once the INS has approved the TN petition for the Mexican worker, he or she must apply for a TN visa stamp at the U.S. Consulate or Embassy in Mexico. Once issued, the visa stamp will be valid for one year and may be extended for additional increments of one year. Spouse and Children of TN Workers The spouse and unmarried minor children of the TN professional may reside temporarily in the U.S. in TN derivative status. Although the TN status does not authorize the spouse and children for U.S. employment, they may be able to change to some other work authorizing status if they meet qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in TN status. Strategies for Scientific Technicians/Techologists TN status is very useful for non-degreed Canadians and Mexicans coming to the U.S. to assist a U.S. professional (e.g. engineer). This type of TN occupation as stated in NAFTA is a “scientific technician/ technologist.” Both NAFTA and U.S. immigration laws require the U.S. professional (to whom the scientific technician/technologist will report) to possess as a minimum, a bachelor’s degree and a license if such license is required. With respect to the Mexican or Canadian scientific technician/technologist, her or she “must possess both theoretical knowledge in any of the listed scientific disciplines which include engineering.” In short, the scientific technician/technologist must be coming to the U.S. to provide direct support to an engineer or other professional. Applications for TN status for scientific technician/technologist receive more scrutiny than some other occupations. This category of TN status has long been the favorite of computer companies importing computer technicians coming to the U.S. to support U.S. software engineers. The INS recently stated that “all engineering specialties are included” so long as the requisite degree or licensing requirements are met. While the Mexican or Canadian scientific technician/technologist would not require a degree or post secondary diploma to qualify for TN status, the immigration officer must be satisfied that the applicant possesses the requisite theoretical knowledge. In short, a very senior electrician with licensing credentials and years of experience in the field may be able to qualify for a one year TN status.
E status is for traders or investors covered by the commercial treaties between the United States and foreign countries, as well as spouses and children of E-visa holders. To be eligible for E status, the person must be entering solely to carry on substantial trade between the U.S. and the foreign state of which the alien is a national (E-1 treaty trader) or solely to develop and direct the operations of an enterprise in which the alien has invested, or of an enterprise in which s/he is actively in the process of investing a substantial amount of capital (E-2 treaty investor), or is a key employee of an alien who is either E-1 or E-2 status holder. An E status may be initially granted for one year admission and granted extensions of stay for up to 2 years. However, if person who has been granted 2 year extension departs, s/he will be granted only one year admission upon return, even if extension would have covered longer period. Family of Es: can work without being subject to deportation but cannot adjust or change status. Examples of E-1/E-2 positions/situations
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