Business Immigration

H-1B Specialty Occupation Workers

The H-1B classification allows foreign nationals to accept professional assignments with U.S. employers, after the employer has obtained an approved labor condition application (LCA) from the Department of Labor (DOL). “H-1B dependent” employers have additional obligations. There is an annual numerical limitation of 65,000 for H-1B status, with an additional 20,000 H-1B visas for foreign nationals holding U.S. advanced degrees. An H-1B petition may be valid for up to three years. A foreign national may change H-1B employers. The nonimmigrant may simultaneously pursue permanent residence while holding H-1B status. Recapture of H-1B time is also available. H-1B petitions may be extended for an additional period of up to three years, to a maximum of six years in H-1B status. Limited exceptions allow for continued H-1B extensions until the foreign national obtains permanent residence. Dependent spouses and children of H-1B nonimmigrants hold H-4 status.

L-1A/B Multinational Executives / Managers / Specialized Knowledge Employees

The L-1 visa and nonimmigrant status allows for the intracompany transfer of employees of foreign entities to U.S. parent, affiliate, and subsidiary companies. In this way, key employees may contribute executive, managerial, or specialized knowledge skills to the U.S. business, and companies may ensure that their international operations are aligned in objectives and processes.

There are two types of L-1 status. Employees performing managerial or executive assignments in the United States hold L-1A status, with a maximum validity period of seven years, for an initial petition of three years and two extensions of two years each. Employees performing specialized knowledge assignments hold L-1B status, with a maximum validity period of five years, for an initial petition of three years and one extension of two years. Transferees may recapture any time spent physically present outside the United States, as this time should not count toward the maximum time limitations. Limited exceptions exist to the maximum periods of authorized stay for employment that requires only an intermittent presence in the United States. Dependent spouses and minor children of L-1 nonimmigrants obtain L-2 status, and L-2 spouses may obtain employment authorization.

E-1 / E-2 Treaty Investors and Traders

The “E” visa category allows foreign nationals who are citizens of countries with which the United States has certain types of treaties to engage in activities as a treaty trader, as a treaty investor, or as an employee of a qualifying E visa entity. Treaty traders engage in substantial international trade of goods, services, or technology between the treaty country and the United States. Treaty investors direct and develop a business in which the investor has either already invested or is in the process of investing. E employees should be executives, supervisors, or essential. E status may be valid for up to two years, and E visas are issued for up to five years. The foreign national may apply for new E visas or E extensions as long as he or she continues to engage in appropriate treaty activities through the E visa entity. Dependent spouses and minor children of E nonimmigrants also obtain E status, and dependent spouses are eligible to apply for employment authorization.

E-3 Australian Professionals

The E-3 nonimmigrant classification is for Australian citizens who will perform professional “specialty occupation” assignments in the United States. E-3 status may be valid for up to two years and may be renewed indefinitely. The foreign national may apply for an E-3 visa at a U.S. consulate abroad or request a change of status or change of employer from U.S. Citizenship and Immigration Services (USCIS). Either process requires a labor condition application (LCA) from the Department of Labor (DOL). Dependent spouses and children of E-3 professionals hold E-3D status. E-3D spouses are eligible for employment authorization documents. An extension of E-3 status may be filed with USCIS, or the foreign national may apply for a new period of E-3 status at a U.S. consulate abroad. There is an ample annual numerical limitation of 10,500 E-3 visa numbers, which has never come close to being reached. E-3 extensions with the same employer and E-3D dependents are not counted toward the quota.

O-1 Extraordinary Ability Professionals

The O-1 classification allows foreign nationals who have demonstrated extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture or television industries to visit the United States temporarily to work in the field. The O-2 classification is available to support staff accompanying the O-1 principal to assist with artistic or athletic events or performances. Spouses and dependent children of O-1 and O-2 principals are eligible for O-3 status in the United States and are ineligible to apply for work authorization. An O petition may be approved for up to three years, and extensions may be granted indefinitely for long-term projects or assignments or for a group of related performances or activities. There is currently no annual limit on O visa numbers.

P-1/2/3  Athletes and Entertainment Groups

The P classification is generally for athletes and entertainment groups. P-1 status allows foreign nationals who have earned international recognition to visit the United States temporarily to compete in an athletic event, either individually or as part of a team. P-1 status is also available for entertainment groups who will perform in the United States. P-2 status is appropriate for reciprocal exchange entertainment groups. P-3 status is available for entertainment groups who provide culturally unique performances. P-1, P-2, and P-3 status is also available for essential support personnel accompanying the P principal to assist with athletic events or entertainment performances. Spouses and dependent children of P nonimmigrants are eligible for P-4 status in the United States and are ineligible to apply for work authorization.

A P-1 petition on behalf of an individual athlete may be approved for up to five years; the athlete is eligible for another extension of five years, and there is a lifetime maximum of 10 years. P-1 petitions on behalf of athletic teams and entertainment groups, P-2 petitions, P-3 petitions, and petitions on behalf of essential support personnel may be approved for the time period necessary to complete the event or for one year, whichever is less. Extensions may be granted for longer-term events or performances. There is currently no annual limit on P visa numbers.

TN Professionals for Canadians and Mexicans under the USMCA

The TN classification is for Canadian and Mexican citizens who will perform professional assignments in the United States. With a few exceptions, discussed below, the Canadian and Mexican citizens must be professionals. The United States-Mexico-Canada Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA) Treaty, specifies the list of occupations, as well as the corresponding educational and/or licensure requirements. A TN Professional petition may be valid for up to three years. For Canadian citizens, a petition can be filed with U.S. Citizenship and Immigration Services (USCIS), or the individual may directly apply for admission at select ports of entry. Mexican citizens must apply for TN visas at U.S. consulates abroad, and do not have the option of obtaining a petition approval from USCIS in advance. Dependent spouses and children of TN professionals hold TD (USMCA Dependent) status. An extension of TN status for Canadian or Mexican citizens may be filed with USCIS, or the beneficiary may apply for a new period of TN status at a port of entry or at a U.S. consulate abroad.

H-2A/B Agricultural and Other Skilled Temporary Workers

The H-2A and H-2B classification allows foreign nationals who are citizens of certain named countries, with limited exceptions, to accept temporary agricultural and non-agricultural employment in the United States, after the employer has obtained temporary labor certification by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment. The foreign national must also demonstrate nonimmigrant intent through the maintenance of a foreign residence.

There is an annual numerical limitation of 66,000 for H-2B visas. Under the rules, an H-2B petition may be valid for up to one year for seasonal, intermittent, and peakload needs, and up to three years for one-time need. Also under the rules, H-2B petitions may be extended for periods of up to one year, to a maximum of three years in H-2B status in some circumstances. To be eligible for a period of H-2B status beyond the limit, a foreign national must remain physically present outside the United States for at least three months. Recapture of H-2B time is not available. Dependent spouses and children of H-2B nonimmigrants hold H-4 status.

In the H-2A process, in addition to the temporary Labor Certification Application processed designed to protect the wages and working conditions of similarly employed U.S. agricultural workers, there are numerous affirmations made by the employer to the U.S. Department of Homeland Security and the Department of Labor to ensure the protection and fair treatment of foreign agricultural workers. These requirements include a guarantee of minimum benefits, wages and working conditions including housing, worker’s compensation, tools, supplies and equipment, meals, transportation to and from employment and between living quarters and worksite.

Labor Certification with the U.S. Department of Labor

Typically the first step in the U.S. permanent residence process, the labor certification application entails a test of the domestic labor market to ensure that there are no U.S. worker-applicants who are willing, able, and qualified for the position for which certification is requested. An employer must comply with mandatory recruitment requirements, consider and evaluate the qualifications of any U.S. applicants, and file the application with the Department of Labor (DOL). DOL in turn may approve, audit, or deny an application, with certain audit “triggers” being commonly known, although random audits also occur. All documents substantiating the attestations of a filed labor certification application must be retained by the employer for five years. There are additional enforcement actions for employers, attorneys, and agents who commit fraud or willful misrepresentation on applications or who are the subject of criminal indictments or information.

Immigrant Visa Petitions and Permanent Residence (Green Card) Applications

The immigrant visa (IV) petition is a request made of U.S. Citizenship and Immigration Services (USCIS) for a determination of eligibility for an employment-based preference classification, such that an IV number may be later assigned to a foreign national beneficiary. As the second step in the permanent residence process for positions for which an approved labor certification application is required, the IV petition confirms the employment offer to the foreign national beneficiary based on the terms of the labor certification application. As the first step in the permanent residence process if labor certification is not required, the IV petition sets forth the permanent offer of employment to the foreign national employee. The petitioner must demonstrate that it has the ability to pay the wage offered to the beneficiary. Upon approval of an IV petition, the foreign national may pursue consular processing or adjustment of status if an IV number is available. If the foreign national has a current priority date, the adjustment of status application may be filed concurrently with the IV petition for some immigrant categories.