Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

WORKING IN THE U.S.

Although employment in the United States is generally limited to US citizens and permanent residents (green card holders) some individuals may qualify for special employment authorization from the USCIS. This group includes:

H-1B Visas

The largest group of these professional workers are the H-1B professionals. These people must have a Bachelor’s Degree or its equivalent, and a job offer from a US employer who needs an individual to perform professional caliber work and is willing and able to pay the “prevailing wage” as determined by the US Dep’t of Labor. Congress has limited the number of new H-1B visas which can be issued each year. Currently, there are two numerical caps for H-1Bs: (1) A general cap of 65,000 and (2) A "Master's Cap" of 20,000 for those who possess an advanced degree from a U.S. university. Since the government’s fiscal year begins October 1 and the law permits employers to file their applications a maximum of six months before the start date, April 1 has become the magic filing date.

In April 2013, more than 120,000 applications were filed the first day and resulted in a computer generated lottery. Rejected applications are returned with the filing fees. We expect the same for April of 2014. We are advising interested individuals to contact us in January or February of 2014 so that the application is ready to be filed overnight on March 31, 2014. We need to begin preparing applications as early in 2014 as possible because of the recurring delays in obtaining approvals of the Labor Condition Application (LCA) a preliminary approval from the U.S. Department of Labor (DOL) which is a necessary component of the application. At present, the processing time for the LCA will vary between 7-10 days, depending on whether the employer has previously submitted an application to the DOL (in which case the employer’s information will already be in the system and new applications will take less time to process.)

Some other things you should know about H-1B visas:

  1. The employer is NOT required to test the U.S. job market in most instances. This means the employer can prefer a foreign worker over an equally talented U.S. worker.
  2. The position does not have to be for a full time position. Part time work is acceptable.
  3. The cap only applies to new H-1B applicants. Foreign workers who have been approved for H-1B status in the past six years are not subject to the cap.
  4. Workers who already have H-1B status can change employers and begin work as soon as the petition is filed with USCIS by the new employer. They do not count against the cap.
  5. Foreign students with Optional Practical Training (OPT) that expired between April 1 and October 1 may nevertheless continue employment without interruption if the H-1B petition is filed and accepted by USCIS

The processing of these applications is complicated and mistakes can have dire consequences so employers and foreign workers are cautioned to begin early and utilize the services of an experienced immigration attorney.

A word of caution, USCIS has been cracking down on “job shops” and undeserving applications. Onsite inspections by immigration officials have become common.

Frequently Asked Questions

Q. How does the process work?

The employer must submit a completed application that includes, at minimum:

  1. The appropriate immigration forms
  2. A Labor Condition Application, certified by the U.S. DOL
  3. The required filing fees
  4. Proof of the proposed worker’s professional status
  5. A sponsorship letter from the employer setting forth a complete job description of the work to be performed

Q. What is an LCA?

The Labor Condition Application is an on-line form that must be completed by the employer (or attorney on the employer’s behalf) certified by the U.S. Dep’t of Labor, signed by the employer and submitted with the application. The LCA includes certain legally binding promises or “attestations.” Among other things, the employer must attest that it will pay its H-1B workers the "required wage rate" and will offer prevailing working conditions to those workers. The H-1B application cannot be submitted to USCIS until the LCA is approved by the Dep’t of Labor. The LCA processing is taking 7 days if the employer has previously submitted an LCA application and up to 10 days if the employer is new to the system.

Q. What are the filing fees?

There are usually three fees: the basic fee of $320; the fraud fee of $500 and the training fee of $750 or $1500. Employers with 25 or less employees pay the lower $750 training fee; employers with 26 or more employees pay the higher, $1500 fee.

Q. Who pays the filing fees?

The employer MUST pay the fraud fee. The other fees, including legal fees can be paid by either the employer or foreign worker BUT, if the worker pays any part of the fees it cannot bring his wage below the prevailing wage if subtracted from his salary. This means if the prevailing wage is $45,000 and the filing and legal fees are $5,000, then the actual wage paid to the worker must be at least $50,000.

Q. How does an applicant prove he or she has professional status?

Usually by submission of a Bachelor’s degree or its equivalent. If the applicant graduated from a U.S. college or university this is usually not a problem; a copy of the diploma will suffice. However if he or she graduated from a foreign institution, it will often be necessary to submit an appraisal from a recognized agency confirming that the applicant’s degree is the equivalent to a U.S. Bachelor’s degree. In some country’s, for example, students begin college after completing 10 years of education. In these cases, USCIS will likely consider the first 2 years of college as being the completion of high school and equate the degree to an Associate’s degree.

Q. I am graduating college in May. Can I be sponsored for an H-1B in April?

Maybe. If you have completed all of your course work and have no other academic activities to complete prior to graduation, USCIS will accept a letter from your school confirming your status in lieu of the actual diploma.

Q. If I graduate in May and cannot start work until October 1 on an approved H-1B petition, what can I do in the interim?

For most students the problem is solved through the issuance of Optional Practical Training (OPT) which allows graduates to work in their field of study after graduation. In addition, USCIS will allow individuals who currently have OPT that expires between April 1 and October 1 to extend the OPT and continue working if the employer files a petition before the OPT expires.

Q. How does the cap work?

The law imposes an annual limit or “cap” on the number of new admissions in the H-1B category. USCIS will not approve an initial H-1B petition once the cap has been reached. Petitions for foreign workers who already have an approved H-1B status or visa and are seeking to extend that status or switch to a different employer are exempt from the cap since they were previously counted against the cap when first approved.

Q. How do I know if I am subject to the cap?

All foreign workers who do not have a previously approved H-1B petition within the past 6 years are subject to the cap except for a small group of cap exempt institutions. These institutions include academic and nonprofit organizations.

Q. What types of jobs qualify for H-1B visas?

The law only specifies that the job position be for a “specialty occupation” which has been interpreted to mean a “professional” job. A professional job is one that requires at least a Bachelor’s Degree or its equivalent. According to the latest USCIS statistics, over 60% of petitions approved in FY 2012 were for workers in computer-related occupations. (The program is particularly dominated by computer professionals from India. Over two thirds of all approved H1B applications were for Indian citizens.)

Q. What are the responsibilities of a U.S. employer in sponsoring an H-1B worker?

The U.S. employer must file with the U.S. Dep’t of Labor (DOL) a labor condition application (LCA) including certain legally binding promises or “attestations.” Among other things, the employer must attest that it will pay its H-1B workers the "required wage rate" and will offer prevailing working conditions to those workers. The employer must also attest that a strike or lockout is not in progress with regard to the occupational classification at the place of employment, and that notice of the LCA filing has been given to its employees. The employer has several obligations as well which continue even after the filing of the LCA with the Department of Labor. This includes (among other things) an obligation to pay the return transportation for H-1B workers whose employment is terminated prior to the expiration of the authorized period of stay, even if the cause of termination is beyond the employer's control.

Q. Does the employer have to pay the return transportation if the employee quits or is fired for cause?

If the worker voluntarily leaves the employment the employer does not have to pay the cost of return transportation. The employer is also relieved of that obligation if the employee fails or refuses to return home. This obligation is only owed to the worker and not his or her spouse or children. The employer is still obligated to pay these costs if the employee is terminated for cause.

Q. What if the employee wants to change employers?

The approved H-1B petition allows the foreign worker to work only for the employer who filed the petition. If the H-1B worker changes employers, the new employer must file a new H-1B petition. It is important to note, however that the H-1B worker may begin new employment upon filing of the H-1B petition, rather than waiting for approval of the application. The worker must already have been approved for H-1B status, lawful admittance, engagement solely in authorized employment, and a nonfrivolous petition by the new employer before the expiration of authorized stay.

Q. Can the H-1B worker bring his or her spouse or children?

If the H-1B worker’s spouse and family are legally in the U.S. they should be granted derivative H-4 status. Qualifying family members include the spouse and unmarried children under 21 years old. Family members are admitted for the same period of time for which the principal family member is admitted. If the family is back home, the consulate will make the final decision whether to issue the visas or not. Generally this is not a problem.

H-2B Temporary Workers

The H-2B program allows U.S. employers to bring certain temporary non-professional workers to the U.S. This visa is reserved for "peak" or "seasonal" workers, such as summer landscapers, winter ski instructors, and restaurant, resort workers and other hospitality workers that serve in summer or winter resort communities and for special seasonal businesses such as pool installers and maintenance personnel.

There are several key components to this visa:

  1. Usually the worker cannot be employed for more than ten consecutive months, after which he or she must return home, hopefully to return the following year under a new petition.
  2. The employer must prove that the foreign worker is not taking a job away from a US worker by testing the job market through a highly regulated procedure known as a labor certification.
  3. The employer must show that the job is seasonal, peak load, or intermittent. A restaurant that is open all year will probably NOT qualify to accept H-2B workers unless that restaurant can show than the great majority of its business occurs during certain months.
  4. There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year.

The sponsored worker must be a citizen of one of the designated 59 countries. Effective Jan. 18, 2013, nationals from the following countries are eligible to participate in the H-2B program:

Argentina Estonia Kiribati Peru Tonga
Australia Ethiopia Latvia Philippines Turkey
Barbados Fiji Lithuania Poland Tuvalu
Belize Grenada Macedonia Romania Ukraine
Brazil Guatemala Mexico Samoa United Kingdom
Bulgaria Haiti Moldova Serbia Uruguay
Canada Honduras Montenegro Slovakia Slovakia
Chile Hungary Nauru Slovenia
Costa Rica Iceland The Netherlands Solomon Islands
Croatia Ireland Nicaragua South Africa
Dominican Republic Israel New Zealand South Korea
Ecuador Jamaica Norway Spain
El Salvador Japan Papua New Guinea Switzerland

Frequently Asked Questions

Q. Are the H2B visas limited to unskilled workers?

No, but as a practical matter most of those visas go to workers in summer or winter resorts who tend to be unskilled. Remember, these are jobs that U.S. workers are unwilling or unable to perform. Not many Americans are interested in working as dishwashers, maids, or landscapers.

Q. What is the process like?

The process is very complicated but it involves: (1) convincing the US Dep’t of Labor that the job is seasonal or peak employment, (2) undergoing a recruitment effort approved by the Dep’t of Labor to show the worker is not taking a job away form a U.S. worker, (3) showing the USCIS that the employer has the financial ability to pay the prevailing wage established by the Dep’t of Labor and (4) obtaining a visa from the U.S. consulate abroad. This process usually takes 3-4 months and can be very expensive. Fortunately, an employer can often group multiple workers together on one petition and make the process much more cost effective.

Q. Is it difficult to obtain approval from the U.S. consulate?

Not if the employee has a “clean record”. Prior immigration violations and criminal convictions are the most common reasons for visa denials.

Q. What is the H-2B Cap?

There is a statutory numerical limit, or "cap," on the total number of workers who may be issued an H-2B visa during a fiscal year. Currently, the cap set at 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no "carry over" of unused H-2B numbers from one fiscal year to the next.

L-1 (Intracompany Transferees)

This is a visa which permits foreign employers with offices in the United States to transfer their key personnel to a branch or affiliate in the United States. The classic example allows a company like Toyota to transfer its Director of Marketing to the U.S. to direct its new marketing campaign. But the visa can be useful in many other circumstances as well. For example, a textile manufacturer in India may be able to transfer its owner or managing director to the United States to open a new factory or sales or distribution center.

These visas are particularly attractive because they allow the company to later apply for a green card for the employee without the need of first obtaining a labor certification. Also, there is no backlog or waiting list for visas in this green card category so a qualified applicant can obtain a green card in several months rather than waiting many years.

However, there are many restrictions and qualifications for this category. Some of the more important of these qualifications include:

  1. The employee being transferred must be either an executive, manager or person of specialized knowledge for the foreign company and have worked in that capacity for at least one year continuously before coming to the U.S. The transferee must be coming to the U.S. to perform a similar function to the one he or she performed abroad.
  2. The law requires a very specific relationship between the foreign employer and the US sponsor. Basically, one entity or individual or group of individuals must control both companies and both companies must be actively doing business during the period of the transferee’s employment in the U.S.
  3. If the employee is coming to open a new office, the office must be financially viable. This means, at a minimum, it must have a business premises (lease) and show it has the financial ability to pay the employee’s salary for the first year. For employees of startup companies, USCIS will issue approvals for only one year. To obtain an extension, the employer must establish that he or she has hired sufficient staff (or outside contractors) to justify the need for a manager or executive.

Frequently Asked Questions

Q. Does the foreign company have to be a certain size?

No, but it has to be large enough to justify an executive, manager, or person of specialized knowledge. A small company of 3 or 4 workers is often difficult. The general rule for managers or executives is that the transferring employee must be doing supervisory rather than "hands on" productive work and the persons they supervise must often themselves be professionals. Also, the company must show it is generating sufficient income to allow it to maintain a financially viable office in the U.S.

Q. What if the employee has worked for the foreign company for less than a year?

The rules are very strict about the one year. Eleven months is not sufficient and the year must be as an executive, manager or person of specialized knowledge. Ten months as a sales person and two months as a Marketing Manger will not work.

Q. Can a returning employee qualify?

Yes. The one year of qualifying employment must be during the three years immediately preceding the filing of the application. So an employee can work for the sponsoring company for ten months, come to the U.S. to attend school for a year and return to the company for two months in order to qualify.

Q. How long will the visa be good for?

Up to three years for a U.S. employer that has been in operation for more than a year, and 1 year for a start-up company. The visas are renewable. There is a 7 year maximum for managers or executives and a five year maximum for persons of specialized knowledge.

Q. Will I later be able to close the foreign company?

Not during any period the transferred employee is in the U.S. in L status or applying for a green card through this type of employment.

Q. How many employees can I transfer from the foreign company?

There is no limit as long as each employee qualifies. Larger companies may be eligible for an expedited procedure known as "blanket petitions."

Q. Can the transferred employee bring any family members along?

Yes. The spouse and any children under 21 can qualify as a "derivative" beneficiary. The derivative spouse may also qualify for separate employment authorization.

Q. How long does the processing take?

If the U.S. employer pays an "expedite fee" to USCIS of $1225, the application will be adjudicated within 15 days (unless USCIS responds by requesting additional information.)

Q. How much does it cost?

Filing fees include a basic fee of $325 and a "fraud fee" of $500. Legal fees will depend upon the application.

E-2 Treaty Investor; E-1 Treaty Trader

Although many people are aware that they can qualify for permanent residency through the investment of $500,000 or more in various business enterprises in the United States, not everyone knows that they may qualify for a nonimmigrant visa for a lot less money. The E2 nonimmigrant visa allows the investor, his or her spouse and any children under 21 to accompany the investor to the United States. This visa even allows the spouse to obtain a work card and social security number and the children can attend public school at no additional charge and college at the reduced, US citizen rate (because the investor is creating jobs and paying taxes!)

In order to qualify for this visa, the investor must come from a country that has a special investor treaty with United States. We currently have treaties with 80 countries and the list is a little surprising (we have such a treaty with Iran but not with Brazil or India). Much more information is provided about this visa elsewhere on the site, including the country list and the amount of money you will need to invest. To get to that information, click here.

O and P visas

We call these the “talent” visas because they are generally reserved for those among you who are freakishly gifted. You don’t have to be Beckham or Beyonce or Christian Bale but you do have to be a person of “extraordinary ability in the sciences, arts education, business or athletics” as “demonstrated by sustained national or international acclaim” for the O-1A. For the O-1B you have to be in movie or TV production and have a “demonstrated record of extraordinary achievement.” The P visa is specifically for athletes and group entertainers who are “internationally recognized.”

The first thing you will need to provide is a copy of your newspaper clippings and portfolio. If you don’t have one or don’t know what we are talking about, you probably do not qualify. This visa is not reserved for those who have won an Academy Award or a Nobel Prize, but a letter of recommendation from your mom or high school drama coach is not going to be enough.