COMPANY TRANSFERS | L-1 Visa
The L visa is very effective but has become more difficult to obtain in recent years due to intensified scrutiny. Nonetheless, this visa remains incredibly useful for companies that wish to transfer their employees from a foreign country to their parent, subsidiary, or affiliated company located in the United States. In fact, this visa can even be used to transfer an employee that will open a new branch office in the United States (as long as the foreign company outside the US continues to exist and operate).
However, not every foreign employee can be transferred. Instead, the employee must not only work for the foreign company for at least one year out of the previous three years, but also the position the employee holds outside the US (and will hold while inside the US after the transfer) must be a high level position that classifies the individual as a "manager,” “executive,” or one who holds "specialized knowledge.” These terms (manager, executive, and specialized knowledge) are specifically defined by law and do not necessarily carry the same meaning as their everyday use. Therefore, we carefully analyze the relevant job positions prior to starting the application in order to more accurately assess eligibility.
Additional factors must also be taken into consideration, such as the legal ownership connection between the foreign and US companies, the company's organizational chart, and the ability of the company to finance and execute the transfer.
A couple great benefits of receiving L visa status are that it not only can be valid up to seven years (five years for those with specialized knowledge), but it also allows the foreign worker’s spouse to obtain employment authorization while unmarried children under 21 can attend school. The L visa can also be a bridge to permanent residence in many situations.
PERMANENT RESIDENCE | Employment-based Green Cards
There are multiple pathways that one can utilize to obtain a Green Card through employment. Often times, these pathways are referred to as EB-1, EB-2, EB-3, EB-4, and EB-5 (“EB” stands for Employment-Based). However, these are very general categories that can often be broken down into further sub-categories.
Usually, one applies for an employment-based Green Card while already working in the US under a non-immigrant status, but other times applicants apply for this type of Green Card directly from their home countries (without ever previously working in the US). Most of the time, a US Employer must sponsor the application, but certain applicants (such as those who have “extraordinary ability” or significantly contribute to the "national interest" of the United States) may self-sponsor their own Green Card petitions so that a US Employer is unnecessary.
Obviously, the great thing about these types of applications is that one receives a Green Card upon approval, which means he or she (and their family) can then legally live and work in the US on a permanent basis. Additionally, Green Card holders are generally not required to work for any specific employer, which means they have complete freedom to work for anybody (or nobody) without requiring any further approval from the US Government.
One difficult aspect of these types of applications is that they typically (but not always) require a permanent labor certification (often referred to as PERM). In order to obtain this certification, a significant amount of effort from both the US Employer and the immigration attorney is usually required, as they must demonstrate to the US Department of Labor and USCIS that the employer truly sought the help of US workers in order to fill the relevant position before permanently offering it to the foreign worker.
Despite the difficult nature of these types of applications, they can certainly be worth the effort because an approval can provide both the foreign worker along with his or her spouse and unmarried children (under 21) with the right to stay in the United States for the rest of their lives.
INTERNATIONAL TRADE | E-1 Visa
This visa classification is designated for foreign-owned companies (and specific employees of those companies) that already have substantial international trade with the United States. “Trade” includes both products and services, but such trade must be principally between the US and the relevant foreign country.
This is a great visa type for those that are eligible as it can be continuously extended without limitation (as long as the international trade relationship continues to exist). Additionally, the spouse of an E-1 visa holder can obtain employment authorization to work in any job within the US, and the unmarried children (under 21 years old) of an E-1 visa holder can attend private or public school.
However, this visa is not easy to obtain as it has multiple burdensome requirements which all must individually be met. For example, the petitioning company must have at least 50% of its international trade with the United States, and such trade must be continuous and substantial.
As a result of the numerous requirements related to this visa, we always carefully screen all of our clients prior to starting the application so that we can fully explain the requirements and how they apply to each company's circumstances.
TRAINEE PROGRAMS | H-3 & J-1 Visa
There are two potential visa pathways for professional training positions: the J-1 trainee program and The H-3 visa. The latter is not truly viewed as a “work” visa because the foreigner who receives H-3 status is required to come to the US for the primary reason of receiving job training (as opposed to performing productive employment). And while productive employment is allowed under the H-3 visa, it is permitted on a limited basis in the sense that such employment can only be incidental to the training program itself. Additionally, it must be demonstrated that the training is not available in the foreign country.
Separate from the H-3 visa, the J-1 trainee program also exists as a potential option. Just like the H-3, this visa requires a US sponsor and the main purpose of the relocation must be to receive training as a young professional. A detailed description of the proposed position must also be included.
Under these visa types, the foreign trainee may typically remain in the US for a maximum period of two years, and any accompanying family members can likely attend school but may not qualify for US work authorization depending on individual circumstances.
SHORT TERM RELOCATION | H-2 Visa & BILOH
There are numerous ways to effectuate a short-term relocation, but none of them are simple. One of these options is the H-2 visa, which can be separated into two sub-categories: H-2A (agricultural positions) and H-2B (non-agricultural positions). Regardless of which category one falls into, the main requirement to obtain this visa is proving that the offered position is truly on a limited time basis.
By their nature, many agricultural positions are seasonal and thus qualify for this work visa. However, non-agricultural positions can prove to be more difficult to qualify for, as one must demonstrate that the position is seasonal in nature, or truly a one-time occurrence, or a peakload/intermittent need.
These can be difficult requirements to overcome and thus require careful legal analysis and detailed explanations within the visa application. It is also worth noting that these visas not only have an annual cap (which means the timing of the application submission can be critical), but they also require a labor certification process prior to approval. H-2A and H-2B status is usually granted in one year increments, with a maximum total stay limit of three years.
In addition to the H-2 visas, another short-term relocation option is known as B in lieu of H visa, or BILOH. This unique visa potentially allows a foreign company to send employees to the US for six months or less. In order to qualify, the nature of the work assignment must usually be high-skilled (i.e. requiring a Bachelor's Degree) and the foreign company must generally pay for their employee's expenses during the relocation.
HIGH SKILL OCCUPATIONS | H-1B Visa
H-1B status is probably the most discussed and sought after non-immigrant status in the US Immigration System, as it is designated for foreigners possessing strong skills who receive a job offer from a company located in the United States. However, many people do not realize that receiving a job offer is only one of the requirements needed to obtain this status. For example, in addition to the job offer itself, the occupation designated for the foreign worker must be one that requires an advanced level of knowledge usually obtained through a Bachelor’s Degree program. As a result, the foreign worker must also have the required level of education or its equivalent.
Furthermore, only a very limited number of H-1B visas are issued each year. In fact, over the last few years the US Government has reached their annual quota within one week of opening the annual H-1B program (which occurs on the first of April of each year). Therefore, the timing of an H-1B application is critical.
Approved H-1B status generally allows for a maximum stay of six years (with some exceptions which may allow for even longer). Under the current law, the spouse of an H-1B worker is usually not able to obtain work authorization, but the unmarried children (under 21 years old) of such worker may attend public or private school. There are also potential pathways to convert H-1B status into permanent residence (i.e. Green Cards).
There are currently ongoing discussions within the US Government to increase the number of H-1B visas issued annually, but unfortunately it is unclear if and when these changes will occur. We will update this website if such changes are indeed approved by Congress.