/Non-Immigrant Workers

There are many different statuses available for non-immigrant (temporary) workers in the U.S.  The following statuses are those that our clients most frequently pursue:

  • H-1B specialty workers
  • L-1A / L-1B intracompany transferees
  • E-1 / E-2 treaty traders and treaty investors
  • R-1 religious workers

H-1B1 Specialty Workers

H-1B1 specialty workers come to the U.S. to temporarily perform “specialty occupations.”  In order for a proffered job to be a “specialty occupation,” it must require: (1) theoretically and practically applying a body of highly specialized knowledge, and (2) a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.[1]  The “equivalent” of a bachelor’s degree includes: (1) experience in the specialty equivalent to completing such a degree, and (2) recognized expertise in the specialty based upon holding progressively more responsible positions in the specialty.[2]

Before petitioning for an H-1B, the petitioner must determine whether the job is indeed a specialty occupation.  The employer must be able to show both the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (CIS) that the proffered job’s requirements are normal for that particular job, and have not been artificially elevated to reach specialty occupation status.  In this regard, the Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) is a handy resource.  CIS regards it as an authoritative source on the job titles, duties, educational requirements and experience requirements for various positions.  If the OOH states that a job similar to that the employer wishes to offer only requires a two-year degree or the equivalent experience, that job is probably not a specialty occupation.

An employee wishing to petition for an H-1B1 specialty worker must first submit a form ETA-9035 LCA online.  This is only required in H-1B cases.  The LCA is the employer’s attestation that: (1) it will pay the employee the higher of: (a) the actual wage paid to similarly-situated employees or (b) the prevailing wage for the job in the work site’s geographical area; (2) hiring the H-1B NIW will not adversely affect the working conditions of similarly-situated workers; (3) there are no strikes or lockouts in the job for which the employer seeks to hire the H-1B, and (4) the employer has posted notice of the prospective hiring.

Before submitting the LCA online, the employer must first determine the job’s prevailing wage.  The prevailing wage is based upon the geographical location, the job title chosen, and the job’s required skill level.  Although employers may obtain prevailing wage information from a variety of different sources, the DOL’s Foreign Labor Certification Date Center Online Wage Library is the most popular.

Once the DOL approves the LCA, the petitioner may file its I-129 with CIS.  The employer may not file the petition more than six months before the NIW’s start date.  Moreover, only 65,000 H-1B visas (and an additional 20,000 for those holding U.S. master’s degrees) are available each fiscal year, which runs from October 1st through September 30th.  Consequently, most petitions for new H-1B specialty workers are filed with CIS during the first week of April.  Because the number of petitions dramatically exceeds the number of available H-1B visas, CIS uses a “lottery” system in which it randomly selects submitted petitions for processing.

The I-129 petition must include evidence showing that: (1) the LCA was properly approved, (2) the proffered job is a specialty occupation and (3) the sponsored NIW qualifies as a specialty worker.

When CIS approves the I-129, employees already in the U.S. change to H-1B status.   Those still abroad must apply for and receive H-1B visas through consular processing.

CIS generally confers H-1B status in increments of three years, up to a total of six years.  The spouses and children of H-1Bs receive H-4 status.  H-4s may apply for and receive authorization to work in the U.S.

H-1Bs may have dual intent.  This means that while in H-1B status, they may also pursue adjustment to lawful permanent resident (green card holder) status.  Many H-1B employers begin the process of obtaining labor certifications (LCs) and filing I-140 immigrant worker petitions for their employees as soon as they are admitted as H-1Bs.  H-1Bs may even extend their authorized periods of stay status beyond the six-year limitation, in one-year increments, if an LC, I-140 or I-485 (application to adjust status) was filed more than one year before the extension is sought.

Category L:  Intra-Company Transferees

In our global economy, U.S.-based companies frequently have branch, subsidiary and affiliate companies in other countries.  Consequently, many foreign companies must often transfer managers, executives and employees with specialized knowledge to their affiliate companies in the U.S.  The L-1 status makes this possible.

As with H-1Bs, the petitioning process involves the petitioner filing an I-129 with CIS.  Premium (expedited) processing is also permitted.  If the beneficiary is in the U.S. under a different status when CIS approves the I-129 petition, the status changes to L-1A or L-1B.  However, beneficiaries still abroad must CP and receive an L visa.

All L intra-company transferees must have worked for the overseas affiliate for at least one of the past three years immediately before the petitioner files the I-129.  Beyond that, there are some additional requirements:

L-1As must be coming to the U.S. to perform managerial or executive services.  The definitions of “managerial” and “executive” are the same as those provided for the EB-1 “multinational executives and managers” category discussed above.[3]   L-1As may remain in the U.S. for up to seven years.  CIS typically approves the initial stay for three years, followed by extensions in two-year increments.  The L-1A classification is particularly coveted because, in some circumstances, the L-1A manager or executive may later qualify for lawful permanent resident (green card holder) status as a multinational manager or executive.

L-1B status is available for intra-company transferees who have “specialized knowledge,” which means knowledge “possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”[4]  L-1Bs may remain in the U.S. for up to five years.  As with L-1As, CIS typically approves the initial stay for three years, followed by a two-year extension.

When the L-1A or L-1B will be working at a newly-established office in the U.S. that has been doing business for less than a year, CIS only approves the initial stay for one year.

Spouses and children of L-1As and L-1Bs are admitted in L-2 status.  L-2s may work in the U.S.  Because their L-2 status derives from the parent or spouse’s L-1 status, their authorized periods of stay are the same.

L visa holders are allowed to have dual intent (i.e. intent to apply for lawful permanent resident (green card holder) status while holding L status).

Category E:  Treaty Traders and Investors

The U.S. has ratified numerous Friendship, Commerce and Navigation (FCN) and Bilateral Investment Treaties (BIT’s) with other countries.  This enables many traders and investors who are either citizens of, or work for companies based in these countries to obtain non-immigrant status in the U.S.

When considering E status as a treaty trader or investor, one must first determine whether an applicable FCN or BIT exists.  If it does, the next question is whether it allows for treaty traders, treaty investors, or both.

Most E-1s and E-2s are initially admitted in two-year increments.[5]  Their spouses and children are admitted in the same status for the same time frame.[6]  There is no limit on the number of extensions of stay permitted, compelling some to call E status a “virtual green card.”  However, CIS only grants extensions of stay for a maximum of two years.[7]

Unlike the other NIW categories, no one files a petition with CIS to sponsor a prospective E-1 or E-2 overseas.  Here, the applicant submits an E-1 or E-2 visa application is directly to the consulate.  But traders or investors already in the U.S. must file an I-129 with CIS, requesting a change of status.  In addition, all E-1s and E-2s seeking an extension of stay must also submit I-129s.

In order for applicants to acquire E-1 treaty trader status, they must show that they will be in the U.S. to carry on trade satisfying four requirements.

First, it must be of a “substantial nature.”  This means “an amount of trade sufficient to ensure a continuous flow of international trade items between the U.S. and the treaty country.”  This contemplates numerous transactions over time.  A single transaction, regardless of its size, is not enough.  Although the monetary value of the trade item being exchanged is relevant, more weight is given to more numerous exchanges of larger value.  However, there is no minimum requirement for each transaction’s value or volume.  For smaller businesses, income derived from numerous transactions, which is enough support the trader and his family, is a favorable factor in determining if there is substantial trade.[8]

Second, the trade must be international in scope.

Third, the traders must conduct the trade either on their behalves or as employees of foreign persons or organizations engaged in trade “principally” between the U.S. and the treaty country.[9]  “Principal trade” requires that over 50% of the treaty trader’s international volume is between the U.S. and the trader’s country.[10]

Fourth, the E-1s and E-2s must demonstrate intent to leave the U.S. upon the expiration or termination of treaty trader status.[11]

In order for applicants to acquire E-2 treaty investor status, they must show that they have “invested” or are actively in the process of “investing” a “substantial amount of capital” in a “bona fide enterprise” in the U.S.

The “investment” must involve placing capital at risk with the goal of realizing a profit.  The treaty investor must possess and control the capital invested or being invested.  The capital must be irrevocably committed to the enterprise.[12]

A “substantial amount of capital” must be: (1) substantial in relationship to the total cost of purchasing an enterprise or establishing one; (2) sufficient to ensure the treaty investor’s financial commitment to the enterprise’s successful operation, and (3) large enough to make the investor’s success in developing and directing the enterprise likely.[13]

A “bona fide enterprise” must be a real, active, and operating commercial undertaking that produces goods and services for profit.[14]

E-2s must also seek entry “solely to direct and develop” the enterprise.[15]  “Solely to develop and direct” means that the treaty investor owns at least 50% of the enterprise and possesses operational control through a managerial position, other corporate device, or other means.[16]

Employees of E-1s and E-2s are also admissible under these categories if they: (1) are coming to the U.S. as executives, supervisors or with other special qualifications making their services essential to the enterprise’s efficient operation; (2) have the same nationality as the principal alien employer, and (3) intend to depart upon the termination of E-1 or E-2 status.[17]

In addition, their employer must be either: (1) a person in the U.S. having the treaty country’s nationality and maintaining E-1 or E-2 status, or if outside the U.S. would qualify for E-1 or E-2 status[18], or (2) a company with at least 50% of its stock held by owners either: (a) living in the U.S. as E-1s or E-2s, or (b) if not in the U.S, would be classified as E-1s or E-2s.[19]

Category R:  Religious Workers

Religious workers may obtain R-1 status to work in the U.S. for up to five years.[20]  The maximum initial period of admission for R-1s is two and a half years. R-1s must satisfy numerous requirements.

First, they must belong to a “religious denomination” that has had a bona fide non-profit religious organization in the U.S. for at least two years immediately before the I-129 is filed.  “Religious denomination” means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following: (1) a recognized common creed or statement of faith shared among the denomination’s members; (2) a common form of worship; (3) a common formal code of doctrine and discipline; (4) common religious services and ceremonies; (5) common established places of religious worship or religious congregations, or (6) comparable indicia of a bona fide religious denomination.[21]

Second, R-1s must be coming to the United States to work at least 20 hours per week on average.

Third, R-1s must be coming solely as “ministers” or to perform “religious vocations” or “occupations.”

A  “minister”: (1) is fully authorized by a religious denomination and fully trained, according to the denomination’s standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination; (2) is not a lay preacher or a person not authorized to perform duties usually performed by clergy; (3) performs activities with a rational relationship to the religious calling of the minister, and (4) works solely as a minister in the U.S., which may include administrative duties incidental to the duties of a minister.[22]

“Religious vocation” is a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters.[23]

“Religious occupation” is an occupation in which: (1) the duties primarily relate to a traditional religious function and are recognized as a religious occupation within the denomination; (2) the duties are primarily related to, and clearly involve inculcating or carrying out the religious creed and beliefs of the denomination and (3) the duties do not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible.  Furthermore, religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incidental to status. [24]

Fourth, R-1s must come to or remain in the U.S. to work for the petitioner.

Fifth, R-1s must not work in the United States in any other capacity.[25]

Petitioners wishing to sponsor R-1s file an I-129 petition, along with very detailed attestations about the organization, the number of employees and R-1’s working there, the R-1’s religious denomination, job title, duties and qualifications for the job and various other issues.  Petitioners seeking to bring R-1 ministers must provide proof of the minister’s qualifications and ordination, as well as that denomination’s requirements for ordination.  CIS may verify the submitted evidence by touring the petitioner’s facilities, interviewing its officials or visiting the location where the R-1 will live.

The spouses and children of R-1s are admitted in R-2 status.[26]  R-2s may not work while in the U.S.[27]

[1] INA 214(h)(i)(1)(A) and (B).

[2] INA 214(h)(i)(1)(C)(i) and (ii).

[3] See also 8 CFR 214.2(l)(B) and (C).

[4] 8 CFR 214.2(l)(1)(D).

[5] 8 CFR 214.2(e)(19)(i).

[6] 8 CFR 214.2(e)(19)(ii).

[7] 8 CFR 214.2(e)(20).

[8] 8 CFR 214.2(3)(10).

[9] 8 CFR 214.2(e)(1)(i).

[10] 8 CFR 214.2(3)(11).

[11] 8 CFR 214.2(e)(1)(ii).

[12] 8 CFR 214.2(e)(12).

[13] 8 CFR 214.2(e)(14)(i), (ii) and (iii).

[14] 8 CFR 214.2(e)(13).

[15] 8 CFR 214.2(e)(2)(i) and (ii).

[16] 8 CFR 214.2(e)(16).

[17] 8 CFR 214.2(e)(3).

[18] 8 CFR 214.2(e)(3)(i).

[19] 8 CFR 214.2(e)(3)(ii).

[20] 8 CFR 214.2(r)(1).

[21] 8 CFR 214.2(r)(3).

[22] 8 CFR 214.2(r)(3).

[23] 8 CFR 214.2(r)(3).

[24] 8 CFR 214.2(r)(3).

[25] 8 CFR 214.2(r)(1)(i) through (v).

[26] 8 CFR 214.2(r)(4)(ii).

[27] 8 CFR 214.2(r)(4)(ii)(B).

Additional Resources

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2018-02-13T19:10:03+00:00Immigration|