Practice Areas

The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…). Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with up to 20,000 additional H-1B visas available to graduates of U.S. master’s degree (or higher) programs.

H-1B PROFESSIONAL VISA

H‑1B visas are issued to professionals coming to work in the United States in a professional occupation.  Generally, this visa is available to someone with at least a bachelor’s degree in a specialized field filling a job which requires a bachelor’s degree in or related to that specialized field.  In some cases, however, experience or a combination of education and experience can substitute for a bachelor’s degree.  An H-1B petition must first be approved by the USCIS before an employee can apply for the nonimmigrant visa at the U.S. consulate. 

Requirements

1. Professional Employee: An employee must qualify as a professional in the field.  The employee must hold a Bachelor’s degree in a related field or demonstrate completion of education, work experience, or a combination of both which would be equivalent to a Bachelor’s degree in a specialized occupation. Three years of experience in the specialty is usually accepted for each year of education the employee needs to complete a bachelor’s degree in that field, with twelve years of professional experience required if the employee has no formal education.

If a position requires completion of either a Master’s or Doctoral degree, then the employee must have such educational credentials.  One can have the equivalent of a Master’s degree by showing completion of a Bachelor’s degree in a related field and 5 years of experience.   Thus, someone who only pursued two years of college majoring in Interior Design in college but who has held increasingly responsible jobs in the interior design field for six years would qualify as a professional.  If State licensing is required for a profession (e.g. law, accounting), then an employee must hold such a license in order to obtain H-1B status.

2. Professional Occupation: The H-1B visa is available to employees coming to work in a specialty professional occupation.  A professional occupation is one which requires theoretical and practical application of such highly specialized knowledge that at least a bachelor’s degree in the field or equivalent em­ployment experience is commonly required in the industry. If the occupation involved does not meet this test, an employer can sometimes show that the duties of the particular position offered are so complex that a bachelor’s degree is needed. Occupations such as accounting, psychology engineering, finance, market research, mathematics, physical and social sciences, medicine and health education, business specialties, law, theology and arts are among those fields considered professional. 

3. Professional Position: The duties of the position must require a professional.  For example, a position whose title is accoun­tant but whose duties involve only minor calculations and in­putting financial data would not qualify for H‑1B visa status because the position does not require use of specialized knowledge of accounting.
4. Labor Condition Application: Under the law, an employer is required to file an application which must be approved by the U.S. Department of Labor.  This application contains attestations by the employer regarding payment of prevailing or actual wages for the specific position to H-1B employees, working conditions, the absence of strikes, and providing of notice of filing of the application. The labor condition application must be filed and approved prior to applying for H-1B visa status.  The application is reviewed by the Department of Labor for completeness only and can therefore usually be obtained within a seven to ten day period depending upon the State.  Enforcement of this provision is complaint driven and proceedings will only be contemplated by the Department of Labor if the application contains material misrepresentations or if an employer is not complying with any of the attestations contained in the application.
5. The petitioner must be a U.S. employer. The employer for whom the H-1B employee will be working must have an ongoing business in the United States.  The employer must have an IRS Employer Tax Identification number.
6. There is a numerical limitation on the number of visas to be issued annually.  The quota only applies to petitions and not to extensions.
7. When applying for an H-1B at a U.S. consulate abroad, an alien need no longer demonstrate retention of a foreign residence.  In addition, H-1B visas will be granted regardless of whether the applicant is pursuing permanent residence in the United States.

Term      Generally granted for an initial term of three years.  Extensions of three years are ordinarily granted, but the total stay under this visa is limited to six years.

Dependents        The spouse and children under age 21 of the H‑1B visa holder are entitled to H‑4 visas.  Children attending a full-time school who reach 21 years of age may change from an H‑4 visa to a student visa (F‑1) to complete their studies.

Advantages       H‑1B visa requirements focus upon the employee and the posi­tion, not on the employer.  For employers who do not qualify for E‑1, E‑2 or L‑1 visas, H‑1B visas can be extremely useful for their professional employ­ees.

H‑1B visas can be useful for hiring recent college graduates.  An employee ordinarily needs work experience to qualify for E‑1, E‑2 and L‑1 visas, since he or she must show executive, managerial or specialized knowledge/essential skills.  An H‑1B employee need only show a college degree in the same field. 

Disadvantages E visa holders and executives and managers under L visas are allowed a longer maximum stay than under H visas.  However, the H‑1B employee can change to an E visa at the end of the sixth year, since after six years of experience such beneficiaries have assumed managerial or executive positions.

Proving that a particular employee’s work experience is equiva­lent to all or part of a college education in that field can sometimes be difficult.

Alternatives       For beneficiaries not in a profession, E‑1, E‑2 and L‑1 visas are available.  For short business trips, B‑1 visas are also useful.

The L-1 visa allows multinational companies to transfer high-level and essential employees from oversees to the United States. In order to qualify, the non-immigrant must have worked at the affiliate or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity within the last three years for a minimum of one year.  Spouses of L-1 visa holders are eligible for work authorization.

L-1A 
“Intracompany Transferee Executive or Manager”- L-1A is a non-immigrant classification that may be used by a U.S. employer with a multinational presence/foreign affiliate to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S. L-1A also may be used by a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one, often referred to as a “new office “L-1.”

L-1B
“Intracompany Transferee with Specialized Knowledge” – L-1B is a nonimmigrant classification that may be used by a U.S. employer with multinational presence/foreign affiliate to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. L-1B also may be used by a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.

The E-1 visa allows a non-immigrant to enter the United States solely to carry on substantial trade between the country he or she is from and the United States. The home country of the non-immigrant must have a treaty with the United States.

The E-2 visa for Treaty Investors is a nonimmigrant visa.This visa allows the holder to live and work in the US under the visa conditions for a specified length of time.It can be renewed an unlimited number of times, offering the Treaty Investor the potential to stay in the United States indefinitely, provided they continue to meet the visa requirements.The route was established to facilitate and enhance economic interaction between the United States and countries with which the US maintains a treaty of commerce and navigation. This means the E-2 is only open to citizens of so-called Treaty countries.

• As such, the first step in checking your eligibility for the E-2 visa is to confirm that your country of nationality is an E-2visa country.
• A further requirement is that a minimum of 50% of the E-2 company must be owned by persons holding the nationality of the treaty country OR a holding company of the treaty nationality.
• This category of visa can also be granted to employees of the E 2 company. Qualifying employees must, among other requirements, hold the same nationality as the principalinvestor, and be working in an executive or supervisory capacity, or have special skillsessential to the efficient operation of the business.

Spouses and dependents of E-2 visa holders can also apply to join the main E-2 visa holder, although they do not need to have the same nationality as the main applicant. E-2 spouses also attain authorization to work while in the US.Whereas the E-2 visa holder is restricted to work with the E-2 company, there are very few limitations on the type of work an E-2 spouse with EAD can undertake

E-2 Visa Key Requirements

One of the more complex aspects of the E 2 visa for Treaty Investors is the requirement to have made an at-risk financial investment in the E 2 company prior to making the application. You must be able to evidence you have control of the investment funds.

The E-2 investment must be placed in a real, bona fide enterprise in the US offering tangible goods or services. Speculative or passive investment such as in real estate or stocks do not qualify. The investment enterprise cannot be used as collateral to secure a loan.

Further, the investment as a whole must be deemed ‘substantial’, that is, sufficient to ensure the successful operation of the enterprise. In the absence of an arbitrary minimum investment threshold, Treaty Investors may require professional guidance on the level to be considering that would satisfy E 2 adjudication.

The E-2 visa company has to show projections of significant economic contribution and cannot be considered a ‘marginal’ enterprise. It must generate significantly more income than a level that would sustain a living for you and your family and create jobs for US resident workers.

Finally, whether applying as an E-2 visa investor or employee, you will need to demonstrate duringyour application your intention to depart the US when your E 2 visa status comes to an end.

E-2 visa duration

E-2 Treaty Investors and E-2 visa employees are granted temporary permission to stay in theUnited States. The validity of the visa varies by the visa holder’s nationality. The maximum period is 5 years, which can be issued to Britons among others.

Regardless of the maximum period, E-2 visa holders are only permitted to stay in the US for a maximum period of two years at a time.If your visa permits multiple entries, you are allowed to leave and enter as many times as you like for the duration of your visa validity, but you cannot remain for longer than 2 years in any one stay.

Extensions can be applied to renew your E-2 status, provided you make an application within your current visa validity and can evidence that you continue to satisfy the visa conditions.

Typically, an extension will be granted for a further period of 2 years although there is no limit tothe number of extensions that you can seek. That said, given that the E-2 visa is a temporary visa, you must always maintain an intention to leave.

Moreover, in practice, there have been many instances of investors and their families with established lives in the U.S. being refused an extension and required to return to their homec ountry. As such, the E-2 visa is not necessarily the most secure option long-term.

If you are looking to live and work in the United States as anE-2 visa Treaty Investor, while not easy, the application if presented correctly is one of the best visas for entrepreneurs and start-ups in the US.

E-3 visas are issued to professionals coming to work in the United States in a professional occupation specifically from Australia. The individual does not have to be Australian by birth but could have acquired Australian citizenship as long as they are an Australian citizen (not just a permanent resident). Generally, this visa is available to someone with at least a bachelor’s degree in a specialized field filling a job which requires a bachelor’s degree in or related to that specialized field. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of 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. In some cases, however, experience or a combination of education and experience can substitute for a bachelor’s degree. An E-3 petition can apply for the nonimmigrant visa directly at the U.S. consul without requiring a USCIS approval.

Requirements

Professional Employee: An employee must qualify as a professional in the field. The employee must hold a Bachelor’s degree in a related field or demonstrate completion of education, work experience, or a combination of both which would be equivalent to a Bachelor’s degree in a specialized occupation. Three years of experience in the specialty is usually accepted for each year of education the employee needs to complete a bachelor’s degree in that field, with twelve years of professional experience required if the employee has no formal education.

If a position requires completion of either a Master’s or Doctoral degree, then the employee must have such educational credentials. One can have the equivalent of a Master’s degree by showing completion of a Bachelor’s degree in a related field and 5 years of experience. Thus, someone who only pursued two years of college majoring in Interior Design in college but who has held increasingly responsible jobs in the interior design field for six years would qualify as a professional. If State licensing is required for a profession (e.g. law, accounting), then an employee must hold such a license in order to obtain E-3 status.

Professional Occupation: The E-3 visa is available to employees coming to work in a specialty professional occupation. A professional occupation is one which requires theoretical and practical application of such highly specialized knowledge that at least a bachelor’s degree in the field or equivalent em¬ployment experience is commonly required in the industry. If the occupation involved does not meet this test, an employer can sometimes show that the duties of the particular position offered are so complex that a bachelor’s degree is needed. Occupations such as accounting, psychology engineering, finance, market research, mathematics, physical and social sciences, medicine and health education, business specialties, law, theology and arts are among those fields considered professional.

Professional Position: The duties of the position must require a professional. For example, a position whose title is accoun¬tant but whose duties involve only minor calculations and in-putting financial data would not qualify for E-3 visa status because the position does not require use of specialized knowledge of accounting.

Labor Condition Application: Under the law, an employer is required to file an application which must be approved by the U.S. Department of Labor. This application contains attestations by the employer regarding payment of prevailing or actual wages for the specific position to E-3 employees, working conditions, the absence of strikes, and providing of notice of filing of the application. The labor condition application must be filed and approved or CERTIFIED prior to applying for E-3 visa status. The application is reviewed by the Department of Labor for completeness only and can therefore usually be obtained within a seven to ten day period depending upon the State. Enforcement of this provision is complaint driven and proceedings will only be contemplated by the Department of Labor if the application contains material misrepresentations or if an employer is not complying with any of the attestations contained in the application.

5. The petitioner must be a U.S. employer. The employer for whom the E-3 employee will be working must have an ongoing business in the United States. The employer must have an IRS Employer Tax Identification number.

6. When applying for an E-3 at a U.S. consulate abroad, an alien need no longer demonstrate retention of a foreign residence. In addition, E-3s visas are not dual intent, which means a green card application and the intent to reside permanently in the US conflicts with the temporary nature of the E-3.

Term Generally granted for a term of two years and can be renewed indefinitely, at the consular officer’s discretion. However, the individual must prove they have no intent to apply for immigrant status (green card).

Dependents The spouse and children under age 21 of the E-3 visa holder are entitled to E-3 dependent visas. Spouses are entitled to work authorization. Children attending a full-time school who reach 21 years of age may change from an E-3 visa to a student visa (F 1) to complete their studies.

Process First a labor condition application must be filed, and certified. The preparation once the company has produced documentation can be done in under a week. The certification process takes 7 days. Once the visa application is prepared, the individual must go to the consulate and apply directly with supporting documentation. Once approved, the individual is eligible to work as soon as they enter the United States.

Success Rate Generally, if the position is professional and the individual is suitable, the success rate is excellent. The reasons for denial are usually either that the position is not professional, or that the individual has been unable to prove sufficient ties to their home country (intent to return). Proof may include bills, a home, etc. to establish the intent to depart the US.

Highly talented or acclaimed foreign nationals may eligible for an O visa. Individuals who may qualify for this visa are entertainers, scientists and high-end chefs, businessman, and athletes. There is always a growing area of expertise that people may not realize they qualify under.

This visa allows individuals of extraordinary ability (or achievement) to be employed temporarily in the U.S. An individual may either be employed by a single company or have an agent and prepared itinerary for the length of the visa.

An individual applying for this visa will have to be able to give evidence for their achievements or abilities.  Requirements depend on whether the application is for an O-1A or an O-1B visa.

O-1A requirements are (must have 3 of the below)

O-1B requirements are (must have 3 of the below)

Typically a person must have a body of work representative of their extraordinary talent, obtain letters from experts in the field demonstrating that they are recognized and well respected, and obtain a consultation or no objection letter from the appropriate organization in their field.

P visas are available to non-immigrants internationally known athletes and entertainment groups. Performing artists who fall under a reciprocal exchange program are available for a P-2 visa. P-3 visas are applicable to culturally unique entertainers.

TN USMCA (formerly NAFTA) Visa

A TN USMCA (formerly NAFTA) visa is a temporary worker visa that allows Canadian and Mexican citizens to work in the United States, assuming that the job requires a professional and is listed on the USMCA professions list. Moreover, the Mexican and Canadian applicant will be working for a U.S. employer (self-employment is not allowed). Click here for a list of TN professions See  Appendix 1603.D.1 of NAFTA Chapter 16. 

The R-1 visa allows religious workers to come to the United States to participate in a religious occupation and perform services for their religious organization. The religious organization must already be established in the United States.

Foreign students pursuing academic studies and/or language training programs are classified as F-1 nonimmigrants, while foreign students pursuing nonacademic or vocational studies are classified as M-1 nonimmigrants. Designated school officials (DSO) at certified schools issue Form I-20, Certificate of Eligibility for Nonimmigrant (F-1)/(M-1) Students.

F-1 students may be eligible to work under certain conditions. There are several types of employment authorization for students, including:

• On-campus employment;
• Curricular practical training;
• Off-campus employment based on severe economic hardship;
• Employment sponsored by an international organization; and
• Optional practical training.

F-1 students may work on campus without approval from USCIS until they complete their course of study. The F-1 nonimmigrant admission notation on their Form I-94 usually states “D/S” indicating duration of status. The F-1 student’s Form I-20 provides a Program End Date field, which is the latest date they can complete their studies. The student must enter the program end date in Section 1 as the date employment authorization expires.

To complete Section 2, the combination of the F-1 student’s unexpired foreign passport and Form I-94 indicating F-1 nonimmigrant status is a List A document for on-campus employment. We do not require you to record information from the student’s Form I-20 in Section 2.

F-1 students may work:

• On the school’s premises, including on-location commercial firms that provide services for students on campus, such as the school bookstore or cafeteria; and
• At an off-campus location that is educationally affiliated with the school.

Employment that does not provide direct services to students is not on-campus employment. For example, an on-campus commercial firm, such as a construction company that builds a school building, does not provide direct student services. Guidelines for on-campus employment are available at ice.gov/sevis/employment.

On-campus employment is limited to 20 hours a week when school is in session. An exception to this limitation applies in cases of emergent circumstances that DHS announces in a Federal Register notice.

Curricular practical training (CPT) allows students to accept paid alternative work/study, internship, cooperative education, or any other type of required internship or practicum that sponsoring employers offer through cooperative agreements with the school. The CPT program must be an integral part of the student’s degree program curriculum. The DSO must authorize CPT on the student’s Form I-20. The student should enter the CPT employment end date from the employment authorization section of their Form I-20 in Section 1 as the date employment authorization expires.

In Section 2, you may enter:

• A List A document, including the combination of:
  • An unexpired foreign passport;
  • Form I-20 with the DSO endorsement for employment; and
  • Form I-94 indicating F-1 nonimmigrant status.

Or

• List B and List C documents:
  • For example, a state driver’s license (List B document) and, under List C #7, a Form I-94 indicating F-1 nonimmigrant status with a properly endorsed Form I-20.  

An acceptable Form I-20 for CPT must have all Employment Authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location. Use the CPT Employment End Date on Form I-20 as the expiration date in Section 2.

For the other types of employment available to certain foreign students, (such as optional practical training (OPT) employment authorization, STEM (science, technology, engineering, and mathematics), OPT extension, or off-campus employment based on severe economic hardship) USCIS must grant an EAD to the student.

Border commuter students who enter the United States as an F-1 nonimmigrant may only work as part of their CPT or post-completion OPT.

M-1 foreign students in nonacademic or vocational studies may only accept employment if it is part of a practical training program and may only engage in such training after completion of their course of study. The student must receive an EAD before working and can only work for a maximum of six months of practical training. Enter the M-1 student’s EAD information under List A in Section 2 of Form I-9.

Dependents of F-1 and M-1 students have F-2 or M-2 status and are not eligible for employment authorization.

Optional Practical Training (OPT) for F-1 Students – EAD Required

OPT provides practical training experience that directly relates to an F-1 student’s major area of study on their Form I-20. An F-1 student authorized for OPT may work up to 20 hours per week while school is in session and full-time (20 or more hours per week) when school is not in session. After completing their course of study, USCIS may authorize an F-1 student up to 12 months of OPT upon completion of their degree program. Certain F-1 students may be eligible to extend their OPT; see F-1 STEM OPT Extension below for more information.

The designated school official must update Form I-20 to indicate OPT recommendation. The student must obtain an EAD from USCIS before they are authorized to work. The student may not begin employment until the date indicated on the EAD. The EAD establishes the student’s identity and employment authorization for Form I-9 purposes.

When completing Section 1, the student must enter the EAD Card Expires date in the Authorized to Work Until field in Section 1. When completing Section 2 for this student, you should enter EAD’s card number and Card Expires date under List A. When the student’s EAD expires, you must reverify the student’s employment authorization in Section 3.

F-1 STEM OPT Extension

An F-1 student who received a bachelor’s, master’s, or doctoral degree in science, technology, engineering, or mathematics from an accredited and Student and Exchange Visitor Program (SEVP)-certified school may apply for a 24-month extension of their OPT. Employment must be directly related to their major area of study, and you must be enrolled in and be in good standing with E-Verify.

Your E-Verify company identification number is required for the student to apply to USCIS for the STEM extension using Form I-765, Application for Employment Authorization. A STEM student may change employers or work at a different hiring site for the same employer, but any new employer or new hiring site must be enrolled in and be in good standing with E-Verify before the student begins employment. Moreover, new employers or hiring sites must timely report any change in the student’s employment information, as described below.

The EAD issued to the F-1 STEM OPT student states “STU: STEM OPT ONLY.” The following documents establish a student’s identity and employment authorization for Form I-9:

• An unexpired EAD; or
• An expired EAD presented with Form I-20 endorsed by the student’s designated school official recommending a STEM extension if the student timely filed their Form I-765 but their application is still pending. If the student has changed employers, this Form I-20 must also contain the new employer’s information.
  • In this case, you should enter the following information under List A in Section 2:

1. Enter EAD in the Document Title field;
2. Enter EAD number in the Document Number field;
3. Enter the date 180 days from the Card Expires date on the EAD in the Expiration Date field; and
4. Enter “EAD EXT” in the Additional Information field.

To update Section 2 for a current employee with a STEM OPT extension:

1. Review the employee’s Form I-20 endorsed by the student’s designated school official recommending a STEM extension.
2. Enter EAD EXT and the date 180 days from the Card Expires date on the EAD in the Additional Information field. For example, EAD EXT mm/dd/yyyy.

You must reverify this student’s employment authorization on the date you entered in Section 2.

The student’s Form I-20 for STEM OPT must have all Employment Authorization fields completed. These fields include employment status, employment type, start and end date of employment, and your name and location.

You have specific responsibilities when providing practical training opportunities to STEM OPT students, including:

• Enrolling in E-Verify and remaining in good standing before employing an F-1 STEM OPT student.
• Implementing a formal training plan to augment the student’s academic learning through practical experience.
• Completing the employer’s portion and certifying Form I-983, Training Plan for STEM OPT Students.
• Reporting to the DSO and updating Form I-983if there are any changes to or material deviations from the student’s formal training plan.
• Reporting a student’s termination of employment or departure to the DSO within five business days.

Additional requirements and information on your responsibilities are available at studyinthestates.dhs.gov.