Temporary Visas: Employment-based
H-1B
TN
H-1B1, E-3
L-1
J-1 EXCHANGE VISITOR

H-1B

  1. H-1B annual cap: H-1Bs for first-time applicants run out!
    1. The earliest date to apply for a new H-1B is April 1 for an October 1 start date
    2. 65,000 visas for those with Bachelor's degrees or foreign degrees
    3. 20,000 visas for those with U.S. Master's degrees
    4. These often run out the first week!
    5. This work authorization is tied to a specific employer
    6. Foreign nationals who already have H-1B status can start working for the new employer once the US CIS filing receipt arrives

  2. Bachelor's degree
    1. Position must require at least a Bachelor's degree in a specialty field
    2. Prospective employee must have at least a Bachelor’s degree in the specialty
    3. Example: Electronics Technician position is not a specialty field; Electronics Engineer is
    4. Work experience can sometimes help to show equivalence to a degree

  3. Prevailing Wage and Labor Condition Application (LCA)
    1. Cannot underpay; wage must be based on Department of Labor or other qualifying survey
    2. Must file LCA form electronically; it takes seven business days to process

  4. Corporate Structure
    1. Must have Federal Employer Tax ID number, funding, office address and telephone
    2. Cannot be self-employed. Must have member of the Board of Directors or other company officer in the U.S. to sign all forms and have the right to supervise/control the employee’s work

  5. Export Controls Issues
    The H-1B form asks the petitioner to review the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) and certify that either:
    • a license is not required to release the technology or technical data to the H-1B foreign national beneficiary, or
    • a license is required to release the technology or technical data, and the petitioner will prevent access to that technology/data by the beneficiary until the petitioner has received the required authorization or license to release it

TN

TN status is exclusively for Candadian and Mexican citizens

  1. Based on the North American Free Trade Agreement (NAFTA)
  2. There are only certain kinds of positions that TN nonimmigrants can hold pursuant to NAFTA which are listed in an Appendix to the Code of Federal Regulations, e.g. Systems Analyst
  3. Generally requires a Bachelor’s degree from the U.S., or a degree that is equivalent to a Bachelor’s degree in the applicant’s country
  4. Faster and easier for Canadians to apply from Canada, no visa required
  5. Status is valid for up to three years

Canadian procedure:

The Canadian applicant goes to an airport or port of entry in Canada with his or her passport, diplomas, a supporting letter from the employer and letters of experience if necessary. The Customs and Border Patrol Inspector at the airport will grant or deny the TN usually in one day. No visa is required. Once the TN is approved the person can start work at the U.S. firm immediately. The TN is valid for one to three years and must be extended by mail or reapplied for in person each year.

Mexican procedure:

Mexican citizens must obtain a visa at a U.S. consulate, which is sometimes difficult.

Extensions of status for all TNs:

All TNs may apply for the first TN or extension of TN status by mail in the U.S. This can take 2-4 months, so TNs often prefer to go to Canada or Mexico to obtain status more quickly.

H-1B1, E-3

H-1B1: For Nationals of Chile and Singapore. Issued in one year increments indefinitely. Have numerical limits that are never reached. Like H-1B, must have LCA. Can apply directly at consulate or in U.S

E-3: For nationals of Australia. Issued in two year increments indefinitely. Have numerical limits that are never reached. Like H-1B, must have LCA. Can apply directly at consulate or in U.S.

L-1

The L-1 visa is available to employees of international companies who maintain business operations in the United States as well as overseas. The prospective employee beneficiary must prove that he or she has been employed abroad for at least one year in a managerial, executive, or specialized knowledge capacity. If the U.S. entity has been doing business for less than one year, a business plan and evidence that the new office has the financial ability to commence doing business and pay the salary of the L-1 employee must be submitted.

The petitioning company must show that it will continue to do business in at least one other country for the duration of the L-1 status, and that it can support an office in the U.S. and pay the salary of the beneficiary. The beneficiary must be employed in a position that is managerial, executive, or requires specialized knowledge, each of which has specific requirements. The beneficiary must seek to render such services to a branch, subsidiary, parent, joint venture, or affiliate of the foreign employer in the U.S.

Documentation of incorporation, office space, bank accounts, tax payments, balance sheets, contracts, leases, photos of the premises, organizational charts, and other detailed documentation must be provided.

J-1 EXCHANGE VISITOR EMPLOYEES

  1. Instead of being an academic student, certain individuals may qualify for a J-1 visa for 12 to 18 months as an Au Pair, Camp Counselor, Government Visitor, Intern, International Visitor, Physician, Professor and Research Scholar, Short-Term Scholar, Specialist, Summer Work Travel, Teacher, or Trainee. http://j1visa.state.gov/programs
  2. They must have a sponsoring organization
  3. Sometimes spouses can obtain work authorization during the J-1 period of stay
  4. J-1s have a 30 day grace period to leave the U.S. after program completion

Please note: You should treat this information as a guide for discussion with an attorney. Processes and regulations change constantly. There may be issues not mentioned here which affect the approach, timing, and success of your case.