1. Fundamentals of Nonimmigrant Visas
Sujata Ajmera
Of Counsel
Jackson Lewis, PC
(512)
L. Ruth Clark
Senior Associate
Berry Appleman & Leiden, LLP
(713)

2. Common Visa Categories for Employees
F-1/OPT – Students with Employment Authorization
H-1B - Specialty Occupations
L-1 - Intracompany Transferees
TN - NAFTA Professionals (Canada & Mexico)
E-3 - Specialty Occupations (Australia)
H-1B1 - Specialty Occupations (Chile & Singapore)
E-2 - Investor Visas
O-1 – Extraordinary Ability Visas
H-3 – Trainee Visas
B-1 / Visa Waiver – Business Visitor Visas

3. F-1 Student with Employment Authorization
Student can engage in Optional or Curricular Practical Training (OPT or CPT)
CPT occurs while still in school – work is authorized by the school on I-20. Ineligible for OPT if more than 12 months of CPT
OPT occurs upon graduation – requires a USCIS-issued Employment Authorization Document
Automatic 12 month period
(maybe longer)

4. F-1 Student with Employment Authorization
New OPT rules:
Elimination of “cap gap”
Status and work authorization
extended from expiration of
OPT/EAD to October 1
Have to be selected for an H1B
E-Verify extension for STEM degrees
17 month extension
Employer must be signed up for E-Verify
Employee must have a STEM degree

6. H-1B Specialty Occupation
Job must require a Bachelors
degree or equivalent and applicant
must possess required Bachelors
degree or equivalent
Employer is responsible for return
transportation upon early termination
Prevailing wage required
Detailed document retention requirements
3 years initially - 6 year maximum (soft max)
PRO: Extension past 6th year possible if green card started before 6th year starts

7. H-1B Timing Issues The H-1B start date is October 1 each year
We can file six months early -- April 1
OPT is valid for 12 months (except for cap gap or E-verify extensions)
There are only 58,200 H-1B numbers each year (some set aside for H-1B1)
There are an additional 20,000 H-1B numbers allocated for those with a Masters or Ph.D. from a U.S. University
CON: H-1B Cap was met first week of April 2014 and 2015.
PLAN AHEAD FOR 2016!
CON: Spouses are not eligible to work immediately

8. H-1B Timing Challenges
December 2014 graduates - OPT valid 12/2014 to 12/2015
File H-1B in April for October 1 start date
No Issues
Summer 2015 advanced degree graduates - OPT valid 8/2015 to 8/2016
File H-1B in April for October 1 start date based on their Bachelor’s degree OR the advanced degree if they can obtain evidence of completion by April
BUT - if F-1 is pursuing a degree and hasn’t graduated by April, or don’t have proof of graduation when you need to file the H-1B – there could be a problem!

9. H-1B Issues
Foreign national students working on OPT are exempt from social security and Medicare
Once the H-1B visa status becomes effective (for most, on October 1), the employee becomes subject to social security and Medicare
On the employee’s first trip outside the US after October 1, the employee MUST obtain an H-1B visa stamp at a US Embassy in order to be able to re-enter the U.S.

10. H-1B Transfers (Portability)
If the applicant is working on an H-1B with another company, the H-1B can be transferred to you at any time. The transfer requires a filing with USCIS. This is called “H-1B portability”
PRO: Employee can begin employment as soon as case is filed and receipted
Not subjected to the H-1B Cap
H-1B portability is easy, BUT:
Determine who the current employer is. If s/he is from a cap exempt employer (universities) to a cap-subject employer (you), s/he IS subject to the cap and can’t start until October 1.
Determine where s/he is in the 6 years.
Assess the long-term intent for the applicant.

11. L-1A Intracompany Managers / Executives
Must have 1 year in the prior 3
years as a manager, executive or
specialized knowledge employee
with your overseas affiliate entity
U.S. position is a manager or
executive
NOTE: Can be a manager by virtue of managing an essential function rather than employees. Essential function not defined
3 years initially - 7 year maximum (two two-year extensions)
PRO: Spouses are eligible to work with an EAD
PRO: Blanket L applications directly at the US Consulate

12. L-1B Intracompany Specialized Knowledge
Must have 1 year in the prior 3 years as manager, executive or specialized knowledge employee with your overseas affiliate entity
Must be coming to U.S. to serve in a specialized knowledge capacity
Must possess advanced knowledge of your product, service, research, equipment, techniques or other interests
3 years initially - 5 year maximum (one two-year extension)
PRO: Spouses are eligible to work with an EAD
PRO: Blanket L applications directly at US Consulate

13. TN NAFTA Professionals
Mexican and Canadian citizens
may enter the U.S. under the
North American Free Trade Agreement
NAFTA provides a specific list of
qualifying professions and education or
experience requirements – usually Bachelor minimum
Issued in 3-year increments and can be extended indefinitely so long as temporary intent
Canadians apply for the TN at the border
Mexicans must apply for a TN visa at the US Consulate
PRO: Applying at the border or US Consulate is faster and it is not necessary to file petition with USCIS
CON: Spouses may NOT work

14. E-3 Specialty Occupation
Citizens of Australia
Entering U.S. to work in
“specialty occupation”
(Bachelors degree or
higher – identical to H-1B
rules).
Issued in 2-year increments and
can be extended indefinitely so long as temporary intent.
10,500 annual quota (not met)
PRO: Application made directly at the US Consulate.
PRO: Spouses are eligible to work with an EAD.

15. H-1B1 Specialty Occupation
H-1B1 – Chile (1400) and Singapore (5400) citizens receive special quota of H-1Bs
Same qualifications as H-1B
Issued in 1-year increments and can be extended indefinitely so long as temporary intent.
PRO: Application made directly at the US Consulate.
PRO: Quotas have never been reached.
CON: Spouses may NOT work.

16. E-1/E-2 Visas
Treaty must exist and individual and/or business must possess the nationality of the treaty country
Must show substantial trade between treaty country and U.S. OR substantial investment in a real and operating commercial enterprise
Can be used by individual business owners or companies for employees with treaty country and company nationality
Issued in 2-year increments and can be extended indefinitely so long as temporary intent.
PRO: Applications are made directly at the Consulate.
PRO: Spouses are eligible to work with an EAD.

17. O-1 Extraordinary Ability Visa
Foreign nationals with extraordinary
ability in science or business
Demonstrated by sustained national
or international acclaim
“Those who have risen to the very
top of their field”
Application filed with CIS
Issued in 3-year increments and can be
extended annually so long as temporary intent
PRO: No numerical / quota limits
CON: Very difficult to prove qualifications
CON: Spouse may NOT work

18. H-3 Trainee Visa
Training is not available in home country, and will benefit trainee in his/her career abroad.
Has fixed schedule, clear objectives and provides means to evaluate trainee’s progress.
Both classroom and on the job training permitted.
Trainee will not be placed in a position which is in the normal operation of the business and no working.
Up to two years
Application and training plan filed with CIS.
CON: Spouses may NOT work.
Note: J-1 trainee with an emphasis on cultural exchange
Up to 18 months
Spouses are eligible to work with an EAD

19. B-1 Business Visitor and Visa Waiver (ESTA)
The B-1 is NOT an employment visa.
Permissible activities include:
Engage in “commercial transactions which do not involve gainful employment”
Negotiate contracts
Meet with business associates or clients
Attend seminars, conferences or conventions
Undertake independent research
Board of Directors activities / meetings
Observe business, professional or vocational activity
Cannot receive any form of remuneration from U.S. source.

20. Visas for Spouse and Children of Nonimmigrant Employees
Dependent spouse and children may accompany nonimmigrants to the U.S. as long as they receive an appropriate dependent visa (L-2, H-4, etc.)
Most Consulates require each individual family member to attend the visa interview.
Family members are only permitted to stay for the duration of the principal employee’s stay.
Generally, dependents are not work authorized; however, L-2 and E-2 dependents can apply for work authorization.

21. How to obtain a Work Authorized Visa. Visa Petition with USCIS (U. S
How to obtain a Work Authorized Visa? Visa Petition with USCIS (U.S. Citizenship and Immigration Service)
Generally, to obtain work in the U.S. the Company must first petition (sponsor) an individual for work authorization from the USCIS.
Petitions are filed for a specific visa category.
The visa category and backlogs will determine the time it takes for a petition to be approved.
Once approved, the new employee will be able to apply for a visa at the U.S. Consulate in their home country so that they are able to travel to the United States for work.

22. Nonimmigrant Visa Process
Case filed with USCIS
H-1B, H-3, O-1, and non-Blanket L-1 visas - petition must be filed with USCIS
USCIS reviews the case within anywhere from 3-6 months
Premium processing - USCIS will review cases within 15 days ($1,225 additional fee)
USCIS issues I-797 "approval notice" for visa application at US Consulate
Visa Application at US Consulate
Blanket L-1, TNs, E-3, and H-1B1 do not require USCIS approval
Applicant can by-pass the USCIS and apply directly at the US Consulate abroad saving time and filing fees
In-person visa interview at US Consulate required
Entry to the US to work
After the visa has been approved the employee is able to travel to the US
Upon entry, each person receives an I-94 card - this document details the person's visa status and how long they are authorized to stay in the US

23. What is a Visa?
A visa stamp is an entry document in a passport and is permission to apply for admission into the U.S.
Most Foreign National Employees are required to have a valid visa for all international travel.
Visas can only be obtained from U.S. Consulates and Embassies abroad
Often delays in getting appointments
Often delays in getting visas due to security checks (Administrative Processing)

24. Visa Applications and Renewals at the U.S. Consulate Abroad
Most U.S. Consulates and Embassies require that the applicant schedule an appointment in advance of the interview.
Before any visa issuance, the Consular Officer must perform a background name-check, fingerprint check, and security clearance.
Minor violations, similar biographic data, and previous immigration issues can cause a delay in visa issuance.
Security Clearances cannot be waived or expedited!

25. I-94 Arrival / Departure
When entering the US, individuals will receive an I-94 date-stamp in their passport noting the entry date, visa status, and expiration date.
Individuals will no longer receive paper I-94 cards.
Individuals should print out their I-94 for their records and to complete Form I-9 when starting work in the United States:
The I-94 controls the status and how long an individual can remain legally in the United States – not the visa stamp.

26. Extension of Status within the U.S.
After applying for the extension of status, applicants will receive a new I-797 approval notice.
A new I-94 card will be attached to the bottom of the approval.
The original, new approval notice will be needed for the renewal of the visa at the U.S. Consulate.
The new visa stamp is NOT required for work, only for international travel.

27. Export Control Attestation Requirement for Visa Applications
Many visas now require the Employer to certify compliance with the “deemed export” laws governing the release of controlled technology to foreign persons in H, L and O visa categories.
Export Controls: If an Employer will release or otherwise provide access to controlled technology to a foreign worker, the Company may be required to first obtain an export control license from the U.S. government.
“Controlled Technology” that is controlled for release to foreign persons are identified and regulated by the Export Administration Regulation’s Commerce Control List and the International Traffic in Arms Regulations.

28. Immigration Issues: What can slow down the process?
Backlogs & Delays with Immigration processing.
RFE’s (Requests For Evidence) requested by the USCIS or the US Consulates
Large amounts of documentation required.
An individual’s immigration or criminal history.
Administrative Processing at the US Consulate.

29. Immigration Issues: What can speed up the process?
Many cases can be filed with “Premium Processing”
$1,225 government filing fee
USCIS will review the petition within 15 days.
Does not guarantee approval!
Blanket L for company

30. What about Job Changes? Example 1: Job Location Change:
H-1B: May require an H-1B amendment to be filed
Green Card: May require the entire process to be re-started
Example 2: Termination of H-1B employee:
Required to withdraw the H-1B and LCA
Required to offer payment for return transportation
Example 3: Employee’s position changes:
H-1B: May require an amendment to be filed
Example 4: LPR has upcoming assignment abroad:
To maintain LPR status and be able to return to the US a “Re-Entry Permit” may be required

31. Questions?