Employment Based, Non-Immigrant Visas

In this Section:

O-1 Visa

The O-1 visa requires a demonstration by the beneficiary that he/she meets a threshold three regulatory criteria. In addition to being a viable alternative to H1B visa holders that are nearing the end of their six year limit, the O-1 visa is a good option for J-1 visa holders who are ineligible for an H-1B or permanent residency because of the two year home residency requirement. An O-1 is available to a previous or current J1 holder that remains subject to the two-year requirement. Although the O-1 visa is not in itself a waiver, it is compatible with a waiver which, in some instances, may be obtained for the same job or a different job while the candidate is in O-1 status. The O-1 can also be used as a vehicle to work within the U.S. while the two-year home requirement is satisfied incrementally over a number of years. The O-1 can be obtained initially for up to three years and can be indefinitely extended in either one or three year increments. The O-1 requires a job offer and an employer. The O-1 employer need not be located in an underserved area nor need the employer be an academic institution. Any employer can sponsor an O-1. There is also no requirement that the employer advertise for an O-1 position.

H-1B Visa

The H-1B visa provides a work status for aliens with the equivalent of a Bachelor’s degree who are working in a field which requires such a degree. The United States Citizenship and Immigration Services (USCIS) terms these to be a “specialty occupations.”

A professional evaluation of the beneficiary‚Äôs degree equating the foreign degree to a U.S. Bachelor’s degree may be required. This is not necessary if the alien has a Bachelor’s or Master’s degree from an accredited U.S. school.

For graduates of foreign medical schools, including those in Canada, who will have clinical responsibilities, it is also required that the candidate pass all three parts of the USMLE or both parts of FLEX and be competent in English. These additional qualifications, however, do not apply to those physicians seeking positions that mainly involve teaching or research and only a minute amount of patient care. H-1B visa holders are not subject to the two year home residency requirement as are J1 holders. The H-1B does require a U.S. petitioner (employer).

To evidence that the job is a “specialty occupation,” an in-depth description of the technical/professional nature of the job responsibilities must be provided. The job description is developed through information gained from the employer and alien as well as other sources. It is important to have a detailed description including the complexities involved in this position.

In some instances, it might be necessary to demonstrate that the employer is financially viable by including evidence of the corporate structure of the business, annual reports, tax returns and payroll records. While these items are not a requirement for submission, they will assist in securing an approval in an expedited fashion.

An H-1B can be approved for an initial three year period and may be extended for an additional three years for a total of six years. The filing of an employment-based petition (Form I-140) or labor certification one year prior to the end of the sixth year will allow for additional extensions in one year increments. The beneficiary can work for only the sponsoring employer although he/she can be the beneficiary of multiple concurrent H1Bs that will allow moonlighting for other employers.

L-1 Visa

L-1 Visa Intra Company Transferee

The L-1 visa is for intra company transferees. These are executives, managers, or employees of a foreign based company who are engaged in specialized employment. The requirement is that the alien must have worked for three years before submission of the petition overseas in an executive, managerial or specialized capacity. The purpose of the L-1 visa is to allow the alien to work in the U.S. in a similar capacity for the same entity that he has worked for abroad for a subsidiary or an affiliate of that entity. Evidence must be submitted of the qualifying foreign and U.S. entity and that the alien has worked in an executive, managerial or specialized capacity.

For companies that have been doing business in the U.S. already, the L-1 may be approved for three years initially. For companies that are starting operations, typically the L-1 is approved for one year only. Evidence must be submitted of regular business activity for further extension. For executives and managers, the L-1 may be granted up to seven years. For those with specialized knowledge, the L-1 is limited to six years.

Transferee executives or managers may obtain immigration as “multi national executives” once the U.S. entity has been engaged in regular and systematic business for a one year period. If a foreign entity purchases a U.S. company that is, in fact, engaged in systematic and regular business for one year, an immigration petition may be immediately filed.