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H-1B is a nonimmigrant visa category that allows a foreign worker to come to the U.S. and work in a "specialty occupation," which includes most professional positions. Generally, the maximum period that a worker can be in the U.S. with the H-1B is six (6) years, which can be granted in increments of no more than three (3) years at a time. There are exceptions to this rule that accord USCIS the authority to grant an employer's request for a worker to be approved for more than six years, but these rely upon the foreign worker's being sponsored for lawful permanent resident (commonly referred to as "green card") status.

What is a specialty occupation?

If the USCIS is to approve an employer's request for an H-1B for a worker, the job must fit the law's definition of a "specialty occupation." This means a job that requires the "theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States." This will include many professional positions.

The position must require a bachelor's (or higher) degree in the specific field. The fact that the foreign national possesses a bachelor's degree does not make that position a specialty occupation. Also, if a position requires a bachelor's degree in any field, it is most likely not considered a specialty occupation.

Numerical Limitation (H-1B CAP)

The H-1B CAP is the short-hand term used to refer to the law’s annual limit on the number of new H-1Bs that can be issued each U.S. government fiscal year which begins on October 1 and ends September 30. While the annual (fiscal year) limit is set at 65,000, special programs for nationals of Chile and Singapore reduce this number to 58,500.

There are 20,000 additional slots for individuals who have completed a master's degree or higher education from an accredited U.S. institution of higher learning.

Over the past several years, USCIS has received a greater number of petitions than there are visa numbers available because the annual CAP for H-1B visas does not meet the current demand for high-skilled workers. Therefore, the USCIS conducts a lottery (random computer-generated selection process) to determine which employers’ petitions for H-1B workers will be processed.

How the H-1B Lottery works?

Starting in 2020, the USCIS requires employers to register before submitting the H-1B CAP application. Employers must submit information related to the company, the job minimum requirements, and the H-1B prospective employee.

From the registrations received, the USCIS selects (“lottery”) the H-1B CAP applications that will be processed for the fiscal year. Upon completion of the lottery, the USCIS notifies employers that were selected to submit the H-1B CAP petition.

Usually, the registration period is from March 1 to March 20 (the USCIS determines the dates) and selected employers are notified before the end of March to file the H-1B petitions begging April 1.

In some cases, H1B applications can be filed without going through the H-1B CAP. Exemption categories are available to:

U.S. Employers Excluded from the CAP:
- Higher education institution
- Non-profit organization associated with a higher education institution
- Non-profit research organization or government research organization
- A for-profit company that seeks to hire an individual for specialty occupation services to be provided to any of - the three entities listed above

However, if a worker obtains H-1B status through a CAP-EXEMPT employer and then seeks to change employment to an employer that is not EXEMPT from the CAP, the new application will be subject to the CAP. For example, a physician finishes his residency training in H-1B status with a university hospital (CAP exempt employer) and sings a contract with a private organization to start working upon completion of his residency. His new employer, private organization, will sponsor the H-1B visa, but the petition will subject to the CAP. Therefore, it would have to be filed under the H-1B CAP program.

Workers Excluded from the CAP:
Physicians who receive a J-1 waiver of the two-year foreign residency requirement and agree to work in a medical shortage area.
Workers who are employed by universities or colleges or
Workers who are employed by non-profit organizations affiliated with universities or colleges (“cap-exempt employers”). This is useful for physicians who use H-1B status to complete their residency for such institutions.
Workers who already obtained an H-1B visas trough the lottery

Physicians who completed residency in J-1 status but returned home for two years as required OR who received a hardship or persecution waiver are subject to the H-1B CAP.

To qualify for an H-1B visa to practice patient care medicine, a foreign-born physician must pass all parts of the USMLE, NBME or FLEX, and the English language proficiency test given by the ECFMG. In addition, the physician must be licensed to practice medicine in her intended state of employment. Usually, this means that the physician must have completed a medical residency in the U.S. However, this does not apply in the case the physician obtains an H-1B visa to complete a U.S. medical residency program. Furthermore, not all foreign-born physicians are subject to these requirements. These requirements only apply to foreign medical graduates (FMGs).

For purposes of the H-1B visa, the following foreign-born physicians are not considered FMGs:
Physicians of national or international renown.
Graduates of U.S. medical schools.
Physicians not practicing patient care (e.g., medical researchers).

Finally, J-1 medical residents must return home for two years or obtain a J-1 waiver before applying for an H-1B visa.

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent must file an H-2B application with the U.S. Citizenship and Immigration Services (USCIS) after obtaining a Labor Certification from the department of Labor (DOL).

There is a numerical limit, or "CAP," on the total number H-2B visas that can be granted during a fiscal year (October 1 to Sept 30). Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, and on workers who are exempt from it, see the Cap Count for H-2B Nonimmigrants Web page.

H-2B Process:
Step 1: Petitioner submits temporary labor certification application to DOL.
Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS.
Step 3: Prospective workers outside the United States apply for visa and/or admission at the respective U.S. Embassy or Consulate.

Generally, USCIS may grant H-2B classification for up to the period authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

To qualify for an E-1 or E-2 visa, in addition to other requirements, the applicant must be from a country that has a treaty with the U.S. See U.S Department of State Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

E-1 classification

E-1 visa treaty traders carry on substantial trade in goods, including but not limited to services and technology, principally between the United States and the foreign country of which they are citizens or nationals.

The general requirements for a treaty trader are:
- National of a country with which the United States maintains a treaty of commerce and navigation;
- Substantial trade
- Continuous flow of sizable international trade items, involving numerous transactions over time.” No minimum requirement regarding the monetary value or volume of each transaction, greater weight is given to more numerous exchanges of greater value.
- Carry on principal trade between the United States and the treaty country which qualified the treaty trader
- Principal trade between the United States and the treaty country exists “when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.”

E-2 classification

E-2 visa treaty investors direct the operations of an enterprise in which they have invested, or are actively investing, a substantial amount of money.

To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
- Substantial amount of capital in relationship to the total cost of either purchasing an established enterprise or establishing a new one
-Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
-Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

- A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

- The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.

- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

Investment is the placing of capital, “including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.” The capital must be at risk – “subject to partial or total loss if the investment fails.”

Source of funds - The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity

The process

E-1 and E-2 visa may be obtained by filing a nonimmigrant petition with the U.S Citizenship and Immigration Services (USCIS) or filing an application with the respective U.S. Embassy or Consulate in the treaty country.

If E-1 or E-2 visa holder intends to travel during the period of employment, petition must be filed at the respective U.S Consulate or Embassy to obtain the E-1 or E-2 visa.

Period of Stay

Qualified investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no limit on the number of extensions.

E-1 and E-2 treaty traders, investors, and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.

The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States Requirements to qualify for an E-3 visa: - National of Australia - Have a legitimate offer of employment in the United States - Possess the necessary academic or other qualifying credentials - Will fill a position that qualifies as a specialty occupation Employers are subject to the minimum prevailing wage guidelines and Labor Condition Application (LCA) obligations (similar to H-1B visas). E-3 visas are approved by the U.S. Citizenship and Immigration Services (USCIS) for an initial term of two (2) years and extensions of up to 2 years, no maximum number of extensions, with some exceptions.

The L-1 visa facilitates the temporary transfer of a foreign worker in the managerial, executive, or specialized knowledge category to the U.S. to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate.

To qualify for L-1 visa, the foreign employee must satisfy the following qualifications:
- Have been employed for at least one year within the past three years prior to the submission of the L1 visa
- Coming to the U.S. to continue providing services for this same employer.
- Have been working in a capacity as a manager, executive, or in a position that requires specialized knowledge.

The foreign employee, which can include business owners, must have worked for a subsidiary, parent, affiliate or branch office of the US company outside of the US for at least one year out of the last three years.

Some of the benefits of the L1 visa are:
- There is no quota, unlike in the case of the H1B visa category, an unlimited number of visas can be issued, and
- Permits large companies to apply for a "blanket" L-1 visa. This enables the company to avoid having to file individualized applications for each employee it wishes to transfer to the U.S. thus saving the company significant time and money.

Qualifying Positions For L-1 Visas

L-1A visa - for executives and managers which allows entry for up to seven years.
L-1B visa - for specialized knowledge employees which allows entry for up to five years.

Managerial or Executive Capacity An executive or managerial capacity requires a certain level of authority and an appropriate mix of job duties. Managers and executives plan, organize, direct, and control an organization's major functions and work through other employees to achieve the organization's goals. Supervisors who plan, schedule, and supervise the day-to-day work of nonprofessional employees are not employed in an executive or managerial capacity, even though they may be referred to as managers in their particular organization. In addition, individuals who primarily perform the tasks necessary to produce the product(s) or provide the service(s) of an organization are not employed in an executive or managerial capacity.

Specialized Knowledge The term ``specialized knowledge'' implies that eligibility is dependent upon a showing that a person possesses a type of knowledge and advanced level of expertise that are different from the ordinary or usual in a particular field, process, or function. Knowledge which is widely held or related to common practices or techniques and which is readily available in the United States job market is not specialized for purposes of L classification. The level of knowledge required and the employment of the specific alien must directly relate to the proprietary interest of the petitioner. To be proprietary, the knowledge must relate to something which relates exclusively to the petitioner's business.

Qualifying Relationship

For an entity to transfer an employee to the United States as an “L-1 intracompany transferee”, the foreign employing entity and the U.S. employing entity must have a qualifying corporate relationship. This relationship can take on many different and distinct forms, but each entity must fall into one of four categories: Parent, branch, affiliate, or subsidiary. Whether an entity qualifies as a subsidiary can be trickier, as not all subsidiaries are wholly owned by the parent corporation.

Do not count out a qualifying relationship just because a subsidiary is less than 50 percent owned by the parent. Control of the subsidiary can often be the determining factor. Investigate who or what owns the other percentages and who controls the subsidiary’s actions to determine who is actually controlling the subsidiary. For example, a parent might only own 49 percent of a subsidiary, with the rest owned by passive individual stockholders, retirement accounts and/or holding companies. The parent would be the one controlling the entity and would therefore likely qualify for L-1 transferees. The same would hold true for a 50/50 joint venture. The qualifying relationship hinges on who actually owns and controls the entity.

Part-Time Work - full-time employment with the petitioner is not required to maintain L status; however, employee must dedicate a significant portion of time on a regular and systematic basis to the company while in the U.S. Even though the L1 visa holder must be employed on a full-time basis with the company, he/she does not necessarily have to be working in the U.S. on a full-time basis. Employee can divide work between the U.S. and another country. In other words, the L-1 visa holder be principally employed outside the U.S. and still receive L-1 visa for coming to the U.S. to work on a short-term basis. If the employee is coming to the U.S. for conferring with officials, attending meetings and conferences, and participating in training, such activities are not considered productive employment and he should apply for business visa (B-1) instead.

Individuals who qualify for an L-1 visa may be permitted into the U.S. to establish a new branch office. If the petition indicates that the individual is coming to the United States as a manager or executive to open or to be employed in a new office, the petitioner must submit evidence that shows the following: 1. Sufficient physical premises to house the new office have been secured; 2. The beneficiary has been employed for one continuous year in the three-year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involves executive or managerial authority over the new operation; 3. The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position, supported by information regarding: -The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals; - The size of the United States investment; - The financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States, and the organizational structure of the foreign entity.

U.S. immigration law provides a special class of visa (the O-1 visa) for persons who have an extraordinary ability in the sciences, arts, education, business or athletics. Accomplished foreign physicians can use this visa program to work in the United States for an initial period of three years for each new employer, after which this visa may be renewed indefinitely. To qualify as an “extraordinary ability alien,” the applicant must demonstrate “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.” Specifically, the physician must be the recipient of either

1. a major, internationally recognized award or

2. at least three of the following distinctions:

- The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise.

- The physician belongs to professional associations requiring outstanding achievements of their members, as judged by recognized national or international experts.

- The physician has been the subject of articles in major media or trade publications relating to his work.

- The physician has participated on a panel or as a judge of the work of others in his area of practice.

- The physician has made original scientific or scholarly contributions of major significance.

- The physician has written scholarly articles that have been published in professional journals or other major media.

- The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; and The physician has commanded a high salary or other compensation.

Caveat for Physicians: For physicians who qualifies as “extraordinary ability alien,” there are significant advantages to this type of visa. For example, the O-1 visa can be used to avoid the two-year foreign residency requirement of the J-1 visa. Rather than being restricted to employers who will sponsor them for an IGA J-1 waiver, the extraordinary ability physician may work for any employer willing to sponsor him for the O-1 visa. However, the physician must eventually comply with the two-year foreign residency requirement or obtain a waiver, if she ever plans to become a permanent resident. Also, the O-1 visa may be used by the physician who has reached the six-year limitation period of the H-1B visa. In such a case, the physician can extend his employment indefinitely if his employer’s O-1 petition is approved.

The TN visa classification is for Canadian and Mexican citizens. It was originally created as part of USMCA (formerly NAFTA*) and provides for the temporary entry of professionals to work in a specific set of professional occupations.

Canadians and Mexicans may be eligible to work in the United States as USMCA professionals under the following conditions:
- Applicant is a citizen of Canada or Mexico.
- Profession is on the NAFTA list.
- Position in the United States requires a TN professional.
- Applicant will work in a prearranged full-time or part-time job for an employer. Self-employment is not permitted.
- Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.