H1B Non-immigrant Visas

What is an H1B Visa?

An H1B visa is a non-immigrant visa for foreigners for temporary employment in the United States in a “specialty occupation”, an occupation that normally requires a bachelor’s degree in a specialized field. The H-1B petition must be filed by a U.S. employer and, if approved, allows the foreign individual to work solely for that employer. H1B visas are possible for both full-time and part-time positions. H1B visas are also available for fashion models of distinguished ability.

Who is eligible for an H1B Visa?

To be eligible for an H-1B visa, the position offered must normally require a bachelor’s degree in a specialized field and the foreign beneficiary must hold such a degree or its equivalent. A foreign degree must be evaluated as equivalent to a U.S. degree. Progressively responsible professional experience can be substituted for college coursework (three years of experience equivalent to one year of study) for the purposes of an equivalence evaluation. For those specialty occupations that require state licensure, a state license is sufficient for the H-1B.

The Labor Condition Application (LCA)

Before filing an H1B petition, the employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL) and the DOL must certify the LCA. Employers make the following attestations on the LCA:

  1. The employer is offering the proposed H1B employee the higher of either the actual wage it pays to other individuals similarly employed, or at least 95% of the prevailing wage for that position in the geographical area of intended employment based on Department of Labor statistics.
  2. The proposed H1B employee's working conditions will not adversely affect the working conditions of other workers in similar situations.
  3. There are no strikes or work stoppages in the course of a labor dispute.
  4. The employer has given the proposed H1B employee notice of the filing of the LCA.
  5. The employer has provided or will provide a copy of the LCA to the H1B employee.
  6. The LCA must also disclose the wage offered, the prevailing wage, and the source from which the prevailing wage was determined.

 

For how long is the H1B valid?

An approved H-1B petition is valid for a period of up to three years, but may not exceed the validity period of the Labor Condition Application (LCA). The visa may be extended for an additional period of three (3) years. A foreign individual may spend only six (6) years in H-1B status unless a labor certification application or I-140 immigrant visa petition has been filed for him at least one year before this six-year period expires. Then he may apply for extensions in one-year increments.

Who may accompany an H1B visa holder?

The spouse or unmarried minor children (under 21 years of age) of the H1B visa holder may enter the United States in H-4 status as H1B dependents.

How may I obtain an H1B visa?

The H1B petition must be filed at a USCIS Service Center that has jurisdiction over the employer. If the employee is in the United States and eligible to change non-immigrant status, the USCIS will issue an approval notice with a new I-94 card. If the employee is unable to change status in the U.S. or is not present in the U.S., they must apply for an H1B visa at a U.S. consulate abroad. To request a consultation regarding an H1B visa, please email our offices at kevin@kmwlawoffices.com

 

L1A for Intra-Company Transferee, Managers etc.

What is an L1A visa?

The L1A visa is designed for executives and managers of multinational companies to enter the U.S. to work temporarily in executive or managerial capacities for branch offices, affiliates, subsidiaries, or parent companies of the foreign entities.

Criteria for the L1A visa

  1. The U.S. and foreign entities must have a qualifying relationship, either as a branch office, subsidiary, affiliate or parent company.
  2. The foreign individual must have been employed abroad continuously by the foreign entity in a managerial or executive capacity for one year within the three years immediately preceding the petition.
  3. A managerial position is defined as one in which the employee primarily: manages an organization, department, subdivision, or function; supervises and controls the work of other supervisory, professional or managerial employees or manages an "essential function"; has the authority to make personnel decisions or to function at a "senior level"; has discretion over the day-to-day working of the business or function for which he/she has authority.
  4. An executive position is defined as one in which the employee: manages an organization or a major component / function of that organization; has the authority to establish goals and policies; has wide latitude in discretionary decision making; is supervised only by higher-ranking executives, the board of directors, or stockholders of the company.
  5. The U.S. business and foreign entities must be engaged in regular, systematic and continuous provision of goods and / or services. The U.S. entity is considered a new business if it has been doing business for less than one year in the U.S. at the time the L1A petition is filed.

 

For how long is the L1A valid?

The L-1A visa is initially approved for three years. However, for an entity that has been doing business for less than one year in the U.S., the L1A will initially be approved for only one year. Extensions of the L1A visa are available in increments of two years, up to a total of seven years. A foreign individual who has been in L1A and / or H1B status for a period of seven years may not be readmitted in L1A status until he or she has resided outside the U.S. for one year.

Who may accompany an L1A visa holder?

The spouse or unmarried minor children (under 21 years of age) of the L1A visa holder may enter the United States in L-2 status as dependents. L-2 spouses may apply for employment authorization to be employed in the U.S.

How may I obtain an L1A visa?

The L1A petition must be filed at an INS Service Center that has jurisdiction over the employer. If the employee is in the United States and eligible to change non-immigrant status, the INS will issue an approval notice with a new I-94 card. If the employee is unable to change status in the U.S. or is not present in the U.S., he must apply for an L1A visa at a U.S. consulate abroad. To request a consultation regarding an L1A visa, please email our offices at kevin@kmwlawoffices.com

L-Blanket Petition

Large U.S. entities may be eligible to file blanket L-1 petitions which grant continuing approval of L-1 visas for itself and its foreign affiliates, subsidiaries, and branch offices. The following criteria must be met:

  1. The petitioner and qualifying foreign entities must be engaged in commercial trade or services.
  2. The petitioner must have an office in the United States that has been doing business for one year or more.
  3. The petitioner must have three or more domestic and foreign branches, subsidiaries, or affiliates.
  4. The petitioner and related qualifying organizations must meet one of the following: (1) have obtained approval of ten L-1 petitions during the previous twelve months; (2) have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or (3) have a U.S. work force of at least 1,000 employees.

 

Contact Us           

Law Offices of Kevin M. Wilhelmi

30445 Northwestern Hwy, Ste. 230

Farmington Hills, MI 48334

 

Phone: 248-932-8776

Fax:     248-851-6665

Email:  kevin@kmwlawoffices.com

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