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Employment Based Immigration

 

   
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 Employment Based Immigration

Persons applying to travel to the United States for reasons of employment are divided into two main categories. These categories of employment are immigrant and non-immigrant.

Those applying for immigrant visas wish to remain in the United States permanently. Such visas are commonly referred to as 'green cards.' The INS officially labels green card immigrants as those seeking Permanent Residency Status.

Those persons not wishing to remain permanently in the United States are considered non-immigrants. Non-immigrants may enter the United States for a variety of reasons, but these visas are conditional for a period of time. Upon expiration of the non-immigrant visa, the alien must leave the United States.

 Non-Immigrant Employment Visas

The US has over 60 types of non-immigrant (temporary) visas and many different routes to the Green Card - an immigrant visa.
 
For practical purposes we focus here on the following dominant commercial visa types: B1, H1B, J1, L1, E1 and E2.
 
 
This is a "limited" visa and does not generally allow for gainful employment or productive activity such as operating a business or consulting work without remuneration. The term "business" is limited to the negotiation of contracts, consultation with business associates, litigation, and participation in scientific, educational, professional or business conventions, conferences or seminars and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. Travelers who qualify for the B-1 visa may also be eligible to travel visa free under the 3 month Visa Waiver Program.

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 H1-B Non-Immigrant Visa for Professional Positions

The H1 visa is for aliens who are sponsored by a US employer coming to the United States to perform 'specialty occupations'. 'Specialty occupations' are defined by the INS as those that require theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation. This generally requires a minimum of four years of collegiate education culminating in a bachelor's degree.

The importance of 'specialty occupation', as defined above, cannot be overemphasized. Persons fulfilling professional positions, such as lawyers, doctors, scientists, etc., are applicable beneficiaries of this visa type. Persons with incomplete or non-specific educational backgrounds will rarely be granted an H1-B visa, except in some Instances when education and experience in the relevant area, or experience alone, may qualify. Aliens applying with experience alone are normally required to have twelve years of practice in the same profession or field.

H1-B visas can also be granted for aliens coming to the United States to work in cooperative efforts with the United States Department of Defense or for artists, entertainers, or fashion models possessing international acclaim.

A Labor Condition Application must be filed in conjunction with H1-B visa applications.

O'Brien & Associates represents numerous internationally-known companies with their applications for H1-B Non-Immigrant Visas. Our experience, personal service, and professionalism have resulted in an impressive rate of approval for our applicants. If you are an employer that is interested in hiring foreign nationals, please contact O'Brien & Associates as we would be more than happy to assist you.

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 J1 Non-Immigrant Training Visa

The J-1 visa is a temporary 'training' visa for those foreign nationals who wish to spend some time in the United States training with an American company, with a view to returning to their home country with the benefit of their experience and training. The J-1 is usually granted for training periods of up to a maximum of 18 months, depending on the type of job. There are various benefits to the J-1, e.g.

bullet There are no limits on the number of J-1 visas that can be issued in one fiscal year, while the H-1B is presently capped at 195,000;
 
bullet There are no university degree requirements;
 
bullet Labor certification is not necessary;
 
bullet J-1 visas are for temporary employment, so American jobs are not threatened;
 
bullet Although the employer must demonstrate that that the worker will complete a structured training program over the 18 month period, formal classroom teaching is not required.

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 L1 Non-Immigrant Visa for Managerial/Executive or Specialized Knowledge Positions

The L-1 classification permits an alien to visit and work in the United States temporarily to perform services in a managerial or executive capacity. The alien is required to work for the same corporation or firm, or for the branch, subsidiary or affiliate of the employer which employed him or her abroad. It is required that the petitioning alien has worked for one continuous year within the three-year period immediately preceding the filing of the petition, in an executive, managerial, or specialized knowledge capacity. (L-1A Visa)

The L-1 classification also permits an alien to visit and work in the United States temporarily, performing services which require specialized knowledge. The alien is required to work for the same corporation or firm, or the branch, subsidiary or affiliate of the employer which employed him or her abroad. It is required that the petitioning alien has worked for one continuous year within the three-year period immediately preceding the filing of the petition, in an executive, managerial, or specialized knowledge capacity. The Immigration & Naturalization Service defines specialized knowledge as special knowledge of the employer's product or its application in international markets or an advanced level of knowledge of the employer's processes and procedures. (L-1B Visa)

A notice to employers: In addition to individual L-Classification, the Immigration and Naturalization Service has created an L-1 Blanket Petition Process which simplifies the process for employers wishing to adjudicate numerous L-1 Classification applications over a period of time. The Blanket Process accommodates the needs of large businesses that desired to transfer key personnel to the United States. The current process involves two separate steps and relies heavily on coordination between the Department of State and the Immigration and Naturalization Service. Firstly, the employer must proves itself to be an applicable blanket petitioner, fulfilling the stringent requirements set forth by the INS. Secondly, the petitioner must submit its individual L-1 applications for specific employees. This process is generally intended for businesses with over 1,000 United States employees or businesses with subsidiaries and affiliates with combined annual sales of $25 million or more.

 E Non-Immigrant Visas for Import/Export Trade

The E1 Treaty Trader visa is for staff who will direct and develop import / export trade between the US and the treaty country. It is available for an indefinite period (5 year increments)
.
The E2 Treaty Investor visa is for staff who will direct and develop investments made in the US by a treaty country national/company. Indefinite (5 year increments).

 O Non-Immigrant Visa for Extraordinary Abilities

The O Non-Immigrant Visa is available to those who evidence "Extraordinary Ability". Extraordinary ability is defined by the INS as having national or international recognition and press coverage in a 'specialty occupation' pertaining to science, arts, business or education.

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