In the recent years, business immigration has become one of the most important areas of the U.S. immigration laws. Since there is a huge demand for foreign skilled workers in the United States, the scope of business immigration has increased tremendously and it has also become one of the most challenging aspects of U.S. immigration laws.

I. EMPLOYMENT BASED NONIMMIGRANT VISAS:

1. H-1B visa

The current law (established in 1990) limits to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). An additional 20,000 H-1Bs are available to foreign nationals holding a master’s or higher degree from U.S. universities. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities, non-profit research facilities associated with universities, and government research facilities.

As per USCIS, the job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position;
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For an employee to qualify to accept a job offer in a specialty occupation he/she must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment

We have experience in handling complex H-1B cases involving difficulties related with the beneficiary’s education, degree requirement, job duties, and availability of specialty work, H-1B extension/amendment and H-1B transfer/change of employer.

2. L-1 visa

L-1 status may be accorded to an alien who, within 3 years preceding his application for admission, was employed abroad continuously for one year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company. In the case of a person being transferred where the importing employer has filed a blanket L, the transferee must also have worked for the company abroad for at least one year . INA §214(c)(2)(A); AFM at 32.5.

a) L-1A- Managerial/Executive

– Managerial Capacity:

An Assignment with an organization in which the employee primarily:

  • Manages the organization, department, subdivision, function or component;
  • Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
  • Has authority to hire and fire or recommend personnel actions (if other employees directly supervised), or if no direct supervision, functions at a senior level within hierarchy or as to function managed; and
  • Exercises discretion over day-to-day operations of the activity or function.

– Executive Capacity:

An Assignment in an organization in which the employee primarily:

  • Directs the management of the organization or a major component or function;
  • Establishes goals and policies;
  • Exercises wide latitude in discretionary decision making; and
  • Receives only general supervision or direction from higher-level executives, board of directors or stockholders.

b) L-1B – Specialized Knowledge:

Specialized knowledge is knowledge that is different from that generally found in the particular industry. The knowledge need not be proprietary or unique, but it must be different or uncommon.

Characteristics include:

  • Possesses knowledge that is valuable to the employer’s competitiveness in the market place;
  • Is uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions;
  • Has been utilized as a key employee abroad and has been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position;
  • Possesses knowledge that can be gained only through extensive prior experience with that employer; and
  • Possesses knowledge of a product or process, which cannot be easily transferred or taught to another individual.

Our office has expertise in handling L-1 cases involving complex issues such as specialized knowledge of a tool, executive or managerial capacity within the company abroad and in the U.S. and establishing qualified relationship within the companies (parent, branch, affiliate, or subsidiary of the U.S. petitioning company) and L-1 new office.

3. P Visas

a) P-1 visa- Athletes and Group Entertainers

P-1 visa allows certain performers such as athlete, minor leagues or amateur athletes, and entertainment groups to enter United States solely for the purpose of performing in a competition, event or performance. This includes short vacations, promotional appearances and incidental stopovers, and can include an entire season, itinerary and contract. 8 C.F.R. §214.2(p)(3).

b) P-2 visa – Reciprocal Exchange Program

P-2 status may be accorded to an artist or entertainer, individually or as part of a group, who will perform under a reciprocal exchange program between an organization or organizations in the U.S. and one or more foreign organizations, that provides for the temporary exchange of artists, entertainers or groups. 8 C.F.R. §214.2(p)(5).

c) P-3 visa- Culturally Unique Program

P-3 status may be accorded to an artist or entertainer, individually or as part of a group, to perform, teach, or coach in a “culturally unique” program of a commercial or noncommercial nature that will further the understanding or development of the art form. It need not be sponsored by an educational, cultural or government agency. It is not limited to traditional art forms and may be a hybrid or fusion of more than one culture or region. 8 C.F.R. §214.2(p)(6).

d) P-4 visa– Spouses and Children

Dependents can enter as P-4s. No employment unless authorized under another category.
Our office has experience in handling P visas for athletes and entertainers.

4. O visas

a) O-1 visa – Extraordinary ability
Person who has extraordinary ability in the sciences, arts, education, business or athletics, which has been demonstrated by, sustained national or international acclaim or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. If in the sciences, arts, education, business or athletics, extraordinary ability must be demonstrated by sustained national or international acclaim. 8 C.F.R. §214.2(o)(1)(ii))A)(1). If in the motion picture or TV production, the person must have “a demonstrated record of extraordinary achievement.” Must demonstrate that achievements have been recognized in the field “through extensive documentation”. 8 C.F.R. §214.2(o)(1)(ii))A)(2)

b) O-2 visa- Persons accompanying and assisting O-1

c) O-3 visa – For spouses and children accompanying and following to join.

Our office has expertise in handling O visa for clients with extraordinary ability.

5. R visas

a) A Minister 8 C.F.R. §214.2(r)(3)

  • Fully authorized and trained in religious denomination to conduct religious worship and perform other duties usually performed by clergy of denomination;
  • Is not a lay preacher or a person not authorized to perform clergy’s duties;
  • Performs activities rationally related to being a minister; and
  • Works solely as a minister in the U.S., which may include incidental administrative duties.

b) Religious Worker 8 C.F.R. §214.2(r)(1)

  • Member of a religious denomination for at least 2 years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.;
  • Must be coming to work at least in a part-time position (20 hours);
  • Must be coming to perform a religious vocation or occupation in either a professional or non-professional capacity.

Our office has expertise in handling R visas for ministers and religious workers.

6. B-1/B-2 visas

1. B-1 visa – Visitors for Business

B-1 visa includes visitors engaging in commercial transactions not involving gainful employment, e.g. negotiating contracts, litigation, consulting with clients or business associates. However, where business activity almost exclusively involves full-time management of a U.S. enterprise, B-1 is not valid.

Basic Eligibility:

  • Clear intent to continue foreign residence;
  • Principal place of business and actual accrual of profits predominantly in foreign country;
  • Various U.S. entries of plainly temporary nature;
  • Further international commerce or business;
  • Foreign employer who directs the employment; profits must go to employer; profits must accrue abroad; services in U.S. must be incidental to international trade and commerce;
  • Payments to B-1 should generally be abroad;
  • Services performed are not ones which a U.S. worker would have to be hired for, are not inherently part of the U.S. labor market, and are not primarily benefitting the U.S. entity as local work;

2. B-2 visa- Visitors for Pleasure

B-2 includes tourists, family members, visit for medical purposes etc.
Our office handles B-1/B-2 visas for visitors for business and pleasure.

II. EMPLOYMENT BASED IMMIGRANT VISAS:

1. I-140

In general, employment-based immigration (with exception of special immigrants, persons of extraordinary ability, NIW cases, and investors) requires the employer or prospective employer to submit a petition. INA §204(b). The first three categories i.e. EB-1 to EB-3 are filed on form I-140. The requirements to file I-140 are as follows:

  • The employer-petitioner must be doing business in the U.S.;
  • The employer must also demonstrate that it has the financial ability to pay the wage offered and that the employee beneficiary meets the minimum requirements to perform the job satisfactorily; and
  • The employee must intend to accept the employment pursuant to the terms and conditions of the Labor Certification and I-140.

Preference categories:

  1. First Preference – Priority workers
    1. Persons of extraordinary ability
    2. Outstanding professors and researchers
    3. Multinational executives and managers
  2. Second Preference – Members of professions holding advanced degrees or aliens of exceptional ability
  3. Third Preference – Skilled workers, professionals, and other workers.

The U.S. Department of Homeland Security published a final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled Nonimmigrant Workers,” that took effect on January 17, 2017. As per new rule some changes have been made to the I-140 revocation and I-140 portability:

I-140 Revocation:

Approved I-140 petitions are no longer automatically revoked when an employer withdraws the petition or the business terminates. But only if the withdrawal or termination occurs 180 days or more after the petition was approved, or after an I-485 adjustment of status application has been pending for 180 days or more. There is a difference between retaining a priority date and retaining the validity of an I-140 petition approval. The rule clarifies how a priority date is retained and how this differs from the provision that addresses what constitutes I-140 revocation for purposes of I-140 portability cases.

I-140 Portability:

When the beneficiary can take his/her PR case to a new employer without starting the process over again.

  • An approved I-140 will remain valid for employment;
  • Same or similar is more precisely defined;
  • Also includes the language re: intent for applicant to be employed in the position “within a reasonable period upon the applicant’s grant of lawful permanent resident status.”

2. I-485

Once your priority dates becomes current, you are eligible to apply for Application for Adjustment of Status (Form I-485). Starting January 17, 2017, adjustment of status applicants must file Supplement J to confirm the job offer that serves as the basis for the immigrant visa classification being sought.

  • If you are concurrently filing a Form I-485 and Form I-140, you do not have to file Supplement J, since the I-140 itself is the instrument USCIS uses to confirm the job offer; However, USCIS may still ask you to submit Supplement J before adjudicating the adjustment application, especially if substantial time has passed since the concurrent I-485 and I-140 were filed
  • If you are filing a stand-alone Form I-485, you must file Supplement J at the time you file your Form I-485 to confirm that the job offered to you in the underlying Form I-140 is still bona fide and available to you
  • You must affirmatively file Supplement J to request job portability to a new, permanent job offer under INA section 204(j), along with documentation that the job offer from a new U.S. employer is in the same or a similar occupational classification as the position for which the underlying Form I-140 was filed and approved; But you cannot file Supplement J in a portability case until the Form I-485 has been pending for 180 days or more
  • You must file Supplement J any time USCIS asks you to (e.g., in an RFE or NOID), even if you’ve already filed one before.
  • Both the I-140 petitioner and beneficiary must complete portions of Supplement J, and sign the form.

Our office handles employment based immigrant petitions with great efficiency and we are expert on responding to the RFEs and denials based on I-140 and I-485.

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