Corporate Immigration

H1-B is the most popular non-immigrant visa: it allows US companies and organizations to employ foreign workers in specialty occupations, and has special value as a ‘dual intent’ visa.  This means that employees are permitted to continue working for the company under an H-1B visa extension while applying for a green card.

H1-B visa requirements include the following:

• US employer must have an employer-employee relationship with worker
• Employer must prove that the employee has a U.S. Bachelor’s or higher degree as required by the position to be filled
• Employer must demonstrate that the position requires specialized knowledge
• Employer must establish that it has a valid business need for the employee
• Employer must agree to pay prevailing wage, or higher, for the position
• An H-1B visa number must be available when the employer files the petition (except in the case of petitions exempt from quotas).

Defining a Specialty Occupation

• Occupation requires at minimum a U.S. Bachelor’s degree or international equivalent in a specific discipline
• Generally refers to complex or unique expertise fields such as architecture, engineering, mathematics, science, and medicine
• In some cases, extensive experience in the field can substitute as a degree equivalency.

Quotas and Timelines for H-1B Visa

• There is a 65,000 quota on available new H-1B petition filings
• Most new applications must be filed by April 1st
• The visa distribution process begins each year starting October 1st
• There are some limited quota exceptions (such as workers with a U.S. master’s degree or higher, and workers for institutions of higher learning, nonprofit research organizations, or government research organizations)
• It is important to petition at least 6 months in advance since cap numbers fill up quickly, sometimes in the first month.

Timeframe for H-1B Visa

• Initial approval can be valid for up to 3 years
• Most new applications must be filed by April 1st
• Subsequent extensions can extend the H-1B status for a total of 6 years
• Status may be extended further (past statutory limit) in some cases when an employment based immigrant application process is pending.

How Schunk Law Can Help

Schunk Law brings years of expertise and experience to these sometimes complex filings.

We can help you determine if H-1B is your best pathway to bringing in the employees you need, and are happy to be of assistance with all aspects of preparing and filing your petition.  This includes:

• Documenting eligibility for employer and worker
• Preparing the best and strongest case for immigration officer
• Filing petition
• Advising on employer’s legal obligations re petition in event of audit
• Following up on petition for future changes such as extensions.

The H-2B program is for Employers that need temporary (nonagricultural) workers, generally due to seasonal spikes in employment or for jobs where employers can prove a shortage of qualified U.S. workers.

H2-B visa requirements include the following:

• Employer must meet specific regulatory requirements
• Employer must establish need for workers as temporary under the following categories: One-time occurrence, Seasonal need, or Intermittent nee
• Employee must be from H-2B approved countries

Process for H-2B Visa

• Employer submits and receives a temporary labor certification application to the U.S. Department of Labor
• Employer files Form I-129, Petition for Nonimmigrant Worker on behalf of their worker/s to USCIS
• After USCIS approves Form I-129, prospective workers outside the U.S. apply for an H-2B visa at a U.S. Embassy or Consulate and seek admission to U.S.

Cap/Quotas for H-2B Visa

• There is currently a 66,000 per fiscal year cap or quota on available new H-2B petition filings
• H-2B workers identified as “returning workers” are exempt from the cap

Period of Stay for H-2B Visa

• USCIS may grant H-2B classification for period of time authorized on temporary labor certification
• H-2B classification may be extended in 1-year increments for qualifying employment
• Maximum period of stay is 3 years

Family of H-2B Workers

• H-2B worker’s spouse and unmarried children (under age of 21) are eligible to seek admission via an H-4 Visa
• Family members with H-4 Visas are not eligible for employment in the U.S.

Approved Countries for H-2B Visa

The list of currently approved countries can be found at the USCIS website:
www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers

How Schunk Law Can Help

Schunk Law can help with all aspects of the H-2B application and filing process and ongoing compliance issues.

These categories allow foreign nationals from treaty countries to be admitted into the U.S. to engage in international trade. Applications can be filed with USCIS or directly at U.S. Embassies / Consulates world-wide.

For a list of treaty countries (with applicable commerce and navigation treaties) please consult: https://travel.state.gov/content/visas/en/fees/treaty.html

E-1 Treaty Traders

This nonimmigrant classification admits nationals of a treaty country to the U.S. for the purpose of engaging in international trade on their own behalf.  Some employees of the traders/or qualifying organization may also be eligible for an E-1 visa.

E-1 visa requirements mandate that the Treaty Trader:

• Is a national whose country has a participating treaty with the U.S.
• Carries on what USCIS designates as “substantial” trade
• Carries on what USCIS designates as “principal trade” (meaning over 50% of the volume of international trade) between trader’s treaty country and the U.S.

Employee Qualifications for E-1 Classification:

• Is of same nationality as the principal treaty trader employer
• Meets definition of ‘employee’ under relevant law
• Engages in duties of executive or supervisor or possess special work qualifications

Period of Stay for E-1 Visa

• Maximum initial stay of 2 years
• Extensions may be granted in increments up to 2 years (no maximum limit to number of extensions)
• All E-1 nonimmigrants must maintain an intention to depart the U.S. at the end of stay.

Family of E-1 Visa Treaty Traders

• Spouses and children (unmarried/under age of 21) may accompany treaty traders and employees
• Family members may seek E-1 nonimmigrant classification as dependents
• If E-1 classification is approved, family members generally are granted the same period of stay as the employee

E-2 Treaty Investors

This nonimmigrant classification admits nationals of a treaty country to the U.S. when they are investing substantial capital in a U.S. enterprise. Some employees of the investors/or qualifying organization may also be eligible for an E-2 visa.

E-2 visa requirements mandate that the Treaty Investor:

• Is a national whose country has a participating treaty with the U.S.
• Has or is investing substantial capital in a U.S. enterprise
• Seeks to enter the U.S. for the purpose of developing and directing the investment enterprise (must show at least a 50% ownership or operational control

Employee Qualifications for E-2 Classification:

• Is of same nationality as the principal treaty trader employer
• Meets definition of ‘employee’ under relevant law
• Engages in duties of executive or supervisor or possess special work qualifications

Period of Stay for E-2 Visa:

• Maximum initial stay of 2 years
• Extensions may be granted in increments up to 2 years (no maximum limit to number of extensions)
• All E-1 nonimmigrants must maintain an intention to depart the U.S. at the end of stay.
  

Family of E-2 Visa Treaty Investors:

• Spouses and children (unmarried/under age of 21) may accompany treaty investors and employees
• Family members may seek E-2 nonimmigrant classification as dependents
• If E-2 classification is approved, family members generally are granted the same period of stay as the employee

How Schunk Law Can Help

The E-1 and E-2 visa application process is complex.  Schunk Law can help with all aspects of the application and filing process for applicants, their employees and families.

This visa status applies to employee transfers between an Employer’s foreign office and their U.S. office.  The L-1A status applies to executives and managers.  L-1B status is for the transfer of specialized knowledge employees.  The classification also permits a foreign company with no U.S. office to send an employee to set up an affiliated office in this country.

L-1A Requirements: Employer

• Employer must have a qualifying relationship with a foreign company
• Employer must be (currently or in near future) doing business both as an employer in the U.S. and in at least one other country while the employee stays in the U.S.
• Employer’s business initiative is not required to be engaged in international trade
• To establish a new office, employer must also demonstrate the acquisition of sufficient physical premises
• Employer must file Form I-129, Petition for a Nonimmigrant Worker, with fee, on employee’s behalf

L-1A Requirements: Employee

• Employee must have been employed by the company for one continuous year out of the previous 3 years preceding admission to U.S.
• Employee must be in an executive or managerial capacity

Period of Stay for L-1A Visa

• Maximum initial stay for qualified employees is 3 years
• Exception: employees entering U.S. to establish a new office have a maximum initial stay of one year
• Extensions may be granted in increments up to 2 years (until employee reaches maximum limit of 7 years)

Family of L-1 Workers

• Spouses and children (unmarried/under age of 21) may accompany L-1 employees
• Family members may seek L-1 nonimmigrant classification as dependents
• If L-1 classification is approved, family members generally are granted the same period of stay as the employee
• Spouses of L-1 employees may apply for work authorization via Form I-765 and payment of fee
  

L-1B Requirements: Employer

• Employer must have a qualifying relationship with a foreign company
• Employer must be (currently or in near future) doing business both as an employer in the U.S. and in at least one other country while the employee stays in the U.S.
• Employer’s business initiative is not required to be engaged in international trade
• To establish a new office, employer must also demonstrate the acquisition of sufficient physical premises
• Employer must file Form I-129, Petition for a Nonimmigrant Worker, with fee, on employee’s behalf

L-1B Requirements: Employee

• Employee must have been employed by the company for one continuous year out of the previous 3 years preceding admission to U.S.
• Employee must be seeking transfer to provide specialized knowledge services to a branch of the same employer (or one of its qualifying organizations)

Period of Stay for L-1B Visa:

• Maximum initial stay for qualified employees is 3 years
• Exception: employees entering U.S. to establish a new office have a maximum initial stay of one year
• Extensions may be granted in increments up to 2 years (until employee reaches maximum limit of 5 years)

Family of L-1 Workers

• Spouses and children (unmarried/under age of 21) may accompany L-1 employees
• Family members may seek L-1 nonimmigrant classification as dependents
• If L-1 classification is approved, family members generally are granted the same period of stay as the employee
• Spouses of L-1 employees may apply for work authorization via Form I-765 and payment of fee

How Schunk Law Can Help

The visa application process for intracompany transfers application process is sometimes difficult to navigate.  Schunk Law can help with all aspects of the application and filing process for applicants, their employees and families.

The O and P nonimmigrant status applies to individuals (and groups) of extraordinary ability or record of extraordinary achievement in arts and entertainment, science, athletics, education and business. Examples: performers in international theater productions, athletes playing for professional sports teams, participants in international science, business and cultural programs, plus essential support staff.

O Classification

• O-1A: individuals of extraordinary ability in the sciences, education, business or athletics
• O-1B: individuals of extraordinary ability in the arts, film or television industries
• O-2: accompanying essential staff/personnel
• O-3: spouse or children of O-1s and O-2s

P Classification

• P-1A: internationally recognized athletes
• P-1B: internationally recognized entertainment groups; individual foreign artists performing as member of U.S. based performing arts group
• P-2: performer or group in reciprocal exchange program
• P-3: culturally unique performers or performing arts groups; also teachers and coaches

Application Procedure

• Petitioner files Form I-129, Petition for Nonimmigrant Worker
• Petition must include documentation germane to each classification

Period of Stay

• Period of stay and extensions vary by classification

How Schunk Law Can Help

The O and P visa applications are best navigated with help from an experienced immigration lawyer.  Schunk Law provides advice and assistance with all aspects of the application process.

The EB-5 visa provides a green card (permanent residence) to individuals who make significant investments in U.S. business.  The minimum investment is $1 million (or $500,000 in some cases) so this is known as the ‘million dollar green card.’  Congress created this program in 1990 to stimulate the U.S. economy through foreign investment and job creation.

The EB-5 investment can take the form of cash, inventory, equipment, secured indebtedness, tangible property, or cash equivalents and is valuated based on U.S. dollar fair-market value.

EB-5 Requirements

• Investment must generally be in a new commercial enterprise (exceptions include investing in a designated Troubled Business or a Regional Center)
• Investment is $1 million (or at least 500,000 in Targeted Employment Area, meaning a high unemployment or rural area)
• Investment (which can include cash, equipment, property, etc.) is based on U.S. dollar fair-market value
• Investment creates/preserves at least 10 jobs for U.S. workers

EB-5 Process

• Applicant files form I-526 (Petition by Alien Entrepreneur)
• Upon approval: applicant files Form I-485 (Application to Register Permanent Residence or Adjust Status) or applicant files DS-230 or DS 260 (Application for Immigrant Visa or Alien Registration)
• Applicant files Supporting Documents (Evidence of investments, job creation, etc.)
• Upon approval: investor and family members (dependent children under the age of 21) are granted conditional permanent residence for a 2-year period
• As Green Card holders, family members are authorized to work or attend school in the U.S.

How Schunk Law Can Help

The EB-5 category is complex, and it is important to have expert legal expertise and advice on what USCIS looks for in the qualification and approval process. Schunk Law can help.

When a U.S. employer wants to obtain a green card on behalf of a foreign employee, most employers will have to go through the labor certification / PERM process. The process is meant to ensure that all available U.S. workers have a chance at the job before the green card process starts on behalf of the foreign employee. Advertisements are placed in required spots (newspaper, websites, company website etc.), there is a recruitment period, and the recruitment results are submitted to the U.S. Department of Labor (USDOL) via the PERM process.

I-140 Confirms PERM approval to USCIS (US Citizenship and Immigration Services) and employer’s continued ability to pay

Adjustment “green card” petition

Students must apply to a U.S. SEVP-certified school. Once accepted, the school will issue a Form I-20 – “Certificate of Eligibility for Nonimmigrant Student Status” and the student must pay the I-901 SEVIS fee before applying for the visa at the U.S. Embassy/Consulate. Contact the Schunk Law Firm PC for assistance with your F-1 filing needs.

Interested applicants generally apply through a sponsor program approved by the U.S. State Department. Once the application is approved through the sponsor program, a form DS-2019 is issued. That form is used as part of the J-1 visa application at the U.S. Embassy/Consulate. Program areas include:

• Au Pair Professor & Research Scholar
• Camp Counselor Secondary School Student
• College & University Student Short-Term Scholar
• Government Visitor Specialist
• Intern Summer Work Travel
• International Visitor Teacher
• Physician Trainee