For many employers and employees the H-1B Visa has become an elusive thing of the past decade as H-1B approvals have gone from an all-time high of around 87% to an all-time low under 60%.1 These charts tell the story of how the H-1B visa became evermore available over the past ten years to plummet 20% below the numbers 10 years earlier.
Litwin & Smith Continues to Provide Employers With H-1B Immigration Options
Litwin & Smith assists employers with successful H-1B filings to avoid Requests For Evidence (RFE’s) and denials. Employers that have received a RFE come to Litwin & Smith to assist with successful RFE responses. Employers with H-1B denials often seek Litwin & Smith to assist with successful H-1B refilings. In addition, Litwin & Smith assists employers to find immigration solutions with other nonimmigrant and immigrant employment visas.
Litwin & Smith Also Provides Employers With Other Employment Options
While, Litwin & Smith has maintained its H-1B success rate there are additional immigration methods to meet staff requirements. These alternatives to the H-1B include:
- H-1B1 – A Variant of the H-1B visa in the United States for nationals of Singapore and Chile
- H-2B – Available to Temporary Non-Agricultural Workers
- H-3 – For Nonimmigrant Trainees or Special Education Exchange Visitors
- E3 – Certain Specialty Occupation Professionals from Australia
- TN – NAFTA Professionals
- J-1 – For those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
- F-1 – Student Visas
- O-1 – Individuals with Extraordinary Ability or Achievement
Variants of the H-1B Visa – H-1B1
The legislation specifically places the H-1B1 immediately after the H-1B within the nonimmigrant classifications specified at INA § 101(a)(15). The language of INA § 214(i)(3), describing a “specialty occupation” for the H-1B1, varies slightly from the description of the H-1B in requiring “(a) theoretical and practical application of a body of specialized knowledge” [instead of “highly specialized knowledge”]; and attainment of a post-secondary degree in the specialty occupation requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.”
There appear to be only a few differences in the description and the term “specialty occupation” is interpreted “in a manner similar to the way the term ‘specialty occupation’ is defined in the H-1B statute.” The classification is also available to otherwise admissible Chileans who lack a degree or its equivalent but who will work as agricultural managers or physical therapists, and to both Chileans and Singaporeans as disaster relief claims adjusters. Those classified as H-1B1 professionals do not need a professional license to qualify for admission but are expected to comply with any governmental licensing requirements after their admission.
The H-1B1 classification may be granted for one year and extended in annual increments. Although there is no specified limit on the number of extensions, every third extension will require a new labor attestation. Moreover, any extension after five consecutive extensions will be charged a number against the country cap.
See also H Working Visa
Variants of the H-1B Visa – H-2B
The H-2B, in its original form of H-2, was intended to supplant “the old ‘contract labor clauses’ … in favor of the temporary admission principle adopted for the purpose of selectively allowing nonimmigrants to enter the country where their labor and services were found to ‘best serve the American needs. The distinguishing features of the H-2B are:
- An annual cap on H-2B workers of 66,000;
- That the service or labor be “temporary;”
- The employer to pay the cost of return transportation abroad if the employee is prematurely dismissed; and
- Unemployed persons cannot be found in this country capable of doing such service or labor.
The validity of the H-2B visa petition is limited to one year. Extensions involve a repetition of the certification process. The status is in any event limited to an unbroken stay of three years.
See also H Working Visa
Variants of the H-1B Visa – H-3
The procedure for acquiring H-3 status is generally the same as that provided for the “H” classifications. It requires the filing of a Form I-129 petition with the regional service center having jurisdiction over the place where the training will be given.
The petition must be supported by a statement covering six items which are a checklist of information the government seeks in evaluating the program against the four conditions and eight restrictions.
- Description of the program,
- A breakdown of hours for any classroom instruction or on-the-job training;
- The proportion of time devoted to productive employment;
- The career abroad for which the training will prepare the employee
- Why she need be trained in the United States.
- The source of any compensation to the trainee and what benefit the petitioner will derive.
These conditions are supplemented by eight “restrictions” which provide that a training program may not be approved which:
- Deals in generalities with no fixed schedule, objectives or means of evaluation;
- Is incompatible with the nature of the petitioner’s business or enterprise;
- Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;
- Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
- Will result in productive employment beyond that which is incidental and necessary to the training;
- Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States;
- Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
- Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
A beneficiary may be admitted in H-3 status for the period the petition is valid, limited by regulation to two years; and, if granted a shorter time, may be given an extension through the balance of that period. A substantial deviation from the authorized training established by the petition is a violation of status rendering the beneficiary deportable.
See also H Working Visa
The “H-1B Treaty Visa” – E-3
The REAL ID Act established the E-3 nonimmigrant visa category. However, the E-3 visa category is not typical of the E-1 (treaty trader) or E-2 (treaty investor). The E-3 is available only to nationals of Australia, but, unlike the E-1 and E-2 provisions, it permits their employment by any qualified U.S. employer, not only companies owned by persons of the same nationality.
The E-3 has most of the earmarks of the H-1B for workers in a specialty occupation but the E-3 is free of the H-1B’s limitation of 65,000 per year. Instead, E-3 candidates are subject to a separate annual cap of 10,500 numbers and are also free to apply for H-1B classification. Applications for E-3 extension or change of status are subject to ordinary filing fees, but not the surcharges that apply to H-1B employers or the special “fraud prevention and detection” fee.
Like E-1 and E-2 applicants, the E-3 is able to apply for a visa directly to a U.S. consular officer without the need for a preliminary USCIS petition, although the consul will need evidence that a labor condition application (LCA) has been filed and certified on DOL Form ETA-9035. The E-3 is also unlike the H-1B classification in that the employer is not liable for the costs of return transportation when dismissing the employee before the period of authorized stay ends.
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada, and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged, professional level, business activities for U.S. or foreign employers.
Permanent residents of Canada and Mexico are not able to apply for TN visas.
NAFTA provides for the temporary entry of Mexican and Canadian business persons to “engage in activities at a professional level.” Despite the similarity to the H-1B classification, as the commentary to the rule provides, admission pursuant to NAFTA to engage in professional-level activities does not imply qualification as an H-1B “professional.”
See also Win – Win With TN and H1B
The J-1 program is used to bring a wide variety of people, including students, scholars, trainees, interns, teachers, professors, specialists, foreign medical graduates, international visitors, government visitors, camp counselors, au pairs, and participants in summer student travel/work programs to the United States to participate in educational and cultural programs designated by the Department of State.
One of the purposes of the J-1 program is to provide foreign nationals with the opportunity to acquire skills in the United States that they can then use in their home countries. In line with this goal, the immigration statute imposes on certain J-1 exchange visitors a requirement that they return to their home countries for two years before being eligible for an immigrant visa, permanent residence, or an H or L nonimmigrant visa. Similar restrictions preclude an exchange visitor’s change to another nonimmigrant status, other than that of government official (A) or international organization official (G), unless the individual satisfies this foreign-residence requirement. The requirement may be waived under certain circumstances.
Since 1924, the immigration laws have made special provision for the admission of foreign students coming to study in U.S. schools. Practical training is off-campus work by an F-1 student related to his or her field of study. Such training has long been recognized as critical to the educational process. There are two types of practical training: curricular practical training (CPT) and optional practical training (OPT). Curricular practical training is integral to an established curriculum whereby the student alternates between the approved training and classroom instruction. Optional practical training may take place either before or after completion of studies. These are known as pre-completion and post-completion OPT, respectively.
To qualify for either curricular practical training or optional practical training, a student must satisfy two general qualifications:
- Lawful enrollment on a full-time basis in an approved college, university, conservatory, or seminary for at least one full academic year. An academic year is defined as approximately nine consecutive months, depending on the particular school’s calendar. This also includes study abroad, if the student spent at least one full academic term enrolled in a full course of study in the United States before studying abroad. Students in English-language training programs are ineligible for practical training.
- Request for authorization for practical training in a position that is directly related to the student’s major field of study.
An exception to the requirement of one full academic year exists for graduate students whose programs require immediate participation in CPT before they complete one full academic year. This exception is not available for OPT. F-1 students may apply for optional practical training up to ninety days before being enrolled for one full academic year as long as the employment is scheduled to begin after the completion of the full academic year.
The Immigration Act of 1990 created the nonimmigrant O visa classification for nonimmigrants with extraordinary ability in sciences, arts, education, business and athletics, and for those with extraordinary achievement in the motion picture or television industry.
- O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
- O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
- O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.
- O-3: individuals who are the spouse or children of O-1’s and O-2’s
There are three noticeable features of the O classification:
- First, the nonimmigrant must be extraordinary in their field of endeavor-that is, superior to others in terms of knowledge, ability, expertise and accomplishments.
- Second, their ability must be corroborated by an opinion from a source in their field.
- Finally, they must be coming to the United States to continue to work in their field of extraordinary ability. However, the position itself need not require a person of extraordinary caliber.
See also O-1 Visa: The Visa for Individuals with Extraordinary Ability or Recognized Achievement
Employers Trust Litwin & Smith to Help Them Meet the Requirements of the Ever Changing Immigration Landscape
Litwin & Smith represents large and small business clients in most of the various industries represented around the Silicon Valley San Francisco Bay Area, across the U.S., and Global Companies around the world. We are very successful in preparing and obtaining nonimmigrant employment visas for employers and subsequent immigrant visas and green cards for their employees. We are renown for our expertise, availability, responsiveness, timeliness, and professionalism.
Helping Employers and Employees with Business-Related Visas
Litwin & Smith’s Silicon Valley business immigration lawyers assist software engineers, electrical engineers, biogenetic engineers, executives, managers, students, treaty investors, treaty traders, entrepreneurs, small to mid-sized companies, and multinational corporations to meet their immigration needs. Our law firm offers more than fifty years of experience in utilizing United States immigration and naturalization laws to serve our clients’ needs.
Contact an experienced immigration attorney at our Santa Clara – South San Francisco – San Francisco area law firm to learn how we can help you, your company, or your prospective foreign worker obtain employment authorization.
Hess v. Esperdy, 234 F. Supp. 909, 912 (S.D.N.Y. 1964). See H.R. Rep. No. 1365, 82d Cong., 2d Sess. 44-45, reprinted in 1952 U.S. Code Cong. & Ad. News 1653, 1698.