EMPLOYMENT-BASED NONIMMIGRANT STATUSES

This section contains an extremely abbreviated overview of our primary areas of practice. It does not go in to any depth on substantive issues. In-depth discussion of important immigration issues is available in our “Articles” section or by clicking on the hyperlinks below.

H1-B Speciality Occupation

The H-1B nonimmigrant category is appropriate for aliens with a job offer in a specialty occupation. The position must be classifiable as a “specialty occupation,” and the alien must be qualified to fill the position.

Qualifying Occupations

To qualify as a specialty occupation, the position must meet one of the following criteria as outlined in 8 C.F.R.:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Qualified Aliens

To be qualified to fill the position in the specialty occupation, the alien must hold a United States baccalaureate or higher degree required by the specialty occupation, or a foreign degree that is evaluated as equivalent to the required U.S. degree. The degree must be in the appropriate field.

Alternatively, the alien could have an education and/or progressively responsible experience that is evaluated as equivalent to the required U.S. baccalaureate degree. When equating experience to education, U.S.C.I.S. considers three years of progressively more responsible experience to be equivalent to one year of education.

There is an annual H-1B cap on the number of petitions approved.

L-1 Intracompany Transferees

L-1 status is available to key employees of multinational corporations whose transfer to the U.S. will facilitate company operations. There are two L-1 categories. L-1A status is for Managers and Executives and L-1B status is for employees with specialized knowledge. Both the petitioning employer and the alien transferee must meet certain qualifications before L-1 status can be granted.

Qualifying Corporations

1. Corporate relationship

In order to qualify as a petitioning L-1 employer, the company that will employ the alien in the U.S. must be related to the foreign company at which the alien has worked. The foreign and U.S. companies can be related as parent/subsidiary; one can be a branch office of the other; or they can be affiliates with a common parent.

2. Doing business

The company must be doing business (or setting up operations with the intent to start doing business) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee.

3. Ability to pay

The company must provide evidence of its ability to pay the wage offered to the alien. Adequate evidence of a company’s financial standing is (1) An annual report filed with the Securities and Exchange Commission (if the company is publicly traded; (2) Copy of most recent federal income tax return; or (3) Audited financial statement.

Qualifying Aliens

General Requirement

The alien must prove that s/he worked for a qualifying company abroad continuously for one of the three years prior to the filing of the L-1 petition.

The alien must also prove that s/he is qualified, through education and/or experience, to fill the position being offered to him or her in the United States.

Special Requirements for L-1A Managers and Executives

In addition to the general requirements, L-1A beneficiaries must also prove that they have worked in a managerial, executive, or specialized knowledge capacity during the one year of employment abroad.

They must show that they are coming to the U.S. to work in a managerial or executive capacity. According to 8 C.F.R., managerial capacity is an assignment in an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function, or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another person is directly supervised; if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

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

Special Requirements for L-1B Aliens with specialized knowledge

In addition to the general requirements, L-1B beneficiaries must prove that they possess specialized knowledge of company operations. According to 8 C.F.R., specialized knowledge means

a special knowledge possessed by an individual of the

petitioning organization’s product, service, research,

equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes or procedures.”

The concept of specialized knowledge is complicated and has been developed through agency memoranda and court cases.

Processing L-1s under NAFTA

Canadian citizens applying for L-1 status can opt to file their petitions in person at a land port of entry, or at an airport, rather than filing by mail at a service center. The petition will be approved or denied on the spot.

Non-Traditional L-1s

L-1 petitions traditionally involve a foreign company sending key personnel to a related U.S. company. However, there are some exceptions to this traditional arrangement. Our firm has expertise in dealing with non-traditional L-1 petitions.

TN North American Professionals

TN status applies to both Canadian and Mexican businesspersons to work temporarily in the United States at a professional level. The procedures for Mexican professionals are quite different from those required for Canadian professionals. The following deals only with Canadians applying for TN status.

Qualifying Professions

TN applicants must demonstrate a job offer in one of 63 professions enumerated in Appendix 1603 of the North American Free Trade Agreement and reproduced in 8 C.F.R. The applicant must also have the appropriate degree and/or experience. It is important for a TN applicant to demonstrate that her job offer falls within one of professions on the list.

The Degree Requirement

TN regulations specifically require attainment of a Baccalaureate or equivalent degree. While Scientific Technicians/ Technologists are not required by regulation to have a degree, they are still required, as are all TN applicants, to be performing their jobs at a professional level. The concept of a professional is a term of art in immigration law with applications to various nonimmigrant categories.

Making the TN Application

An initial TN application must be made in person at a land or air port of entry, unless the applicant is already in the Untied States in another status and the applicant is applying for a change of status. An application to change status to TN must be made by mail through the Nebraska Service Center .

Subsequent applications for extension of stay can be made annually by mail through the Nebraska Service Center.

Canadian citizens changing status to TN or extending status may still opt to make a new TN application at the border rather than filing the application by mail through the Service Center.

240-Day Rule

If the alien is applying for an extension of stay by mail through the service center, then he may continue to work for the same TN employer for 240 days after his current TN status expires. Once the 240 days have passed, if the extension still has not been approved, the alien may legally remain in the United States because he is in a period of stay authorized by the Attorney General. However, he may not work after the 240 days have passed and before the new TN is approved.

The 240-day rule does not apply to aliens applying for a change of status or working for a new TN employer.

Validity Period

If granted, TN status is valid for a period of one year, but there is no cap on the number of times a TN applicant can renew his status.

Management Consultants and Scientific Technicians

As the list of qualifying professions shows, almost every TN profession requires the attainment of a Baccalaureate or equivalent foreign degree. The two glaring exceptions are the Management Consultant and Scientific Technician category.

As a result, these two categories have been widely abused by people who do not otherwise qualify for TN status for lack of a degree. Because of this abuse, the Department of Homeland Security gives special scrutiny to all Management Consultant and Scientific Technician TN applications. These applications must therefore be prepared very carefully.