The L-1 category applies to overseas and/or multinational companies with parent, subsidiaries or affiliate companies in the U.S. Employees of such companies may qualify for an intra-company transfer if they have worked for at least 1 year out of the past 3 years for the company overseas, and are coming to the U.S. to fill either an executive or managerial position (L-1A) or a position that requires specialized knowledge (L-1B). The maximum length of stay is 7 years for L-1A visa holders, and 5 years for L-1B. Some multinational corporations may qualify for a “blanket” petition, which simplifies the process of hiring L-1 workers by eliminating the need to file with USCIS, and can directly apply through consulate processing with U.S. Embassies around the world.

Requirements of L-1A

• The sponsoring U.S. entity and the foreign employer abroad must share at least 50%  ownership;
• The offered position in the U.S. must be in an executive or managerial capacity; and
• The potential employee to be transferred to the U.S. must have been working as an executive or manager for a qualifying organization abroad for one continuous year within the last three years immediately preceding his or her admission to the United States.

Who qualifies as an Executive or Manager?

The legal definition of management and executive roles for the purpose of the L-1A visa is strict and limited, and a detailed description of the position and the duties to be performed in the U.S. (and those currently performed abroad) must be proven with documentary evidence.

An executive capacity means the following:

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

A manager is defined as being able to primarily:

• Manage the organization, or a department, subdivision, function, or component of the organization;
• Supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization;
• Has the authority to hire and fire or recommend those as well as other personnel actions such as promotion and leave authorization; and
• Should have supervisory responsibility for and be able to plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals.

Special Requirements for a New Business

For foreign employers seeking to send an employee to the United States as an executive or manager of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):

• The U.S. entity as established less than one year ago. Or the U.S. entity have been non-operational with little or no business activity since establishment;
• The employer has secured sufficient physical premises to house the new office;
• The U.S. entity has the full financial backing and personnel support from the affiliate entity abroad; and
• The intended U.S. office will independently support an executive or managerial position within one year of the approval of the petition, including hiring plans.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. L-2 spouses may apply to get employment authorization to work in the U.S.

Period of Stay

The L-1A visa will initially be granted for a period of up three years which can be extended in two year increments to a maximum of seven years.  However, for new business L-1A petitions, the initial approval period is only for one year.  Thereafter, extensions are in two year increments to the same maximum of seven years.

Green Card Eligibility

Those on L-1A visas may also be eligible to apply for the First Preference Employment-Based Green Cards.  Click here to learn more about Employment-Based Green Cards.

Requirements of L-1B

To qualify for L-1B classification in this category, you must be able to show:

• The sponsoring U.S. entity and the foreign employer abroad must share at least 50% ownership;
• The offered position in the U.S. must be in a specialized knowledge capacity; and
• The potential employee to be transferred to the U.S. must have been working as a specialized knowledge position for a qualifying organization abroad for one continuous year within the last three years immediately preceding his or her admission to the United States.

Specialized knowledge is defined as:

• Having knowledge of the petitioning company’s products/services, research, equipment, systems, proprietary techniques or procedures, or manufacturing processes; and
• The employee must be more than simply skilled or familiar with the employers’ organization.  Their knowledge must be beyond ordinary and not commonplace within the industry and the knowledge must relate directly to the proprietary interests of the petitioner.

For example, it is not enough for a specialty cook or chef to have knowledge of a restaurants special recipes, they are not considered to have specialized knowledge.

If everyone is specialized, then no one is. In other words, the specialized knowledge requirement is intended for “key” personnel. While all experienced employees in a small company may be “key”, for a larger company there should be a distinction between “key” and normal personnel. This could be made based on the length of experience, level of knowledge, or level of responsibility. A specialized knowledge employee has more skills or knowledge than the ordinary employee; however, this doesn’t require an “extraordinary” level of skills, merely more than that of the ordinary employee in the company or field.

L-1B Denial Rates

The rate of L-1B petitions being denied has risen from 30% in 2012 to 34% in 2014. Around 50% of all petitions will receive a Request for Evidence (RFE) with around 35% ultimately being denied leaving 65% eventually being approved.

In Fiscal Year 2012, 18,740 L-1B petitions were processed. Out of those, 8,688 were sent Requests for Evidence, so almost half of all L-1B petitions were sent back to the petitioner for further questions. Out of those, 6,068 were denied.  In other words, in 2012, if an L-1B received an RFE, there was a 70% chance of denial.

In Fiscal Year 2013, which ended on September 30, 2013, 17,723 applications were filed, so essentially 1,000 less petitions than the year before. In spite of this, 8,363 petitions (so again almost half) were sent back to petitioners with an RFE, and out of these, 6,242 were denied. So in this year, the denial rate was even higher with almost 75% of all petitions, which received RFE’s, being denied.

About 95% of all L-1B petitions prepared by our firm are approved, 30% more than the average norm.

These statistics are further evidence of the heightened scrutiny given to this L-1B visa category.   Our firm files many L-1B petitions every year, and we estimate that at most, only about 5-7% of our petitions are denied.  We spend an enormous amount of time trying to gather detailed information about the company, the company’s business and products, the U.S. position and the specialized knowledge that the beneficiary possesses.  Our L-1B petition letters are generally in excess of 20 pages, and our responses to RFEs are usually even longer.

Increasing your chance of success.

We cannot emphasize the importance of providing detailed information about the petitioner, the beneficiary, and specific the plans of the company, as well as documentation for every aspect of the specialized knowledge required and possessed.

Sometimes, even if the petition covers all of requisite factors and is well presented, USCIS doesn’t agree and denies the petition.  As USCIS has reported, they deny about one (1) out of every three (3) L-1B cases.  Admittedly, this presents a huge risk to a company wishing to bring in foreign nationals from an affiliate company abroad.

If a company is able to use the L-1 Blanket Program, however, we have found that in many consulates, specifically in Japan, that the L-1B adjudication is more reasonable and consistent. Therefore, we generally recommend using a blanket at a U.S. Embassy abroad vs. an individual petition filed with USCIS.

Special Requirements for a New Business

For foreign employers seeking to send an employee to the United States as the first employee of a newly established U.S. office, the employer must also show (in addition to the criteria listed above):

• The U.S. entity as established less than one year ago. Or the U.S. entity have been non-operational with little or no business activity since establishment;
• The employer has secured sufficient physical premises to house the new office;
• The U.S. entity has the full financial backing and personnel support from the affiliate entity abroad; and
• When there are no subordinates to support an executive or managerial position within one year of the approval of the petition, including hiring plans, it may be recommended to apply for specialized knowledge position under L-1B status.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

Period of Stay

The L-1B visa will also initially be granted for period of up to three years, which can be extended in two year increments for a maximum of five years. However, for new business L-1A petitions, the initial approval period is only for one year. Thereafter, extensions are in two year increments to the same maximum of five years.

On completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for either L or H status.

The H-2B nonimmigrant work visa is for a temporary, non-agricultural worker coming to the U.S. to fill temporary needs for additional workers. There is an annual limit of 66,000 visas, and the maximum length of stay is 1 year, with the possibility to extend in one-year increments for a maximum period of 3 years. In order to be eligible for an H-2B visa, the U.S. employer must prove that the need for a foreign worker is temporary, and that there are no U.S. workers to fill the temporary position. Both skilled and unskilled workers are eligible for an H-2B visa, unlike the H-1B visa, which is specifically for those holding Bachelor’s Degrees or equivalent.

Overview

The H-3 Nonimmigrant Visa is a training visa that allows a foreign national to come temporarily to the United States to participate in a training program that resembles “classroom” type instruction, offered by an individual or organization. The training must be unavailable in the foreign national’s home country. There are no numerical limits on the number of people who can be granted H-3 visas as trainees each year.

The trainee cannot engage in productive employment in the United States unless such work is incidental and necessary to the training and must not be placed in a position which is in the petitioning entity’s normal operation and in which citizens and resident workers are regularly employed. Finally, the training must benefit the foreign national pursuing a career outside the U.S.

U.S. Citizenship and Immigration Service’s (USCIS) regulations recognize some specific types of trainees as potentially H-3 eligible, including certain medical interns or residents; licensed nurses who need a brief period of training that is unavailable in their native country; and special education exchange visitors. The requirements for the latter group are slightly different than for other trainees.

Note: Special Exchange Visitors may also apply for non-immigrant visas under the
H-3 category. A Special Exchange Visitor is one who seeks to enter the U.S. to gain practical training in educating children with physical, mental, or emotional disabilities. The foreign national must have a foreign residence that he/she has no intention of abandoning, and may stay in the U.S. for up to 18 months. Only 50 foreign nationals per year may enter into the U.S. in the Special Exchange Visitor category.

Qualification Criteria for an H-3 visa

An H-3 trainee must be invited by a person or organization for the purpose of  receiving training (except as a physician), in any fields such as purely industrial establishment, agriculture , commerce, communications , finance , government , transportation , or in other professions .

This classification is not intended for U.S. employment. It is designed to provide a foreign national with job-related training for work that will ultimately be performed outside the U.S.

In order to obtain H-3 classification, a U.S. employer or organization must demonstrate that:

• The proposed training is not available in the foreign national’s native country;
• The foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
• The foreign national will not engage in productive employment unless such employment is incidental and necessary to the training; and
• The training will benefit the beneficiary in pursuing a career outside the United States.

 Each H-3 petition for a trainee must include a statement that:

• Describes the type of training and supervision to be given, and the structure of the training program;
• Sets the proportion of time that will be devoted to productive employment;
• Shows the number of hours that will be spent, respectively, in classroom instruction and in on –the-job training;
• Describes the career abroad for which the training will prepare the foreign national;
• Indicates the reasons why such training cannot be obtained in the foreign national’s country and why it is necessary for the foreign national to be trained in the United States; and
• Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the employer/organization for providing the training.

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 foreign national who already possess 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 foreign nationals 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.

Application Process

In order to obtain H-3 classification, the U.S. employer or organization must file a Form I-129, Petition for Nonimmigrant Worker. The petition must be filed with the information provided above.

Family Members of H-3 Beneficiaries

An H-3 nonimmigrant’s spouse and unmarried minor children may accompany the H-3 non-immigrant to the United States as H-4 non-immigrants. H-4 dependents of H-3 non-immigrants are not permitted to work in the United States.

Period of Stay

If the petition is approved, the trainee may be allowed to remain in the United States for up to 2 years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the United States for up to 18 months.

Overview

The Exchange Visitor Program (J) non-immigrant visa category is for individuals approved to participate in work and study-based exchange visitor programs. The J-1 visa is intended for students needing practical training that is not available in their home country to complete their academic program.

The J-1 Exchange Visitor Program was created to help strengthen international relations with the United States through job training and educational experience. Unique to this program, J-1 visitors have the opportunity to visit the U.S. for a short duration to continue their education or receive hands-on training in the professional workplace, and then implement their new skills upon returning to their home country.

Requirements

While there are many different categories of exchange programs available, and while all have a specific criterion that must be met, all J-1 applicants are required to meet the obligations below:

• Proficiency in the English language;
• Be sponsored through a university, private organization, or government program;
• Provide evidence of funds to cover expenses while in the U.S.
• Provide evidence of compelling social and economic ties abroad which will ensure their return abroad at the completion of their training. and
• Must carry adequate health insurance.

Working on a J-1 Visa

When you visit the United States on a J-1 visa, your ability to work as well as the kind of work you are able to perform will depend on the nature of your program. For individuals on work-based exchange programs, such as au pairs or camp counselors, you will be visiting the U.S. with the expectation to perform a specific job and will not have the ability to work outside of your program.

If you have chosen to travel to the U.S. on a study-related program, such as an international scholar or high school student, you may have the option to work on campus pursuant to a fellowship, assistantship or scholarship up to 20 hours a week, assuming you are in good academic standing. If you are interested in seeking employment, be sure to verify with your sponsor how many hours per week you are able work when school is out of session during holidays or vacation periods.

Studying on a J-1 Visa

There are many opportunities to study in the U.S. on a J-1 visa, based on the program category that you choose. You could visit the U.S. as a short-term scholar, teacher, trainee, intern, researcher, or even as a college or university student, to name a few of the most popular programs. With this in mind, even if you don’t choose to take part in an educational-based program through a college or university, the J-1 program as a whole was designed to help provide hands-on training in a variety of fields. Exchange visitors who are part of work and travel programs or other non-educational routs will still be learning new skills and experiencing a new culture daily – without ever needing to step foot inside of a classroom.

Returning Home

Upon the completion of your exchange program, J-1 visa holders have a 30 day “grace period” to leave the U.S. Keep in mind that you cannot travel outside of the US during your current exchange program and unfortunately, if you would like to leave the U.S. at any point during your program you will be required to apply for a brand new J-1 visa in your home country in order to continue your program.

Health Insurance Requirements

If you are traveling to the U.S. on a J-1 visa, you will be required to carry medical health insurance for the full duration of your program. Your sponsor may provide students and their dependents with health insurance, however if health insurance is not provided by the sponsor you will be required to enroll in a private health insurance plan. Either way, the US Department of State has minimum J-1 health insurance requirements that your insurance plan must meet (which also applies to J2 visa holders).

Period of Stay

The length of time for which you will be allowed to stay in the U.S. on a J-1 exchange visitor visa depends on the type of program you will be participating in and the dates of your planned participation. In order to obtain a J-1 visa, you will need to present a Certificate of Eligibility form which will list the specific dates you are expected to be participating in the program.

Upon entering the U.S. with your J-1 visa, you will be authorized to remain only up to the final date indicated on the Certificate of Eligibility. USCIS regulations, however, place some maximum time limits on J-1 visas according to the type of program.

You may be eligible to extend your stay under the J-1 Visa if your total period of stay does not exceed the maximum duration of stay for the program and your program sponsor agrees to your extension.

Family of J-1 Visa Holders

Depending on the specific type of work or educational program you choose, along with the organization that sponsors your visa, your dependents may have the ability to accompany you to the U.S. The dependents of a J-1 visa holder (spouses and non-married children under the age of 21) are issued a J-2 visa and are required to follow the same application process as their sponsor. However, J-2 eligibility depends on the specific program in which the J-1 exchange visitor is enrolled. For example, the exchange categories of au pair, camp counselor, secondary work student, and summer work travel do not allow for J-2 eligibility. In addition, some specific programs within categories that generally permit J-2 visas do not.

Overview

Foreign nationals with “extraordinary” abilities in the performing arts, fine arts, motion pictures, television production, athletics, sciences, or business are eligible for an O-1 nonimmigrant visa. This stringent visa category requires applicants to demonstrate “extraordinary” ability by sustained national or international acclaim, and more specifically, proof of fulfillment of certain listed criteria, including receipt of nationally or internationally recognized awards, published material in professional publications and significant contributions to his/her specialized field, to name a few.

The O-1 visa category is further divided into two categories: O-1A and O-1B. The O-1A visa is designed for individuals with extraordinary ability or achievement in the athletics, business, education, or sciences, whereas the O-1B visa is designed for individuals that possess extraordinary ability or achievement in the arts or television and film industry.

Like other nonimmigrant visa categories, O-1 beneficiaries also need a U.S. petitioner to sponsor the O-1 application on the foreign beneficiary’s behalf. (For more on O-2, O-3, Period of Stay, and Green Card Eligibility, see below.)

O-1A

Requirements

In order to be considered for an O-1A visa, the foreign national of extraordinary ability must be able to provide evidence that they have received an internationally acclaimed award, such as a Nobel Prize or Olympic Gold Medal, or prove at least three of the following criteria:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field.
• Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought.
• Original scientific, scholarly, or business-related contributions of major significance in the field.
• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought.
• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.
• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above criteria do not readily apply to the field of expertise, other comparable evidence may be submitted as evidence of extraordinary ability.

O-1B

Requirements

To qualify for an O-1B visa, the petitioner must provide evidence that the foreign national of extraordinary ability has been nominated for or has received a significant national or international award, such as an Academy Award Grammy, or prove at least three of the following criteria:

• Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements.
• Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications.
• Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
• A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications.
• Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements.
• A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

If the beneficiary’s field of expertise is in the field of the arts, and the above criteria does not generally apply, the petitioner may provide other appropriate evidence to verify that the beneficiary demonstrates extraordinary ability and expertise in his/her field.

O-2, Assistants and Support Staff

The support staff of extraordinary O-1 foreign nationals are eligible to apply for an O-2 visa so that they may accompany the O-1 artist or athlete in order to assist them with their O-1 activities. In the case of an O-1A visa, the presence of the O-2 individual must be essential for the O-1 visa holder’s activities in the United States. In the case of O-1B visas, the O-2 must have critical skills and extensive experience in the O-1 visa holder’s field of expertise, which makes the position unavailable to U.S. workers. The O-1B visa holder must further show that the presence of the O-2 worker is necessary for the success of the O-1 activities to be conducted in the U.S.

O-3, Family Members

O-1 and/or O-2 visa holder’s spouse and children (under the age of 21) may apply for an O-3 visa to enter the U.S. with the primary O-1 and/or O-2 visa holder. As long as the O-1 or O-2 visa remains valid, the O-3 family member may reside in the U.S.

Period of Stay

The foreign national of extraordinary ability must be coming temporarily to the United States to continue work in the area of his/her extraordinary ability. O-1 visas are typically granted for an initial period of 3 years, but can be extended in one-year increments as long as the “extraordinary” ability and work is sustained.

Green Card Eligibility

Those on O-1 visas may also be eligible to apply for the First Preference Employment-Based Green Cards.