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Non-Immigrant

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Non-immigrants are foreign nationals authorized to enter united states and to stay for a specified period to pursue certain activities, which includes visitors, students, temporary workers, business executives and managers etc. The non-immigrants should posses appropriate type of visa and comply with the legal requirement while staying in the U.S. For example, an individual must have employment authorization to "work" and similarly a student must have valid student visa to be able to pursue educational program in the U.S.

Non-immigrant visas could be extended or changed to certain different non-immigrant visa subject to the governing rules related to the particular type of visa. There are several types of non immigrant visas. Some of the most commonly used are the following:

H-1B Visa

H1-B visa permits corporations to temporarily employ foreign nationals in specialty occupation. This visa may be intially granted for upto 3 years and could be subsequently extended for upto a total of 6 years. H-1B non-immigrant may simultaneously apply for permanent residence. Dependent spouse and children get H-4 status. 65,000 H1-B visas are avialable anually. Additional 20,000 H-1B visas are available for individuals with advance degrees. H-1B non-immigrant may change employer but H-1B visa needs to be transferred to the new employer.

H1-B visa process starts with the labor condition application (LCA) which is filed with the Department of Labor (DOL). In this application, the H-1B employer represents that:

1. It will pay higher of the prevailing wage or actual wages.

2. The non-immigrant will not adversly affect the working conditions of his co-workers

3. There is no strike or lockout at the place of employment and

4. The co-workers have been notified about the non-immigrant worker working with them at the same work site.

H1-B classification is appropriate for a foreign national who will perform serviecs in a specialty occupation which requires theoretical and partical application of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation because he or she has attained a baccalaureate or higher degree or its equilavent in the speciality occupation.

Therefore determination of eligibility for H1B visa calls for three step analysis. First, it must be determined that the offered position is a professional or specialist job. Second, it must be proved that the foreign national is a professional or specialist qualified for the offered position based on education, experience or both. Third, wages and working conditions satisfies Department of Labor requirement.

H-1B Cap

First time in 1990 cap of 65,000 new H-1B visas were set. The cap was subsequently raised and has been brought back to 65,000 anually. The H-1B Visa Reform Act of 2004 also created a "cap exemption" for upto 20,000 visas per year for foreign nationals with higher degrees.

Gap-Cap for F-1 students on OPT:

A F-1 student with OPT seeksing a change in status to H-1B will be allowed to stay in the United States until the new H-1B quota takes effect on October 1st each year. In the past F-1 students were allowed to stay but not allowed to work during this Gap-Cap period. Now, USCIS regulation allows F-1 students on OPT to stay and to work during this period. 

L-1 Intra-Company Transferee Visa:

L-1 visa is avialable to the executive, managers, and specialized knowledge employees of multinational organizations. Executives and managers may be granted L-1A visa for upto 7 years and specialized knowledge workers upto 5 years with L-1B visa. To become eligible, the organization must have offices in the United States and in at least one another country. The regulation makes special provision for a foreign national coming to the U.S. to work for a new company in operation for less than one year.

To establish eligibility for L-1 Intra company Transferee Visa:

1. "Qualifying relationship" between the U.S. entity and foreign entity must be established.

2. The beneficiary must have been employed abroad with the qualifying entity continuously for at least one year in the past 3 years in managerial or executive capacity.

3. The L-1 transferee must be coming to the U.S. to work for qualifying entity in the U.S.

4. The transferee must be a manager or executive or work in a position requiring specialized knowledge.

Blanket L-1 Visa:

Multinational Corporations frequently using L-1 Visas may be eligible for blanket-L petition to qualify for a blanket L-1 petition. The petitioning copmpany as well as others in the group must meet the folowing criteria:

1. The U.S. based petitioner and all other entities in the group are engaged in commercial trade or services.

2. The petitioner has an office in the U. S. and has been engaged in business for one year or longer.

3. The U.S. based petitioner has three or more domestic and foreign branches, subsidiaries, or afiliates; and they must meet one of the following requirements:

   a) The petitioner has obtained approvals for at least 10 L managers, executives or specialized knowledge in the preceding 12 months; or     

   b) The group has combined annual sales of $ 25 million or more; or

   c) Have a workforce of at least 1000 employees.

Approved blanket L-1 petition allows certain transferees to apply for L-1 Visas at the U. S. Consulates and do not need to wait for approval of L-1 petition by USCIS.

 

O-1 Extraordinary Ability Visas:

O-1 classification is available to the people of extraordinary ability in sciences, education, business,athletics, arts, or in the motion picture or television industries for a temporary work in the field of expertise. Supporting staffs accompanying O-1 principal are eligible for O-2  and spouse and dependent children of O-1 and O-2 are eligible for O-3 status. This visa requires a U.S. based employer and the eligibility is premised on non-academic achievements. An agent can file O-1 petition and act as an employer to sponsor the beneficiary. The petition requires a summary of the employment agreement with the underlying terms and conditions of engagement.

O-1 visa could be available for long periods of time. It is also a non-immigrant option for foreign nationals subject to two year home-country residence requirement on J-1 Visa. It could be a last resort for foreign medical graduates who was not able to secure J-1 waiver due to the limitation of number of waivers each State is allowed. O-1 Visa could allow them to remain and work in the United States.

As the eligibility for O-1 visa is based on non-academic achievements, it might work to the advantage of a foreign national , who does not qualify for H-1B due to one or several factors such as lack of academic qualification, experience, or that the assignment does not qualify as specialty occupation or the offered salary is less than prevailing wage or due to unavailability of H-1B Visa number.

P-Visas: 

P Visa is available for outstanding athletes, and entertainment groups, entertainers and artists in exchange programs and unique cultural performers. 

P-1 Visa is available to an athlete or group; an entertainer or group who have earned international recognition as an athlete or entertainer.  P-2 Visa is available for an individual artist, entertainer or a group who will perform under a "reciprocal exchange program". P-3 Visa available for an individual artist, entertainer, or group coming to the U.S. to perform, teach or coach in a program that is culturally unique. It includes entertainers from Nepal, India, Pakistan, Bangladesh, Mexico or from such other countries. P-4 Visa is available to the spouse and children of P-1, P-2 and P-3 Visa holders

E-1 and E-2 Treaty Trader & Treaty Investor:

The United States has signed reciprocal treaties with 79 countries. Foreign nationals from such treaty countries are allowed to engage in business activities as treaty trader and treaty investor, or as an employee of a qualifying entity. The qualifying entity must be a treaty trader or treaty investor.

To establish eligibility, a treaty must exist between  the United States and the country of the foreign national. Majority of the enterprise must be owned by the nationals of that treaty country and the enterprise must be engaged in trade with the United States. E-1 visa is available for treaty trader and E-2 for treaty investor.

TN Visa for Canadian and Mexican Professionals:

TN Visa is avialable for Canadian and Mexican Citizens who come to the United States to perform professional assignments. The North American Free Trade Agreement (NAFTA) provides the list of occupations and applicable requirements. Canadian nationals can apply for TN visa at certain ports of entry. Mexican nationals have to apply for TN visa at the U.S Consulate. TN visa may be granted for upto 3 years and TN visa holders may request extension of TN visa with USCIS or again apply for TN visa at the port of entry. The spouse and children get TD status.

R-1 Visa to Religious Workers:

R-1 visa is available for ministers and for those working for religious occupations and vocations. In order to be eligible individuals must have been a member of the denomination and working as a qualifying religious worker for 2 years. The invidivdual shoudl be coming solely to work for qualifying religious organization of the same denomination.