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Our vast experience encompasses a complete spectrum of nonimmigrant and immigrant visas to the U.S. If you are looking for an immigration and nationality attorney in Silicon Valley, contact our offices to discuss your case and explore your options.
The B-1 visa is available to foreign nationals who wish to enter the US temporarily to engage in business such as contract negotiations, set up a US corporation, consult with clients or business associates, attend trade shows and conventions or board meetings, file or defend against a lawsuit, or compete for tournament money (professional athletes). It does not allow the foreign national to be employed or collect a salary in the US. Personal or domestic servants of returning US citizens or nonimmigrants may be issued B-1 visas as long as the domestic can show that he was employed by the US citizen for at least one year abroad and the US citizen agrees to enter into a contract with the domestic and pay the prevailing wage.
For more information, please visit https://www.uscis.gov/working-united-states/temporary-workers/e-3-certain-specialty-occupation-professionals-australia.
There are several types or categories of H visas. The following description is limited to H-1B specialty workers. The H-1B visa is available to a foreign national who is coming to the US temporarily to work in a specialty occupation, or as a fashion model of distinguished merit and ability, or a person providing services to the Department of Defense cooperative research and development project. Although the H-1B process starts with the US Company filing a petition, an H-1B petition for a professional or specialty worker or fashion model cannot be approved without an underlying approved Labor Condition Application (LCA).
The Labor Condition Application (LCA)
An LCA is a document filed with the US Department of Labor (DOL) containing attestations from the H-1B employer that: it will pay the H-1B worker the prevailing wage or higher for the position, it is providing the H-1B worker with the same benefits as all other workers in the work place so that filing the petition will not adversely affect the wages and working conditions of other US workers at the work site, it has notified all workers of the employer's intent to file an H-1B petition in support of a the foreign worker by two 10-day internal postings, and there has been no work stoppage in the area of employment. In addition to preparing and maintaining a public access file and obtaining an approved LCA from the Department of Labor, the employer must agree that in the event the H-1B worker is terminated prior to the natural expiration of his H-1B petition validity period, the employer shall be responsible for paying the worker's return air fare to his home country. However, if the H-1B worker voluntarily terminates his employment before the H-1B petition expires, then the petitioning employer is no longer liable for the H-1B worker's return airfare. All employers of H, L and O nonimmigrant workers are required to attest that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and have determined that either a license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person or if a license is required to release such technology or technical data to the worker, the petitioner will prevent access to the controlled technology or technical data by the worker until and unless the petitioner has received the required license or other authorization to release it to the worker. The H-1B employer must pay the stated wage within 30 days of the H-1B's admission into the US or 60 days from the H-1B employee's change of status if already in the US. An H-1B employer must pay for the H-1B petition process. An employer cannot "bench" an H-1B employee (regardless of whether the H-1B worker is a full- or part-time employee) because of lack of work. The petitioning employer is required to pay for the costs of the petition process including attorney's fees and filing fees and cannot seek reimbursement for these costs. To do so would be in violation of the law and the employer would be subject to penalties.
An H-1B worker may continue to maintain nonimmigrant status and have a PERM labor certification or visa petition pending or approved on his behalf. This is also true for L and O workers.
Admissions and Extensions
The H-1B petition may be approved for up to three years and cannot exceed the period on the underlying approved LCA with the exception of DOD projects where the petition may be approved for up to five years. There is a six-year maximum period for H-1Bs. Periods spent outside the US during the H-1B validity period may be recaptured. If the H-1B worker spends one year outside the US, the six-year maximum period restarts. An H-1B worker may extend his stay beyond the six years if a PERM labor certification application or I-140 visa petition has been filed on his behalf and remains pending for 365 days or more. If this is the case, the H-1B worker may extend his H-1B status in increments of one year at a time for as long the PERM labor certification or I-140 visa petition remains pending. Sec. 106 (a). An H-1B worker may extend his stay beyond the six years if he has an approved I-140 visa petition in his name. If this is the case, the H-1B worker may extend his H-1B status in increments of three years. Sec. 104(c).
Dependents of H-1B Workers are Classified as “H-4”
Certain H-4 dependent souses can apply, for a work permit under certain circumstances.The spouse and minor children of an H-1 worker can remain in the US for as long as the H-1 worker's validity period.
For more information, please go to http://www.uscis.gov/working-united-states/temporary-nonimmigrant-workers.
An L visa is a temporary nonimmigrant visa for a foreign employee who has been employed abroad for at least one year in the three years immediately preceding the filing of the petition at a foreign company that is the affiliate, subsidiary, branch or parent company of a US company. There are two types of L visas:
L-1A for Executive or Manager
To qualify, the L-1A applicant must be (1) continuously employed for at least one year (in the last 3 years) by a firm, corporation, or other legal entity that is the parent, affiliate or subsidiary of a US company and (2) the L-1A must be seeking entry into the US in order to continue to render temporary services to the same employer or to its subsidiary in a managerial or executive capacity.
An executive is someone who directs the management of the organization or a major component or function of the organization; establishes the goals and policies of the organization, component, or function; exercises wide latitude in discretionary decision-making; and receives only general supervision or direction from higher level executives
A manager is someone who manages the organization, department, subdivision, function or component of the organization; supervises and controls the work of other supervisory professionals or manages an essential function within the organization or department or subdivision of the organization; has authority to hire and fire or recommend personnel actions, or functions at a senior level; and exercises discretion over day-to-day operations of the activity or function over which he has authority
Caveat: First line supervisors are not considered managers unless the employees they supervise are professional. The maximum period of stay for an L-1A is seven years.
L-1B for Special Knowledge Worker
To be eligible, the L-1B must have special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has advanced level knowledge of processes or procedures of the company. Where the specialized knowledge is of a company product, the knowledge must be "noteworthy" or "uncommon". The maximum period of stay for an L-1B is five years.
Blanket L Petitions
A blanket L petition is available for a US company and other qualifying organizations that have been doing business in the US for at least one year; successfully filed at least 10 "L" petitions for managers, executives, or specialized knowledge professionals within a 12-month period OR have combined sales of at least $25 million OR have at least 1,000 employees in the US; and engaged in commercial trade or services.
The US company may file a blanket petition which if approved, would allow its L workers to apply for an L visa directly with the US embassy or consulate abroad. The L visa applicant may apply as a manger, executive or specialized knowledge professional.
Dependents of L's are classified as “L-2”
The spouse of an L worker may apply for work authorization after being admitted into the US as an L-2. The spouse and minor children of an L can remain in the US for as long as the L worker's validity period.
For more information, please go to https://my.uscis.gov/exploremyoptions/l_visas_l_1a_and_l_1b_for_temporary_workers.
Caveat: Unlike Canadian citizens who can apply for temporary visas under NAFTA at a port of entry (Pre-flight Inspection or "Class A" port of entry), Mexican citizens cannot apply for a temporary visa under NAFTA at a port of entry and must obtain a TN visa at a US consulate in Mexico.
TN status can be granted for up to three years with unlimited extensions for Canadians. For a Mexican citizen, a TN visa is issued for only one year but the Mexican TN can be admitted into the US for three years. Dependents of TN visa holders are designated
For more information, please go to http://travel.state.gov/content/visas/en/employment/nafta.html
The F-1 holder must intend to pursue a full course of study and depart the US upon completion of her program; seek to enter the US temporarily for the sole purpose of pursuing a course of study at educational institution approved by ICE in compliance with the SEVIS program; and have sufficient financial support.
The application and supporting documentation are filed with the consular post abroad or if the applicant is in the US, the petition and supporting documentation are filed with the Service Center.
After the F-1 visa is issued, the F-1 may be admitted at least 30 days before the program start date. Upon arrival at a US port of entry, the F-1 will be admitted for "Duration of Status" (D/S) or until completion of the educational program plus 60 days. The 60-day period can be used to prepare for departure, change status, change educational levels, or change educational institutions.
Optional Practical Training (OPT)
Optional practical training may be pre-completion or post-completion (after completion of all course requirements for bachelor's, master's, or doctoral degree program and course of study). The Designated School Official (DSO) must make a recommendation for OPT under SEVIS and must indicate whether employment will be part-time or full-time with the start and end dates. Duration of post-completion OPT: 12 months
If the field of study is in the sciences, technology, engineering, or mathematics (STEM), the F-1 student can obtain an additional 17 months OPT for a total of 29 months. However, the F-1's major or dual major must be in the STEM subject. If the STEM subject is only a minor, the F-1 will not qualify for the additional 17 months.
Caveat: The employer of the F-1 OPT must be participating in E-verify and agree to report the F-1s departure within 48 hours. It is the responsibility of the STEM F-1 to report to the DSO every six months. The F-1 cannot be unemployed for 90 days or more during the 12-month period of OPT or 120 days or more during the 29-month period of STEM OPT.
For more information, please go to https://www.uscis.gov/working-united-states/students-and-exchange-visitors.
The J visa is a way for an advanced student or professional to expand his or her skill set while learning about another culture and way of life as an exchange visitor in the United States. It requires a host organization to contract with a program sponsor so it can participate in the J Visitor Exchange Program.
For more information, please go to http://www.j1visa.state.gov.
- Minor children
- Unmarried adult son(s) and/or daughter(s) (over the age of 21)
- Married son(s) and/or daughter(s)
The first three groups are classified as “immediate relatives” and do not require a visa to become available. The last three groups are preference relatives and are required to wait until a visa becomes available based on a priority date established when the visa petition was filed on their behalf. If you already have a visa petition filed on your behalf and are waiting for a visa to become available, you can track visa availability at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
Legal permanent residents can file immigrant visa petitions for the following:
- Minor children
- Unmarried Adult son(s) and/or daughter(s) (over the age of 21)
One of the ways a foreign national obtains permanent residence is through a US employer. Before a US employer can file an employment-based immigrant visa petition on behalf of a foreign worker, it must prove to the satisfaction of the US Department of Labor (DOL) that there are no qualified US workers available for the job. In order for the US employer to prove there are no qualified US workers for the job, it must utilize the Program Electronic Review Management (PERM) labor certification process.
PERM requires the employer to engage in specific forms of recruitment to “test” the US labor market by:
1. Running two consecutive Sunday advertisements for the position in a newspaper of general circulation covering the work site;
2. Posting an internal job announcement on its premises for 10 business days;
3. Placing a 30 day state job order with a state job agency; and
4. Engaging in three of the following forms of recruitment:
a.) Posting the job availability on its web site;
b.) Posting the job availability on a job search web site other than the employer’s;
c.) Conducting an employee referral program with cash incentive during the recruitment period for the job;
d.) Running ads in a local or ethnic newspaper;
e.) Running ads in a professional or trade journal;
f.) Posting the job through a campus placement office;
g.) Conducting on-campus recruitment;
h.) Hiring a Technical Recruiter or placement agency ;
i.) Conducting recruitment at job fairs
In addition to proving there is no qualified US worker for the job, the employer must:
1. Document that it is not adversely affecting the wages and working conditions of other US workers similarly situated by obtaining a prevailing wage for the position from the National Wage Processing Center (NWPC); and
2. Offer a salary that is within prevailing wage or higher.
The US Department of Labor prohibits the US employer from seeking reimbursement or payment for any and all costs (such as advertisements) and for attorney’s fees associated with the PERM process. Although the foreign national may pay for all USCIS filing fees and attorney’s fees associated with the filing of the I-140 visa petition and I-485 application for permanent residence, the US employer is required to pay for the PERM process.
There are other ways a foreign national can obtain permanent residence through employment but these area PERM labor certification is one of the more common ways of obtaining permanent residence or immigrant visa status in the US. To customize which options apply to your case, please contact our firm.
The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted clients in all aspects of immigration law for more than 30 years.