The H-1B nonimmigrant classification is a vehicle through which qualified aliens may seek admission to the United States on a temporary basis to work in their fields of expertise. Prior to employing an H-1B temporary worker, a U.S. employer must first file an H-1B petition with USCIS. However, while USCIS is responsible for evaluating an alien’s qualifications for the H-1B classification, approval of an H-1B petition does not equate to admission of the alien to the U.S. in H-1B status. An H-1B temporary worker is an alien admitted to the United States to perform services in a “specialty occupation.

A specialty occupation is one that requires:

• The theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and
• Completion of a specific course of higher education culminating in a baccalaureate degree in a specific occupation specialty (for example, engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties).

An example of this would be an individual obtaining an accounting degree from Harvard, performing an internship at a local auditing firm, and then being hired as an auditor for a Fortune 500 company.

Generally, most H-1Bs are granted an initial period of admission of up to three (3) years. H-1B status may be extended for another three years for a maximum period of stay of six years.
However, there are exceptions to the maximum stay as follows:

• The American Competitiveness in the 21st Century Act (AC21) allows for an extension of the 6-year maximum stay if a labor certification application or Form I-140 was filed one-year prior to the start of the sixth year. For further guidance on AC21, click here.
• Similarly, AC21 allows for a 3-year extension beyond the 6-year maximum stay if the worker has an approved labor certification application and an approved Form I-140, but cannot apply for adjustment of status due to retrogression in the employment-based visa numbers.
• Another exception is for workers who have spent more than one year abroad after spending less than six years in H-1B status within the U.S. Such workers can elect either (1) to be re-admitted for the remainder of the initial 6-year stay or (2) seek to be re-admitted as a new H-1B worker subject to the annual cap.

As long as the employer/employee relationship exists, an H-1B nonimmigrant is still in status. An H-1B nonimmigrant may work in full or part-time employment and remain in status. An H-1B nonimmigrant may also be on vacation, sick/maternity/paternity leave, or on strike, without affecting his or her status.

No, it is not possible for an employer to petition for more than one H-1B nonimmigrant on the same petition. Each H-1B nonimmigrant requires a separate Petition for a Nonimmigrant Worker (I-129). A separate Labor Condition Application (ETA 9035) is also required unless the positions are the same and are at the same salary.

H-1B nonimmigrant may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed.

The merger or sale of an H-1B employer’s business should not affect the nonimmigrant status in most instances. However, if the change means that the nonimmigrant is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Yes. The current law (AC21) limits to 65,000 the number of non-immigrants per fiscal year who may have a visa issued or otherwise provided H-1B status. Petitions to extend the status of current H-1B workers do not count toward the cap.

Yes, there are exemptions to H1B cap as under:

• The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual cap.
• H-1B workers who are employed by or have an offer of employment from an institution of higher education or a related or affiliated nonprofit entity.
• H-1B workers who are employed by or have an offer of employment from either a nonprofit or government research organization.
• J-1 non-immigrants who have obtained a waiver of the two-year home residency requirement through the State 20 program.

Due to the high demand for H-1B petitions, USCIS has implemented new rules for counting the annual limit of 65,000 H-1B petitions. The overall goal of the new rule is to promote equal opportunity for prospective petitioners and to ensure a fair and orderly distribution of available H-1B visas. The new rule makes the following modifications:

• USCIS will now either deny or revoke multiple petitions filed by an employer for the same H-1B worker;
• USCIS will not refund filing fees for duplicative or multiple H-1B petitions;
• In years when USCIS implements the random selection process for petitions, USCIS will include petitions in the random selection process that are filed during the first five business days available for filing H-1B petitions for a given fiscal year, rather than just the first two such days; and
• If a petition incorrectly indicates that it is exempt from any of the H-1B numerical limits, the petition will be denied if no H-1B visa numbers are available and the filing fees will not be returned.

L1 petition can be filed on behalf of foreign national who works outside the United States for a business that has a parent company, subsidiary, branch, or affiliate in the U.S. This classification is of two types; L1A and L1B. These workers, called "intracompany-transferees," come to the United States temporarily to perform services. Such individuals, who perform services in a managerial or executive capacity are called "L-1A Non-immigrants." Such individuals, who possess specialized knowledge, are called "L-1B Non-immigrants." The foreign national must be coming to the United States to work for a parent company, branch, subsidiary or affiliate of the same business that employed the individual abroad. In order to qualify, the individual must have been employed abroad by the corporation, firm, other legal entity, affiliate, or subsidiary on a full-time basis for at least one continuous year during the last three-year period.

Managerial capacity means an assignment within an organization in which the employee primarily:

• Manages the organization, or a department, subdivision, function, or component of the organization;

• 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;

• Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised.

• Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

An "intracompany transferee” is an employee of a company abroad who is to be transferred to an U.S. affiliate, parent, or subsidiary entity on a temporary work basis. In order to be eligible, the employee must have worked for the company abroad for one continuous year out of the preceding three years. The employee must be coming to the U.S. in order to continue working for the same employer or the affiliate, subsidiary, or parent company.

Executive capacity means an assignment within an organization in which the employee primarily:

• 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, the board of directors, or stockholders of the organization.

Specialized knowledge means 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 and procedures.

No. There is no numerical limitation on the number of people an employer could petition for based on an approved blanket or individual L-1petition. However, the employer must first demonstrate the need for the amount of employees being petitioned for.

L-1 workers generally are initially admitted for the time granted on the petition not to exceed three years. An L-1B worker in the specialized knowledge category may remain in the U.S. for a maximum period of five years, but an L-1A executive or manager may remain in the U.S. for a maximum period of seven years.

An L-1 nonimmigrant is not required to work full-time, but must dedicate a significant portion of his or her time on a regular and systematic basis.

Yes. The L-2 spouse of an L–1 can work in the United States by filing an Application for Employment Authorization (I-765) at the USCIS Service Center noted on the Form I-765. However, minor children may not be employed under the L-2 classification.

No. An L-1B temporary worker can no longer work primarily at a worksite other than that of their petitioning employer if the work will be controlled or supervised by a different employer or if the offsite work arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer.

The H-1C nonimmigrant temporary worker classification is for foreign nurses coming to the United States temporarily to perform services as a registered nurse in a health professional shortage area as determined by the Department of Labor (DOL). The H-1C nonimmigrant category was introduced in 1999 specifically to address the shortage of nurses in the United States. Applying for an H-1C nonimmigrant visa is a multi-step process that involves coordination from DOL and USCIS. Prior to filing a petition with USCIS for an H-1C visa, DOL must provide an attestation to petitioning hospitals certifying that they meet the qualifications as required by regulation. Among the qualifications, hospitals are required to be located in a “health professional shortage area.”

Yes. The H-1C nonimmigrant classification does have an expiration date.

No. An H-1C nonimmigrant may not work at more than one facility.

No. An H-1C nonimmigrant may not change employers.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Effective January 18, 2009, only workers from the following countries can be the beneficiaries of an approved H-2B petition and may participate in the H-2B visa program:
Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

A U.S. employer who wants to file a petition for H-2B, as required by regulations, should initially file the petition with either:

• An original single valid temporary labor certification from the Department of Labor (or the Governor of Guam if the proposed employment is solely in Guam), indicating that qualified U.S. worker(s) are not available and that employment of the nonimmigrant will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
• An original notice from such authority that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and
• Copies of evidence, such as employment letters and training certificates, that each named person meets the minimum job requirements stated in the certification.

No. Effective Januray 18, 2009, H2B petitioners may specify only the number of positions sought without naming individual H-2B workers, unless the workers are already in the U.S.

Effective January 18, 2009, H-2B petitioners are required to provide notification to USCIS within 2 work days in the following instances:

• When an H-2B worker fails to report to work within 5 work days of the employment start date on the petition;
• When the labor or services for which the H-2B workers were hired is completed more than 30 days early; or
• When the H-2B worker absconds from the worksite or is terminated prior to the completion of labor or services for which he or she was hired.
• The notification should include the following:
• The reason for the notification;
• The reason for late notification, if applicable;
• The USCIS receipt number of the approved petition;
• The petitioner’s name, address, telephone number, and employer identification number;
• The employer’s name, address, and telephone number, if different from that of petitioner;
• The name of the worker in question;
• The date and place of birth of the worker in question; and
• The last known physical address and telephone number of the worker in question.

To protect H-2B workers, USCIS may deny or revoke any petition if it determines (1) that the petition beneficiary has paid or has agreed to pay any fee or other form of compensation, whether directly or indirectly, to the petitioner, or (2) that the petitioning employer is aware or reasonably should be aware that the beneficiary has paid or agreed to pay any facilitator or recruiter, or similar employment service, in connection with obtaining the H-2B employment. Prohibited fees do not include the fair market value of costs of transportation to the U.S. or fees required by a foreign government such as for the issuance of passports or visas.

“Seasonal need” means services that are traditionally connected to a particular time of year because of a recurring event or pattern. Examples of seasonal need include workers engaged in landscaping or employed at fisheries.

Peak-load need means that an employer regularly employs permanent workers to perform the services needed, but has a temporary need for additional staff because of an increase in short-term demand. Another characteristic of peak-load need is that the temporary additions to the staff will not become part of the petitioner’s regular operations.

One-time occurrence means that an employer has not previously employed workers to fill the position, and that it will not need such services in the future. Rather, there must be a temporary event of short duration. Examples of one-time occurrences are commercial remodeling projects or special events such as international conferences or sporting events.

H2B workers are initially admitted for the time on the Labor Certification, with a maximum of 1 year. H-2B status may be extended in 12-month increments for a total maximum stay of three years.

Effective January 18, 2009, once an H-2B worker has reached the maximum 3 year limit on H-2B status, he or she is required to wait 3 months outside the U.S. before seeking H-2B status again.

Yes. The current law limits the number of nonimmigrants who may be issued an H-2B visa to 66,000 per fiscal year. However, since H-2B workers are seasonal workers, and petitioners were not able to file until six months before the first date of employment, the annual cap was reached by the winter employment petitions before summer petitions could be filed. To address this uneven allocation of seasonal H-2B workers, Congress passed the Save our Small and Seasonal Businesses Act of 2005. The Act divides the H-2B visa annual cap in half, making it a bi-annual cap by allotting 33,000 the first six months and 33,000 the final six months. USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners must first obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations state that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee. Thus, USCIS normally begins receiving H-2B petitions with employment start dates in October in June and with employment start dates in April in December.

Yes. An H-2B worker can only work full-time; their work must not be part-time.

The H-3 is for individuals who been invited by an individual or organization for the purpose of receiving training in any field including, but not limited to:

• Commerce
• Communications
• Finance
• Government
• Transportation
• Agriculture
• Or the professions

H-3 Visitor must meet the following criteria:

• The beneficiary (H-3) must have a foreign residence to which he or she will return.
• The training in question must not be available in the beneficiary’s home country.
• The H-3 beneficiary must not be placed in an employment position that is regularly filled by a citizen or lawful permanent resident.

• The individual must be nearing completion of a baccalaureate degree in special education, or already hold such a degree, or has extensive prior training and experience in teaching children with physical, mental, or emotional disabilities.

Yes. More than one beneficiary may be included in the H-3 petition if the beneficiaries will be receiving the same training, for the same period of time, and in the same location.

An H-3 Trainee is admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The maximum period of stay for an H-3 Trainee is 24 months.

The maximum period of stay in the United States for an H-3 Special Education Exchange Visitor is 18 months.

No. An H-3 nonimmigrant is required to return to his/her country after completion of the training. An H-3 may only engage in employment as an intern during his/her training or if the employment is incidental and necessary to the training.

Yes. An H-3 must be in training for the duration of the program.

A treaty country is a foreign state with which the United States has a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent.

E1 status is designed for qualifying individuals who are citizens or nationals of countries with a qualifying commerce and navigation treaty with the U.S. and who will only engage in substantial trade in goods, services and technology principally between the U.S. and that foreign country.

Immigration regulations define trade as the existing international exchange of items of trade for consideration between the United States and the treaty country.

Items of trade include but are not limited to goods, services, international banking, insurance, monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news gathering activities.

Principal trade between the United States and the treaty country exists when over 50 percent of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader's nationality.

Labor certification is not necessary nor a requirement for the E1 classification.

No. It is only necessary to file the Form I-129 if the individual is in the United States in a valid nonimmigrant status seeking an E1 status or an extension of E1 status. Otherwise, the E1 visa can be applied for directly at the nearest U.S. consulate that processes nonimmigrant visas.

No. A United States employer cannot petition for E1 status for an employee since this visa classification is specifically set aside for foreign nationals, including foreign employers, with a Treaty of Friendship, Commerce, Navigation or a similar type of agreement between the United States and a foreign nation.

An employer can file a Request for Premium Processing Service, Form I-907, with the appropriate fee, concurrently with Form I-129 or after receiving the receipt notice for Form I-129, at the USCIS location where the I-129 was filed.

To obtain an E1 Treaty Trader status, the following are eligibility requirements:

• A treaty, with treaty trader provisions, exists between United States and foreign state;
• The individual and/or business possess the nationality of the treaty country;
• Business activities constitute trade;
• Trade is substantial and international in scope;
• Trade is principally between United States and the treaty country; and
• The individual intends to depart the United States when the E1 status terminates.

An E1 nonimmigrant is usually granted an initial period of admission of two years.

E1 Treaty Traders do not have a maximum period of stay.

An extension of stay in the E1 category may be authorized in increments of up to two years. Each extension must be applied for.

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The TN classification was created following Congressional approval of the North American Free Trade Agreement (NAFTA) on December 8, 1993.

Canadian citizens are not required to apply for a visa with a U.S. consulate or file a petition with USCIS. When requesting admission as TN workers at a U.S. port-of entry, however, they must provide proof of citizenship, a letter from their prospective employer detailing items such as professional capacity, purpose, length of stay, and educational qualifications. They may also need to provide credential evaluations. Following inspection by a U.S. Customs and Border Protection (CBP) Officer, an eligible Canadian citizen will be admitted as a TN nonimmigrant with a Form I-94 as evidence of such admission.

Mexican citizens seeking TN nonimmigrant classification do not need to file a petition with USCIS. However, a visa is required for Mexican citizens to enter the United States in the TN nonimmigrant classification. Therefore, Mexican citizens should apply for a TN visa directly at a U.S. consulate in Mexico and present proof of citizenship, a letter from their prospective employer detailing items such as the professional capacity in which they will work in the U.S., the purpose of their employment, their length of stay, and their educational qualifications. They may also need to provide credential evaluations. TN visa holders then may apply for admission at a U.S. port-of-entry, and if found qualified by a CBP inspector, will be issued, as in the case of qualified Canadian citizens, a “multiple entry” Form I-94, indicating that the person has been admitted as a TN nonimmigrant.

There is no annual limit on the number of TN admissions to the United States. Further, a single individual may enter the United States in TN status multiple times in a given year.

There is no limit on the number of times a person can apply for a TN visa or seek admission in TN status. TN professionals previously could be admitted initially for a period of up to one year, and, if they are otherwise admissible / eligible, may be granted, at a port-of-entry, an additional period of stay of up to one year following each departure from the country. They may also, upon application, be granted an extension of stay for a period of up to one year.

Yes. Spouses and children may be granted nonimmigrant status as a NAFTA dependent (TD) and may be admitted to the U.S. but may not work.

One who possesses extraordinary ability in science, business, education or athletics and has been recognized nationally or internationally for those achievements is eligible for O1 Nonimmigrant visa. One may also be eligible if he/she possesses extraordinary ability in the arts or has attained an extraordinary achievement in the motion picture or television industry.

The O nonimmigrant classification is broken down as follows:

• O-1A: individuals with an extraordinary ability in the sciences, arts, education, business, or athletics
• O-1B: individuals with an extraordinary achievement in motion picture or television industry
• O-2: individuals who will assist an O-1, using critical skills or experience not of a general nature. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1’s activities. For an O-1B, the O-2’s assistance must be “essential” to completion of the O-1’s production.
• O-3: individuals who are the spouse or children of O-1’s and O-2’s

As an O-1 nonimmigrant, one may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. One may only engage in employment during the validity period of the petition.

Any accompanying or following to join spouse and children under the age of 21 may be eligible to apply for an O-3 nonimmigrant visa, subject to the same period of admission and limitations as the O-1 nonimmigrant. They may not work in the United States under this classification, but they may engage in full or part time study on an O-3 visa.

If your employment as an O nonimmigrant beneficiary is terminated for reasons other than voluntary resignation, your employer must pay for the reasonable cost of your return transportation to your last place of residence before entering into the United States. If an agent filed the petition for your employer, the agent and the employer are equally responsible for paying these costs.