Changes are in the works related to the processing of H-1B visa petitions, and employers intending to file such petitions should be aware. On Monday, December 3, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to change the annual cap-subject H-1B visa petition filing system in two significant ways: (1) the establishment of an online H-1B registration system; and (2) a major change in the procedures related to the annual H-1B visa cap lottery.
By law, the number of new H-1B visa petitions for professional worker beneficiaries is capped at 65,000 annually, with an additional 20,000 set aside for individuals with advanced degrees from U.S. universities. Advanced degrees are considered to be master’s degrees or higher. Certain employers, such as hospitals, non-profit research institutions and universities are exempt from this annual cap. As a result of this limitation on H-1B filings, the USCIS receives well in excess of the allowable number of petitions at the beginning of each year’s filing season, April 1. Accordingly, a random lottery has taken place in early April of each year. Employers are notified over the next few months if their petitions are among the lucky 85,000 selected. The numbers are daunting – approximately 198,000 petitions where received in fiscal year 2017, and approximately 236,000 in fiscal year 2016. (more…)
This post is for the many French people who ask me on a regular basis about the U.S. visas that are available to them.
Several visa categories exist. This post will focus on the most commonly used in the case of French nationals: the E2 (for investors); the L1 (intracompany transfer); and the O1 (extraordinary ability). The H1B is also widely used but it will be the subject of a stand-alone post in the not too distant future.
The E-2 Visa: The E-2 visa is available to foreign nationals who are looking to invest a substantial sum of money into a business in the United States – either a new business or the purchase of an existing U.S. business. Although the law does not mention a minimum amount, in our experience, the minimum investment generally ranges between $120,000 and $150,000, but it can be more or less depending on the nature of the business. Additionally, that money must be spent on the business, and not merely sit dormant in a U.S. bank account. If the investment is made into an existing business then it would need to be substantial in comparison to the current value of the business. The visa can be approved for up to 5 years at a time, and extended in 5 year increments, so long as the business remains operational. There is no limitation on the number of times it can be extended. Note that primary focus of the E-2 is the creation of U.S. jobs, so it is usually critical that the applicant provide proof of U.S. jobs creation or a business plan that shows the creation of U.S. jobs in the near future.
The L-1A “New Office” Visa: The L-1A visa is an “intracompany transferee” visa that is available to foreign nationals who work in managerial or executive occupations, and are transferring from a foreign company to a U.S. parent, branch, or subsidiary. The visa includes newly formed U.S. offices and businesses, provided that the newly formed U.S. office is established as a subsidiary, affiliate, or parent of a foreign company, and that the foreign company will continue operations abroad. This visa is attractive when the foreign investment into the U.S. business is made through a foreign company, as opposed to a foreign individual investor, as it may allow multiple employees from the foreign company to be transferred to the U.S. office. The L-1A visa requires proof that the foreign national transferee has worked for at least one full year for the company abroad before entering the U.S., and that the U.S. office has sufficient financial or operational resources to conduct business in the U.S. The foreign business must also remain operational after the individual transferee begins work in the United States. An individual is allowed seven (7) years maximum stay on an L-1A, although there are exceptions for individuals who use the visa infrequently and only occasionally.
The O-1 Visa: The O-1 visa is reserved for individuals of “Extraordinary Ability” in the arts, sciences, and business. To obtain an O-1 visa, a U.S. company must petition for the individual to come to the United States to perform a service that is related to his or her area of extraordinary ability. We also need to establish that the individual is an individual of extraordinary ability in his or her field. The visa can be approved for up to three (3) years at a time, and extended in increments of up to three (3) years. There is no limitation on the number of times it can be extended, but documenting ongoing success and industry contributions with each extension is crucial.