What You Need to Know About L Visas

There are two primary types of L-1 visas: an L-1A visa and L-1B visa. An L-1A visa allows qualified employees working with an international company to be transferred to a related company within the United States in a managerial or executive capacity.

An L-1B visa allows employees of international companies to be transferred to a related company within the U.S. borders as a result of specialized knowledge. An H-1B visa, however, is different. This visa allows U.S. employers to employ foreign professionals to work in specialty occupations for a maximum of six years.

What You Need to Know About Foreign National Education Qualifications

For an H-1B visa, a foreign national must have a U.S. Bachelor’s degree or an equivalent educational degree. For an L-1A or L-1B visa, however, there are no minimum educational requirements.

For an H-1B visa, USCIS will accept three years of qualifying and progressive work experience for each year of missing university education in order to determine whether the individual has the equivalent of a four-year Bachelor’s degree. On certain L-1B visas, however, USCIS may wonder whether a candidate truly has specialized knowledge if he or she does not have a particular degree.

Requirements for The Position in The United States

Under an H-1B visa, a Bachelor’s degree or its equivalent in a specific field is the minimum requirement for an individual to work in the position. On an L-1A visa, however, the position offered in the United States must be as an executive or a manager. For an L-1B visa, the position offered in the United States must require that a person with specialized knowledge handle it.

Prior Work Experience

For H-1B visas, there is no minimum work experience required. For an L-1A and an L-1B visa, however, the foreign national must have worked in a related company outside the United States for a minimum of one year in the three years prior to his or her entry into the United States. A qualifying relationship for L-1 visa purposes means that the U.S. company must be a branch, affiliate, subsidiary or parent company of the foreign company.

Quota Limitations

There are no numerical limits on the number of L-1A or L-1B visas issued each fiscal year. However, there is a strict H-1B visa cap in place of 65,000 in each fiscal year.

Foreign Company Requirements

A United States employer bringing in an H-1B visa employee is not required to be related to any company outside of the United States. This is not true of L-1A and L-1B visas, however. The related foreign company employing the foreign national outside of US borders, prior to his or her admission into United States must be active and doing business during the entire time that the foreign national is staying in the U.S. on L-1B or L-1A status.

Doing business means systematic, continuous and regular provision of services or goods by a qualifying organization. This does not include the mere presence of an office or an agent of the related company in the United States and abroad.

Prevailing Wage

An H-1B employee has to be paid the greater of the actual wage paid to the others in the company with similar qualifications and experience. For an L-1A and L-1B visa, however, there are no prevailing wage requirements.

Labor Condition Application

H-1B visa employers must submit an LCA that has been certified by the Department of Labor in the United States in conjunction with their H-1B visa petition. However, for L-1A and L-1B visas, there is no LCA requirement.

Opening A New Office

A company in the United States may use the H-1B visa to hire an individual who will help to establish and begin the newly formed company. However, the company must be prepared to show that the requested individual has a specialty occupation job lined up and that the appropriate employer-employee relationship exists. L-1A visa and L-1B visas are treated somewhat differently.

For an L-1A visa, a foreign company that does not have an existing U.S. affiliate office, may use the L-1A to send only a manager or an executive to United States for the purpose of establishing a new office. For an L-1B visa, a foreign company that doesn’t have any existing U.S. affiliate office can use an L-1B employee with specialized knowledge to go to the United States to help establish a new one.

If an employer is seeking an L-1B visa to establish a new office, that employer must be able to show that he has secured appropriate physical premises to house the new office, however.

Changing Employers

H-1B portability provisions allow for an individual with H-1B status to start working with a new H-1B employer as soon as that employer files an H-1B petition for him or her. This means that they do not have to wait for USCIS approval of the petition. L-1A and L-1B visas, however, only allow foreign nationals who qualify to work for qualifying members of a multinational group, such as a sister branch, affiliated company, parent or subsidiary that filed the original petition. This employee is not eligible to work on a new L-1 visa company that is not a qualifying member of the multinational group.

Green Card Eligibility

The majority of H-1B visa holders require that a labor certification is filed on their behalf through the Department of Labor in order to receive a green card. L-1A visa holders, however, may be eligible to apply for expedited green cards under the EB-1C category, thus waiving the labor certification process. Individuals who have an L-1B visa would have to have a labor certification filed on their behalf through the Department of Labor in order to receive a green card.

If the L-1B visa holder was in an executive or managerial role prior to coming to United States, he or she may be eligible for an expedited green card in the EB-1C category. If you have questions about this process, it’s important to speak with an experienced New Jersey immigration attorney about your concerns. L-1A and L-1B visas can be excellent alternatives to H-1B visas, but you must know how to obtain these and whether or not the individual qualifies for this visa prior to initiating the application.

According to New Jersey immigration attorney Vinay Malik, given that the H-1B cap season is over and many petitions were not selected, employers should always consider L visas and other alternatives like O visas if the eligibility requirements are met.

 

 

 

What is H-1B Portability?

The AC21 Act was passed in the year 2000. Nearly 16 years later, there are not implementing regulations available. There are several non-binding policy memoranda from USCIS, however. Although proposed regulations were issued in December 2015, these have yet not been adopted. H-1B portability is frequently something that employees should know about.

This is a very complex area of the law. One of the provisions under section 105 allows portability of H-1B visas so that an individual can begin employment in certain situations after the filing of the H-1B petition for new employers. There are several different issues that can emerge from this, according to one New Jersey immigration attorney, Vinay Malik. It is usually better to apply for portability while maintaining status on H-1B and notifying the current employer about the intent to leave after a new H-1B has been received by USCIS. In the case of being terminated, it is better to apply for a new H-1B while in the notice period so that you are in status when the new H-1B petition is received by USCIS.

What’s an H-1 Transfer?

If an individual is currently employed on an H-1B visa for one employer and this individual intends to change jobs to a different employer, that employer is responsible for filing a new H-1B petition for the same employee. This is colloquially referred to as an H-1 transfer. It is essential to understand that it’s not really a concept of transfer because nothing is being transferred from one employer to another except for the employee.

The previous employer, therefore, has not responsibility to transfer anything to the second employer and the previous employer might not even know about the new employer. This is a new H-1B petition without the limitations of the H-1B cap, however.

When an updated petition is filed by the second or new employer, it is usually done with a request to extend H-1B status. Since nothing gets transferred, neither the new employer nor the employee has to take any permission from the other employer in order to file this H-1B petition.

What Needs to Be Submitted?

A variety of materials need to be submitted with the new petition associated with the new employer. These include:

  • The copy of the most recent H-1B approval notice.
  • Copy of all pages in the passport, including blank ones.
  • Two or three most recent paste ups.
  • Most recent resume.
  • All previous approval notices.
  • The most current visa stamp.
  • Photocopy of form I-94.
  • Copy of work experience letters, offer letters and the relieving letters.
  • Tax returns and W2s
  • Copy of social security card
  • Copy of all diplomas, transcripts, mark sheets and degrees.

 

Having a spouse or minor child might also necessitate H-4 documents, including:

  • Copy of the I-94 card.
  • Copy of the marriage certificate.
  • Copy of the birth certificate.
  • Copy of the passport with copy of visa stamps.

What You Need to Know About Moving to A New Employer

After the second employer files for an H-1B transfer, this individual is eligible to begin working for the newest employer as soon as the receipt notice is obtained. If an employee has previously worked for an employer A and now has a pending H-1B petition with employer B, then intends to work for employer C, all that would be required is that employer C files a new H-1B petition so long as you, the employee, are within status.

Employers should keep in mind the portability provisions for H-1B visas usually do not apply if the employee is moving from a cap exempt employer to a cap subject employer. There are several different eligibility requirements associated with H-1B portability. These include:

  • Legal admission into United States
  • A non-frivolous petition
  • No authorized employment
  • A previously issued H-1B visa must exist.
  • Current legal status in the United States

While the H-1B portability provisions certainly have advantages for a new employer and the employee, there is one major downside. There is no guarantee that the new H-1B petition will be approved. If the H-1B transfer petition is denied, then the H-1B non-immigrant worker may be officially out of status.

This is why H-1B employees and their employers need to make a decision on whether or not to access the advantages of H-1B portability on a case by case bases. This should only be done after consulting with an experienced immigration attorney about the critical issues involved.

What an Employer Should Know

When an H-1B non-immigrant worker leaves an employer, that employer should withdraw the labor condition application and file a notice of revocation with USCIS. This officially informs that government agency that the employee is no longer with the employer. An employer is liable to continue paying the wages of the H-1B employee until the revocation notice has been sent to USCIS.

If a non-immigrant H-1B worker takes advantage of the portability provisions, but the H-1B petition is subsequently denied, that employee may return to their previous employer, if that employer has not revoked the prior H-1B petition. If the previous employer has revoked the H-1B petition for their previous employee, however, then the H-1B non-immigrant worker could be left out of status if the new H-1B petition is denied.

What You Should Know About Travel While a Portability Petition Is Pending

H-1B workers who have joined a new employer under portability provisions, pending adjudication, can usually travel outside of the U.S. and seek admission back into the country while the portability petition is still pending so long as there is a valid H-1B visa stamped inside their passport. It is strongly recommended that individuals taking advantage of this carry a copy of form I-797 filing receipt showing that a petition was filed by a new employer as well as unexpired passport with a valid H-1B visa stamp.

These issues can be extremely complicated, particularly without the insight of an experienced immigration attorney. An immigration attorney can help advise on whether or not it makes sense to take advantage of the portability provisions as well as the upsides and downsides of both.

Make sure you speak with an experienced New Jersey immigration attorney for all complex immigration-related matters.

 

Can an Adjustment of Status Applicant’s Job Change While the Application is Pending?

Keywords: adjustment of status, New Jersey immigration lawyer

One of the most common questions asked by individuals confronting immigration issues as well as the employers of these individuals is what happens when an employee changes jobs while his or her adjustment of status application is pending. Adjustment of status refers to situations in which someone in the U.S. wants to change his or her official immigration status after meeting a set of qualifications. Continue reading