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Update on Non-Immigrant employment based visas in 2020

DHS published statistics for FY 2020 (1st Quarter) for USCIS adjudications of Non-Immigrant employment based visas:
Visa TypeRFE RateApproval Rate
H-1B47.20%83.40%
H-2A11.80%99%
H-2B20.10%97.80%
L-157.50%73.10%
O-129.50%90.20%
P23.90%90.70%
R-129.60%91.80%
TN27.90%90.80%

H-1B Visa

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting. If USCIS approves the H-1B petition, the earliest date that the beneficiary (prospective employee) may start the approved H-1B employment is October 1.The validity period for this visa are up to three (3) years and may be renewed for three (3) additional year for a total of six (6) years. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students

What is new?

On December 6, 2019, USCIS announced that it is implementing an electronic registration requirement for petitioners seeking to submit H-1B cap-subject petitions. Employers seeking to file an H-1B cap-subject petitions must first electronically register and pay an associated $10 fee for each electronic registration they submit to USCIS. According to USCIS, under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that will require only basic information about their company and each requested worker. See https://www.uscis.gov/news/alerts/uscis-formally-announces-implementation-electronic-h-1b-registration-process-and-registration-timeframe.

The initial registration period will start March 1, 2020. USCIS intends to close the initial registration period on March 20, 2020 and will announce the actual end date of the initial registration period on its website at www.uscis.gov. Please contact an attorney to get more information on the registration process as registration will be soon opened.

H-1B1

The H-1B1 program provides for the temporary employment of nonimmigrant aliens in specialty occupations from Chile and Singapore, limited to 1,400 nationals of Chile and 5,400 nationals of Singapore. This type of visa does not require a lottery process. It is available for citizens of Chile and Singapore all year around.

O-1 Visa

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. This visa requires a job offer in the US. The validity period for these visas are up to three (3) years and may be renewed. Please contact an attorney to get more information on this type of process.

The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

Other categories to accompany an O-1 are the following:

  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
  • O-3: individuals who are the spouse or children of O-1’s and O-2’s

E-2 Visa

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
  • Among other documentation that needs to be provided to show that the company is operational and not marginal in nature.

To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

What’s new?

We are seeing a high rate of denials for E-2 employees, as Consulates and USCIS are adjudicating cases based on President Trump’s April 18, 2017 Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries. See more information at: https://www.uscis.gov/legal-resources/buy-american-hire-american-putting-american-workers-first

L-1 Visa

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

What is new?

To qualify as an L-1 Visa transferee the employee must have been an employee who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge.

P Visa

P visa is a type of temporary employment visa of the United States, granted to athletes, artists, and entertainers, and their spouses and children.

P visa classifications are as follows:

  • P-1 applies to individual or team athletes, or members of an entertainment group (P-1B) that are internationally recognized.
  • P-2 applies to artists or entertainers who will perform under a reciprocal exchange program.
  • P-3 applies to artists or entertainers who perform under a program that is culturally unique.
  • P-4 is for the spouse, or child under the age of 21, of a P-1, P-2, or P-3 alien and who is accompanying, or following to join, the alien.

J-1 Visa

The J-1 Visa offers cultural and educational exchange opportunities in the United States through a variety of programs overseen by the U.S. State Department. The primary goals of the Exchange Visitor Program are to allow participants the opportunity to engage broadly with Americans, share their culture, strengthen their English language abilities, and learn new skills or build skills that will help them in future careers.

The J-2 Visa is a non-immigrant visa issued by a consular official at a U.S. embassy or consulate for spouses and dependents (unmarried children under the age of 21) of J-1 exchange visitors who accompany or later join the J-1 holder in the United States.

TN Visa

The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers. Permanent residents of Canada and Mexico are not able to apply for TN visas to work as NAFTA professionals.

Canadians and Mexicans may be eligible to work in the United States as NAFTA professionals under the following conditions:

  • Applicant is a citizen of Canada or Mexico;
  • Profession is on the NAFTA list;
  • Position in the United States requires a NAFTA professional;
  • Applicant will work in a prearranged full-time or part-time job for an employer (see Required Documentation). Self-employment is not permitted;
  • Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.

EB1

The EB-1 is a preference category for United States employment-based permanent residency. Those are foreign nationals who either have “extraordinary abilities”, or are “outstanding professors or researchers”, and includes “some executives and managers of foreign companies who are transferred to the US”. It allows them to remain permanently in the US. Extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim qualify for this category. https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1

Family Petitions

If you are a U.S. citizen, you can file a petition for your immediate relatives. Immediate relatives are defined by immigration law as a U.S. citizen’s:

  • Spouse, (Bringing Spouses to Live in the United States as Permanent Residents);
  • Children, unmarried and under age 21; and
  • Parents, if you are age 21 or older.
  • Immediate relatives have special immigration priority and there is always a visa available for them.

As a Green Card holder (permanent resident), you may petition for certain family members to immigrate to the United States as permanent residents. You may petition for the following family members:

  • Spouse (husband or wife)
  • Unmarried children under 21
  • Unmarried son or daughter of any age
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