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Consular Processing for Nonimmigrant Visas (Temporary Visas)
Frequently Asked Questions About
B-1/B-2 Visitor Visas
1. What is a B visa?
The B visitor visa is a nonimmigrant visa granted to an individual seeking admission to the United States who plans to remain in the U.S. only temporarily for business or pleasure. It is the most commonly issued temporary visa in the U.S. immigration system.
2. What is the difference between a B-1 and a B-2 visa?
An individual who enters the U.S. temporarily for business purposes may be granted a B-1 visitor visa. The B-2 visitor visa is for individuals entering the U.S. temporarily for the purpose of pleasure or for medical treatment.
3. What legal requirements must someone satisfy to be eligible to use a B visitor visa?
The general presumption under U.S. law is that all individuals seeking admission to the United States are “intending immigrants”. An “intending immigrant” is a person who intends to stay permanently or indefinitely in the U.S. Therefore, all applicants for the B visitor visa must prove that they are not intending immigrants by demonstrating that they seek admission to the U.S. for only a limited duration. This is accomplished by demonstrating that one has strong ties abroad such as a permanent residence, family, and permanent employment.
4. Where should one apply for a B visa?
Generally, one should apply for a B visitor visa at the U.S. consulate in their home country or in their country of current residence.
5. What is the difference between a status and a visa?
A visa represents only permission to seek entry to the U.S. It does not guarantee admission to the U.S. Visas are available only from the U.S. consulates and embassies outside the U.S. The written evidence of a visa is a visa stamp or visa page including a photo placed in a passport by a U.S. consular official. A visa may still be valid even though the passport it is stamped into has expired. A visa only allows a person permission to come to the U.S. to try to get a “status” from U.S. Department of Homeland Security, Customs and Border Protection (CBP) officials at the border or arrival airport.
A status is an official immigration category assigned by the Department of Homeland Security (DHS) to a non-citizen who is present in the U.S. A status is available only from the DHS inside the U.S. or at one of the small number of pre-flight inspection offices outside the U.S. (e.g. Toronto, Canada). The written evidence of a status usually appears on a small white card called an “I-94 Arrival/Departure Record” that is usually endorsed by a CBP official at the border or arrival airport at the time a non-citizen comes into the U.S. Sometimes the I-94 is issued by mail if a person is approved for a change of status or extension of stay.
6. How long is a B visa valid?
Generally, B visitor visas are initially issued for a period of up to ten years. Many are valid for multiple entries during that time. Some are limited to one or two entries only.
7. How long may a person stay in the U.S. in a B visitor status?
Initial periods of B visitor status are usually limited to six months. However, an immigration officer has the discretion to issue a B visitor status for a shorter period of time.
8. How long does it take to get a B visa?
The actual processing time varies among consulates; however, at many consular offices a B visitor visa is issued the same day or within one or two days after the application has been filed with the consulate. However, since 9/11, security clearances have delayed some applications for 3 weeks or longer.
9. For what reasons can someone be denied a B visitor visa?
A consular officer has the discretion to deny someone a B visitor visa to enter the U.S. when that individual has not proven sufficient ties abroad, fails to show an intent to remain temporarily in the U.S., or fails to provide proof of sufficient funds to support himself or herself while in the U.S. Even if a B visa is issued, the U.S. immigration service can refuse admission to a person if the immigration officer at the airport does not believe the person meets the requirements to qualify as a B visitor.
10. Can someone in the U.S. in B status extend his or her stay?
An individual who is currently in the U.S. in B visitor status may apply to extend his or her status for an additional period of up to six months provided that the individual can show that the nature of the visit remains temporary and he or she has sufficient means to support the costs of the additional stay. In addition, an individual may need to show the intended means of departure (e.g. a return plane ticket to the home country). Generally, a request for an extension of B visitor status must be made to the USCIS before the date of expiration of the current authorized period of stay. In rare cases, late applications are possible.
11. How many times can someone request an extension of B visitor status?
There is currently no limit on the number of times that someone can request an extension of B visitor status. However, given the temporary nature and purpose of this classification, it is not likely that someone will be granted multiple extensions of this status.
12. Can a B visitor’s spouse and children also come to the U.S.?
Yes, spouses and children can come to the U.S. as B visitors, however, they must each apply for their own separate B visa. There is no derivative B visitor visa category for spouses and children as is the case with other nonimmigrant categories.
13. Can someone change status from B visitor status to another nonimmigrant category while in the U.S.?
Yes. An individual in the U.S. in B visitor status may apply to change to another nonimmigrant status if the person has maintained full compliance with all immigration rules since entry to the U.S. and if the person fully meets all of the eligibility requirements for the new category. An issue arises when an individual in B visitor status wants to adjust to permanent resident status while in the U.S. because this may suggest that the individual’s original intent upon entry to the U.S. was to remain permanently and not temporarily. Also, it is generally inappropriate to enter the U.S. in the B category and quickly apply to change to another status such as the F student category.
14. Can someone who enters the U.S. on a B visitor visa work while in the U.S.?
Generally, persons admitted to the U.S. as B-1 or B-2 visitors may not accept or engage in employment while in the U.S. Individuals who are admitted to the U.S. on a B-1 visitor visa may engage in certain limited business activities while in the U.S. This means that a foreign national in B-1 visitor status in the U.S. may engage in certain professional or commercial activities such as attending professional or educational conferences, participating in negotiations, and attending meetings.
15. What is the role of the immigration attorney in the B visitor visa process?
Most individuals do not seek the assistance of an
immigration attorney in applying for a B visitor visa abroad. However,
individuals are more likely to seek the assistance of an attorney in
applying for an extension of B visitor status once they are in the U.S.
An attorney can assist in preparing and organizing the application
documents and provide legal advice regarding an individual’s specific
situation, which can be very helpful if there are any issues with an
individual’s immigration history. Also, any person who has ever been
refused a U.S. visa or has ever violated U.S. immigration rules would be
wise to seek assistance from an experienced immigration lawyer before
applying for a visa or attempting to reenter the U.S.
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Frequently Asked Questions
About H-1B
Temporary Work Status
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What is an H-1B visa?
The H-1B program is the primary method for temporarily employing professional level foreign employees in the United States. It is especially useful in “new hire” situations. The H-1B category is for workers in ‘specialty occupations’ – jobs that normally require at least a four-year university degree in a specific field. Although the term “H-1B visa” is frequently used to describe this category of work authorization, the term “visa” relates only to the document a foreign worker must show to the immigration inspector when seeking to enter the U.S. Once here, the foreign worker is given another document (which is not a visa) that indicates the worker’s H-1B employment-authorized immigration status and the expiration date of their authorized stay in the United States.
- When would an employer use the H-1B program?
The H-1B visa category is appropriate for most situations where the employer must quickly fill a complex position that is likely to continue for up to several years or even longer. If the foreign candidate has an appropriate bachelor-level or higher degree or equivalent experience and if such a degree is the employer’s minimum educational requirement for the position, and if the intended wage is competitive, the H-1B category may be the best option. If the candidate is a Canadian citizen or currently an employee of an affiliated entity outside the United States, other categories such as the TN or L-1 should also be considered.
- Is there a quota limiting the number of new H-1B workers?
Yes. Currently, there is an annual quota for new H-1B workers. If the quota is reached, H-1B’s for new H-1B workers may not be available again until October 1st, when the U.S. Citizenship and Immigration Services (USCIS) next fiscal year begins. There are quota exemptions for employers hiring workers who are already in the U.S. working in H-1B status, for H-1B employees of colleges and universities, and for certain physicians. In addition, a portion of the quota is reserved for workers from Chile and Singapore, and a separate quota is available for H-1 workers who have received a U.S. advanced degree (i.e. Masters Degree or higher).
- Must the employer demonstrate that there is a shortage of qualified U.S. workers to obtain H-1B approval?
No. The H-1B employer need not advertise or show an effort to hire U.S. workers. H-1B rules seek to protect U.S. workers primarily by mandating the employer’s compliance with H-1B prevailing wage requirements.
- What legal requirements must the employer satisfy to be eligible to employ an H-1B worker?
The employer must first establish that a specific bachelor-level or higher degree or equivalent is normally the employer’s minimum requirement for the position, and that it will pay the prevailing wage for that position in the area of intended employment. In addition, the H-1B program requires that an employer pay H-1B workers at least as much as its similarly employed workers with comparable qualifications. The employer must notify other workers in the occupational classification at the intended location of employment that an H-1B worker is being hired to fill the position and will be paid at least a certain specified wage. The employer must attest to the above requirements on forms filed with the U.S. Department of Labor and the U.S. Citizenship and Immigration Services. Normally, the employer’s H-1B petition must be approved before employment may begin.
- What legal requirements must the employee satisfy to be eligible to use an H-1B work status?
The employee candidate must document their educational credentials, and meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S. If a candidate has a history of immigration violations or criminal activities, the H-1B status may be denied. If an H-1B candidate does not have a bachelor degree, it may be possible to document experience that is considered equivalent to the degree. If the candidate is outside the U.S., and does not hold a valid H-1B visa, she or he must usually present the employer’s H-1B approval notice along with other visa application materials to a U.S. embassy or consulate outside the U.S. and receive an H-1B visa before entering the U.S. for employment.
- How long is an H-1B valid?
The initial petition for an individual worker can be approved for up to three years. The validity of an H-1B petition is linked to the particular employer, employee, job duties, location and wage. If there are material changes in the terms of employment or the legal identity of the employer during the petition period, the H-1B may be considered automatically invalidated. If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.
- How long does it take to get an H-1B petition approved?
Currently, a reasonable window of expectation is about two weeks to four months. Because each H-1B petition revolves around facts related to the individual candidate, as well as to the employer and the position, there is some variation in the preparation and processing time needed for H-1B cases. Government processing times vary substantially. By paying an extra expedited processing fee to the U.S. Citizenship and Immigration Services, an employer can currently anticipate H-1B petition processing within two to four weeks or less after opening a law firm file. As described above, if the annual quota for new H-1B workers is reached, processing could be delayed until October 1st, when the next fiscal year begins. Always check with qualified immigration counsel regarding the most recent processing times for cases similar to yours. In some emergency situations temporary employment authorization can be obtained more quickly, occasionally within one week or less. If the candidate is outside the United States, processing time can be increased by several days or weeks while the U.S. government completes security clearances and consular visa processing.
- Can an H-1B be extended?
The employer may request an extension for up to an additional three years. However, many foreign workers are subject to a six-year limit in H-1B status. Any time spent working under a previous employer’s H-1B petition will count toward the six-year limit in H-1B status. In some cases, it is possible to get permission to exceed the six-year limit on H-1B status.
- Does it automatically turn into a green card?
No. The process of greencard sponsorship is almost entirely separate from the H-1B process.
Many employers choose to sponsor their H-1B workers for permanent resident (“greencard”) status, starting the process at least several years prior to the end of the sixth year, in order to obtain alternate employment authorization before the six-year limit is reached. Starting the permanent residence sponsorship process within 6 months or less after the first approval of H-1B status often provides significant immigration advantages to both the employer and the employee. Unlike certain other nonimmigrant statuses, such as F-1 students or B-1/B-2 visitors, an H-1B worker is legally permitted to have both temporary and permanent intentions at the same time (“dual intent”). Both the employer and H-1B employee are allowed to actively pursue permanent resident status for the H-1B worker.
- How much administrative work by the employer is required?
The employer must review and sign several government forms, and maintain a public disclosure file containing basic information about the job, wages and benefits. It is generally most efficient for an employer to designate an administrative staff person who will become the immigration coordinator for the employer. Although an initial H-1B case may take three or four hours of the employer’s administrative time, subsequent H-1B’s may require about half that time. The employer should maintain a tracking system so any changes in job duties or location will trigger a call to the employer’s immigration law firm.
- What government agencies are involved?
The U.S. Department of Labor and the U.S. Citizenship and Immigration Services are the primary agencies responsible for administering the H-1B program. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process.
- What is the role of the employer in the H-1B process?
The employer must provide accurate basic information about the H-1B worker’s intended job duties, normal minimum requirements for the position, and the employer’s financial condition. We can quickly appraise the potential viability of an H-1B sponsorship for any particular H-1B candidate by reviewing the information typically found on a candidate’s resume and the employer’s internal job description. We may ask the employer to complete a simple one-page questionnaire, then review and sign draft forms and documents, which we will submit to the government on the employer’s behalf. In addition, the employer will usually need to post a notice at the place of employment, and maintain an H-1B disclosure file in accordance with our instructions and government regulations.
- What is the role of the immigration lawyer in the H-1B process?
It is natural for the foreign employee or candidate and the employer’s human resources staff to focus on the immediate task of obtaining H-1B authorization as soon as possible. The immigration lawyer’s role is to help the employer and employee to comply with the law and to facilitate H-1B approval within an acceptable time frame. The lawyer will first screen the terms of employment and the candidate’s immigration history to evaluate the probability of H-1B approval within the proposed time frame. The lawyer will identify strategic options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage; prepare the employer for potential government audit of their H-1B program; evaluate potential processing complications and consult with the employer and employee as needed to coordinate visa application and travel plans, explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.
- What is the role of the foreign employee in the H-1B process?
The foreign employee or candidate must provide accurate information and documentation at the attorney’s and the government’s request. We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the attorney apprised of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed. If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the attorney to complete a visa application form and to prepare for the employee’s interview at the U.S. embassy or consulate abroad.
- Who is on the employer’s H-1B processing team?
Typically the H-1B team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.
The H-1B petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all H-1B cases. It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple H-1B cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the H-1B program. Senior executives who are often involved in oversight of the employer’s immigration law compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.
- What are the chances of success in a typical H-1B case?
Well-documented H-1B petitions that meet the essential legal requirements will most likely be approved. A careful screening by the immigration lawyer at the outset will often identify potential complications that could reduce the probability of prompt approval. Immigration counsel in collaboration with the employer may be able to suggest ways to prevent or resolve potential complications. The earlier an employer contacts our firm, the more likely it is that expectations will be met. Recruiters and hiring managers should be trained to contact the immigration processing team before an offer is extended to a foreign candidate.
- Is there a minimum salary requirement?
Yes. The employer must pay the H-1B employee at least as much as it pays similarly employed workers. The wage cannot be less than the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The prevailing wage can be determined through a private wage survey, through a collective bargaining agreement, or through a state workforce agency.
- Who usually pays the filing fees?
A Department of Labor regulation effective since January 2001 requires that the employer must pay the H-1B filing fees. The optional Premium Processing fee (paid to obtain faster processing) may in some cases be paid by the employee or a third-party.
- Who usually pays the legal expenses?
As with the filing fee, a Department of Labor regulation generally requires the employer to pay. The regulation states that all costs in connection with preparation and filing of the LCA and H-1B petition are considered the employer’s business expenses and must be paid by the employer, and the employer cannot be reimbursed by the employee. There appear to be only very limited exceptions to this rule.
- Can the H-1B employee’s spouse and children also get visas?
Yes. H-1B workers’ family members may accompany them in H-4 status. A separate application for the spouse and children may be needed—H-4 status is not automatic. H-4 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the H-1B worker.
- Can the H-1B’s spouse and children get permission to work in the U.S.?
Employment authorization for family members is not included in H-4 status. Sometimes a spouse will change to H-1B status through an H-1B petition by his or her own employer. If the employee is in the ‘green card’ process it may be possible for the spouse and children to obtain employment authorization during the last stage of that process.
- Can the H-1B’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?
Yes. Spouses and children in H-4 status may attend school. No special additional permission is required.
- Can an H-1B worker change employers?
Workers in H-1B status are only allowed to work for a petitioning employer. There is no restriction on changing employers, so long as the new employer follows proper H-1B petitioning procedures. Employers hiring workers already in H-1B status under certain circumstances may be allowed to commence the employment upon filing their H-1B petition, rather than waiting for approval.
- Can the employer promote, transfer, or otherwise change the terms of employment stated in the employer’s H-1B petition?
Material changes in the terms of employment may be considered a status violation. Material changes may require preparation and filing of new or amended H-1B petition documents. Check with qualified immigration counsel before making any changes.
- Can the H-1B employee travel outside the U.S.?
Yes, but any travel should be carefully coordinated with the immigration lawyer. Since 9/11, enhanced security clearances and other procedures can lead to unexpected disruptions in employment and visa processing delays. H-1B workers who do not have both a currently valid H-1B approval notice and an unexpired H-1B visa in their passport may be required to go through a lengthy nonimmigrant visa process while outside the U.S. Advance planning with the immigration lawyer before any international travel by the H-1B employee is strongly urged (a minimum of 4 months advanced planning is suggested, if possible). Furthermore, the employer’s cooperation in preparing for the employee’s nonimmigrant visa application is essential to reduce the probability of severe disruptions in employment and visa delays.
- Are there special procedures to follow if the H-1B employee voluntarily or involuntarily terminates the employment relationship?
Yes. If the employment relationship is terminated for any reason (whether voluntarily or involuntarily, with or without cause), the employer must send written notification to the U.S. Citizenship and Immigration Services Service Center that approved the petition, or risk continuing liability for back payment of wages until the end of the approved petition period. Furthermore, if the employee is dismissed involuntarily, the petitioning employer will be liable for the reasonable costs of return transportation to the worker’s last place of foreign residence. It is therefore recommended that the employer check with qualified immigration counsel before terminating an H-1B worker.
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Frequently Asked Questions About
L-1 Temporary Work Status
- What is an L-1 Status?
L-1 status is intended for foreign employees temporarily transferring to the U.S. The L-1 is a nonimmigrant visa available to employees who will work in the U.S. for an employer that is structurally affiliated with a company the employee worked for outside of the United States.
- When would an employer use an L-1 visa?
The L-1 visa category is appropriate for many situations where the employer must quickly fill a management position that is likely to continue for up to several years or even longer. The category is also appropriate for employees with “specialized knowledge” of the employer’s business. Unlike the H-1B category, the L-1 does not require a bachelor degree or equivalent, there are no wage requirements, there is no annual limit on the number issued, and spouses of L-1’s may apply for work authorization. For certain managers, there is a closely related permanent residence category that can substantially speed up the green card process.
- What legal requirements must the employer satisfy to be eligible to hire an L-1 worker?
The foreign employer and the US employer must have a “qualifying relationship.” The relationship can be that of a parent, branch, subsidiary, or affiliate with common majority ownership, or common control by the same person or entity. The intended U.S. job must be that of a manager, executive or “specialized knowledge” employee. “Specialized knowledge” refers to employees with a special knowledge of the company’s products and their applications in world markets or an advanced level of knowledge of the company’s processes or procedures. Typical manager and executive positions may qualify, but the U.S. Citizenship and Immigration Services (USCIS) has an aversion to “first-line supervisors” of low-level employees. The category may also be used for managers of a business “function” who do not supervise other people.
- What legal requirements must the employee satisfy to be eligible for L-1 status?
The L-1 worker must have been continuously employed abroad for at least one of the last three years by the related employer outside the U.S., in a position meeting the L-1 definition of manager, executive or “specialized knowledge” employee. In some cases, the employer may be eligible to use a ‘blanket’ petition for multiple L-1 workers. The L-1 worker must meet the normal screening criteria for entering the U.S. or changing from another immigration status in the U.S. If a candidate has a history of immigration violations or criminal activities, the L-1 status may be denied.
- How long is an L-1 status valid?
Initial L-1 petitions may be approved for up to three years. If the U.S. entity is less than one year old, the initial period will be limited to one year. If there are material changes in the terms of employment or in the ownership or corporate structure of the employer or the related foreign entity during the petition period, the L-1 may become invalid. Also, changes in the legal relationship between the U.S. office and the overseas affiliate can affect the continued validity of L-1 status. If the employee engages in work activities not authorized on the petition, the employee is in violation of U.S. laws and potentially deportable.
- How long does it take to get approval for L-1 status?
Recently, L-1 processing times have ranged from about two weeks to two months. The USCIS attempts to process L-1 petitions somewhat faster than H-1 petitions. Each L-1 petition revolves around facts pertaining to the individual candidate, the related employing entities and the position. Recently created entities, employers with complex affiliate relationships, or positions other than top management may require significant additional legal preparation time. By paying an extra Premium Processing fee to the USCIS, an employer can currently anticipate L-1 petition processing within two to three weeks of opening a file. If the candidate is outside the United States, processing time can be increased by several days or weeks while the U.S. government completes security clearances at the U.S. consulate. For Canadian citizens, NAFTA created an expedited procedure that in certain cases can reduce case preparation and processing time to a matter of days.
- Can L-1 status be extended?
L-1 petitions may be renewed in two-year increments, with a total limit of seven years for managers and executives (L-1A’s), or a total limit of five years for specialized knowledge employees (L-1B’s).
- Does an L-1 automatically turn into a green card?
No. Many employers sponsor their L-1B “specialized knowledge” workers for permanent resident (“green card”) status, starting the process at least several years prior to the end of the fifth year, in order to obtain alternate employment authorization before the five year limit is reached. Employers can sponsor L-1A managers and executives in a more streamlined green card process, but it is often more cost effective to begin the process early and forego the expense of multiple L-1 extensions.
- How much administrative work by the employer is required?
The administrative burden connected with L-1A’s is often substantially less than that connected with H-1B’s. The employer must review and sign a government form, but need not maintain special documentation beyond that required for other employees. A typical L-1 case may take a few hours of a human resource staff member’s time. As with any temporary foreign work status, the employer should maintain a tracking system so any changes in job duties will trigger a call to the employer’s immigration law firm.
- What government agencies are involved?
The USCIS is responsible for examining L-1 petitions. Depending on the location of the job site, the petition must be filed at one of four USCIS Regional Service Centers. For employees working in the Midwest and Northwest, L-1 petitions are filed at the USCIS Regional Service Center in Lincoln, Nebraska. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process. Under the North American Free Trade Agreement (NAFTA), a Canadian citizen can ‘file’ the employer’s petition with a Department of Homeland Security (DHS) Customs and Border Protection (CBP) inspector when seeking entry to the U.S. at an airport or other port of entry, normally receiving a decision within a few hours.
- What is the role of the employer in the L-1 work visa process?
The employer must provide basic information about the L-1 worker’s intended job duties, the legal relationship between the foreign and U.S. entities, and the employer’s financial condition. We may ask the employer to complete a simple one-page questionnaire, then review and sign a draft form and support letter that we will submit to the government on the employer’s behalf.
- What is the role of the immigration lawyer in the L-1 work visa process?
The lawyer should lead the L-1 processing efforts. First, he or she should screen the terms of employment, the candidate’s immigration & employment history, and the relationship between the U.S. and foreign entities, to determine the probability of L-1 approval within the proposed time frame. A good immigration lawyer will identify strategy options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage, evaluate possible processing complications; and consult with the employer and employee as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.
- What is the role of the employee in the L-1 work visa process?
The foreign employee or candidate must provide accurate information and documentation at the lawyer’s and the government’s request. We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the lawyer apprised of any intended changes in employment or travel plans so that the lawyer can adjust strategies as needed. If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the lawyer to complete a visa application form and to prepare for the employee’s interview at an U.S. embassy or consulate abroad.
- Who is on the employer’s L-1 work visa team?
Typically the L-1 team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.
The L-1 petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all L-1 cases. It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple L-1 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the L-1 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.
- What are the chances of success in a typical L-1 case?
Well-documented L-1 petitions that meet the basic legal requirements are likely to be approved. A careful screening by the immigration lawyer at the outset will normally uncover most potential complications that would reduce the probability of prompt approval. The chance of smooth approval may be somewhat reduced in cases involving recently created entities, employers with complex affiliate relationships, or employees other than top management.
- Is there a minimum salary requirement?
No. However, L-1’s are intended for people with valuable knowledge. An unusually low salary could lead to closer scrutiny of the petition and a reduced chance of smooth approval.
- Who usually pays the filing fees?
Anyone or any entity may pay the filing fee. In most cases, the
employer chooses to pay the filing fee, but the employer
is not
required to do so.
- Who usually pays the legal expenses?
Since the employer is the L-1 petitioner, the employer generally pays the legal costs and related expenses. The law does not prohibit reimbursement by the employee.
- Can the L-1 employee’s spouse and children also get visas?
Yes. L-1 workers’ family members may accompany them in L-2 status. A separate application for the spouse and unmarried children may be needed—L-2 status is not automatic. L-2 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the L-1 worker.
- Can the L-1’s spouse and children get permission to work in the U.S.?
The L-2 spouse may apply for permission to work by filing a relatively basic USCIS application form and paying a small fee. The spouse will receive an employment authorization document, which may be renewed annually while in L-2 status. The L-1 worker’s children are not eligible for employment authorization.
- Can the L-1’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?
Yes, spouses and children in L-2 status may attend
school.
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Frequently Asked Questions about
Consular Processing for Nonimmigrant Visas (Temporary Visas)
1. What types of documents and evidence are required as part of the nonimmigrant visa application?
The specific documents required will vary depending on the type of visa application and the procedures at a given U.S. consulate abroad. Some of the commonly required documents are Form DS-156 (the standard nonimmigrant visa application form), a valid passport, a photograph of the applicant to be used in making the visa, an application fee, a machine-readable visa fee, and any supporting documentation that establishes the applicant’s eligibility for the nonimmigrant visa classification sought. In some circumstances evidence of prior approval by the USCIS of a related petition or application will also be required.
2. Where should someone submit a nonimmigrant visa application?
Generally, an individual can apply for a nonimmigrant visa at any visa-issuing U.S. consulate abroad – it need not be located in that person’s home country. However, if an individual was previously issued a nonimmigrant visa and remained in the U.S. beyond the authorized period of stay, he or she must apply for all subsequent nonimmigrant visas at the U.S. consulate in his or her home country.
3. How long does it take to get a nonimmigrant visa after submission of the application?
The processing times vary among consulates. Recently, processing times have ranged from one day to more than three months depending upon multiple case factors. Because of additional consular security measures in effect since September 11, 2001, it is becoming increasingly rare to receive the nonimmigrant visa the same day. Most individuals are required to schedule an appointment so that the consular officer may ask questions about the application. It is best to check with the individual consulate to determine the current processing times for nonimmigrant visa applications at that location. At some consulates, interview appointments are not available until several months in the future. Consular websites often have useful information about local visa procedures.
4. 4. Does a person need to get a new visa every time he or she leaves the U.S. and wants to reenter?
It depends on whether the nonimmigrant visa was issued for one entry or multiple entries and the validity period of the nonimmigrant visa. The validity period of nonimmigrant visas varies depending on the visa classification and the applicant’s nationality. It is important to note that the validity period of a nonimmigrant visa in a passport often differs from the validity period of authorized stay in the U.S. granted by the Department of Homeland Security on Form I-94. The validity period of the visa only relates to the time during which an individual may use that visa to apply for re-admission to the U.S. (e.g. to board an airplane bound for the U.S.).
5. If a person changes employers after admission to the U.S., is the nonimmigrant visa on which the person entered still valid?
If the individual was in an H, L, O or P nonimmigrant category, the visa remains valid as long as the individual remains in that same nonimmigrant status and has a currently valid H, L, O or P petition from their current employer.
6. How does one renew a nonimmigrant visa?
An individual must usually apply to renew a nonimmigrant visa in person at a U.S. consulate in his or her home country or country of last residence. In some cases, a person in the U.S. may be permitted to apply for a visa at a U.S. consulate in Canada or Mexico or a third country instead of their home country.
7. Can a person reapply for a nonimmigrant visa after the original application was denied?
Yes, however, if the initial application was denied because the applicant failed to prove nonimmigrant intent, some consulates may require that person to wait for some period of time (up to 6 months in some cases) before he or she can apply for a nonimmigrant visa again. If a nonimmigrant visa application is going to be denied on substantive grounds, the consular officer should give the applicant an opportunity to provide additional evidence before the final decision is made. Visa denials can sometimes be overcome upon further review. A person who has been refused a U.S. visa for any reason is wise to seek advice from an experienced immigration lawyer before reapplying for a visa.
Borene Law Firm,
P. A. |
Disclaimer
Copyright © 2012 Borene Law Firm, P. A. All rights
reserved.
Revised:
February 16, 2012.