Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The work permit categories most commonly used by companies to transfer skilled personnel are outlined below.

H-1B - specialty occupation professional

The H-1B category allows US employers to hire certain foreign employees in specialty occupations. US immigration regulations define ‘specialty occupation’ as an occupation that normally requires a minimum of a four-year US bachelor’s degree or equivalent for entry.

There is a limit or quota of 65,000 new H-1B visas that can be issued each year. The US sets aside 6,800 of these H-1B visas for citizens of Chile and Singapore.

A separate quota of 20,000 H-1B visas is reserved for beneficiaries who have attained a US master’s degree or higher. Petitions filed on behalf of beneficiaries who hold a US master’s degree or higher will be counted against the regular H-1B quota once the USCIS receives sufficient petitions to reach the advanced degree cap.

E-3 - Australian specialty occupation professional

E-3 visas are available for Australian citizens who meet the criteria for an H-1B visa, as stated above. The number of E-3 visas issued is limited to 10,500 per fiscal year.

Professional under NAFTA

NAFTA establishes the rules of trade and investment between Canada, the US and Mexico. The non-immigrant NAFTA professional (TN) category allows citizens of Canada and Mexico to engage in prearranged business activities in the US as NAFTA professionals. NAFTA provides that a citizen of either Canada or Mexico may work in a professional occupation in the US provided that the following criteria are met:

  • the applicant’s profession is among the 63 occupations listed in NAFTA Appendix 1603.D.1;
  • the applicant meets the specific criteria for the occupation; and
  • the applicant will engage in business activities at a professional level in the occupation.
L-1A or L-1B - intra-company transferee

L-1 status is used to transfer employees from a company abroad to a related entity in the US. L-1A classification applies to aliens seeking admission to the US to assume an executive or managerial role, while L-1B classification is reserved for foreign nationals entering the US to perform work in a ‘specialised knowledge’ capacity. To qualify for L-1 status, an individual must have been employed full-time with a qualifying organisation outside the US for at least one continuous year in the past three years in a position that was either managerial or executive in nature or required the application of specialised knowledge. A qualifying organisation is a US or foreign firm that is or will be doing business on a regular, systematic and continuous basis providing goods or services, or both. Branches, affiliates, joint ventures and subsidiaries are all considered qualifying organisations in the L-1 context.

E-1/E-2 - treaty trader/treaty investor

E-1 or E-2 non-immigrant visa status may be granted based on either substantial trade or investment undertaken by a foreign national or company with the same nationality as a country that has entered into a treaty of commerce and navigation with the US. An applicant for E-1 or E-2 status must be required in the US to provide either managerial direction or highly specialised skills essential to the successful operation of the enterprise.

O-1 - alien with extraordinary ability or achievement

The O-1 non-immigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industries and have been recognised nationally or internationally for those achievements.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

The procedure for obtaining US work authorisation is determined by the category under which an individual applies and his or her country of citizenship.

In most cases, the process begins by filing a petition with USCIS. Once the petition is approved, the beneficiary will apply for a visa stamp (if required) at a US consulate or embassy abroad and then enter the US to begin work.

Some applications for US work authorisation do not involve USCIS. For example, Canadian nationals may apply for admission as a NAFTA professional or L-1 intra-company transferee at a US port of entry, and Mexican citizens are permitted to apply for NAFTA professional status at a US consulate or embassy. In addition, E visa applicants may submit their application directly to a US consulate or embassy. Finally, employers with an approved L-1 blanket petition may direct foreign national employees to apply for L-1 status at a US consulate or embassy abroad without first obtaining an individual approval from USCIS.

A US employer who intends to submit an H-1B or E-3 petition on behalf of a non-immigrant worker must file a labour condition application (LCA) with the DOL. Each H-1B and E-3 petition must include an LCA approved by the DOL.

To prevent an adverse impact on the US workforce, the employer applying to temporarily hire a non-immigrant worker in H-1B or E-3 status must make the following attestations:

  • employment of the foreign worker will not adversely affect the wages and working conditions of US workers similarly employed in the area of intended employment;
  • the employer will pay the foreign national the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment;
  • the employer will notify employees that an LCA is being filed; and
  • at the time the application is signed, there is no strike, lockout or work stoppage related to a labour dispute in the occupation.

In most situations, employment cannot commence until the individual has been admitted to the US in work-authorised status.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

Classification in the H-1B, TN, L-1 and O-1 categories is normally granted for an initial period of three years. In most instances, E-3 visas are issued with an initial validity period of two years. E-1, E-2 and L-1 visas may be issued for up to five years, but individuals are often only admitted to the US for two or three years at a time.

Extensions are permitted for most visa categories. The number of extensions permitted and the total amount of time that a person may remain in the US depends on his or her category. See question 27.

Processing time

How long does it typically take to process the main categories?

The length of time required to adjudicate a US immigration petition varies considerably depending on the specific category, application procedure and current government processing times relating to the filing in question.

Canadian citizens seeking status as a NAFTA professional or intracompany transferee may apply at a US port of entry, which typically results in an on-the-spot decision. However, there is currently a pilot programme at the Blaine port of entry that may affect this in the future.

Most applications filed with USCIS take several months to be processed, although certain types of cases may be submitted for premium processing service for an additional fee of US$1,410. USCIS guarantees 15-calendar day processing of applications filed for premium processing, which is typically prolonged if there is a Request for Evidence.

Individuals who require a visa to enter the US must apply for a visa stamp at a US consulate or embassy. Wait times vary by visa post and fluctuate depending on the volume of applications received. During busy periods, it may take several weeks to secure a visa appointment. Following the appointment, the US consulate or embassy will usually take five to seven business days to provide the actual visa stamp.

Some visa applications require ‘administrative processing’, which involves completion of additional checks before a visa stamp will be issued to an applicant. Administrative processing is usually complete within 60 days of a visa interview, although it may take several months to conclude.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

An employer who intends to file either an H-1B or E-3 application on behalf of a foreign worker must attest that the individual will be offered benefits and eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to US workers.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

US immigration authorities generally follow objective criteria, but they are also permitted to exercise discretion based on subjective factors. For example, the adjudication of an L-1B petition requires careful consideration of certain objective criteria; however, the final determination as to whether the beneficiary is a ‘specialised knowledge’ worker will often turn on the officer’s subjective reasoning. In October 2017, a USCIS policy memo was issued requesting adjudicators to no longer give deference to prior case approvals.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

There are two visa categories that may be considered a special route for high net worth individuals or investors.

EB-5 - Immigrant Investor Program

USCIS administers the Immigrant Investor Program, also known as EB-5, created by Congress to grant US permanent residence to foreign investors who stimulate the US economy through job creation and capital investment. EB-5 visa holders must generally invest a minimum of US$1 million in the US, although a minimum investment of US$500,000 may suffice if the foreign national invests in either a rural area or an area with high unemployment. On 24 July 2019, a final rule was published that makes significant changes to the EB-5 programme, including increasing the standard minimum investment amount from US$1 million to US$1.8 million, and the minimum investment amount for a targeted employment area from US$500,000 to US$900,000, effective from 21 November 2019.

E-2 - treaty investor

The E-2 non-immigrant visa category allows a citizen of a country with which the US maintains a treaty of commerce and navigation to enter the US to develop and direct the operations of an enterprise in which the individual has invested or is in the process of investing. The investment must be substantial, which is interpreted to mean that it is sufficient to ensure the successful operation of the enterprise. Moreover, the investment must be operational; speculative, passive or idle investments do not qualify. The foreign national must also have control over the funds and the investment must be subject to loss if the enterprise fails.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16 regarding the EB-5 programme.

Highly skilled individuals

Is there a special route for highly skilled individuals?

The US provides H-1B visas for specialty occupation workers, L-1B visas for specialised knowledge workers and O-1 visas for extraordinary ability workers. There are also permanent residence routes for those with extraordinary ability and exceptional ability, as well as for outstanding researchers and professors.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Certain additional non-immigrant visa categories are available to foreign nationals based on their nationality (ie, E-1, E-2, E-3, TN and H-1B1). There are also special provisions for certain First Nations and Native Americans. Specifically, under the Jay Treaty, Native Indians born in Canada are entitled to freely enter the US for employment, study, retirement, investing or immigration. Also, certain people may find themselves to be US citizens by virtue of their birth to a US citizen parent.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

Employers who file either an H-1B or E-3 application on behalf of a foreign national must attest that the individual will be paid the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment. The prevailing wage is determined by the DOL based on wage survey results. The actual wage is the salary paid to employees in the same or similar role as the one to be assumed by the foreign worker.

Resident labour market test

Is there a quota system or resident labour market test?

The US issues an annual quota of 65,000 H-1B visas for specialty occupation workers and 10,500 E-3 visas for Australian citizens who meet the criteria for an H-1B visa.

In recent years, the H-1B cap has been met within the first week of the date on which the US government began accepting applications for the next fiscal year.

Although the E-3 visa category is also subject to an annual quota, it has never been met.

There is no labour market test for the main categories.

Shortage occupations

Is there a special route for shortage occupations?

No. Although occupations in which there is a notable shortage of labour may be taken into account in the design of US immigration law, the focus of the regulations is the requirement to obtain certain immigration benefits, rather than on specific occupations.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

No.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

It is typically necessary for an employer to establish that it has a valid employer-employee relationship with the sponsored foreign worker, meaning that the employer has authority to hire, fire and pay the individual. In addition, the employer should exercise the right to control the means and manner in which the beneficiary performs the job. No single factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the required employer-employee relationship exists.

An exception to the above is that petitions filed for aliens with extraordinary ability or achievement in the O-1 category may be filed by an agent as opposed to an employer.

It is generally permissible for an employer to enter into a contract with another party to provide services to be performed by a US visa holder, so long as a bona fide employer-employee relationship exists between the sponsoring US employer and the foreign worker at all times. In the event that the contract requires the visa holder to provide services at an end-client or third-party location, this information must be disclosed in any H-1B, E-3 or L-1 petition filed by the employer, along with documentation that establishes the existence of the required relationship even while the beneficiary works off-site.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

The H-1B and E-3 visa categories require an expert evaluation of any degrees not obtained in the US. If a beneficiary does not have a four-year US bachelor’s degree or foreign equivalent, or the individual has a degree that is not in a relevant field, then it may also be necessary to obtain an evaluation of the individual’s professional experience.

An academic equivalency assessment may also be required for certain NAFTA professionals who do not hold a degree from a US, Canadian or Mexican educational institution.

If the position that the foreign national will assume in the US requires membership in professional associations or guilds, completion of tests relating to medical knowledge, etc, then evidence that the foreign national meets these requirements should be filed with the application.