Nonimmigrant Employee in Santa Barbara, CA

H-1B Specialty Occupation:

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

H4 EAD Rescission Rule Update:

As of this moment, H4 spouses of H1B visa holders may apply for and receive employment authorization if the H1B spouse has an approved I-140 Immigrant Petition. The prior administration had issued a proposed regulation to eliminate the ability of H4 spouses to receive employment authorization; however, that proposed regulation has been withdrawn.

Unfortunately, litigation remains pending in federal court challenging the Department of Homeland Security’s (“DHS”) final rule authorizing H4 employment authorization. The court repeatedly stayed further action on the lawsuit because DHS stated it would issue a regulation revoking eligibility of H-4 spouse to receive employment authorization Now that the proposed regulation has been withdrawn, litigation may resume. The federal court case challenging H4 employment authorization is Save Jobs v. DHS and is attached.

H1B update: Secondary Employers and Labor Condition Applications:

New regulations issued by the US Citizenship & Immigration Service (“USCIS”) and the Department of Labor (“DOL”) now require that secondary common-law employers of H-1B workers file a Labor Condition Application (“LCA”) and an H1B petition. A typical arrangement is where a staffing or outsourcing company (primary employer) places an H1B worker with another common law employer (secondary employer). 2019 data published by the DOL showed that approximately 39% of certified LCAs were for placements with a secondary entity.

The DOL defines the term “employer” under the common law master-servant relationship. As the DOL previously explained, “the common-law test requires an assessment of all the factors bearing on the employment relationship, with the right to control the means and manner of work being the key determinant but with no one factor controlling.” USCIS will consider the “totality of the circumstances” when determining where or not an employer-employee relationship exists.

Thus, under both the USCIS and DOL regulations, the mere fact that an entity is a secondary, as opposed to the primary employer of an H1B worker is irrelevant to whether that employer should file an LCA. Rather, the relevant consideration is whether a common-law employment relationship exists between the secondary employer and the H1B worker.

A major concern was that secondary employers were not subject to compliance with the H1B provisions and as a result, US workers employed by the secondary employer could be affected negatively. The DOL provided the following example:

An H1B worker must be paid the higher of the prevailing wage or the actual wage. The actual wage is the wage rate paid by the employer that filed the LCA and H1B petition to all other individuals with similar experience and qualifications for the specific occupation. Let’s say that the primary employer’s actual wage for a software engineer is $70,000 per year and that is what the H1B worker is earning. Now the primary employer places the H1B worker with a secondary employer that pays its software engineers $90,000 per year. Now what?

Prior to the new rules, even if the H1B worker was a common-law employee of the secondary employer and worked alongside software engineers earning $90,000 per year, there was no requirement to increase the H1B workers salary. The DOL was concerned that this arrangement may provide the secondary employer with an incentive to lay off U.S. workers or reduce their salaries and instead contract for H-1B workers.

Under the new rules, secondary common-law employers of H-1B workers must now file an LCA and an H1B petition and be subject to all of the H1B provisions. Looks like the H1B worker in the example is going to get a nice raise.

H-2A Nonimmigrants

H-2B Nonimmigrants

H-3 Nonimmigrants

L-1A Nonimmigrants

The L-1A classification is for aliens coming to the United States temporarily to perform services in a managerial or executive capacity for the same employer (or for the parent, branch, subsidiary, or affiliate of the employer) that employed the alien abroad in a capacity that was managerial or executive in nature, for at least 1 continuous year within the last 3 years. In the case of an L-1A beneficiary who is coming to the United States to set up a new office, the 1 year of experience abroad must have been in an executive or managerial capacity.

L-1B Nonimmigrants

The L-1B classification is for aliens coming to the United States temporarily to perform services that require specialized knowledge for the same employer (or for the parent, branch, subsidiary, or affiliate of the employer) that employed the alien abroad in a capacity that was managerial or executive in nature, or one that required specialized knowledge for at least 1 continuous year within the last 3 years.

Specialized knowledge is either: (a) special knowledge of the petitioning employer’s product, service research, equipment, techniques, management, or other interests and its application in international markets or (b) an advanced level of knowledge or expertise in the employing organization’s processes or procedures.

O-1A Nonimmigrants

O-1B Nonimmigrants

O-2 Nonimmigrants

The O-2 classification is for aliens coming to the United States temporarily and solely to assist in the performance of an O-1 artist or athlete because he or she performs support services that are integral to the successful performance of the O-1. No test of the U.S. labor market is required. The alien must have critical skills and experience with the O-1 which must not be of a general nature or possessed by U.S. workers.

P-1A Nonimmigrants

P-1B Nonimmigrants

P-2 Nonimmigrants

P-3 Nonimmigrants

P-1S, P-2S, or P-3S Essential Support Personnel Nonimmigrants

The classifications are for aliens coming to the United States temporarily as essential and integral parts of the competition or performance of a principal P-1 athlete, athletic team or entertainment group, P-2, or P-3 entertainer or entertainment group, because they perform support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance or services of the principal P-1, P-2, or P-3. The accompanying personnel must have appropriate qualifications, prior experience and critical knowledge of the specific services to be performed by the principal P-1, P-2, or P-3 petition.

Q-1 Nonimmigrant

R-1 Nonimmigrants

The R-1 classification is for aliens coming to the United States temporarily to be employed at least part time (average of at least 20 hours per week) by a bona fide nonprofit religious organization in the United States (or a bona fide organization that is affiliated with the religious denomination in the United States) to work:

Solely as a minister;
In a religious vocation; or
In a religious occupation.

To qualify, the alien must have been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States, for at least 2 years immediately preceding the filing of the petition.

E-1 Nonimmigrants

The E-1 classification is for aliens who are nationals of a country with which the United States maintains a qualifying treaty or an international agreement, or which has been deemed a qualifying country by legislation, and who are coming to the United States to carry on substantial trade principally between the United States and the alien’s country of nationality. The Department of State maintains a list of countries with qualifying treaties. Here is the link: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

TN Nonimmigrants

The TN nonimmigrant classification is for aliens who are citizens of Canada or Mexico covered by the North American Free Trade Agreement coming to the United States to engage temporarily in business activities at a professional level. Depending on the specific type of business activity, a TN must at least have a bachelor’s degree or, in certain limited instances, other appropriate credentials which demonstrate status as a professional. The acceptable types of TN business activities at a professional level are listed here: http://www.nafsa.org/_/file/_/amresource/8cfr2146.htm

Daly Law Office

Assistance for people Who Will Work Temporarily in the U.S.

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