Immigration Law

Requirements to Participate in the H-1B Program

The Immigration and Nationality Act (INA) as amended by the Immigration Act of 1990 (IMMACT) and various subsections (e.g., § 212(n) and § 214) of the INA (8 U.S.C. § 1182(n); § 1184)) has created the H-1B classification for temporary employment of foreign workers in the United States in specialty occupations or as fashion models. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the United States. The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B workers.

All employers who employ an H-1B nonimmigrant must comply with the following:

  • Maintain a Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with true and accurate information for each permanent work site;
  • Pay the H-1B worker the “required wage rate” applicable to each permanent work site;
  • Offer the H-1B worker the same working conditions and fringe benefits that are offered to similarly employed U.S. workers;
  • Not employ an H-1B worker where there is a strike/lockout in progress in the worker’s occupation;
  • Notify workers or their bargaining representative of the intent to employ an H-1B worker at any location where other workers are in the same occupational classification for which an H-1B worker is sought or placed;
  • Provide a copy of the LCA to each H-1B worker;
  • Not allow or require the H-1B worker to pay the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) petition filing fee;
  • Not require the H-1B worker to pay any early cessation penalty;
  • Not retaliate or discriminate against any worker who (a) discloses information that (the worker believes) shows a violation of this program or (b) cooperates with any proceeding concerning the employer’s compliance with this program;
  • Provide the H-1B worker with payment for all work-related expenses; and
  • Notify the USCIS of any changes in the H-1B non-immigrant’s work status.

Additional requirements for H-1B-dependent or willful violator
employers with LCAs filed prior to October 1, 2003 and after March 7,
2005.

  • No displacement of a similarly employed U.S. worker beginning 90 days before and ending 90 days after the filing of an H-1B visa petition;
  • Mandatory inquiry as to the secondary employer’s action or intent to displace a U.S. worker beginning 90 days before and ending 90 days after the placement of an H-1B worker with the secondary employer before placing an H-1B worker at a secondary employer’s work site to perform services, where there are indicia of an employment relationship between the H-1B worker and the other employer (thus possibly affecting the jobs of U.S. workers employed by the other employer), and
  • Recruitment of U.S. workers before seeking an H-1B worker.
  • Offer employment to an equally or better qualified U.S. applicant for the job for which H-1B workers are sought (enforced by the Department of Justice).

The above special additional requirements applicable to H-1B-dependent and willful violator employers sunset on October 1, 2003, but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).


The O-1 visa is designated for individuals who possess extraordinary ability in the sciences, education, business, arts or athletics and individuals of extraordinary achievement in the motion picture and television industries. The individual must provide documentation to prove that the individual’s ability has been recognized through sustained national or international acclaim. The USCIS (former INS) makes the final decision on whether or not the individual qualifies for the O-1 visa.

The TN Visa is designed for Canadian and Mexican citizen under the NAFTA treaty. Citizens of Canada and Mexico may apply for the TN visa if they are of a profession listed on the NAFTA agreement, and they have a job offer in the U.S. with a company that requires such a professional. Although TN visa applicants can work as a full-time or part-time employee, self-employment is not permitted. Applicants must be able to present proof of their credentials and qualifications for the profession. Additionally, spouses and children of TN visa holder may come with a derivative TD visa.

The R Visa is for ministers of religion and full-time religious workers. R visa may not be appropriate for many visitors even though their visit to the U.S. is for religious activity. Those individuals may opt to apply for the tourist visa (B1/B2). An R visa applicant must be a member of a religious denomination having a bona-fide nonprofit, tax-exempt religious organization or at least an affiliation in the U.S. The applicant must have been a member of the denomination for 2 years immediately preceding the application. The applicant must enter the U.S. solely to carry out the vocation of a minister or to work full-time in a religious occupation for that denomination or affiliated organization.

Citizens of qualifying countries who undertake a significant amount of international trade with the United States may qualify for E1 Visa. The volume of such trade must be sufficient to justify the need for the E1 visa holder being in the U.S. to manage the trade. The trade with U.S. must also constitute the majority of the trader’s international trade (approx. 50%). Although no set minimum level of trade is considered sufficient automatically, the lower the volume of trade obviously carries less likelihood that a E1 visa will be granted.

Citizens of qualifying treaty counties who have made a significant investment in the United States may qualify for E2 Treaty Investor status. Similar to the E1 visa, the lower the investment is, the lower
the chance that the E2 Visa will be granted. The level of investment must be sufficient to justify the individual (or his or her employees) being in the United States. A substantial part of the investment must have been made before the E2 visa application can begin, and the investment must be in an operating business. Simply buying property or stocks and bonds does not qualify.

L Visas are typically used by managerial level personnel in international companies when they are transferred to a subsidiary or partner company in the United States. Also, when a multi-national company is developing a new market in another country, an L visa may be used for employees with specialized knowledge to work in the newly established office. Start-up companies can also take advantage of the L visa for its business needs as long as the requirements are met. USCIS (former INS) will scrutinize L visa petitions more closely if filed by a less well-known company.

M-1 Visa Students. People who wish to pursue full-time academic or vocational studies are usually admitted to the United States in one of two nonimmigrant categories. The M-1 category includes students in vocational or other nonacademic programs, other than language training. The F-1 category includes academic students and students in language training programs.
H-1B Professional Workers & Fashion Models

The H-1B category applies to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability.

H-1B1 Specialty Occupations
The H-1B1 category applies to an alien coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring
completion of a specific course of higher education.

H-1B2 Research and Development Project

The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

H-1B3 Fashion Model

The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a
position requiring someone of distinguished merit and ability.

Petition Document Requirements for Fashion Models

The petition should be filed by the U.S. employer with:

  • A certified labor condition application from the Department of Labor;
  • Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
  • Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
  • Has performed and will perform services as fashion model for employers with a distinguished reputation;
  • Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
  • Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
  • Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
  • Involve an event or production which has a distinguished reputation; or
  • The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.
Share and Enjoy:
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law
  • services sprite Immigration Law