The H-1B Visa and L-1 Visa are both non-immigrant visas which permit employers to legally bring certain types of employees and specialists into the United States on a temporary basis. However, there are many significant distinctions between the L-1 and the H-1B with which workers and employers should familiarize themselves. Having a basic knowledge of the fundamental differences will help you keep your application efforts as focused and efficient as possible. In this blog post, our L-1 Visa attorneys will explain the eligibility criteria for H-1B and L-1 Visas, and explore some of the pros and cons associated with each. Which is the right choice for you?
Eligibility Requirements: Who Qualifies for an H-1B Visa?
U.S. Citizenship and Immigration Services, or USCIS, reports that nearly 125,000 H-1B filings were received in the first quarter of 2013 — a total which far surpasses the annual USCIS cap of 65,000 H-1B Visas per fiscal year, exempting the first 20,000 applications filed on behalf of persons holding master’s degrees.
While the H-1B is a popular choice, these annual caps taken in combination with USCIS’ stringent eligibility criteria can make qualifying a challenge. In order to be approved for an H-1B Visa, the following requirements must be satisfied:
- The U.S. employer must demonstrate a need for specialized employees. This is sometimes referred to as a “specialty occupation.”
- In addition to working within a specialty occupation, the employee must also satisfy certain educational requirements. At minimum, he or she must have obtained a bachelor’s degree, which furthermore must be relevant to the specialty occupation. The connection between the degree and the occupation must be substantiated by evidence, with acceptable documentation including:
- A written expert opinion detailing the relationship between the degree and the occupation. (Note that the applicant him- or herself may also prepare this opinion.)
- Written information, printed from reliable internet resources, explaining the relationship between the degree and the occupation.
- Evidence, such as printed job descriptions, that similar job opportunities in the field have comparable degree and work experience requirements.
- The petitioner must be able to demonstrate that the employee will be paid appropriate wages: more specifically, “at least the actual or prevailing wage for your occupation, whichever is higher.” The U.S. Department of Labor, or DOL, maintains a database detailing the “prevailing wage” for differing occupations.
There is one notable exception to the education requirement: H-1B applicants who have not obtained bachelor’s degrees may be able to substitute practical, hands-on industry experience instead. Each three-year period of industry experience may be “counted” as one year of college experience, provided the experience is reviewed and approved by a certified agency.
Any U.S. company can petition for an H-1B on behalf of an employee, provided he or she meets the education, work, and knowledge/skill requirements described above.
L-1 Visa Approval Criteria
The L-1 Visa, which sometimes referred to as the Intra-Company Transfer Visa, is actually divided into two separate subcategories: the L-1A, and the L-1B. The L-1A is applicable to persons in upper-level positions, such as company managers and executives, while the L-1B is designed to accommodate persons with “specialized knowledge.”
While the terms “specialized knowledge” and “specialty occupation” sound similar, this apparent overlap is misleading. It is important to emphasize that these terms are not synonymous or interchangeable, and a person who meets the L-1B requirement does not necessarily meet the H-1B requirement (or vice versa). USCIS supplies two definitions, in accordance with 8 CFR 214.2(l)(1)(ii)(D), for what constitutes “specialized knowledge” in the context of an L-1B application:
- “Special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets.”
- “An advanced level of knowledge or expertise in the organization’s processes and procedures.”
With these considerations in mind, let’s take a closer look at the L-1 Visa eligibility requirements:
- In contrast to the H-1B, only international companies may file for L-1 Visas. This may involve a company which:
- Is based in a foreign country, but maintains at least one office in the United States.
- Opens a subsidiary company in the United States.
- Partners with a U.S. company in a joint venture. (Note that in this scenario, the non-U.S. partner must own more than half of the U.S. partner’s stock.)
- The employee for whom the visa is being sought must have been employed at the company for at least one year during the past three years. This year-plus of employment must be substantiated by evidence such as:
- Tax Returns
- Pay Stubs
- Payroll Documents
- The company will continue to operate so long as the person being transferred remains in the United States.
- The company will secure enough physical space to feasibly operate in the U.S. In addition to being sufficiently large, this space must also be “active and operating within one year after the L-1’s admission to the United States,” in cases where the visa will be renewed beyond the initial duration granted. Moreover, the employer must demonstrate the financial means to adequately compensate the employee. These requirements are further detailed at 8 CFR 214.2(l)(3)(vi).
Employers petitioning for L-1 approval may also be subject to the L-1 Visa Reform Act of 2004, which affects all L-1 applications filed on or after June 6, 2005. Under the Reform Act (which primarily affects L-1B applicants who will work at non-petitioning employer worksites), employers must prove that:
- Main control and/or supervision will still come through the petitioning employer, not the unaffiliated employer who actually maintains the worksite.
- The work to be performed by the L-1B petitioner would not be classified as hired labor for the unaffiliated employer.
Pros and Cons: Which Type of Work Visa is Right for You?
Their corresponding eligibility requirements aren’t the only differences between the L-1 and the H-1B. On the contrary, each of these visa types comes with its own unique set of pros and cons which must be weighed carefully by sponsors and applicants, ideally with help from an experienced H-1B Visa lawyer.
Consider, for example, the following factors:
- Duration
- H-1B — Will initially remain valid for three years. However, the visa holder may later apply for renewal, potentially extending the initial three year period to a length of six years. The six-year period may be further extended in certain situations.
- L-1A — Will initially remain valid for one to three years depending on the circumstances, with renewals setting a maximum duration of seven years.
- L-1B — Will initially remain valid for one to three years depending on the circumstances, with renewals granting up to five years.
- Spouse Employment
- H-1B – While previously spouses of H-1B holders were not authorized to obtain Employment Authorization Documents or EAD, recently the Obama Administration has changed some of the requirements allowing some H-1B spouses to be able to obtain employment. An H-1B spouse (and minor children) may accompany the H-1B holder and may seek further education under any circumstances.
- L-1 — Permits spouses of L-1 Visa holders to obtain EAD. For this reason married persons often prefer to utilize the L-1 where possible. An L-1 holder’s spouse may receive an L-2 Visa, may work for any type of company or employer without restriction, and/or may pursue further education. (Note the dependent children of L-2 holders, unlike the L-2 holders themselves, are ineligible for EAD.)
- Education
- H-1B — H-1B holders must have earned a bachelor’s degree or higher (or have equivalent work experience).
- L-1 — There is no degree requirement associated with the L-1 Visa.
- Annual Caps
- H-1B — As noted above, only 65,000 H-1Bs may be approved each year, plus another 20,000 strictly reserved for persons with master’s degrees. Even if you are perfectly qualified in every other way, caps alone may prevent an approval.
- L-1 — No caps. Annual L-1 approvals are not subject to quantity restrictions, meaning you won’t be denied exclusively because too many others have already been approved.
- Green Card
- H-1B — If you are an employer, and your employee is seeking a green card, you must file for PERM Labor Certification.
- L-1A — L-1A holders can bypass the H-1B PERM Labor Certification requirement by filing for a green card in the EB-1 category. USCIS further divides the EB-1 into three subcategories, each of which are subject to numerous criteria: (1) “Extraordinary Ability,” (2) “Outstanding Professors and Researchers,” and (3) “Multinational Managers or Executives,” i.e. L-1A Visa holders. In this scenario, the employer would be required to file USCIS Form I-140 (Immigrant Petition for Alien Worker). Employers may also wish to submit USCIS Form G-1145 (E-Notification of Application/Petition Acceptance).
If you’re considering filing for a green card, H-1B Visa, or L-1A or L-1B Visa, don’t attempt to navigate the complex immigration system alone: get trusted legal advice from the experienced work visa lawyers of Colombo & Hurd. Our knowledgeable team of attorneys can handle your paperwork and documentation, guide you through each and every step of the legal process, protect your legal rights, and help you make advantageous and strategic decisions.
To begin exploring some of your options in a free and completely confidential case evaluation, call our law offices today at (800) 659-7142.
