07/17/2001
A. H-1B Visa - Specialty Occupations
A NYMEX member firm could hire IPE traders/clerks by sponsoring them for an H1-B visa status.
Who is eligible: The H-1B category covers temporary workers (which can be for a period of up to six years) who will perform services in a "specialty occupation" and who possess the requisite education and/or experience. Generally, the H-1B category requires that the position offered requires:
- at least a bachelor's degree in a specific field of study and that the individual have at least a bachelor's degree or - the equivalent work experience combined with education in a related field.
In discussing this issue with outside immigration counsel, we have been advised that due to the specialized skills of a futures trader the education requirement would not be a problem in seeking this type of visa.
Time to Obtain: It has been estimated that the H1-B visa processing time is approximately 45-90 days; however, the INS is in the process of instituting a procedure whereby for an additional fee ($1,000), these visas can be expedited in two weeks.
Term/Limitations of Visa: H1-B visas are limited to a total of six years in H1-B status (granted in no more than three-year increments). There are exceptions to these limitations for employees who visit the U.S. intermittently.
Mechanics of Application: Before the U.S. company where the individual will work can file the H-1B petition with the Immigration and Naturalization Service ("INS"), it must first file a Labor Condition Application ("LCA") with the U.S. Department of Labor ("DOL"). LCAs typically are processed within 48 hours; however, if the processing system is not functioning, which happens from time to time, it can be delayed up to several weeks. Once the LCA is certified by the DOL, the U.S. company can file the H-1B petition with the INS Regional Service Center that has jurisdiction over the intended place of employment in the United States. Once approved, the individual can apply for his or her visa at the appropriate U.S. consulate abroad.
B. L Visa - Intra-company transfer
Another alternative would be for member firms to move U.K. based-employees to the U.S. through an intra-company transfer.
Who is eligible: The L visa category covers workers who will be temporarily transferred from a company abroad to a related company (parent, subsidiary, branch or joint venture) in the United States to serve in executive, managerial, or specialized knowledge capacities. This generally applies only to individuals who have worked for the sponsoring employer for at least one year in the past three years.
Term/Limitations of Visa: The L visa is for a period of up to five years (specialized knowledge) or seven years (managers and executives).
Time to Obtain: The L-1 visa can be generally obtained in approximately four weeks.
Mechanics of Application: The L-1 petition must be filed with the INS and approved before the individual can apply for his or her L-1 visa at a U.S. consulate abroad. The petition is filed with the INS Regional Service Center that has jurisdiction over the intended place of employment in the United States. Once approved, the individual can apply for his or her visa at the appropriate U.S. consulate abroad.
In addition to the above types of visas, there is one other which merits attention:
C. E-2 Visa - Treaty Investor Status
This type of visa is used to facilitate investment in the United States.
Who is eligible: The E-2 visa is available when the foreign national determines to expend significant investment in an entrepreneurial company in the United States or is employed by such an entity.
The entity itself must be qualified for E-2 status by providing information that demonstrates several requirements, including the following:
- the entity is at least 50% owned by non-U.S. nationals
- the investment is "bona fide", i.e., a real and active enterprise and has met all legal requirements for doing business in the U.S.
- a "substantial" investment must be made
- the investment must not be "marginal", i.e., the investment must have the capacity to contribute to the local economy
Term/Limitations of Visa: E-2 visas can be obtained for period of two to five years but are more easily renewed as long as the underlying investment continue to be a viable operation.
Time to Obtain: It has been estimated that the visa can take four to six weeks to obtain.
Mechanics of Application: Persons seeking a visa to work in the United States in E-2 status may apply directly to a U.S. Embassy or Consulate without prior approval from the INS. There is a two-step procedure for obtaining the E-2 visa at the U.S. Embassy or Consulate. First, an application must be submitted to the U.S. Embassy or Consulate to qualify the company for treaty investor status. When the company has obtained such status, prospective employees with the same nationality as the company can apply for E-2 visas at the U.S. Embassy or Consulate.
The company's application is made on a special E visa questionnaire, the Form OF-156E ("Nonimmigrant Treaty Trader/Investor Visa Application: Supplement to Form OF-156"). Each U.S. Embassy or Consulate has its own application procedures that must be completed before an applicant can obtain an E-2 visa. In addition to these forms, the U.S. company (or its foreign parent or affiliate) will need to provide a detailed letter in support of the application, in addition to the relevant documents for E-2 qualification.
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The foregoing is intended to provide you with an general overview of the visas which that may be obtained to allow a foreign national entry into the United States for employment purposes. Since the visa application process must be tailored to the credentials of the person seeking the visa and is very fact-specific, more specific details of the process should be obtained from contacting legal counsel specializing in immigration law. Many of the larger law firms have attorneys devoted to immigration work. However, if assistance is needed in obtaining such counsel or you have any other questions related to this memorandum, please feel free to contact Christopher Bowen, Senior Vice President and General Counsel, at (212) 299-2200 or Barry Loyal, Associate General Counsel, at (212) 299-2203. In addition, pertinent information related to the foregoing may be found on the United States Immigration and Naturalization Service's website at www.ins.usdoj.gov.