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Reply #55


Response to twins.fan (Reply #35)

Tue Jan 22, 2013, 01:09 PM

55. Several wrong facts in your post

First of all, your H-1B numbers are wrong. USCIS states: "The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. masterís degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap." (Source: www.uscis.gov)

These H-1Bs are only for new petitions. The other numbers you cite are not for new H-1B visas. They are for extensions of status and change of employer (while maintaining H-1B status) petitions. The law allows a maximum stay of 6 years in H-1B status. Furthermore, if certain steps toward legal permanent residence have been met, there are further 7th, 8th and 9th year extensions that can be obtained. These extensions and changes of employer petitions are allowed by law and are not counted against the cap. The cap applies only to those who are seeking the H-1B for the first time. Also, the H-1B category includes fashion models, by the way.

OPT is not a visa. OPT is employment authorization for foreign students who are enrolled at U.S. schools in F-1 status (student visa). There are different types of employment authorization for F-1 students. CPT - curricular practical training - is permission to do an internship outside the school in the field of study, up to a determined period of time (1 year usually). For instance, a chemistry student who is interning with a chemical manufacturer would be allowed to get paid for her work as an intern under CPT.

OPT is for near-graduation to post-graduation temporary employment, usually in the field of study. It allows the F-1 student to work and get paid, although different taxation rules apply. Some F-1 students in OPT status can change their status to H-1B if they meet the requirements and the employer petitions on their behalf.

L-1 visas cannot be given to anyone. They are known as intracompany transfer visas because there are very specific rules on the petitioner (employer). First off, the petitioner must be the parent or wholly owned subsidiary or branch or affiliate of the foreign employer. The employee must have worked for the foreign employer for a specific amount of time in order to qualify (one continuous year within the past three years).

The L visa is divided into two distinct categories, each with its own specific eligibility criteria. The L-1A is reserved for managers and executives. In the past, the definitions of manager and executive were a bit looser. Today, the definitions are clearer and it has become more difficult to prove managerial functions. L-1As are allowed to remain in the U.S. up to 7 years and they can seek permanent residence (skipping step 1 in the process, the dreaded PERM labor certification).

L-1Bs are specialized knowledge workers. This category has a lot more room for fraud and misrepresentation than all other visas you mentioned. Why? Well, for starters there is no requirement for a prevailing wage or even for compensation of any kind. There is no requirement for education (for an H-1B the person must possess at least a U.S. bachelor's degree or foreign equivalent as evaluated by an independent agency). The only requirement is 'specialized knowledge' which has been defined rather loosely in the past and which is now much more narrowly defined.

The B visa is a visitor visa that can be used for those from countries that are not part of the visa waiver accords and/or by those who need to remain in the U.S. for very specific reasons. Some of these include business reasons. For instance, an executive of the foreign branch of a U.S. company needs to attend strategy meetings that will last several months. Or she will need to be involved in training, negotiating contracts, consulting with associates, traveling to a convention or meeting or symposium, etc.

B visa applicants must prove they have sufficient ties to their home countries and that they have evidence of the purpose of the trip.

Now, if someone wants to obtain one of these visas with the intent to commit visa fraud, then the problem is not with the visas, but with the person's criminal intent.

Lastly, some dependents of visa holders are allowed to work legally. These include dependents of L visa holders, some E visa holders, J visa holders, NATO visa holders, etc. Domestic employees of B-1 visa holders are also allowed to apply for employment authorization, as are refugees, asylees, those who are given stays of deportation, etc.

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LineLineLineLineLineLineLineNew Reply Several wrong facts in your post
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