Millions of nonimmigrant professionals employed by multinational companies or accepting a “specialty” job position in the United States use the L-1 and H-1B temporary visas to legally enter and work on U.S. soil. Each type of visa has its own distinct set of requirements and regulations, but both have a few primary similarities:
- They allow dual intent, meaning that visa holders can apply for a green card without demonstrating ties to their home country or jeopardizing the status of their temporary visa.
- They are subject to a time limit. An L-1A visa for executive or management positions at a multinational company lasts up to 7 years, while an L-1B visa for employees of a multinational company with “specialized knowledge” lasts up to 5 years. An H-1B visa — for employees possessing a bachelor’s degree and working in a specialty occupation — lasts up to six years.
These time limits pose a real challenge for many nonimmigrant professionals who strive to continue living and working in the U.S. once their temporary visas expire. Often, they find that their labor certifications applications, immigrant petitions, and other official paperwork have been tied up in extended processing delays, leaving them up against their deadline and facing the prospect of having to return to their country of origin.
Fortunately, there are some possible solutions to the L-1 and H-1B time limit problem. The employment-based immigration lawyers here at Klasko Immigration Partners, LLP, have devised a few strategies for working around time limits. We summarize those strategies below.
HOW TO AVOID TIME LIMITS
The following four categories of workers are not subject to H-1B or L-1 time limits.
- Seasonal employees whose work is tied to a particular season, recurring every year;
- Intermittent employees whose duties require them to spend a significant amount of time outside the U.S.;
- Employees working in the U.S. for six or fewer months per year;
- Employees residing in another country and commuting to the U.S. for part-time work.
It’s possible to avoid time limits on a temporary visa by presenting evidence that an employee does, in fact, fall into one of these categories. To qualify under the first three categories, a worker must demonstrate that he or she did not “reside continually in the U.S.” and rather maintained a primary residence abroad.
HOW TO EXTEND TIME LIMITS
Workers who are not exempt from time limits can attempt to extend their length of stay in a number of ways. Here are a few possible strategies for extending a temporary visa.
- Delaying commencement of time when applying for a change from L-1 to H-1B status. Changing over from L-1 to H-1B is common among nonimmigrant professionals, as the H-1B is not limited to employees of multinational companies and offers the freedom to change employers.
- Confirming the correct start date for the temporary visa. This should not be the approval date for the L-1 or H-1B petition or the start date for the job. It should be the date of arrival in the United States.
- “Recapturing” time spent out of the U.S. When calculating the five, six, or seven years allowed by a temporary visa, only time actually spent in the U.S. officially counts. It’s possible to “recapture,” or add time on to the visa by showing that an individual traveled overseas on vacation or for work assignments.
By extending a time limit on a temporary visa, a worker may be able to buy the additional time necessary to apply for permanent residence or employment authorization.
WHAT TO DO WHEN TIME LIMIT IS REACHED
Some nonimmigrant workers may find themselves facing the end of their five-, six- or seven-year time allotment and looking for a way to continue living and working in the U.S. Here are a few possible strategies:
- Filing an extension — A nonimmigrant worker attempting to “recapture” time spent outside the U.S. and thereby extend their temporary visa can file an extension. Whether or not it is granted, that individual can remain employed for an additional 240 days while the petition is being considered.
- Petitioning for a change of category — For example, someone with L-1B status (five-year limit) can apply for L-1A status (seven-year limit).
- Applying for “adjustment of status” from temporary to permanent. When awaiting the adjudication of an application for permanent residence, a temporary visa holder is allowed to remain in the U.S. past any time limits. The individual can also apply for employment authorization at the same time, which, if approved, would grant the freedom to pursue any job opportunities on U.S. soil.