U.S. company wants to transfer an engineer from the Philippines to the United States. The engineer will work temporarily on a construction project the firm has undertaken. The Engineer has been employed by the foreign affiliate for less than one year and therefore would not qualify for L-1 consideration. Under these circumstances, the foreign employee, although ineligible for an intracompany transfer under the L-1 category, can obtain an H-1B visa to work in the U.S.

The same situation as above would apply if the foreign affiliate and U.S. Company were not linked in a manner acceptable to affect an intracompany transfer under the L-1 category; the H-1B visa category could be used.

If the H-1B category does not seem appropriate for a particular alien employee, consider these alternatives:

The L-1 Category

The benefits of the L-1 category, particularly for managers and executives, are so great that this category should be considered even if the H-1B category applies. Remember: The employee must have been employed with an affiliate of the U.S. employer for one continuous year within the preceding three years.

The E-1 and E-2 Category

If the U.S. Company can qualify under a treaty of commerce and navigation between the U.S. and the country of the company’s "nationality," then alien employees may be eligible for these visas. Employers who have already demonstrated their company’s eligibility for E classification at a U.S. consulate often prefer to use the E category over the H-1B or L category because of the relative ease of qualifying individual employees at the same consulate and the lack of a prior INS partition as required for the H1_b and L categories.

The H-2B Category

If the employee will fill a temporary position-the employer’s actual need for someone with the alien’s skill is temporary- the H-2B category can be used. This category is more cumbersome than H-1B category, however, because a certification must first be obtained from the Department of Labor that qualified U.S. workers are unavailable to fill the temporary positions being offered to the alien worker.

The H-3 and J-1 Category

If the main purpose of the U.S. assignments is to acclimate the alien employee to U.S. business methods or to teach the alien the company’s own practices, procedures or product, his or her temporary employment in the U.S. may properly be viewed as a period of training; in this case, the alien may be eligible to enter the U.S. on a nonimmigrant trainee visa.

The H-1C Category

With the regard to nursing position, the Nursing Relief for Disadvantage Areas Act of 1999 creates a new H-1C nonimmigrant category for foreign nurses who will work in medically under-served areas of the U.S. This category is limited in scope. To participate in the H-1C program, the health care facility must:

• Be located in a health professional shortage area (HPSA)

• Have at least 190 acute care beds

• Have had, since 1994, a Medicare population of at least 35 percent; and

• Have had, since 1994, a Medical Population of at least 28 percent. Facilities participating in the program must take LCA-type attestations designed to protect the wages and working condition of U.S. nurses/An annual cap of 500 new H-1C admissions is established and the program sunsets four year after implementing regulation are issued (such rules must be published by February 10,2000). The INS has not yet issued regulations as of February 1,2000.

Note: The INS has held that an employer can simultaneously file alternative petitions for the same employee, e.g., an H-1B and L-1 petition. This course of action might be desirable in cases in which the alien’s qualification for one classification is uncertain, such as an alien who may have specialized knowledge as defined by the L-1 category and who may also have professional qualifications as defined by the H-1B category, when in each case the alien’s credentials make a marginal case. If both petitions are approved, however, the employer and the alien must choose which category it wants to use. The alien cannot be admitted to the U.S. or change nonimmigrant status to two different nonimmigrant categories simultaneously.

The BCIS Doesn’t Issue Visas But Can Change Your Status

Visas are issued by consuls not by the Bureau of Citizenship and Immigration Services (BCIS, the old name was INS). Since consuls are located only outside the U.S., visas are issued only when the applicant is in a foreign country. When the person is outside the U.S., questions about visas and other matters are taken care of by the U.S. State Department (foreign ministry) through consuls. When a person is physically in the U.S., it is the BCIS that has jurisdiction, not the State Department.

Though a visa cannot be issued in the US, if a person already has a visa in a valid passport and is in legal status in the US, the visa can be RENEWED while in the US by application directly to the US Department of State. This is possible only for holders of certain types of visas including H, L, E, and a few others. Student visas and Visitor visas cannot be renewed in the US.

So, when in the U.S. you ask the BCIS to change your status; when you are outside the U.S., you ask a consul to issue a visa. The status and the visas are given the same name to avoid confusion. A person might request a change to L-1 status while here then, later when outside the U.S., the person would request an L-1 visa from the consul. Both are referred to as "L-1". To obtain a change from one visa status to another, it usually requires that a petition be submitted and approved by the BCIS.

Let’s talk about when a visa is necessary. When a person is in the U.S. and changes status, say from F-1 student to H-1B professional worker, the status change given and approved by the BCIS is good for the validity of the approved petition, perhaps from one to three years depending on the type of status and other factors. However, and this is important, if the person leaves the U.S., they no longer have a status here since they are no longer under the jurisdiction of the BCIS. The person must request and receive a visa (H1-B in this example) from a U.S. consul. Without the new visa, the person will be refused entry to the U.S. even though the person has an approved and valid petition from the BCIS.

A visitor can apply to change to Student Status while in the US only if the visitor declared the intent to be a student at the time they arrived in the US.

Here are a few remarks about getting a visa from a consul based on an approved BCIS petition. It is good to remember that the person does not have to leave the U.S. just to get a visa. The person may remain in the U.S. with the BCIS status for as long as the approved petition is valid and for any approved extensions. It is only if the person chooses to leave the U.S. that an application for a visa must be made to the consul.

Unfortunately, a consul is not bound by the BCIS approval. The consul may make further inquiry to see if the person is qualified for the visa. In countries with high rates of visa fraud, this can cause delay and even refusal of the visa by a consul. A consul has a right to return the approved petition to the BCIS for review if the consul believes it was approved in error. For this reason, some people choose to go and apply to a U.S. consul in Canada or some other country rather than return to their own country.

Two other points are important. In order to change or extend status while in the U.S., the person must be in legal status at the time the petition submitted to the BCIS. An out of status person will not be able to change or extend status while in the U.S. (as with most others, this rule has its exceptions.) And to state the obvious, if the person is not in the U.S. when the petition is approved, then the person must obtain a visa from the U.S. consul before entering the U.S. An approved petition cannot be used as a visa.