Two years into the COVID-19 pandemic, the United States is now suffering from a crisis-level shortage of health care workers. A shortage already existed pre-COVID; the pandemic exacerbated the shortage. According to a Morning Consult poll published in October 2021, nearly 1 in 5 health care workers have quit their jobs since the start of the pandemic. Of the health care workers who have kept their jobs, about 1 in 5 are considering leaving the health care field altogether. Gaby Galvin, "Nearly 1 in 5 Health Care Workers Have Quit Their Jobs During the Pandemic,"
Similarly, according to data released by the Association of American Medical Colleges in June 2021, the United States could face a shortage of up to 139,000 physicians by 2033, including shortfalls in both primary and specialty care.
In order to address these shortfalls in the health care worker field, one option is to bring foreign health care workers into the United States. Companies can use several nonimmigrant visas to bring a foreign worker into the U.S. The most common are the: H-1B visa, E-3 visa, E-1, and E-2 visas, and the L-1 visa.
The H-1B visa is the most recognized nonimmigrant visa for employment-based immigration. It is also the most controversial. Immigration critics contend that companies use the H-1B visa to take jobs away from U.S. workers by hiring cheaper foreign labor.
Although there is potential misuse of the H-1B visa, the belief that foreign workers can be hired for cheap wages is not accurate. Before an H-1B petition can be filed by a company, a Labor Condition Application ("LCA") must be filed with the Department of Labor ("DOL").
The LCA requires information on the job title, job code (SOC code), job level, and job location. Based upon the job duties and job location, a minimum wage level must be met, known as the Prevailing Wage (PW).
The DOL publishes the Foreign Labor Certification Data Center, which is updated annually on July 1. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. To file an H-1B petition, the employer must meet or exceed this prevailing wage, which helps prevent the hiring of cheap labor.
What is the H-1B visa? It is a visa meant for a specialty occupation, which is defined as an occupation that requires the: 1) theoretical and practical application of a body of highly specialized knowledge, and 2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Further regulations describe the H-1B visa as one which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
To qualify for an H-1B visa, the job must be in a specialty occupation, and the beneficiary of the visa must possess at least a U.S. bachelor's degree or its equivalent as required by the specialty occupation.
The H-1B visa is subject to an annual CAP. Every year, 85,000 new H-1B visas are authorized by Congress. 20,000 visas are issued under the "Master's CAP," where beneficiaries must possess a master's or doctorate degree from a U.S. college or university. The college or university must be accredited and not-for-profit.
The remaining 65,000 visas are issued under the "Regular CAP," awarded to any beneficiary that meets an H-1B visa requirements.
Historically, more H-1B CAP petitions have been filed than the available visas for that year, so the H-1B CAP is typically conducted as a lottery.
For the 3rd year, United States Citizenship and Immigration Services (USCIS) has simplified the H-1B CAP.
Rather than requiring a full H-1B petition to be filed on April 1 to qualify for the lottery, USCIS has implemented a registration system. Names of individuals, along with some other personal information, are entered into the USCIS registration system during March (exact dates determined annually by USCIS), and USCIS conducts the lottery by the end of March. For any registrants chosen in the lottery, the petitioning company then files a full H-1B petition with USCIS, requesting H-1B status effective October 1.
The visa may be requested for a three (3) year duration. For any health care worker that has not been employed in the U.S. on an H-1B visa, they need to be registered for the CAP before any H-1B visa can be obtained for them,
An H-1B visa is a dual-intent visa. This means that foreign nationals may be temporarily present in the United States under a nonimmigrant visa (like the H-1B) while retaining the option of possibly immigrating to the U.S. permanently by filing a green card application.
Once a beneficiary is granted H-1B status, s/he is allowed six years in the U.S. on H-1B status. The H-1B can be transferred to another employer for another specialty occupation position by filing an H-1B transfer petition. If a beneficiary has reached a certain point in pursuing an employment-based green card, s/he is eligible to extend their H-1B status beyond six years. Otherwise, s/he needs to leave the U.S. for at least one year and then reapply under the H-1B CAP.
Dependents of an H-1B worker can come to the U.S. on an H-4 visa. However, an H-4 dependent spouse cannot work in the U.S. unless the H-1B spouse has reached a certain point in pursuing an employment-based green card.
The E-3 visa is very similar to the H-1B visa, except that it is only available to nationals of Australia. Again, the position must be a specialty occupation position, and the beneficiary of the visa must possess at least a U.S. bachelor's degree or its equivalent as required by the specialty occupation. The E-3 visa classification is limited to 10,500 nationals of Australia and is approved in two (2) year increments with no maximum number of extensions. Like an H-1B visa, the E-3 visa requires filing an LCA, which dictates the minimum salary to be paid. The E-3 visa is applied for at a U.S. consulate. However, if the beneficiary is already in the U.S., it is possible to file a petition with USCIS to extend or change that person's visa status in the U.S. to that of E-3.
The E-3 visa, however, only has nonimmigrant intent. Intent is analyzed when an individual enters the U.S. and applies for a nonimmigrant visa. The individual's intent must be to leave the U.S. after the complete term of their visa expires. S/he cannot pursue a green card from within the United States.
Dependents of an E-3 worker can come to the U.S. on an E-3D visa. An E-3D spouse can work in the U.S. incident to his/her status, meaning they do not need an Employment Authorization Document to work.
E-1 and E-2 VISAS
The E-1 and E-2 visa are for treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national. For health care workers, this can be an overseas company that comes to the U.S. to open a health care company here to address shortages.
To qualify for E-1 visa classification, you must:
- Be a national of a country the United States maintains a treaty of commerce and navigation with;
- Carry on substantial trade; and
- Carry on principal trade between the United States and the treaty country, which qualified you for E-1 classification. Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country. Items of trade include but are not limited to: goods, services, international banking, insurance, transportation, tourism, technology, and its transfer, and some news-gathering activities.
Substantial trade generally refers to an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. There is no minimum requirement regarding the monetary value or volume of each transaction. While the monetary value of transactions is a relevant factor in considering substantiality, greater weight is given to more numerous exchanges of greater value. For smaller businesses, the income derived from the value of numerous transactions, which is sufficient to support the treaty trader and their family, is a favorable factor.
Principal trade between the United States and the treaty country exists when over 50% of the volume of international trade of the treaty trader is between the United States and the treaty country of the treaty trader's nationality.
An employee of a treaty trader is also eligible to receive an E-1 visa.
To qualify for E-1 classification, the employee of a treaty trader must:
- Be the same nationality of the principal noncitizen employer (who must have the nationality of the treaty country)
- Meet the definition of "employee" under relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications that make the employee's services essential to the efficient operation of the treaty enterprise.
- Duties of an executive or supervisory character are those that primarily provide the employee ultimate control and responsibility for the treaty enterprise's overall operation, or a major component of it. Special qualifications are skills and/or aptitudes which make the employee's services essential to the efficient operation of the treaty enterprise.
If the principal noncitizen employer is not an individual, it must be an enterprise or organization at least 50% owned by persons who have the nationality of the treaty country.
The E-2 visa allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation;
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Investment is the treaty investor's placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A bona fide enterprise is a real, active, and operating commercial or entrepreneurial undertaking that produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Finally, the investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
An E-2 employee of a treaty investor must meet the same criteria as that of an E-1 employee (listed above).
E-1 and E-2 visas are issued at a U.S. consulate. A U.S. company may also request a change of status to E-1 or E-2 for a nonimmigrant that is already in the United States. The E-1 and E-2 visa are approved in two (2) year increments with no maximum number of extensions. The E-1 and E-2 visas also have nonimmigrant intent. Intent is analyzed when an individual enters the U.S. and applies for a nonimmigrant visa. The individual's intent must be to leave the U.S. after the complete term of their visa expires. They cannot pursue a green card from within the United States.
Dependents of an E-1 or E-2 visa holder can come to the U.S. on an E-1 or E-2 dependent visa. An E-1 or E-2 dependent spouse can work in the U.S. incident to his/her status, meaning they do not need an Employment Authorization Document to work.
The final visa discussed in this article is the L-1 visa.
L-1 visas are available for temporary intracompany transferees who work in managerial positions or have specialized knowledge.
The L-1A visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
To qualify for L-1 visas, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary's stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade. Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify for an L-1A visa, the worker must:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately prior to admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations. Executive capacity generally refers to the ability to make a wide range of decisions without much oversight, while managerial capacity generally refers to the ability to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the ability to manage an essential function of the organization at a high level, without direct supervision of others.
Similarly, the L-1B visa enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. The company's requirements are the same as for an L-1A visa (discussed above), and the worker's requirements are:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admission to the United States; and
- Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. Specialized knowledge either means knowledge you have about the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures.
To request L-1A or L-1B nonimmigrant status, the petitioning company must file a full L-1A or L-1B petition with USCIS. Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A and L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.
An L-1 visa is a dual-intent visa. This means that foreign nationals may be temporarily present in the United States under a nonimmigrant visa (like the L-1A or L-1B) while retaining the option of possibly immigrating to the U.S. permanently by filing a green card application.
Dependents of an L-1 worker can come to the U.S. on an L-2 visa.
An L-2 spouse can work in the U.S. incident to his/her status, meaning they do not need an Employment Authorization Document to work.
Health care worker businesses that want to bring foreign workers into the United States have several visa options. The more common visas are described above, while there are also some less-used, specialty visa options. The regulations pertaining to these visas are complex, and the documentation required is sizable; it is always a good idea to discuss your specific needs with an attorney specializing in U.S. immigration laws.
About the Author
Beata Dejlitko McCann is an immigration attorney for the San Francisco Law Group specializing in employment and investor-based immigration matters. As a former corporate accountant and controller, she enjoys explaining her clients' complex financial and corporate structures to USCIS. Her specialties include H-1B and E-2 nonimmigrant visas, PERM and I-140, AAO appeals, DOL PERM audits, I-9 audits, and federal court litigation. She is a proud first-generation American. She is also a licensed Certified Public Accountant in the State of Illinois.
Beata Dejlitko McCann
Contributor since March 14th, 2022
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