H-1 and L-1 Visas

NSPE Position

  • NSPE supports the use of PEs who are licensed and trained in U.S. ethical practices.
  • In NSPE's view, the H-1B program decreases the use of PEs and allows engineers who are not trained in U.S. ethical practices to perform engineering services, which is detrimental to the public health, safety, and welfare.
  • NSPE opposes increasing the H-1B cap above the current level.

Background
Recent economic trends in the U.S. and elsewhere (e.g., India, Russia, and China) have resulted in competitive challenges to the U.S. engineering profession. Increasingly over the past few years, U.S. companies have been importing foreign engineers to perform work that in the past has been done by professional engineers.

H-1B Visas
The H-1B visa is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, the following are are considered specialty occupations: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, accounting, law, and the arts.

In November 2004, a provision was added to the omnibus spending bill that would increase the number of H-1B visas by 20,000, up from the legal annual limit of 65,000. The 20,000 visas, though, can be issued only to those who have earned a master's or higher degree from a U.S. institution of higher learning. The spending bill, the Consolidated Appropriations Bill of 2005 (PL 108-447), was passed by both the House and the Senate in November 2004.

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor, attesting to several items, including payment of prevailing wages for the position, and the working conditions offered.

Under current law, an alien can maintain H-1B status for a maximum of six years at a time. After that time, an alien must remain outside the U.S. for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

H-1B aliens may work only for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the work site of another employer if all applicable Department of Labor rules are followed.

Intracompany Transferees (L-1 Visas)
L-1 visas apply to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees to temporarily perform services:

  • in a managerial or executive capacity (L-1A) or
  • that entail specialized knowledge (L-1B) for a parent, branch, subsidiary, or affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify. Currently, there is no annual cap on L-1 visas. L-1A visa holders can come to an existing office for up to 3 years or to a new office for up to 1 year. The L-1 visa can be renewed in increments of up to 2 years. The total stay on an L-1 visa is limited to 7 years.

For an L-1 visa, the employer is not required to obtain a labor certification prior to petitioning in this category. The compensation level is not prescribed, but U.S. income must be sufficient to prevent the alien from becoming a public charge. Dependents (spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal.

NSPE References
Motion in Opposition to Raising the Cap on H-1B Visas—Adopted by NSPE Board of Directors (1/19/04)

Issue Brief and Position: