Nonimmigrant (temporary) visa categories
are based on the type of activity that is to be performed
in the U.S. Nonimmigrant visa classifications include,
among others, visitors for business, treaty traders
and investors, students, international representatives,
temporary workers and trainees, exchange visitors, intracompany
transferees, athletes, artists, and entertainers. They
are identified by letters and numbers based on their
placement in the U.S. immigration statute.
Following are several of the most
frequently used categories for business or employment
purposes, along with helpful links to additional information
provided by ABIL attorneys. Contact your ABIL attorney for
help with applying for a visa, and with the often complex
process of documenting eligibility and meeting deadlines
and requirements.
B-1 VISITOR FOR BUSINESS
Applicants for B-1 visas must prove that they intend
to enter the United States temporarily for short-term
business. Temporary business travel may include activities
such as contract negotiations, exhibitions and conferences,
market research, short-term training, plant tours, inspections,
litigation, or consultations with suppliers and customers.
Others who may enter on a B-1 visa include servants
of U.S. citizens, professional athletes, missionaries
and volunteers for international service organizations,
intending investors, and attorneys of a company's board
of directors. Applicants also must demonstrate that
they have sufficient funds to cover travel expenses
as well as sufficient ties to their home country, including
a residence abroad that the applicant does not intend
to abandon.
The B-1 visa is not intended for freelance or independent
contract work, or engaging in salaried work in the U.S.
To obtain a B-1 business visitor visa, the applicant's
principal place of business and actual accrual of salary
or profits must be abroad. The employer abroad should
continue to pay the employee's salary.
The maximum period of stay is typically
six months, but up to one year is possible on initial
entry based on demonstrated need. Extensions of six
months each are based on a showing of business need.
Foreign nationals from Visa Waiver Program countries
who need to enter the U.S. for less than three months
cannot apply for a B-1 visa.
In addition to the requirements noted
above, here are some tips for facilitating entry into
the U.S. as a B-1 visitor:
- Always have a round-trip ticket
with the return trip booked for a date six months
or less in the future.
- Avoid using the words "work"
or "employment" with regard to the U.S.
location or company because in most cases, hands-on
work is not allowed.
- For those applying for admission
to participate in an academic activity for which an
honorarium will be received, obtain a letter of invitation
from the sponsoring organization describing the event
or activity and the date(s) and location where it
will be held. The letter must be produced if a U.S.
Customs and Border Protection (CBP) officer requests
it at the port of entry.
B-1 Trainees.
A trainee (other than a Visa Waiver applicant and a
Canadian citizen, who do not need a visa) will need
a letter to apply for a B-1 visa at a U.S. embassy or
consulate. The letter should: (1) confirm the trainee's
employment outside the U.S. by a parent, subsidiary,
or affiliate company or by a supplier, customer, or
other entity doing business with the U.S. company; (2)
explain the purpose of the U.S. training in relation
to the foreign employment, and that the training is
not available in the trainee's home country; (3) describe
the nature and duration of the U.S. training; (4) confirm
that the trainee will remain on the foreign payroll
of his or her foreign employer while the trainee is
in the U.S.; and (5) state that he or she will return
to the foreign employer or be transferred to another
foreign position upon completion of the training. If
the trainee does not already have a B-1 visa, processing
times range from several days to several months, depending
on the country in which the application is made.
In theory, a trainee can be admitted
on a B-1 visa for longer periods than six to 12 months.
In practice, however, most trainees who seek to stay
more than six months are told by U.S. authorities to
apply for an H-3 (trainee) visa.
Applications for B-1 visas may be
made at a U.S. embassy or consulate. If the applicant
is already in the U.S., he or she also may obtain classification
through an application for change of status submitted
to U.S. Citizenship and Immigration Services.
Contact your ABIL attorney for details
on how to apply and help with documentation.
E-1 TREATY TRADER/E-2 TREATY
INVESTOR
An E-1 treaty trader must be a national (not merely
a resident) of a country through which reciprocal trade
is allowed by treaty. The U.S. has such treaties with
more than 50 countries. See http://travel.state.gov/visa/reciprocity/list_of_treaty_countries.htm.
More than 50 percent of the company's trade must be
between the treaty country and the U.S. E-1 visas also
may be issued to managers, executives, and essential
employees (who sometimes are expected to be replaced
by U.S.-trained personnel) of the same nationality who
work for the U.S. branch office. This means that the
person should be employed by the receiving company in
a supervisory, managerial, or executive capacity or
in a capacity involving special skills or knowledge
essential to operating the U.S. business.
An E-1 visa may be granted for an
initial period of up to five years, but the person's
stay generally is authorized in two-year increments
upon each entry into the U.S. The period of admission
may be extended indefinitely, although the person must
demonstrate the ability and willingness to leave the
U.S. upon termination of E-1 status. A benefit of the
E-1 visa is that there are no numerical limits on their
availability, unlike with other visas, and therefore
no waiting period based on one's place in line with
respect to other E-1 applicants in a given year.
The E-2 treaty investor visa requires
a substantial investment in a U.S. business that must
be controlled by nationals (not merely residents) of
a treaty country that has a reciprocal agreement with
the U.S. The E-2 visa is intended for those wishing
to enter the U.S. to direct and develop their own investment
in a U.S. business or to be an executive, supervisor,
or essential-skills employee of an organization that
has made a substantial investment in a U.S. business.
Essential-skills employees include a start-up or temporary
duty worker, such as a trainer or quality control specialist.
For an E-2 visa, no fixed amount
is required to be invested, and the definition of "substantial"
varies depending on the nature of the business. The
amount may range from as little as $50,000 to $1 million
or more. Fifty percent or more of the U.S. treaty-investment
company's stock must be traded primarily on a foreign
stock exchange or be owned by nationals of the treaty
country who are not U.S. permanent residents.
An E-2 visa normally may be granted
for an initial period of up to five years. There is
an exception for one-year start-up or temporary duty
workers, who may be required to leave after one year
or when the operation is established and the U.S. workers
have been trained. The maximum allowable stay period
is two years upon entry, or two years upon approval
of an extension application. As with the E-1 visa, a
benefit of the E-2 visa is that there are no numerical
limits on their availability.
For both E-1 and E-2 visas, the applicant
must demonstrate that he or she has sufficient acumen
to conduct the intended activities. Qualitative considerations
may include work experience, education, or training
that demonstrates the applicant's relevant abilities.
Spouses of E-1 or E-2 principals may receive work authorization
and, unlike the principal, do not have to be nationals
of the treaty country.
Applications for E-1 or E-2 visas
may be made at a U.S. embassy or consulate. If already
in the U.S., the applicant also may obtain classification
through an application for change of status submitted
to U.S. Citizenship and Immigration Services for a period
of two years.
Contact your ABIL attorney for details
on how to apply and help with documentation.
For more on this topic, see [add link to ABIL attorney
article #8]
E-3 TREATY PROFESSIONAL (AUSTRALIAN
NATIONALS)
The E-3 nonimmigrant classification, created in 2005,
allows for the admission of an Australian temporary
worker to perform services in the U.S. in a specialty
occupation. Nonimmigrants who are already in the U.S.
may apply to change their status to that of an E-3 specialty
worker. The E-3 visa is easier to obtain and less costly
than an H-1B visa, which is similar in nature. The H-1B
visa category is described below.
To qualify for E-3 classification,
a worker must be an Australian national seeking employment
in a specialty occupation requiring possession of a
bachelor's degree or higher (or its equivalent), and
must possess the appropriate degree (or its equivalent)
in the field in which the person wishes to work. E-3
nonimmigrant status is granted initially for a period
of up to two years. Extensions of stay may be granted
indefinitely in increments of up to two years.
Congress has established a yearly
cap of 10,500 "new" E-3 workers. For purposes
of the cap, "new" E-3 workers are those who,
coming from abroad, are admitted initially in E-3 classification
or those who change their nonimmigrant status to E-3
classification or change employers while in E-3 status.
Unlike the dependent of a worker in the H-1B nonimmigrant
classification, the dependent spouse of an E-3 temporary
worker may apply for and receive work authorization.
Change or extension of
status. Those already in the U.S. who
wish to change their status to E-3 or to extend their
E-3 status may do so by filing Form I-129, Petition
for a Nonimmigrant Worker, with the Vermont Service
Center, with the appropriate filing fee. In addition
to the I-129, applicants must include:
- proof of Australian nationality;
- a letter from the prospective
U.S. employer describing the worker's specialty occupation,
the worker's anticipated length of stay, and salary
or remuneration arrangements;
- evidence that the worker meets
the educational requirements for the position to be
filled (a bachelor's degree or higher or its equivalent
in the specialty occupation);
- evidence that the worker meets
any licensing or other occupational requirements;
and
- evidence that the prospective
U.S. employer has filed with the federal Department
of Labor a labor condition application (LCA) specifically
designated for E-3 specialty occupations.
Contact your ABIL attorney for details
on how to apply and help with documentation.
F-1 STUDENT
An F-1 applicant must demonstrate that he or she is
a bona fide student qualified to pursue a full course
of study. The student must demonstrate that he or she
is entering the U.S. temporarily to study full-time
at an established academic (non-vocational) institution,
which may include a high school, college, university,
or language school.
F-1 applicants must demonstrate that
they have sufficient personal or scholarship funds to
cover their educational and living expenses while in
the U.S., as well as sufficient scholastic preparation
to undertake the course of study and either English
language ability or arrangements made by the accepting
institution for an English as a Second Language course
of study. The applicant must demonstrate that he or
she does not intend to abandon his or her residence
abroad; i.e., he or she has sufficient social, economic,
and other ties to compel the student's return upon completion
of the course of study.
To apply for an F-1 visa, a student
receives a Certificate of Eligibility for Nonimmigrant
(F-1) Student Status (Form I-20) from the school, which
is responsible for entering the student's information
into the Student and Exchange Visitor Information System.
The student then applies for a visa at a U.S. embassy
or consulate; security clearances may take additional
time. All initial or beginning students must enter the
U.S. 30 days or less in advance of the course start
date shown on the I-20 form. The maximum total period
of stay may include up to one year of post-completion
practical training (work in a field related to the area
of study).
Contact your ABIL attorney for details
on how to apply and help with documentation.
H-1B TEMPORARY WORKER
H-1B visas are used by those who will be employed temporarily
(full- or part-time) in a specialty occupation or as
a fashion model of distinguished merit and ability.
A specialty occupation requires theoretical and practical
application of a body of specialized knowledge that
requires at least a bachelor’s degree or its equivalent.
Architecture, engineering, mathematics, physical sciences,
social sciences, medicine and health, education, business
specialties, accounting, law, theology, and the arts
are examples of specialty occupations.
H-1B status requires a sponsoring
U.S. employer, which 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. The employer
must then file the certified LCA with a nonimmigrant
worker petition with U.S. Citizenship and Immigration
Services.
The maximum initial duration of H-1B
visa status is three years. H-1B status may be extended
up to a maximum of six years in most cases. Spouses
and unmarried minor children may be admitted for the
same duration of stay as the H-1B worker. They are given
H-4 status. An H-4 spouse or child is not authorized
to work.
The merger or sale of an H-1B employer’s business
generally will not affect the employee's status, but
the employee is not allowed to work in a capacity other
than the specialty occupation for which H-1B status
was obtained.
Advantages of the H-1B visa include
the fact that an H-1B worker can apply for permanent
resident (green card) status without affecting H-1B
status. Also, while the application for permanent residence
is pending, the worker may travel on his or her H-1B
visa and does not need to obtain advance permission
(called advance parole) to return to the U.S.
On the down side, the number of new
H-1B visas available each federal fiscal year is less
than 65,000. This dramatic decrease is causing significant
problems for U.S. businesses and their foreign national
employees because H-1B numbers are running out many
months before the end of the fiscal year. The H-1B numerical
limit, or cap, does not apply to anyone employed (or
who has an offer of employment) at an institution of
higher education or a related or affiliated nonprofit
entity, or at a nonprofit research organization or a
government research organization. If someone leaves
an H-1B job that was exempt from the cap, he or she
then becomes subject to the H-1B cap unless the next
employer is also exempt. Anyone who was counted against
the H-1B cap in the past six years, however, will not
be counted against the cap again.
To deal with the H-1B cap, ABIL recommends
accelerating new H-1B filings. Current processing times
for H-1B classification take a few weeks to six months,
depending on where you file and whether you use premium
processing. New H-1B petitions can be processed for
a start date up to six months in the future, so ABIL
recommends filing for a new H-1B or a change of status
to H-1B as early as possible.
Contact your ABIL attorney for details
on how to apply and help with documentation.
For more on these topics, see:
J-1 EXCHANGE VISITOR
J-1 exchange visitors may take part in a wide variety
of Department of State-approved programs offered by
businesses, schools, and other organizations. Programs
may include studies, training, research, or cultural
activities for students, teachers, researchers, scholars,
trainees, au pairs, medical graduates, or international
visitors coming to travel, observe, consult, perform
research, train, share, or demonstrate specialized knowledge
or skills, or participate in an organized exchange program.
J-1 visas may be granted for an 18-month
period and are exempt from FICA taxes. Another advantage
is that spouses may obtain employment authorization.
Students.
J-1 exchange visitors coming to study must have sufficient
scholastic preparation and knowledge of English to permit
them to undertake a full course of study where the applicant
has been accepted. If the applicant's knowledge of English
is inadequate, he or she must demonstrate that special
arrangements have been made for English language tutoring.
The applicant also must have sufficient funds to cover
expenses or have made other arrangements to provide
for expenses.
Trainees.
Exchange visitors may enhance their skills in their
chosen career field through participation in a structured
training program, which can improve their knowledge
of U.S. techniques, methodologies, or expertise within
their field of endeavor. Such training may not duplicate
a trainee's previous training and experience.
Use of the Exchange Visitor Program
for ordinary employment or work purposes is prohibited.
Sponsors may not place trainee participants in positions
that are filled or would be filled by full-time or part-time
employees. The maximum duration of any training program,
with the exception of flight training programs, may
not exceed 18 months.
Training programs for unskilled occupations
are not permitted. Specialty training programs are for
participants who have completed a four-year degree in
their field or who have a recognized professional certificate.
Non-specialty training programs do not require participants
to have completed a degree, but program participants
must have at least two years of education, training,
or experience in the field in which they are to receive
training.
Training opportunities are offered
to eligible foreign nationals under the sponsorship
of legal entities designated by the Department of State
to administer a training program at the specialty and/or
non-specialty levels in the following broadly defined
occupational categories:
- arts and culture
- information media and communications
- education, social sciences, library
science, counseling, and social services
- management, business, commerce
and finance
- health-related occupations
- aviation
- the sciences, engineering, architecture,
mathematics, and industrial occupations
- construction and building trades
- agriculture, forestry, and fishing
- public administration and law
Sponsors are designated in any combination
of occupational categories, specialty and/or non-specialty
levels, and for specified periods that may not exceed
18 months. Sponsors may provide training for only those
fields for which they have been designated and only
within the occupational category, level, and program
duration identified in their designation.
Sponsors must ensure that the individuals
or entities providing the training are competent to
do so; there is sufficient plant space and equipment
available for the training; a detailed training plan
is developed in advance of the program's start; the
trainee gains skills, knowledge, and competence appropriate
to the training experience; and continuous supervision
and periodic evaluation is provided.
Sponsors must provide the following
information to participants before their departure from
their home countries:
- A written statement of the stipend,
if any, to be paid to the trainee.
- The costs and fees for which
the trainee will be obligated.
- An estimate of living expenses
during the duration of the trainee's stay.
- A summary of the training program
including the training objectives and all significant
components of the program.
Graduate medical education
or training. J-1 exchange visitors coming
for graduate medical education or training must meet
certain special requirements, such as passing the Foreign
Medical Graduate Examination in the Medical Sciences
and demonstrating competency in English. They are also
subject to a two-year foreign residence requirement
upon completion of their program and to limits on the
duration of their program. Exchange visitor physicians
coming to the U.S. for the purpose of observation, consultation,
teaching, or research in which there is little or no
patient care are not subject to those requirements.
The two-year foreign
residence requirement. The two-year foreign
residence requirement means that exchange visitors cannot
change their status to that of an H, L, or K, or become
a permanent resident, until they have returned to their
home country for at least two years or have received
a waiver of that requirement, discussed below. Exchange
visitors may be subject to the two-year foreign residence
requirement for one or more of the following reasons:
- They received funding from the
U.S. government, their home country government, or
an international organization in connection with their
participation in the Exchange Visitor Program.
- The education, training, or skill
they are pursuing in the U.S. appears on the Exchange
Visitor Skills List for their country.
- They acquired J-1 status to receive
graduate medical education or training.
Waivers.
Exchange visitors who are subject to, but do not wish
to comply with, the two-year home country residence
requirement may apply for a waiver under any of the
five applicable grounds:
- A "No Objection" statement
from the home government.
The law precludes use of this option by medical doctors
receiving graduate medical education or training in
the U.S. The exchange visitor's government must state
that it has no objection to the exchange visitor not
returning to the home country to satisfy the two-year
foreign residence requirement and remaining in the
U.S. if he or she chooses to do so.
- A request by an interested U.S.
government agency.
If an exchange visitor is working on a project for,
or of interest to, a U.S. federal government agency,
and that agency has determined that the visitor's
continued stay in the U.S. is vital to one of its
programs, a waiver may be granted if the exchange
visitor's continued stay in the U.S. is in the public
interest.
There are separate regulations for applications on
behalf of foreign physicians who agree to serve in
medically underserved areas.
- Persecution.
If the exchange visitor believes that he or she will
be persecuted upon return to the home country due
to race, religion, or political opinion, he or she
can apply for a waiver.
- Exceptional hardship to a U.S.
citizen (or permanent resident) spouse or child of
an exchange visitor.
If the exchange visitor can demonstrate that his or
her departure from the U.S. would cause extreme hardship
to his or her U.S. citizen or lawful permanent resident
spouse or child, he or she may apply for a waiver.
(Mere separation from family is not considered to
be sufficient to establish exceptional hardship.)
- A request by a designated state
department of health or its equivalent.
The law permits only medical doctors to apply for
a waiver on this basis. Foreign medical graduates
who have an offer of full-time employment at a health
care facility in a designated health care professional
shortage area, and agree to begin employment at the
facility within 90 days of receiving such waiver,
and who sign a contract to continue to work at the
health care facility for a total of 40 hours per week
and not less than three years, may apply for a waiver.
Each state is allowed 30 waivers per federal fiscal
year. Five of the 30 requests may be specialists who
can practice medicine outside of Health and Human
Services-designated health shortage areas.
Contact your ABIL attorney for details on how to apply
and help with documentation.
L-1 INTRACOMPANY TRANSFEREE
The L-1 visa category is used to transfer employees
within multinational corporations and between affiliated
companies. This classification applies to intracompany
transferees who, within the three preceding years, have
been employed outside the U.S. continuously for at least
one year in a managerial or executive position or in
a position requiring specialized knowledge, and who
wish to establish or be employed by a branch, parent,
affiliate, or subsidiary of that same employer in the
U.S. in a managerial, executive, or specialized knowledge
capacity.
An employer is not required to file
a Labor Condition Application or obtain a labor certification
to employ an L-1 worker. Another advantage is that an
L-1 employee does not have to maintain a residence outside
the U.S. Also, the position itself does not have to
be temporary, even though the worker's employment in
the position must be temporary. An L-1 petition requires
a fair amount of documentation, however, including evidence
of the qualifying relationship between the U.S. and
foreign employer, and a letter from the worker's foreign
employer detailing the employee's dates of employment,
job duties, qualifications, and salary and demonstrating
that the employee meets the eligibility requirements
for an L-1 classification.
In most cases, the U.S. company must
file an L-1 visa petition with a U.S. Citizenship and
Immigration Services Service Center in the U.S. and
obtain USCIS approval before the employee can obtain
the visa or change to L-1 status from another visa status.
Processing times can be reduced to two weeks by paying
an additional $1,000 premium processing fee.
Canadian citizens may file an L-1
visa petition with a U.S. immigration inspector at a
U.S. port-of-entry. Also, employees of large companies
may file their L-1 visa petitions directly with U.S.
consulates rather than with USCIS under the Blanket
L-1 program.
The maximum initial duration of L-1
visa status is three years, or one year if the U.S.
company has been doing business for less than one year.
L-1 status may be extended up to a maximum of seven
years for executives and managers, or five years for
specialized knowledge employees. Spouses and unmarried
minor children may be admitted for the same duration
of stay as the L-1 worker; the spouse may obtain work
authorization.
Contact your ABIL attorney for details
on how to apply and help with documentation.
For more on these topics, see:
O-1 EXTRAORDINARY ABILITY
The O-1 nonimmigrant visa category is reserved for individuals
who have "extraordinary ability" in the sciences,
education, business, arts, or athletics. This category
requires a very high eligibility standard of international
renown, although there is flexibility with regard to
the types of evidence that may be presented. Such evidence
may include receipt of nationally or internationally
recognized awards; descriptions of the worker's achievements
in major media; publication of articles in major trade
or professional publications; documentation of original
contributions to the worker's field; performing in a
lead or critical role; and commanding a high salary.
Individuals can apply for O-1 classification
by themselves; they do not need an employer. If they
do have an employer to sponsor them, the employer must
submit a letter stating the nature and duration of the
work and the salary. The employer must show that the
O-1 applicant will be entering the U.S. to perform services
in conjunction with an event, such as a conference,
lecture, performance, or exhibit. The U.S. employer
should file the nonimmigrant worker petition (Form I-129)
along with a written advisory opinion from a peer group
(which may include labor organizations) or a person
designated by the group with expertise in the individual's
area of ability; a copy of any written contract between
the employer and the individual or a summary of the
terms of the oral agreement under which the person will
be employed; and the appropriate evidence to show extraordinary
ability. Also, individuals can apply for O-1 classification
through an agent.
O-1 visa applicants do not need to
maintain a foreign residence or show an intent to return.
An O-1 visa may be valid initially for three years and
may be extended in one-year increments. Dependents are
not eligible for employment but may attend school.
Contact your ABIL attorney for details
on how to apply and help with documentation.
For more on these topics, see [add link to ABIL attorney
article #20]
P-1 ATHLETE, ENTERTAINER,
ARTIST
The P-1 classification applies to a worker coming to
the U.S. temporarily to perform at a specific competition
as an athlete, either individually or as part of a group
or team, at an internationally recognized level of performance.
The P-1 classification is also available for those coming
temporarily to perform as a member of a foreign-based
entertainment group that has been recognized internationally
as outstanding in the discipline for a sustained and
substantial period of time. Such a person also must
have had a sustained and substantial relationship with
the group (ordinarily for at least one year) and/or
provide functions integral to the group’s performance.
Applications may be filed by an employer,
agent, or event organizer. Types of acceptable evidence
may include documentation that the group is internationally
recognized as outstanding for a sustained and substantial
period of time, as demonstrated by evidence of the group's
receipt of, or nomination for, significant international
awards or prizes for outstanding achievement in the
field, or other types of comparable evidence. Documentation
of major commercial or critically acclaimed successes
may include indicators such as ratings; box office receipts;
record, cassette or video sales; and other achievements
as reported in trade journals, major newspapers or other
publications.
To qualify for P-1 status, a worker
must have a high level of achievement in the field,
evidenced by a degree of skill and recognition substantially
above that ordinarily encountered, to the extent that
such achievement is renowned, leading, or well-known
in more than one country. Other types of P visas are
available for artists or entertainers whose performances
are culturally unique or are provided under a reciprocal
exchange program.Essential support personnel may also
be admitted under the P category.
A P visa for an individual may be
valid for up to five years. For a team or group, the
visa may be valid for up to one year, or the time needed
to complete the event or performance.
Contact your ABIL attorney for details
on how to apply and help with documentation.
LINKS
For more on business and employment-related
nonimmigrant visa categories and related topics, in
addition to the articles linked to specific topics above,
see:
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