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Nonimmigrant (temporary) Visas

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.

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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]

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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.

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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.

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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:

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H-2A

Nonimmigrant visa classification for temporary agriculture workers whose skills are needed in the United States.

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H-2B

Nonimmigrant visa classification that is available to "temporary workers" of an employer that has a need for services or labor that is a one-time occurrence, a seasonal need, a peak load need or an intermittent need.

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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:

  1. A written statement of the stipend, if any, to be paid to the trainee.
  2. The costs and fees for which the trainee will be obligated.
  3. An estimate of living expenses during the duration of the trainee's stay.
  4. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.)
  5. 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.
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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:

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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]

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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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