Visas

B-1 Visa Classification

A B-1 business visitor is not authorized to perform productive employment in the U.S. A B-1 business visitor must maintain a foreign residence abroad to which the B-1 visitor intends to return at the end of the authorized period of stay. B-1 status may not be used as a means to accelerate a candidate’s eligibility to enter the U.S. to engage in gainful employment. The B-1 business visitor will generally remain on the foreign employer’s payroll in the home country and cannot receive compensation from a U.S. source, other than for reimbursement of incidental expenses. A B-1 visa application may be made directly at a U.S. consulate or embassy.

A B-1 business visitor may be admitted to the U.S. for a period up to a maximum of six months. However, U.S. Customs and Border Protection (USCBP) officers will admit a business visitor for the period of time necessary to conduct the specified business, which typically ranges between 30 to 90 days only.

Once admitted to the U.S., a B-1 business visitor may apply to extend the period of authorized stay for up to six months if there is a business need or other justification for requesting an extension. An application for an extension of status is filed from within the U.S. with the U.S. Citizenship and Immigration Services. Prolonged business visits, however, may give rise to a presumption that the visitor is engaged in prohibited productive employment in the U.S.

Visa Waiver Program and Electronic System Travel Authorization (ESTA)

The Visa Waiver Program (VWP) enables eligible citizens of participating countries to travel to the U.S. for tourism or business for a period up to a maximum of 90 days without obtaining a U.S. visa. Currently there are 35 participating countries in the program: Andorra, Austria, Australia, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

A VWP citizen is permitted to enter the U.S. under the same rules as the B-1 business visitor through the Visa Waiver program for up to 90 days. Neither an extension of stay nor a change of status may be granted to a VWP visitor.

Prior to travel to the U.S., VWP travelers must apply for and receive valid travel authorization through the Department of Homeland Security’s Electronic System for Travel Authorization (ESTA). ESTA is an automated system used to determine the eligibility of visitors to travel to the U.S. under VWP. Once granted, travel authorizations will be valid for multiple entries into the U.S., and are valid for up to two years. Information on ESTA can be obtained by visiting the Department of Homeland Security Customs and Border Protection (CBP) website atwww.cbp.gov. VWP travelers must meet all eligibility requirements to travel to the U.S. without a visa on VWP. Therefore, some travelers from VWP countries may not be eligible to use the program and must apply for a visa. Complete information on the VWP and eligibility requirements can be found on the U.S. Department of State’s website at http://travel.state.gov/visa/temp/without/without_1990.html.

B-2 Visa Classification

The B-2 visitor visa allows an individual to enter the U.S. for a short period of time for pleasure, specifically for activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, activities of a fraternal, social or service nature. B-2 visas are also issued to individuals who are coming to the U.S. to undergo medical treatment. An application for a B-2 visa application may be made directly at a U.S. consulate or embassy.

A B-2 visitor must maintain a foreign residence abroad to which the individual intends to return at the end of the authorized period of stay in the U.S. A B-2 visitor is not authorized to be employed or perform productive employment in the U.S.

To demonstrate eligibility for a B-2 visa or B-2 status, the applicant must prove that:

  • He or she has adequate finances to cover the cost of the trip to the U.S. and the planned activities;
  • He or she has specific and realistic plans for the entire duration of the visit;
  • The period of time projected for the visit is consistent with the purpose of the trip;
  • He or she has strong ties abroad, i.e. permanent employment, meaningful business and financial connections, close family ties or close social associations; and
  • He or she has made adequate provisions for the support of any spouse or children remaining abroad.

A B-2 visitor may be admitted to the U.S. for not more than one year. In practice, a B-2 visitor will usually be admitted for an initial period of up to six months or for a period of time sufficient to cover the planned pleasure activities, whichever is less. He or she may be granted extensions in increments of not more than six months at a time (certain dependents of nonimmigrant visa holders may receive extensions for up to one year). Prolonged pleasure visits, however, may give rise to a presumption that the visitor is engaged in prohibited productive employment and/or has immigrant intent.

Special B-2 Rules and Regulations for Dependents of Nonimmigrant Visa Holders

A foreign national may apply for a B-2 visa or B-2 status to accompany another “principal” foreign national, who in turn will hold nonimmigrant status in the U.S. Such an application may be made by a dependent cohabitating partner, common law spouse, same-sex partner, extended family member, or another household member. The “principal” foreign national must hold E, H, I, L, F, J, M, A, G, or NATO nonimmigrant status. The dependent foreign national must depart the U.S. with the principal foreign national.

The B-2 visa applicant must demonstrate the maintenance of a residence abroad, even if the principal foreign national is not required to do so. The consular officer may consider the visa applicant’s current situation, prospects in the home country upon return, the strength of the relationship with the principal foreign national, and the principal foreign national’s own ties abroad when adjudicating the B-2 visa application.

Visa Waiver Program and Electronic System Travel Authorization (ESTA)

The Visa Waiver Program (VWP) enables eligible citizens of participating countries to travel to the U.S. for tourism or business for a period up to a maximum of 90 days without obtaining a U.S. visa. Currently there are 35 participating countries in the program: Andorra, Austria, Australia, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

A VWP citizen is permitted to enter the U.S. under the same rules as the B-2 visitor through the Visa Waiver program for up to 90 days. Neither an extension of stay nor a change of status may be granted to a VWP visitor.

Prior to travel to the U.S., VWP travelers must apply for and receive valid travel authorization through the Department of Homeland Security’s Electronic System for Travel Authorization (ESTA). ESTA is an automated system used to determine the eligibility of visitors to travel to the U.S. under VWP. Once granted, travel authorizations will be valid for multiple entries into the U.S., and are valid for up to two years. Information on ESTA can be obtained by visiting the Department of Homeland Security Customs and Border Protection (CBP) website atwww.cbp.gov. VWP travelers must meet all eligibility requirements to travel to the U.S. without a visa on VWP. Therefore, some travelers from VWP countries may not be eligible to use the program and must apply for a visa. Complete information on the VWP and eligibility requirements can be found on the U.S. Department of State’s website at http://travel.state.gov/visa/temp/without/without_1990.html.

E-1 Visa Classification

The E-1 treaty trader nonimmigrant classification allows a person to enter the U.S. for the purpose of furthering substantial trade that is international in scope. The trade must be primarily between the U.S. and the treaty country where the person holds citizenship.

E-1 treaty trader countries include: Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, Chile, Colombia, Costa Rica, Denmark (does not include Faroe Islands or Greenland), Estonia, Ethiopia, Finland, France (includes Martinique, Guadeloupe, French Guiana and Reunion), Germany, Greece, Honduras, Ireland, Israel, Italy, Japan (includes Bonin and Ryukyu Islands), Jordan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands (includes Aruba and Netherlands Antilles), Norway (does not include Svalbard), Oman, Pakistan, Paraguay, Philippines, Poland, Singapore, Spain (applies to all territories), Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, United Kingdom (applies only to British territories in Europe), and Yugoslavia (valid for new Republics that arose out of former Yugoslavia). Iran is also a treaty trader country, however, the treaty is inoperative because of the Executive Order preventing trade with Iran.

An employer must show that the U.S. business has created substantial trade between the U.S. and the treaty country before employees can qualify for E-1 trader treaty visa classification. Trade is not limited to goods and services but the trade must principally exist with the treaty country. This means that more than 50% of the total volume of international trade done by the U.S. employer must be between the U.S. and the treaty country. If the U.S. entity is a branch office, then the foreign business must have more than 50% of its trade with the U.S.  At least 50% of the U.S. entity must be owned by non-U.S. resident nationals of the treaty country.

Applying for an E-1 or E-2

Some U.S. Consulates require the U.S. company, where the individual will work, to become E-1 or E-2 qualified before an individual can apply for an E-1 or E-2 visa. In this situation, an initial request to qualify the U.S. company for E-1 or E-2 status must be filed together with at least one individual’s E-1 or E-2 visa application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E-1 or E-2 qualified, any nationals of the treaty country who will work for the qualified U.S. entity may apply for an E-1 or E-2 visa at the appropriate U.S. Embassy or Consulate. Other Consulates simply allow all of the corporate and investment information to be presented at the time of each visa application and do not maintain formal “registrations” of E-1/E-2 qualified companies.

Any individual who is a national of the treaty country can apply for an E-1 or E-2 visa if he or she is entering the U.S. to work as an executive, supervisor, or an essential employee. The individual does not have to be employed by the company abroad in order to qualify for E-1 or E-2 nonimmigrant status. Nor does the individual need to be the investor him or herself to qualify for an E-2 visa.

E-1 and E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-1 or E-2 status. Upon each entry to the United States, E-1 and E-2 visa holders are generally admitted to the U.S. in E status for a period of two years as long as the E-1 or E-2 visa is valid at the time of entry.

Spouses and dependent children under the age of 21 of E-1 or E-2 visa recipients are also eligible for E-1 or E-2 dependent visas. Moreover, E spouses are eligible to apply for employment authorization after they enter the U.S.

E-2 Visa Classification

The E-2 treaty investor nonimmigrant classification allows a person to enter the U.S. for the purpose of furthering a substantial investment in a U.S. enterprise made by individuals or businesses that are citizens of a treaty country.

E-2 treaty investor countries include: Albania, Argentina, Armenia, Australia, Austria, Azerbajian, Bahrain, Bangladesh, Belgium, Bolivia, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo (Brazzaville), Congo (Democratic Republic of), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France (includes Martinique, Guadeloupe, French Guiana and Reunion), Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan (includes Bonin and Ryukyu Islands), Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands (includes Aruba and Netherlands Antilles), Norway (does not include Svalbard), Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Spain (applies to all territories), Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom (applies only to British territories in Europe), and Yugoslavia (valid for new Republics that arose out of former Yugoslavia).

To qualify and become eligible for E-2 visa use, an employer must show that a substantial investment in the U.S. business has been made by individuals or companies that are citizens of the treaty country. To be considered a substantial investment, the funds must be “at risk.” Whether or not the actual amount invested is substantial depends on the type of business and is weighed based upon a variety of factors. In addition, the investment cannot be “marginal,” in other words, it cannot be made solely for the purpose of earning a living.

Similar to the E-1, at least 50% of the U.S. entity must be owned by nationals of the treaty country in order to qualify for the use of E-2 visas.

Applying for an E-1 or E-2

Some U.S. Consulates require the U.S. company, where the individual will work, to become E-1 or E-2 qualified before an individual can apply for an E-1 or E-2 visa. In this situation, an initial request to qualify the U.S. company for E-1 or E-2 status must be filed together with at least one individual’s E-1 or E-2 visa application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E-1 or E-2 qualified, any nationals of the treaty country who will work for the qualified U.S. entity may apply for an E-1 or E-2 visa at the appropriate U.S. Embassy or Consulate. Other Consulates simply allow all of the corporate and investment information to be presented at the time of each visa application and do not maintain formal “registrations” of E-1/E-2 qualified companies.

Any individual who is a national of the treaty country can apply for an E-1 or E-2 visa if he or she is entering the U.S. to work as an executive, supervisor, or an essential employee. The individual does not have to be employed by the company abroad in order to qualify for E-1 or E-2 nonimmigrant status. Furthermore, the individual applying for the visa does not need to be the investor to qualify for an E-2 visa.

E-1 and E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-1 or E-2 status. Upon each entry to the United States, E-1 and E-2 visa holders are generally admitted to the U.S. in E status for a period of two years as long as the E-1 or E-2 visa is valid at the time of entry.

Spouses and dependent children under the age of 21 of E-1 or E-2 visa recipients are also eligible for E-1 or E-2 dependent visas. Moreover, E spouses are eligible to apply for employment authorization after they enter the U.S.

E-3 Visa Classification

The “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005″ (P.L. 109-13) was enacted on May 11, 2005, and created a special E-3 nonimmigrant classification. The E-3 classification applies exclusively to Australian citizens who are temporarily entering the U.S. to work in a “specialty occupation.”

A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge, and one that requires a bachelor’s degree or higher (or its equivalent) in that specialty as a minimum qualification for entry into the occupation. This is the same standard that governs eligibility for H-1B status. Like the H-1B, an E-3 petitioning employer must obtain a certified Labor Condition Application and must comply with regulations regarding payment of the required wage, maintenance of public access files, provision of notice to employees, and other requirements.

One of the primary benefits of the E-3 classification is the rapid processing time. An application for an E-3 visa can be made directly with the U.S. embassy or consulate.  Alternatively, an Australian citizen who is already physically present in the U.S. in lawful nonimmigrant status can be the beneficiary of a petition filed by a sponsoring employer with U.S. Citizenship and Immigration Services to change his or her status to E-3 status.

E-3 visas have an annual quota of 10,500 per fiscal year. The spouse and unmarried children under the age of 21 of E-3 visa holders are eligible to apply for E-3D dependent status and accompany the E-3 visa holder to the U.S. The dependent spouse and children of an E-3 visa holder do not have to be Australian citizens, and dependent E-3D visas are not included in the annual quota of 10,500 annual E-3 visas. Dependent E-3D spouses are also eligible to apply for employment authorization after arriving in the U.S.

While there is an annual quota for E-3 visas issued to individuals who do not currently hold E-3 status, there is no limitation on how long a person can remain in the U.S. in E-3 status. E-3 status can be approved for an initial two-year period, and may be extended in two-year increments for an indefinite period of time. An E-3 status holder, however, must maintain a foreign residence abroad and intend to return to the foreign residence at the end of the authorized period of stay. A prolonged stay in the U.S. in E-3 status may give rise to a presumption that the E-3 status holder intends to remain in the U.S. as an intending “immigrant,” and this could lead to the denial of future applications for E-3 extensions of stay. E-3 status is intended for temporary employment only.

An E-3 status holder may obtain a new period of E-3 admission by applying for a new E-3 visa at a U.S. embassy or consulate, or may extend his or her E-3 status by filing an application for an extension of stay with the U.S. Citizenship and Immigration Services. Extension requests may be filed as early as six months before the current stay expires, and should be filed as far in advance of the E-3 expiration as possible. Individuals with E-3 status are not permitted to continue working while the E-3 extension application is pending unless the current stay remains unexpired.

F-1 Visa Classification

The F-1 visa allows an individual to come to the U.S. in order to attend an academic program as a full-time student.  A student is issued Form I-20 by the sponsoring school, and applies for the F-1 visa at a U.S. consulate or embassy abroad. It is also possible to change to F-1 status from another nonimmigrant status by filing a change of status application with USCIS. F-1 students are allowed to remain in the U.S. for the time period required to finish their educational program, as evidenced by Form I-20. F-1 students will be issued an I-94 card upon entry to the U.S. with the annotation “D/S,” meaning duration of status of the academic program as reflected on the Form I-20. Dependents of F-1 students may obtain F-2 status, which allows the dependent to accompany the F-1 student to the U.S., but which does not provide work authorization for the dependent.

While the primary purpose of the F-1 visa is to study in the U.S., F-1 students may be entitled to work authorization. Enrolled F-1 students, as well as recently graduated foreign students, may be eligible to engage in “practical training” in their field of study. There are two types of Practical Training:

  • Curricular Practical Training (CPT)
  • Optional Practical Training (OPT)

 

A student who is the beneficiary of a pending or approved cap-subject H-1B change of status petition is also accorded an additional period of employment authorization to cover the period of time when the EAD expires and when the H-1B petition will become effective. Known as “cap gap,” this employment authorization does not require the student to obtain a new EAD, but the student must report to his or her school the eligibility for cap gap and provide the school with evidence of the pending or approved H-1B petition. A student relying on “cap gap” employment authorization should not depart the U.S., even for a brief vacation, during the cap gap period. Doing so invalidates the work authorization from the “cap gap” rule, and the student may be unable to return to the U.S. until his or her H-1B petition becomes effective.

Curricular Practical Training (CPT) is issued to students who are currently enrolled on a full-time basis at an approved educational institution to obtain work experience in their field of study. This is defined as an alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. The student usually receives academic credit for this training. CPT is granted by the designated school official at the educational institution and the student’s Form I-20 is endorsed with the employer’s name and address and the dates and number of hours per week that the student is eligible to work. A student authorized for CPT must present an original Form I-20 indicating CPT approval to an intended employer before employment may lawfully commence. Students may work for the full authorized period of CPT, however, should they work more than 12 months of full-time CPT, the student will no longer be eligible for Optional Practical Training (OPT).

Optional Practical Training (OPT) is granted to students who wish to gain practical work experience in their field of study. OPT is granted for a maximum of 12 months throughout the student’s academic career and may be undertaken during school vacations, during the school year (up to 20 hours per week), or after completion of the course of study. Post graduation OPT must be completed within 14 months of graduation. For OPT authorization, the student must obtain a recommendation on Form I-20 from the designated school official and submit an Application For Employment Authorization, Form I-765 to USCIS. The F-1 OPT employment cannot begin until the EAD card is issued by USCIS. (Upon approval, USCIS will mail this card directly to the applicant.)

As OPT is not employer specific, a student may change employers while working on OPT. However, the student must report any employment changes to the school, including the name and address of the employer, and any interruption in employment during the period of OPT. The regulations specifically limit the periods of unemployment during the OPT period.

USCIS also permits an additional 17 month extension of OPT for students with a degree in a science, technology, engineering, or mathematics (STEM) field. This is limited to OPT employers who are participating in the E-Verify program for the worksite where the student is working. If eligible, a student must obtain an updated Form I-20 evidencing his or her eligibility for the additional 17 month period and an application for an extended EAD card must be filed with the USCIS prior to the expiration of the current EAD card.

H-1B Visa Classification

The H-1B classification applies to job candidates in a “specialty occupation.” USCIS (U.S. Citizenship and Immigration Services, part of the Department of Homeland Security) considers specialty occupations to be those requiring the theoretical and practical application of a body of highly specialized knowledge. Typically this will entail completion of a specific course of higher education. For certain individuals with specialized skills and considerable work experience, equivalency evaluations can be obtained to meet the educational requirements.

Authorization for H-1B employment is specific to the petitioning company. Additionally, the authorization extends only to the specific occupation named in the H-1B petition. The status cannot be transferred between employers without the new company first filing a petition with USCIS.

Before filing an H-1B petition, the company must file a Labor Condition Application (LCA) with the Department of Labor. The LCA defines the employer’s obligations to ensure that the foreign worker does not adversely affect the wages or working conditions of United States workers. Employers with a large contingent of H-1B workers may be considered an H-1B dependent company and there are additional obligations.

Upon approval of the LCA, the H-1B petition is filed with USCIS. At the time of filing, employers are responsible for paying the substantial filing fees for the H-1B classification, including a one time Fraud Detection and Prevention fee ($500), and two time H-1B Education and Training Fee ($1,500).  Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee ($750).

Candidates previously issued an H-1B visa or otherwise provided H-1B status and who have lawfully worked in the United States may be eligible to take advantage of a “portability” provision in the law. “Portability” makes it faster to transition between H-1B employers. The portability provision permits some H-1B holders to begin their new employment with the new company upon the filing of the new H-1B petition. Candidates and companies should be sure that portability applies in their situation, and candidates are advised to continue with their present employment until portability attaches. Candidates not already holding lawful H-1B status must generally wait for USCIS approval before beginning work.

New H-1B visas are subject to annual limits per fiscal year. Currently, the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the beginning of the USCIS’ fiscal year (October 1) to obtain H-1B status and start work.  Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year.  Certain educational institutions and nonprofit or government research organizations are exempt from the cap.  Special cap number allocations are also available to H-1B nonimmigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements, although the H-1B duration is limited to only one year (renewable).

H-1B petitions may be approved for up to three years, and can be extended for up to a total of 6 years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before new eligibility arises. However, in certain limited circumstances, H-1B employees who have started a green-card process may be eligible to extend their status beyond six years, in one-year increments. The employee may be eligible for extension beyond six years if either an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the 6-year H-1B limit. It is also possible to obtain extensions beyond the six years in three-year increments if an I-140 is approved and the individual is from a country for which there is a backlog of immigrant visa availability.

Spouses and unmarried children (under the age of 21) of H-1B workers are eligible for dependent visas in the H-4 classification. H-4 children may not work. As of May 26, 2015, USCIS began permitting certain H-4 spouses of H-1B workers to apply for an Employment Authorization Document (EAD). In order to qualify for this, the H-1B worker spouse must be the beneficiary of an approved Form I-140 Immigrant Petition, or s/he must have been granted an extension of H-1B status beyond the 6-year limit under the American Competitiveness in the 21st Century Act. If the H-1B worker has not achieved either of these milestones, his/her H-4 spouse is not eligible to apply for an EAD.

H-3 Visa Classification

The H-3 visa classification is for individuals coming to the U.S. for a temporary period to receive training that will benefit them in pursuing a career outside of the U.S.

The petitioning company must demonstrate the following:

  • The training is not available in the trainee’s home country
  • The trainee will not be in a position that is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed
  • The trainee will not engage in productive employment unless such employment is incidental and necessary to the training
  • The training will benefit the trainee in pursuing a career outside the U.S.

The training program must also include:

  • A description of the type of training and supervision to be provided, and the structure of the training program
  • The proportion of time that will be devoted to productive employment
  • The number of hours that will be spent, respectively, in classroom instruction and in on-the-job training
  • A description of the career abroad for which the training will prepare the trainee
  • The reasons why such training cannot be obtained in the trainee’s country and why it is necessary for the trainee to be trained in the U.S.
  • The source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training

Notably, an H-3 petition cannot be approved if the training program:

  • Deals in generalities with no fixed schedule, objectives, or means of evaluation
  • Is incompatible with the nature of the petitioner’s business or enterprise
  • Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training
  • Is in a field in which it is unlikely that the knowledge or skill will be used outside the U.S.
  • Will result in productive employment beyond that which is incidental and necessary to the training
  • Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the U.S.
  • Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified
  • Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student

The petitioning company must file an H-3 petition with U.S. Citizenship and Immigration Services (USCIS) along with a training plan that addresses the above requirements.  An H-3 petition can be filed for multiple trainees provided they will be engaging in the same training program.

An H-3 visa is issued for the duration of the training program, up to two years.  The H-3 visa is not subject to an annual cap and spouses and children of the H-3 visa holder are eligible to apply for H-4 visas. H-4 visa holders are not eligible to work.

An H-3 visa holder who has spent two years training in the U.S. cannot extend his or her status and has limitations regarding changing to a different status.  Further, the H-3 status is not a dual-intent visa which means that the individual must maintain a foreign residence to which he or she intends to return upon the completion of the training program.

J-1 Visa Classification

The J-1 visa is available to individuals participating in a recognized international exchange program. The purpose of the J-1 visa is to promote cultural and educational exchange between the U.S. and other countries. In general, the goal of the program is that foreign nationals will come to the U.S. to share their cultural experience and learn about U.S. culture, and, in turn, take their experiences back to their home country as a way of improving international relations.

There are various programs to facilitate J-1 sponsorship in different fields of endeavor. The J-1 visa may be available for Professors and Research Scholars, Short-term Scholars, Trainees, College or University Students, Teachers, Secondary School Students, Graduate Medical Education or Training, International and Government Visitors, Camp Counselors, Summer Work/Travel Students and Au Pairs. A J-1 visa is obtained by applying through an approved sponsoring organization that can be a school, a company, or a public or private organization approved by the U.S. Department of State. The sponsor will issue a Form DS-2019 that is used by the foreign national to obtain a J visa.

Some exchange programs permit trainees to obtain paid on-the-job training and internships with firms, institutions, and agencies. Under this category, the J-1 trainee is usually admitted to the U.S. for a period from 3 to 18 months. Often, the company or its attorneys will coordinate with the J program sponsor to obtain the necessary paperwork for the trainee to apply for the J-1 visa.

The J-1 student and researcher program allows the J-1 visa holder to accept training in the U.S. A J-1 student is generally admitted for the length of his or her educational studies in the U.S. A J-1 student often receives a period of authorized practical training (18 months for undergraduate and pre-doctoral training and 36 months for post-doctoral training) similar to F-1 students. The authorization for such employment is issued by the J program sponsor and does not require prior USCIS approval.

The J-2 dependent spouse of a J-1 visa holder may qualify for work authorization as long as it is demonstrated that the spouse’s income is not necessary to support the J-1 visa holder.

Home Residency Requirement

Certain J-1 exchange visitors may be subject to a two year foreign home residency requirement at the end of their period of stay. The two year foreign home residency may apply to J-1 exchange visitors who participate in programs which were financed in whole or in part, directly or indirectly, by an agency of the U.S. Government or by the exchange visitor’s government, or who are nationals or residents of a country which have been designated by U.S. Information Agency as requiring the skills of the exchange visitor. Parties subject to the foreign home residency requirement must return to their country of nationality or last residence after completing their program in the United States, and must reside there physically for two years before they may become eligible to apply for permanent residency or an H-1B or L-1 temporary worker visa.

A complete list of skills by country is available at the link below:

Revised Exchange-Visitor Skills List

In certain situations a waiver to the foreign home residency requirement may be available.

Waiver to Home Residency Requirement

Detailed information on the process of obtaining a waiver of the home residency requirement is available at the following Department of State maintained website: http://www.travel.state.gov/visa/temp/info/info_1296.html

K-1 Visa Classification

The K-1 visa classification is known as the “fiance(e)” visa. It applies to an individual who is engaged to a U.S. citizen, and who wishes to enter the U.S. to marry the U.S. citizen and apply for lawful permanent residence.

To qualify for a K-1 visa, the applicant must (1) have plans to marry his or her U.S. citizen fiancé(e) within 90 days of entering the U.S. and (2) be legally eligible to marry. The K-1 visa applicant and the U.S. citizen fiancé(e) must have met in person during the two years prior to filing the K-1 petition. An applicant may apply for a waiver of the in-person meeting requirement in cases where meeting in person would violate established cultural traditions or would cause extreme hardship for the applicants. Ultimately, the U.S. citizen and the fiancé(e) must prove that they have a bona fide relationship.

Petition Processing

The K visa application process begins with the U.S. citizen fiancé(e) filing a Petition for Alien Fiance(e), form I-129F, with U.S. Citizenship and Immigration Services (USCIS). USCIS will adjudicate and forward the approved K petition filed by the U.S. citizen to the designated consular post where the K applicant lives. The K visa applicant will then attend a scheduled visa interview at the consulate to complete the application process.

Duration of Visa Validity

A K-1 visa is only valid for 120 days and for a single entry into the U.S. The K-1 visa applicant must enter the U.S. during the 120 day visa validity period and must get married to his or her U.S. citizen fiancé(e) within 90 days of entering the U.S. to lawfully remain in the U.S.

Eligibility to Work

K-1 visa holders are eligible to apply for work authorization upon arrival in the U.S. based on their K status. They may also separately apply for work authorization and a travel permit when applying for lawful permanent residence.

Accompanying Family Members

The unmarried children, under the age of 21, of a K-1 visa applicant are eligible to apply for K-2 dependent status and enter the U.S. with the K-1 applicant.

Permanent Residence

Following their entry into the U.S., K-1 visa holders can apply for lawful permanent residence by filing an application with USCIS. However, they cannot apply to change their status from K non-immigrant status to any other non-immigrant status or to extend their K-1 status.

A K-1 visa holder must get married to his or her U.S. citizen fiancé(e) within 90 days of entry to the U.S. and apply for lawful permanent residence as soon as possible thereafter. If the K-1 visa holder fails to marry within 90 days of entry to the U.S. or marries someone other than the K-1 sponsor, the K-1 visa holder generally cannot continue the permanent residence process.

K-3 Visa Classification

The K-3 visa classification applies to an individual who is already married to a U.S. citizen. It allows the applicant to enter the U.S. to join his or her U.S. citizen spouse and wait in the U.S. to complete the lawful permanent residence process.

To qualify for a K-3 visa, the applicant must (1) be legally married to a U.S. citizen and (2) be the beneficiary of an immigrant Petition for Alien Relative, Form I-130 filed by his or her U.S. citizen spouse.

Petition Processing

The K visa application process begins with the U.S. citizen spouse filing both an Immigrant Petition for Alien Relative, form I-130, and a Petition for Alien Fiance(e), form I-129F, on behalf of his or her foreign born spouse with U.S. Citizenship and Immigration Services (USCIS). USCIS will adjudicate and forward the approved K petition filed by the U.S. Citizen to the designated consular post where the K applicant lives. The K visa applicant will then attend a scheduled visa interview at the consulate to complete the application process.

Duration of Visa Validity

A K-3 visa is valid for two years and for multiple entries into the U.S.

Eligibility to Work

K-3 visa holders are eligible to apply for work authorization upon arrival in the U.S. based on their K status. They may also separately apply for work authorization and a travel permit when applying for lawful permanent residence.

Accompanying Family Members

The unmarried children, under the age of 21, of a K-3 visa applicant are eligible to apply for K-4 dependent status.

Permanent Residence

Following their entry into the U.S., K-3 visa holders can apply for lawful permanent residence by filing an application with USCIS. However, they cannot apply to change their status from K non-immigrant status to any other non-immigrant status or to extend their K-3 status.

A K-3 visa holder has up to two years to apply for U.S. permanent residence, although he or she may initiate the permanent residence process immediately upon entering the U.S.

L-1 Visa Classification

The L classification applies to intracompany transferees who, within the three preceding years, have been employed outside of the U.S. continuously for at least one year in a managerial, executive, or specialized knowledge capacity, and who will 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. The L-1 classification requires clear documentation of the ownership and qualifying corporate relationship between the U.S. and foreign office. Notably, any time spent in the U.S. during the qualifying year is not counted in calculating the requisite one-year of overseas employment. Candidates who will be working in the U.S. in a “specialized knowledge” role will receive L-1B status. Candidates who will be working in the U.S. in a managerial or executive role will receive L-1A status.

Certain multinational companies are eligible to process L-1 applications under the “Blanket L” program. As with the general L-1, the qualifying period of employment with an overseas branch, parent, affiliate or subsidiary is also one full year. Once the organization is approved for the “Blanket L” program, the USCIS stage of petition processing is bypassed, allowing candidates to apply directly for an L visa at the U.S. Consulate using the Blanket L Approval Notice and a Blanket application package. Notably, if the candidate will be working in a “specialized knowledge” role in the U.S. and wishes to apply through the Blanket L program, the candidate must also be a “professional.” The definition of professional is borrowed from the H-1B requirements, generally requiring a university degree, although candidates without full university degrees can at times benefit from an academic evaluation by professional evaluators.

Initial L-1 visa status may usually be approved for up to three years, and can be extended for up to a total of seven years for an L-1A (manager or executive) or five years for an L-1B (“specialized knowledge”). After the end of the maximum L-1 period of stay in the U.S., the candidate must reside outside of the U.S. for a full year before becoming eligible for another five or seven years of L -1 time. Spouses and children of L-1 workers are eligible for dependent visas in the L-2 classification. L-2 spouses can apply for employment authorization once they enter the U.S. in L-2 status.

Since June 2005, the law prohibits the issuance of L-1B “specialized knowledge” visas when the U.S. employment is primarily at third party client sites if (1) the employee will be principally controlled and supervised by the client; or (2) the work does not involve the provision of a product or service that requires specialized knowledge specific to the L-1 sponsoring employer. Thus, the rules still allow L-1 employees to accomplish work at client sites when the employees remain under the L-1 employer’s full control and when the employer is implementing or using its own specialized product, service or knowledge at that client site.

Employers are responsible for paying a one time Fraud Detection and Prevention fee ($500) for each initial L-1 application.

O-1 Visa Classification

The O-1 visa classification is intended for individuals with extraordinary ability in the sciences, arts, education, business or athletics.  To qualify, an applicant must generally have extraordinary ability demonstrated by sustained national or international acclaim.  Artists and entertainers in the television and motion picture industries are treated somewhat differently, and must demonstrate a record of extraordinary achievement.  These objective O-1 requirements mean that applicants must present extensive documentation that demonstrates that they have received recognition of their extraordinary abilities and/or achievements from qualified, objective sources in their occupational field.

O-1 visas are based on a petition filed by a U.S. employer offering a specific job in the U.S. that requires a person of extraordinary ability.  The petitioning employer must submit evidence that the prospective employee meets the established O-1 criteria, that the position offered requires an individual of extraordinary ability, and that the individual is coming to the U.S. to continue to work in the area of extraordinary ability.  O-1 status may be granted for an initial stay of a maximum of three years, and may be renewed indefinitely in one year increments.

Scientists, Educators, Business Persons, and Athletes

Sustained national or international acclaim can be demonstrated by receipt of a major international award such as a Nobel Prize.  Alternatively, an O-1 petition can be approved for an individual who can provide evidence of accomplishments in at least three of the following categories:

  1. Receipt of nationally or internationally recognized prizes/awards for excellence in the field.
  2. Membership in organizations in the field that require outstanding achievement of their members, as judged by recognized national or international experts.
  3. Published material in professional or major trade publications or major media about the prospective employee.
  4. Participation on a panel or as a judge of the work of others in the same or an allied field of specialization.
  5. Original scientific, scholarly, or business-related contributions of major significance.
  6. Authorship of scholarly articles in professional journals or other major media.
  7. Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
  8. Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

The foregoing categories of evidence may not be appropriate for all individuals, so the regulations also state that if they do not readily apply in a particular situation, the employer can submit “comparable evidence” of extraordinary ability.  This comparable evidence may take the form of letters of support from distinguished authorities in the individual’s field.

Extraordinary Ability in the Arts

“Arts” includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.  Also included in the categories of essential technical or creative personnel are set designers, choreographers, music coaches, and related professionals.

Employers must show that the O-1 artist is recognized as being prominent in his or her field.  In the special case of the motion picture or television industries, employers must show that the O-1 artist is recognized as having a demonstrated record of extraordinary achievement in the industry.  In either case, this may be done by showing that the artist has been nominated for or has received a significant national or international award or prize, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.  Alternatively, an O-1 petition can be approved for an individual in the arts by submitting evidence in at least three of the following categories:

  1. Has performed or will perform services as a lead/starring participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts or endorsements.
  2. National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major papers, trade journals, magazines, etc.
  3. Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.
  4. Has a record of major commercial or critically acclaimed success.
  5. Has achieved significant recognition from organizations, critics, government agencies, and/or recognized experts.
  6. Has commanded or will command a high salary or other remuneration in relation to others in the field.

Again, if the foregoing categories of evidence do not readily apply to a particular individual, “comparable evidence” of extraordinary ability may be submitted.

Consultation Requirement

Consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed work and the beneficiary’s qualifications is mandatory before an O petition can be approved. “Peer group” means a group or organization comprised of practitioners of the beneficiary’s occupation.  This requirement may be especially important in the arts, entertainment fields or athletics.  Advisory consultations are labor consultations, unless no appropriate union exists.  In the latter situation, employers may submit an advisory opinion from an individual expert in the field, a peer group, or management organization that describes the beneficiary’s ability and achievements, the nature of the duties to be performed, and whether the services require someone of extraordinary ability.

Derivative Family Members

The spouse and children (under age 21) of the O-1 visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the O-3 classification.  The O-3 classification does not allow for U.S. employment.

O-2 Accompanying Employees

This category is restricted to foreign nationals seeking to accompany O-1 employees in the arts, motion picture and television productions, and athletics.  O-2 foreign nationals cannot work separate and apart from the O-1 prospective employee in question and must be named in the O-1 petition.  Individuals seeking admission in O-2 status to accompany an O-1 employee must meet the following criteria: (1) they must enter for the purpose of assisting in the O-1’s performance; (2) they must be an integral part of the actual performance; (3) they must have critical skills and experience with the O-1 employee which are not of a general nature and which are not possessed by a U.S. worker; and (4) they must have a foreign residence they do not intend to abandon.  More specific requirements apply to O-2 foreign nationals involved in motion picture and television productions.

P Visa Classification

The P-1 visa classification is a temporary nonimmigrant visa available to individuals who are internationally recognized athletes, artists or entertainers. The P-1 visa may be issued to an internationally recognized individual, team or group who wish to compete or perform in the U.S. in an event or competition which has a distinguished reputation, and requires the participation of an individual, team or group that has an international reputation.

A P-1 applicant must demonstrate an internationally recognized reputation by providing a contract (if such contracts are normally executed) and evidence of at least two of the following:

  1. Participation in a prior season with a major U.S. sports league;
  2. International competition with a national team;
  3. Significant participation in U.S. intercollegiate activity in a prior season;
  4. A written statement from an official of a U.S. sports league or governing body of the sport detailing how the individual or team is internationally recognized;
  5. A written statement from a member of the sports media or an expert in the field;
  6. Proof of international rankings; or
  7. Evidence of a significant honor or award in the sport.

Additionally, the petitioner must secure a written advisory opinion from an appropriate labor organization (where one exists) commenting on whether the alien or group is internationally recognized and whether the services the alien or group is coming to perform are appropriate for an internationally recognized athlete or group. In the alternative, the labor organization may submit a “no objection” statement. P-1 visa holders are generally admitted for the duration of a specific competition, event or performance, but may also receive an initial visa valid for a five-year period if they can demonstrate a schedule of services for that period.

In addition to the P-1 visa classification, there are three other classifications of P visas. The P-2 visa classification applies to an individual who is temporarily coming to the U.S. to perform as an artist or entertainer, individually or as part of a group, under a reciprocal exchange program between an organization in the U.S. and an organization in another country. The P-3 visa classification applies to an individual who is coming to the U.S. temporarily to perform, teach, or coach, individually or as part of a group, an art form that is culturally unique. Finally, the P-1S, P-2S, or P-3S visa classifications apply to essential support personnel who are highly skilled foreign nationals coming to the U.S. temporarily as an essential and integral part of the competition or performance of principal P-1, P-2, or P-3 visa holder(s).

R-1 Visa Classification

The R-1 visa classification is for an individual coming temporarily to the U.S. at the request of an organization to work as a minister or to work in a religious vocation or occupation.  A minister is an individual who is fully authorized and trained to conduct religious worship according to the particular religious denomination.  A religious occupation is an activity that relates to a traditional religious function such as a cantor or a liturgical worker.  A religious vocation is associated with a formal, lifetime commitment to the religion as taken by a nun or a monk.

To be admitted as a religious worker, the individual must:

  • Be a member of a religious denomination with a bona fide nonprofit religious organization in the U.S. for at least two years immediately preceding the time of application
  • Be coming to the U.S. to work at least in a part-time position
  • Be coming to work as a minister or to perform a religious vocation or occupation
  • Be coming to or remaining in the U.S. at the request of the petitioner to work for the petitioner
  • Not work in the U.S. in any other capacity

The petitioning organization must file an application with U.S. Citizenship and Immigration Services (USCIS) to obtain an approval notice prior to the individual applying for a visa stamp at a U.S. embassy or consulate.  The R-1 visa is valid for a maximum of five years and the R-1 visa holder’s spouse and children are eligible to apply for R-2 dependent visas.  R-2 visa holders are not eligible to work in the U.S.  The R-1 visa  may be issued for the full five-year duration, but the I-94 card that is received upon arrival to the U.S. may be limited to a shorter duration.  The date listed on the I-94 card is the date that controls the individual’s ability to remain in the U.S. and work legally in R-1 status.

Religious workers may qualify to apply for U.S. lawful permanent residence as a Special Immigrant Religious Worker. The criteria for application is nearly identical to the eligibility requirements for an R-1 non-immigrant classification except that the individual must have worked as a minister or in a religious vocation or occupation for at least the two-year period immediately preceding the filing of the lawful permanent residence application.

TN-1 Visa Classification

The 1992 North American Free Trade Agreement (NAFTA) between the U.S., Canada and Mexico created a special TN nonimmigrant classification.  The TN-1 nonimmigrant classification was created for and applies exclusively to Canadian citizens who are temporarily entering the U.S. to engage in “business activities at a professional level.” Specifically, the TN-1 classification is available only to Canadian citizens who intend to work in the U.S. in certain pre-designated professions. The NAFTA list of approved professions includes, but is not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers. To view the complete list of qualifying TN professions click here: NAFTA Appendix.

One of the primary benefits of the TN-1 classification is the rapid processing time. An application for TN status can be made in person at the port of entry to the U.S., either by land, sea or at an airport, typically at designated “Pre-Flight Inspection stations” located within major Canadian international airports prior to departing Canada. An application for TN status is typically approved on the same day it is made. By contrast, USCIS processing times for most non-immigrant classifications, including H-1B and L-1 classifications, range from several weeks to several months.

Other significant benefits of the TN-1 classification are that it does not have an annual cap and there is no limitation on how long a person can remain in the U.S. in TN-1 status. An indefinite number of TN-1 classifications may be issued in any given year.  TN-1 status can be approved for an initial three-year period, and may be extended in three year increments for an indefinite period of time. A TN-1 status holder, however, must intend to return to his or her foreign residence at the end of the authorized period of stay. A prolonged stay in the U.S. in TN-1 status may give rise to a presumption that the TN-1 status holder intends to remain in the U.S. as an intending “immigrant,” and could lead to the denial of future applications for TN-1 extensions of stay.

Spouses and children of TN-1 workers are eligible to obtain TD (“Trade Dependent”) status in order to accompany the principal TN-1 status holder for the duration of the stay in the U.S. TD status holders are not authorized to work in the U.S. but spouses in TD status, if eligible, may independently qualify for TN-1 status.

EB Visas:

  • EB-1 Visa: Persons who have extraordinary ability in the sciences, arts, education, business or athletics; persons who are outstanding professors or researchers; and, persons who are managers and executives subject to international transfer to the United States are eligible for this category. Persons of extraordinary ability do not require a job offer from a U.S. employer or a labor certification.
  • EB-2 Visa: Persons who are professionals with advanced degrees or persons with exceptional ability in the sciences, arts or business; persons who are advanced-degree professionals; and, qualified physicians who will practice medicine in an area of the U.S. which is underserved are eligible for this category
  • EB-3 Visa: Persons who are skilled or professional workers with bachelor’s degrees; persons who are skilled workers with at least two years of education or experience are eligible for this category. Persons who are unskilled workers also would qualify for this category.
  • EB-4 Visa: Religious workers and employees and former employees of the U.S government abroad are eligible for this category as “Special Immigrants.”
  • EB-5 Visa: Persons who will be starting and/or operating a business in the United States or who will be investing at least $500,000 to $1 million in the United States are eligible for this category as immigrant visaa.

 

Some visas are not listed, but are available. Please consult our attorneys for detailed information.