NON-IMMIGRANT WORK VISAS

American companies regularly recruit highly skilled workers from around the world, relying on work visas to meet staffing needs on a temporary or permanent basis. A foreign national’s education, skills, and unique talents can make them indispensable to their employers, which is why a company may need advice and representation with any employment-based immigration issues.

The law of the United States allows a number of working visas for foreign workers to come to the U.S. to take up certain temporary employments with an American employer. The employment based non-immigrant temporary visas include the following categories that are described briefly below. Each of the visas has its own set of requirements. Their commonality is that while in most cases, the beneficiary worker may change the status from one category to another if the requirements are met, the status, once granted, is employment or occupation specific. Also, the granted status is temporary by nature.

Dependents of Employment Based Beneficiaries

The dependent spouse and under 21 years-old children of an employment-based beneficiary are considered derivative beneficiaries. They are eligible to immigrate under the same category as the principal beneficiary.

Temporary work Visas:

B-1 Business Visitors
E-1 Treaty Traders
E-2 Treaty Investors
F Students OPT/CPT
H-1B Professionals
J Exchange Visitors
L Intracompany Transferees
O Extraordinary Ability
P Athletes Entertainers
R Religious Workers

Temporary work visas include E, H, J, L, O, P, R and TN visas. The most common ways to visit the US are B-1 and B-2 visas and the Visa Waiver Program

General Resources

B-1 AND B-2 Visas

The B visa is for persons desiring to enter the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2).

Business (B-1)

Here are some purposes to visit that would qualify you for B-1:

To consult with business associates
To negotiate a contract
To attend a convention or conference related to your business/profession, or one that is educational or scientific in nature
To settle an estate

Tourism (B-2)

Here are some purposes to visit that would qualify you for B-2:

Vacation (to go on holiday)
To visit with friends or relatives
For social events hosted by fraternal, social, or service organizations
To participate, unpaid, in events related to music, sports, or other pursuits as an amateur enthusiast
To receive medical treatment
To take a short recreational study course that does not contribute toward a degree (ex. a two-day nature survivalist class taken during a vacation)

E-1 - Treaty Traders and E-2 - Treaty Investor

These types of visas are suitable to citizens of countries that have a qualifying trade treaty with the United States. E visas can be granted for up to two years and is renewable so long as the enterprise is still functioning and the applicant is engaged in overseeing the business or trade years, with extensions available. A full list of participating countries are listed here.

TN - North American Free Trade Agreement Professionals

The TN non-immigrant visas are granted to a Canadian or Mexican citizen to whom an employment is offered by an American employers. TN visas are granted for up to one year at a-time and may be extended for one year at a time.

What is a TN visa?

The TN Visa is designed for Canadian or Mexican citizens only. Note that you must be a citizen of either Mexico or Canada and not just a permanent resident. You must be offered an employment position in the United States that is "professional." The procedure in which you obtain a TN visa differs for Mexican and Canadian nationals.

What is a "professional" under the TN program?

A "professional" for purposes of a TN visa requires that you have a bachelor’s degree. In addition, the employment category you wish to work in must be listed under the NAFTA Treaty, which gave rise to the TN visa.

H-1B - Specialty Occupation

This classification is suitable for a foreign citizen to whom an American employer offers a temporary employment in a specialty occupation. H-1B visas are typically granted for up to three years initially, with extensions possible to a maximum of six years, or seven under certain circumstances. 65,000 visas are allocated to this classification per fiscal year.

Who Qualifies for an H-1B Visa?

In order for an employee to be eligible for an H-1B, the job and the employee's profession must be a specialty occupation. This has been defined as including, but not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers, among others. Generally, an H-1B is reserved for individuals with specialty knowledge, as opposed to mere skill, and a bachelor's degree or its equivalent is required.

Second, there must be an employer-employee relationship. An independent contractor, or someone merely working on a commission basis is not sufficient for an H-1B visa.

Simply put, an attorney will assist the employer in showing that the immigrant employee has the credentials and skills for the occupation and there is a temporary job available in a specialty occupation matching the immigrant employee's educational background.

Who Pays for an H-1B Visa?

Generally, the employer, not the employee, must pay for most of the costs associated with an H-1B visa. Working with an experienced employment immigration attorney can guide the employer to reduce risks associated with these expenditures.

H-2B - Seasonal Workers

The H-2B visa category is suitable for U.S. employers in industries with either peak load, seasonal, one time occurence or intermittent needs to hire temporary foreign workers to staff their businesses with necessary work force. Typically, H-2B workers fill labor needs in industries such as health care, landscaping, construction, manufacturing, food service and hospitality services. There are 66,000 visas allocated to this category into two halves for employments started in April and October each year.

L-1 - Intra Company Transferees

The L-1 visa is used by multinational businesses that need to temporarily transfer key employees to work in the affiliated entities in the United States. L-1 visas are granted for a maximum of three years with one-year extensions for a total maximum of seven years.

Do I qualify for an L-1A or an L-1B visa?

Employees who will perform managerial or executive duties in the United States should apply for an L-1A visa, which has a maximum visa validity of seven years. An L-1A allows for a period of stay for three years, and two extensions of two years each.

Employees who have specialized knowledge should apply for an L-1B visa, which has a maximum validity of five years. The initial petition will grant three years of stay, with only one extension of two years. Spouses and children under 21 years of age are eligible to obtain employment authorization.

What is required to obtain an L-1 visa?

Most importantly, we must show a qualifying relationship between the foreign company and the U.S. affiliate. We must then show your prior duties in the capacity of an executive, manager or someone who has specialized knowledge and that you worked full time for the foreign company for at least one year in the past three years.

O-1- Person of Extraordinary Ability or Achievement

O visas are for persons who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

Visas are divided into the following subcategories:

Persons of extraordinary ability in the sciences, arts, education, business, or athletics (O-1),
The artist’s or athlete’s support staff (O-2), and
The O-1 visaholder’s spouse and children) (O-3).

P - Athletes

The P visa is reserved for performers, athletes and entertainers. P-1 status allows individuals who have earned international recognition to visit the United States temporarily to compete in athletic events, or to perform. The P visa is further divided into the P-2 category, reserved for reciprocal exchange entertainment groups. Finally, the P-3 visa is available for entertainment groups who provide culturally unique performances.

R-1 - Religious Occupation Workers

An R visa is required for a foreign national who is coming to the United States temporarily to be employed at least part time (average of at least 20 hours per week) by a non-profit religious organization in the U.S. (or an organization which is affiliated with the religious denomination in the U.S.) to work as a minister or in a religious vocation or occupation. The R-1 visas are typically granted for one to three years with extensions possible to a maximum of five years.

E-1/E-2

B-1/B-2

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