Nonimmigrant Visas
Nonimmigrant visa classification allows for individuals to be in the United States for a temporary period of time, as opposed to permanently. There are a variety of nonimmigrant visas that provide individuals with the necessary authorization to work and earn income in the United States. Generally, employers must file a petition with U.S. Citizenship & Immigration Services (USCIS) on behalf of the temporary worker. For certain nonimmigrant classifications, the individuals can apply directly at a U.S. Consulate. The attorneys and staff at RSST Law Group work closely with our clients, both employees and employers, to assist in obtaining all types of temporary employment visas. Following are descriptions of the most common employment-based nonimmigrant visa categories:
- Available to nationals of those countries that have treaties of commerce and navigation with the United States and who are entering the United States to set up a qualifying trading operation (E-1) or to invest in a business (E-2). Qualifying employees and treaty traders / treaty investors of qualifying organizations may be eligible.
- E-1 classification allows a treaty trader 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 of which the person is a national.
- 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 treaty trader visa classification.
- 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. Trade is not limited to goods and services.
- 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.
- E-2 classification allows a treaty investor to enter the U.S. for the purpose of furthering a substantial investment in a U.S. enterprise made by businesses or individuals that are citizens of a treaty country.
- To qualify, the petitioner 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.
- At least 50% of the U.S. investment entity must be owned by nationals 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.
- Periods of admission in 2-year increments, and can be renewed indefinitely as long as the trade or investment continues to qualify.
- No dual intent, i.e. does not lead to permanent residence.
- Available to nationals of Australia pursuant to the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005” (P.L. 109-13).
- Position offered must be a specialty occupation (same standard as H-1B visa classification), which is one that meets one of the following criteria:
- Bachelor’s or higher degree or its equivalent in the specific specialty is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry in parallel positions among similar organizations, or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s or higher degree.
- E-3 worker must qualify by meeting one of the following criteria:
- Have completed a U.S. Bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes the worker to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, training, and/or progressively responsible experience that is equivalent to the completion of a U.S. Bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
- Employer must obtain a certified Labor Condition Application from the Department of Labor, which includes, among other attestations, that it will pay the actual wage (the wage paid to similarly qualified workers in the area of indented employment) or the prevailing wage for the job category and location, whichever is higher.
- Employer is not required to file a petition with USCIS. The E-3 worker can apply for a visa directly at a U.S. Consulate outside of the U.S.
- Initial period of admission up to 2 years and can be renewed indefinitely.
- No dual intent, i.e. does not lead to permanent residence.
- Available to citizens of all countries.
- Primary purpose is to authorize study in the United States.
- F-1 students may be entitled to work authorization, referred to as practical training, in their field of study. There are two types of practical training, Curricular Practical Training (CPT) and Optional Practical Training (OPT).
- CPT is issued to F-1 students who are enrolled on a full-time basis at an approved educational institution to obtain work experience in their field of study.
- Examples of CPT include alternative work/study, internship, or cooperative education.
- CPT must be approved by the designated school official at the educational institution and endorsed on the student’s Form I-20 with the employer’s name and address and the dates and number of hours per week that the student is eligible to work.
- If a student works more than 12 months of full-time CPT, the student will no longer be eligible for OPT.
- OPT is available to students who are enrolled in or have completed a full course of study (Bachelor’s degree or higher) and who seek to gain practical work experience in their field of study.
- OPT is granted for a maximum of 12 months 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.
- Prior to beginning work pursuant to OPT, the student must obtain a recommendation on Form I-20 from the designated school official, file Form I-765, Application for Employment Authorization with USCIS, and receive an Employment Authorization Document (EAD card) once the application is approved.
- STEM Extensions. Certain students may be eligible for an additional 24-month extension of OPT if they hold a degree in a science, technology, engineering, or mathematics (STEM) field and are employed by an employer enrolled in the E-Verify program for the worksite where the student is working.
- No dual intent, i.e. does not lead to permanent residence.
- Available to citizens of all countries.
- H-1B Cap. New H-1B employment is subject to an annual cap. Currently, the annual limit is 65,000 per year, with an additional 20,000 available to H-1B beneficiaries holding an advanced degree from a U.S. institution.
- Cap-Exempt Employers. Certain employers are exempt from the H-1B cap and may file petitions even though the cap has been reached. Exempt employers include higher education institutions, nonprofit organizations related to or affiliated with higher education institutions (such as hospitals and research facilities), nonprofit research organizations engaged primarily in basic or applied research, and governmental research organizations.
- Position offered must be a specialty occupation, which is one that meets one of the following criteria:
- Bachelor’s or higher degree or its equivalent in the specific specialty is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry in parallel positions among similar organizations, or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s or higher degree.
- H-1B worker must qualify by meeting one of the following criteria:
- Have completed a U.S. Bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes the worker to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, training, and/or progressively responsible experience that is equivalent to the completion of a U.S. Bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
- Authorization for H-1B employment is specific to the petitioning employer and occupation.
- Employer must obtain a certified Labor Condition Application from the Department of Labor, which includes, among other attestations, that it will pay the actual wage (the wage paid to similarly qualified workers in the area of indented employment) or the prevailing wage for the job category and location, whichever is higher.
- Initial period of admission up to 3 years, with extensions granted in up to 3-year increments.
- Maximum period of admission is 6 years. An H-1B worker may be eligible for extensions beyond 6 years under provisions of the American Competitiveness in the 21st Century Act if a green card process is started in time.
- Allows for dual intent, i.e. beneficiary may pursue permanent residence.
- Available to citizens of Chile and Singapore pursuant to Free Trade Agreements.
- Similarly to the H-1B, the position offered must be a specialty occupation, which is one that meets one of the following criteria:
- Bachelor’s or higher degree or its equivalent in the specific specialty is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry in parallel positions among similar organizations, or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s or higher degree.
- H-1B1 worker must qualify by meeting one of the following criteria:
- Have completed a U.S. Bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- Hold a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation;
- Hold an unrestricted state license, registration, or certification which authorizes the worker to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, training, and/or progressively responsible experience that is equivalent to the completion of a U.S. Bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
- Employer must obtain a certified Labor Condition Application from the Department of Labor, which includes, among other attestations, that it will pay the actual wage (the wage paid to similarly qualified workers in the area of indented employment) or the prevailing wage for the job category and location, whichever is higher.
- Employer is not required to file a petition with USCIS. The H-1B1 worker can apply for a visa directly at a U.S. Consulate outside of the U.S.
- Initial period of admission up to 1 year and can be renewed indefinitely.
- No dual intent, i.e. does not lead to permanent residence.
- Available to citizens of all countries.
- Primary purpose is to authorize participation in a recognized international exchange program and to promote cultural and educational exchange between the United States and other countries.
- Various programs available 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.
- Obtained by applying through a 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.
- Periods of stay vary depending on the J-1 program.
- No dual intent, i.e. does not lead to permanent residence.
- Available to citizens of all countries.
- Employer must be a multinational organization seeking to transfer a qualifying employee who:
- Within the three preceding years, has been employed outside of the United States continuously for at least one year in a managerial or executive (L-1A), or specialized knowledge (L-1B) capacity; and
- Will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the United States in a managerial, executive, or specialized knowledge capacity.
- Organization must continue to have an ongoing business entity in at least one other country during the entire time that the employee is in the U.S. in L-1 status.
- Organizations may be eligible to obtain a Blanket L petition which serves to facilitate the transfer of qualified foreign workers to the United States. Organizations that are eligible and approved for the Blanket L can avoid filing individual petitions with USCIS and, instead, qualifying managers, executives, and specialized knowledge professionals apply directly at a U.S. Consulate abroad for an L-1 visa. The threshold requirements include:
- A U.S. office that has been doing business for at least one year;
- 3 or more domestic or foreign branches, subsidiaries or affiliates that are engaged in commercial trade or services; and
- Combined U.S. annual sales of $25 million, U.S. workforce of 1,000, or at least 10 approved L-1 petitions in the past year.
- U.S. offices that have been doing business for less than one year may qualify to sponsor individuals for a New Office L-1. Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. To qualify, the company must:
- Acquire sufficient physical premises to house the new office; and
- Show that the U.S. operation will be able to support the L-1 position within one year of the petition’s approval.
- In the event that the beneficiary is an owner or major stockholder of the company, the transfer cannot be permanent and the petition must be accompanied by evidence that the beneficiary’s services are to be used for a temporary period.
- Offsite employment and employment at “job shops” is prohibited, with limited exceptions.
- Initial period of admission up to 3 years, and can be extended in 2-year increments. Initial period of admission for a New Office L-1A is 1 year, and extensions are granted if the office is shown to be viable and continues to support the position.
- Maximum period of admission is seven years for L-1A and five years for L-1B employees.
- Allows for dual intent, i.e. beneficiary may pursue permanent residence.
- Available to citizens of all countries.
- Requires U.S. employer petitioner; U.S. agent may serve as the petitioner if certain conditions are met.
- Available to individuals who possess 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.
- Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of a small percentage who has risen to the very top of their field of endeavor as demonstrated by sustained national or international acclaim.
- Extraordinary ability in the field of arts means distinction, which is a level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
- Initial period of admission up to 3 years and can be renewed indefinitely in 1-year increments.
- No requirement to maintain a foreign residence, but individual must have intent to remain in the United States temporarily, not permanently.
- Available to qualified citizens of Canada and Mexico.
- Must be seeking temporary entry into the United States to engage in business activities at a professional level.
- Must have a prearranged full-time or part-time job with a U.S. employer.
- Position must require a NAFTA Professional.
- Must have the qualifications to practice in the Profession. With some exceptions, each Profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree.
- Employer is not required to file a petition with USCIS.
- Canadian citizens are generally eligible for admission without a visa and may apply directly at a port of entry into the United States.
- Mexican citizens are required to obtain a visa to enter the United States as a TN nonimmigrant and they must apply for a TN visa directly at a U.S. Embassy or Consulate in Mexico.
- Initial period of admission up to 3 years and can be extended or renewed indefinitely.
- No dual intent, i.e. does not lead to permanent residence.