U.S. immigration law has specific nonimmigrant visa classifications that allow for temporary employment under certain conditions; some allow for only part-time employment, some for employment through an agent, and some for only the petitioning employer. This article will provide an overview of the nonimmigrant classifications currently available under U.S. law.
A. Business Visitors (B-1 Visas):
This status does not allow employment in the U.S, rather it allows the B-1 to “conduct business.” The B-1, or visitor for business, is a valuable option where the employee will continue to be employed and paid by the company outside of the United States during the temporary assignment in the United States. Appropriate use of the B-1 visa includes exploring the feasibility of U.S. operations, performing liaison functions, obtaining information, investigating investment opportunities, taking projects back to the home country, attending conferences, negotiating contracts, et cetera. The advantage of the B-1 is that nationals of visa waiver countries can enter for up to 90 days without a visa stamp.
B. Student Employment (F- 1 Visas):
International students at U.S. universities and colleges on F-1 student visas have a number of employment options available during and after their studies. An F-1 student registered as a full-time student may work on campus up to 20 hours per week while attending courses when school is in session, and up to 40 hours per week during school breaks. This employment may be for the school or may be for a business located on the campus that provides direct services to students. Students suffering from severe economic hardship based on unforeseen circumstances, such as currency fluctuations or natural disasters in their home country, are eligible to apply to USCIS for employment authorization, which would permit off-campus employment.
F-1 students may also obtain authorization for “practical training” in their fields of study. “Curricular practical training” (CPT) is authorized during the course of study for programs such as alternate work/study programs, internships, cooperative education programs, and practicum experiences that are required by a course or the student’s degree program. The designated school official (DSO) this form of practical training. A student who uses more than 12 months of CPT will not be eligible for “Optional practical training” (OPT). OPT is a block of 12 months of full-time work authorization that a student may use during school breaks, while school is in session, or after completion studies. However, the student must first obtain the employment authorization documentation (EAD) by applying to USCIS. Students who obtain degrees in STEM fields (Science, Technology, Engineering, and Math) may be eligible for an additional 17 months of OPT.
C. Exchange Visitors (J-1 Visas):
J-1 visas are issued to students, scholars, trainees, teachers, professors, research assistants, doctors, and specialists or leaders in fields of specialized knowledge or skill who are coming to participate in a program authorized by the Department of State (“DOS”). Many universities, hospitals and large businesses have been authorized by DOS to employ exchange visitors. A variety of program sponsors may authorize business and industrial trainees to be employed by companies that do not have their own approved exchange visitor programs.
Business and industrial trainees are limited to 18 months of employment. Teachers, professors, research scholars and specialists may be employed for up to five years, while physicians engaging in graduate medical education and training (GME) may be employed up to seven years. Exchange visitor students may be employed part-time off campus with the approval of the exchange visitor program sponsor, normally the university. In addition, exchange visitor students may obtain “academic training” following the completion of studies for a period of 18 months, or for 36 months in the case of certain postdoctoral programs.
D. Cultural Exchange Programs (Q-1 Visas):
The Q-1 visa is for foreign nationals employed in cultural exchange programs. The program must expose Americans to aspects of a foreign culture as part of a structured program, and this cultural component must be an essential and integral part (not independent) of the employment or training. The program, and the alien’s qualifications to communicate effectively about his or her home country as part of the program, must be approved by the USCIS. The Q visa is limited to 15 months.
E. Temporary Workers in a Specialty Occupation (H-1B Visas):
The H-1B visa is the broadest category of employer sponsored employment authorization. However, Congress established an annual quota for new H-1B visa holders, and in the past few years, the quota has been reached the first day. When the quota is reached, no H-1B petitions may be filed until the following fiscal year, unless the employer is exempt from the quota (such as a university).
To apply for an H-1B, a U.S. employer must attest that (1) the foreign national will be paid at or above the higher of the rate paid for a similar position at the employer’s own offices and the prevailing rate paid by other employers in the geographic area; (2) employment of the foreign national will not “adversely affect” the working conditions of U.S. colleagues; (3) U.S. colleagues will be given notice of the professional’s presence among them; and (4) there is no strike or lockout at the worksite. The employer must also demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. To be considered a “specialty occupation” the position must require a bachelor’s or higher degree (or foreign equivalent) in a specific specialty as a minimum requirement for entry into that occupation. The position must also require “theoretical and practical application of a body of highly specialized knowledge.”
Before an employer can file an H-1B petition with USCIS, it must first file a Labor Condition Application (“LCA”) with the Department of Labor (“DOL”), attesting to the four points noted above. On or before the date the LCA is filed, the employer must either notify its employees’ collective bargaining agent of the LCA filing or, if there is no such agent, post notice of the LCA filing in at least two conspicuous locations at the employer’s premises for 10 consecutive business days. The employer must also create a “public examination file” containing all of the documentation required by the DOL regulations regarding determination of prevailing and actual wages and the other attestations on the LCA for at least one year beyond the end of the period of employment specified on the LCA.
H-1B visas may be issued for an initial period of up to three years, with extensions for a maximum of three additional years (further extensions may be possible if a permanent residency case has been pending at least one year). An extension petition must be accompanied by a new certified LCA. If an employer dismisses an H-1B employee prior to the conclusion of his/her authorized period of employment, the employer is obligated to pay the return costs of transportation to the alien’s last place of residence outside the U.S.
F. Temporary Workers in Short Supply (H-2B Visas):
This visa category is available to an employer that has a need for services or labor that is either a one-time occurrence, a seasonal need, a peak load need or an intermittent need. The employer must show not only that foreign national workers will be needed for a temporary period of time, but that there will be no need to replace foreign national workers after their visas expire because of the temporary nature of the position itself. The employer must advertise the position in accordance with DOL regulations and offer the position at the “prevailing wage” to obtain a temporary labor certification from the DOL proving unavailability of U.S. labor. Upon approval of the temporary labor certification, the employer files an H-2B visa petition with the USCIS.
H-2B visas are limited to the duration of the employer’s need for services, initially up to one year with two one-year extensions possible, but difficult, to obtain.
G. Trainees (H-3 Visas):
This visa category is an alternative to the J-1 visa for business trainees. It allows a foreign national to participate in a formal training program where the employer can prove that: (1) any productive employment will be incidental to the training, (2) the training is not available in the alien’s country, (3) the training will benefit the alien in pursuing a career outside of the United States, and (4) no U.S. worker will be displaced. The employer must prove an actual and, in most cases, formal training program, including both classroom and on-the-job components. The H-3 visa is normally issued for the length of the training program up to a maximum of two years.
H. North American Free Trade Agreement (TN-1 Nonimmigrant Classification):
Pursuant to the North American Free Trade Agreement (“NAFTA”), Canadian and Mexican nationals are eligible for classification as TN-1 nonimmigrants. This nonimmigrant classification is available to Canadian and Mexican nationals who come to the United States to work in one of a specific list of professions, almost all of which require at least a bachelor’s degree. Canadians may make an application directly at the port of entry, and no specific petition is required. Normally, the request is acted upon at the time the application is made. Mexican citizens must apply at a U.S. Consular office for a TN-1 visa and present both the TN-1 visa and a valid passport at the port of entry. A TN-1 nonimmigrant is admitted for three year, with an unlimited number of annual extensions permitted. However, the TN-1 must also evidence a “non-immigrant intent” showing that she has a residence abroad to which she intends to return.
I. Aliens of Extraordinary Ability (O-1 Visas):
This visa category is for foreign nationals with “extraordinary ability in the sciences, arts, education, business or athletics.” Extraordinary ability is defined as “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” The position offered to the foreign national must require the services of an alien of extraordinary ability, and the foreign national must document “sustained national or international acclaim and recognition for achievements in the field of expertise.” Written evidence of consultation with an appropriate “peer group” regarding the nature of the work to be done and the alien’s qualification or a peer review letter is mandatory before a petition for an O-1 classification can be approved.
The O-1 visa can be issued for a period of up to three years, with unlimited extensions in increments of one year.
J. Athletes and Performing Artists (P Visas):
This visa category is for international-caliber athletes and performing artists coming to the United States for a specific event or series of events. P-1 visas are for members of an athletic team coming to participate in a competition with that team or for members of an artistic group coming to perform with the group. P-2 visas are for performing artists and entertainers coming to the U.S. under a reciprocal exchange program between organizations in the U.S. and the artist’s home country. P-3 visas are for “culturally unique” performing artists coming, individually or as part of a group, to perform, teach or coach in their art.
P visa holders are admitted for the length of their athletic or performing event or tour.
K. Intracompany Transferees (L- I Visas):
This category is for individuals who worked abroad for at least one year in an “executive, managerial or specialized knowledge capacity” for the same company or a branch, parent, subsidiary or affiliate of the company in the United States to which he or she is being transferred to work in an executive, managerial or specialized knowledge capacity. The one year of employment abroad must have occurred during the three years immediately preceding transfer. In most (but not all) cases, there must be at least a 50 percent common equity interest between the foreign and U.S. companies (exceptions may exist where there is a minority equity relationship but common control).
A “manager” may supervise other professionals or other managers or may “manage an essential function” and “function at a senior level within the organizational hierarchy or with respect to the function managed.” In other words, managers of people, projects and products qualify for this visa.
A “specialized knowledge” employee is one who has “specialized knowledge of the organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise of the organization’s processes and procedures.”
The L-1 visa petition can be approved for an initial period of up to three years. Extensions are possible in increments of two years up to a maximum stay of seven years for executives and managers and five years for specialized knowledge employees.
L. Treaty Traders/Investors (E-1 and E-2 Visas):
This visa category is available only to nationals of countries that have entered into treaties of friendship, commerce and navigation or bilateral investment treaties with the United States. It enables executives or supervisors or people with essential skills to work in the U.S.: (a) for a company (or individual) engaged in substantial import or export with the treaty country (E-1 visa), or (b) for a company (or individual) that has invested a substantial amount of money in a business in the U.S. (E-2 visa). In either case, the business must be owned at least 50 percent by the visa applicant or by nationals of the visa applicant’s treaty country who are not permanent residents or citizens of the U.S. An E-2 visa applicant may also qualify based upon his or her own investment of a substantial amount of money in a business in the United States so long as the applicant is developing or directing the business, even if the applicant will not be employed by the business.
The qualification of an E-1 treaty trader company is based upon regular, ongoing trade of goods or services, a majority of which must be with the treaty country. Qualification as an E-2 treaty investor company is based upon the substantiality of investment, which is not defined by any specific dollar amount, but rather by a comparison of the investment with the total value of the business or, especially in the case of a new business, with the amount normally considered necessary to establish a viable business of the nature contemplated.
The E visa may be issued for several years, with the exact amount depending on the reciprocity schedule and the consul’s discretion. However, the E visa holder may only be admitted to the United States for a maximum initial period of two years with an unlimited number of two-year extensions possible.
M. Religious Ministers, Professionals and Workers (R-1 Visas):
This visa category is for foreign nationals who have been members of a religious denomination who are coming to be employed by that “religious denomination having a bona fide, nonprofit religious organization in the United States.” The visa is available for ministers, for religious professionals and for other workers in a religious vocation or occupation. This status may be approved for up to three years, with one two-year extension available.