There are many nonimmigrant visa categories which allow foreign nationals to enter and remain in the U.S. for a temporary time period (in some instances up to six or seven years). Frequently, employers will find themselves faced with the need to sponsor foreign national employees to work in the U.S. It is important, therefore, to have a general understanding of the basic nonimmigrant employment based visa categories.
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H-1B Specialty Workers Visa
One option available to employers is the H-1B Visa which allows businesses to sponsor highly skilled foreign nationals in specialized occupations to come work in the United States on a temporary basis. These specialty occupations include, but are not limited to: Information Technology, Finance, Accounting, Banking, Engineering, Teaching, Medical, Legal, and Telecommunications. To qualify for the H-1B Visa, foreign nationals must have a minimum of a Bachelors degree in their specialized fields.
In order to obtain an H-1B Visa, the employer must submit a completed Labor Condition Application (LCA) which outlines that 1) the employment of the foreign national does not harm American workers, 2) the foreign worker will be paid the prevailing wage for the industry in which they will work, and 3) the employer will not employ the foreign national in the event of there is a strike or lock-out; and 4) the employer will provide a notice of the LCA to all workers employed in the named occupation. Once the application is approved, the employer must file the appropriate petition with the United States Citizenship and Immigration Services.
The United States places a cap on the number of foreign workers, issuing a limited number of H-1B Visas per year. With great demand and limited supply, it is important that you consult an attorney who understands the extremely detailed process of obtaining work authorization in the U.S. We assist in the preparation of the petition, application and review all supporting documentation to ensure that you do not fall victim to the common H-1B Visa pitfalls which lead to the rejection of many applications each year.
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H-1C Nurse Work Visa
The H-1C Visa program allows foreign nurses to work in the United States for a maximum of three years in a health professional field where there is a labor shortage. In order to obtain the H-1C Visa, the nurse must be fully licensed in the country of his/her professional education and pass the NCLEX-RN exam. Just a few hundred H-1C Visas are issued to qualified candidates each year. It is important to note that individual states also impose a cap on H-1C Visas dependent upon the latest population figures. Our firm can help you determine specific state restrictions, demonstrate eligibility and assist you in the preparations of all H-1C documentation.
H-2 Temporary or Seasonal Work Visa
The H-2 Visa allows employers to bring temporary workers to the United States to fill a job opening for a specified time period up to one continuous year. The employment must be a one-time need based opening due to a labor shortage in the United States, or be fulfilling a temporary or cyclical need. In order to obtain an H-2 Visa, the employer must obtain a Temporary Labor Certificate from the United States Department of Labor asserting that no U.S. workers will be displaced by the hiring of foreign nationals, and that the foreign national will be paid the prevailing wage for U.S. workers in the same position. Once the employer has obtained the Temporary Labor Certificate, a petition must be filed with United States Citizenship and Immigration Services verifying that the position is temporary. The H-2 Visa process varies depending on whether the foreign worker is an agricultural or non-agricultural worker. Contact our firm to discuss the necessary requirements to obtain temporary worker authorization through the H-2 Visa program.
H-3 Professional Training Visa
Companies that have training programs to educate individuals in a specific industry are able to sponsor foreign participants by obtaining the H-3 Visa. The H-3 visa allows foreign nationals to temporarily live in the United States for a specified period of time (the duration of their training) in order to train with a U.S.-based company in various occupations including commerce, agriculture, finance, government and business. It is important to note that individuals receiving medical training are not eligible for this Visa program.
In order to qualify for the H-3 Visa, an individual must be invited by an organization, company or American citizen for training which is not available in the foreign national’s home country. Applicants seeking the H-3 Visa must file a petition proving that they will not be employed in the United States beyond what is necessary for their training and that the experience will benefit the trainee in pursuing a career outside the U.S. upon the completion of the program. Although there is no cap on the number of H-3 Visas issued each year, it is important to consult with an attorney who has experience with business immigration to ensure the proper steps are taken in each phase of the application and petition process.
TN ("Trade North America") Classification
TN (“Trade North America”) classification is only available to qualified citizens of Canada and Mexico through the North American Free Trade Agreement (NAFTA). The proposed position offered by the sponsoring employer must be a professional position that is listed on the NAFTA professional job list.
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O-1 Extraordinary Ability Work Visa
Businesses may hire foreign employees with “extraordinary ability in the sciences, arts, education, business, or athletics” to come work temporarily in the United States. A genetic engineer who has written extensively on modified food or an Olympic athlete who has won multiple medals in their respective sport are examples of qualified applicants for the O-1 Visa. In order to qualify for this visa program, the foreign national must prove their high level of expertise in a given field by winning an internationally-recognized award, such as the Noble Prize, or by meeting three of the following criteria to prove extraordinary ability:
- Professional publications written by others documenting the individual’s work in a particular field.
- Evidence of the foreign national’s participation as a judge on the work of others within their field of specialty.
- Membership in an association in the field of extraordinary ability, which requires outstanding achievement for membership.
- Evidence of the foreign national’s original significant contribution in his or her respective field.
- Evidence of the foreign worker’s authorship of articles in the field published in major media or professional journals.
- Evidence of past employment with distinguished organizations or establishments which serve as an authority in the field of endeavor.
- Evidence of high salary for services in relation to other peers in the field.
The O-1 Visa is granted for an initial stay of three years; however, the Visa may be extended in one year increments for the duration of the foreign employee’s work in the United States. Unlike most of the temporary non-immigrant visas, there is no maximum length of stay in the U.S. for holders of the O-1 Visa. Our attorneys can assist you in obtaining an advisory opinion to prove eligibility and aid in the preparation of the O-1 petition and supporting documentation.
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P-1A Internationally Recognized Athlete
The P-1 classification applies to you if you are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
Individual Athletes Eligibility Criteria - You must be coming to the United States to participate in individual event, competition or performance in which you are internationally recognized with a high level of achievement; evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned, leading or well known in more than one country.
Athletic Teams Eligibility Criteria -You must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which your team is participating must be distinguished and require the participation of athletic teams of international recognition.
In order to qualify for this visa program, the foreign national must demonstrate he/she is an internationally-recognized athlete and provide the following:
A written consultation from an appropriate labor organization;
A copy of the contract (or performance agreement) with the employer, a major U.S. sports league or team with international recognition in the sport, if such contracts are normally utilized in the sport;
An explanation of the event and itinerary;
Documentation of at least two of the following:
- Evidence of having participated to a significant extent in a prior season with a major United States sports league;
- Evidence of having participated to a significant extent in international competition with a national team;
- Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;
- A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;
- Evidence that you or your team is ranked, if the sport has international rankings; and Evidence that you or your team has received a significant honor or award in the sport.
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L-1 Multinational Corporation Employee
Multinational companies with multiple locations in the United States and abroad may sponsor foreign employees to join a U.S. branch by obtaining the L-1 Visa. The L-1 (intracompany transferee) visa is applicable to employees who have worked abroad, in an executive, managerial or specialized knowledge capacity, for at least one year within the preceding three years of entry to the U.S. for an international organization or business entity and is transferred temporarily to the U.S. to work in a similar qualifying capacity for a branch, parent, subsidiary or affiliate thereof. This visa category is applicable for any multinational company with branch, parent, affiliate or subsidiary in the U.S.
In order to be eligible for this visa, an individual must have worked abroad for the company for at least one continuous year prior to relocating to the United States. Two types of employees may be eligible for the L-1 Visa:
- Managers and Executives who hold a supervisory role within the company may apply for the L-1A Visa for a maximum of seven years.
- Employees with specialized knowledge of the company’s products, services, research, systems, management, operations or procedures which is not widely held or available in the United States may be eligible for the L-1B Visa. These individuals may remain in the United States for a maximum of five years.
Employers may petition for foreign national employees through the regular L-1 Visa procedure, submitting a petition for each individual employee, or by filing a Blanket L-1 Visa petition which allows the employer to apply for the L-1 Visa on behalf of multiple employees under a single petition. Generally, blanket petitions are only available for larger corporations as certain criteria must be met. Once the Blanket L-1 is approved, employers have greater flexibility in transferring employees to the United States. Our immigration attorneys can assist you in determining if your business qualifies for the regular or blanket L-1 Visa petition.
L-1A: Click here for a related U.S. Citizenship & Immigration Services article (L-1A)
L-1B: Click here for a related U.S. Citizenship & Immigration Services article (L-1B)
E1 and E2 Treaty Visas
The U.S. has special treaties related to commerce with a number of countries. These treaties allow individuals from such countries who need to travel to the U.S. for substantial trade and business- related activities to obtain Treaty Trader (E-1) or Treaty Investor (E-2) visas.
Treaty Trader (E-1) and Treaty Investor (E-2) Nonimmigrant Visa Classification is available for qualified citizens of a country which holds a treaty of commerce and navigation with the United States. A qualifying company must be carrying on substantial trade (E-1) or have made substantial investments (E-2) in the United States.
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Requirements: E-1 Treaty Trader
Individuals from qualifying treaty countries who want to apply for an E-1 Treaty Trader Visa must meet certain requirements, such as:
- The company which is seeking to conduct trade in the U.S. must be based in the same treaty country of the individual.
- There must be a significant amount of international trade between the U.S. and the treaty country.
- The individual must have specialized skills and be in a management position of the company which is conducting trade.
Requirements: E-2 Treaty Investor
Individuals from qualifying treaty countries who want to apply for an E-2 Treaty Investor Visa must meet certain requirements, such as:
- There must be sufficient amount of investment to ensure the success of the underlying business. It should also have a significant economic impact in the U.S.
- The investment must be for an active, operating business and not a passive or speculative investment.
- If the individual applying for the visa is not the investor, he or she must be in a management position at the company making the investment.
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