Orner Law - Non-Immigrant (Temporary) Visas

Non-Immigrant (Temporary) Visas

Non-immigrant visas are for temporary residence in the U.S., while immigrant visas grant the beneficiary with permanent residence. Many non-immigrant visa categories require that foreign nationals establish non-immigrant intent – proof that they have a residence in a foreign country that they have no intention of abandoning. Other non-immigrant visa categories allow foreign nationals to have dual intent either to reside temporarily or permanently in the U.S.

Depending on the visa category, an employer may need to file a petition with the U.S. Citizenship and Immigration Services (USCIS) to obtain initial approval for the beneficiary. Once approved, if the beneficiary is outside the U.S., he or she presents the visa petition approval along with other required documentation at a U.S. Embassy or Consulate abroad to obtain a visa stamp in his or her passport. Only then can the beneficiary request admission to the U.S. and receive legal nonimmigrant status.

There are many different categories of non-immigrant visas based on the nature of the employment, the education and/or experience of the beneficiary, the desired length of stay in the U.S., and the nationality of the beneficiary, among other factors. Orner & O’Brien provides a comprehensive analysis of the available non-immigrant visa options and assists individual and corporate clients in deciding which of the available options is best suited to meet not just their current needs, but also their long-term goals.

E-1 Treaty Trader

The E visa category is for nationals of countries with which the U.S. maintains a treaty of commerce and navigation and who are coming to the U.S. to carry on substantial trade, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.

The E-1 (Treaty Trader) visa allows executives, managers, and other workers with highly specialized skills to enter the U.S. to work on investments in the U.S. The U.S. company and the foreign national must have the same nationality. For example, a French citizen can only obtain an E-1 visa if he or she works for a company in the U.S. that is at least 50% French owned. Owners who are U.S. permanent residents or who are dual citizens of both the U.S. and the treaty country are treated as U.S. nationals for this purpose and their ownership interest is not counted toward the requirement for 50% ownership by treaty country nationals.

To qualify for an E-1 visa, a citizen from a treaty country must be engaged in a substantial volume of trade that is principally (at least 51%) between the U.S. and the treaty country. The E-1 visa regulations define trade as “the existing international exchange of items of trade for consideration between the United States and the treaty country.” Based on that definition, “trade” includes both the sale of goods and services such as transportation, banking, advertising, accounting, technology and management consulting. The E-1 visa regulations do not provide a minimum dollar amount or number of transactions necessary to be considered “substantial.” However, to be considered substantial, the trading enterprise must be large enough to ensure a continuous flow of numerous items of trade over time from one country to another. The “substantial” trade must already be in existence at the time someone applies for E-1 visa status. The mere intent to engage in trade will not qualify a person for E-1 visa status.

E-1 visa status may initially be granted for a period of five years and can be renewed indefinitely. The spouse and unmarried minor children (under 21) of an E-1 visa holder are granted derivative E visa status. The derivative spouse of an E-1 visa holder may obtain work authorization in the U.S., however derivative children are not authorized to work.

E-2 Treaty Investor

The E-2 (Treaty Investor) visa allows citizens of a treaty country who either individually make a substantial investment in the United States or are employed by such investors (provided they share nationalities with the majority investors) to enter the U.S. to work on those investments. The U.S. company and the foreign national must have the same nationality. For example, a French citizen can only obtain an E-2 visa if he or she works for a company in the U.S. that is at least 50% French owned. Owners who are U.S. permanent residents or who are dual citizens of both the U.S. and the treaty country are treated as U.S. nationals for this purpose and their ownership interest is not counted toward the requirement for 50% ownership by treaty country nationals.

E-2 visa applicants must show that the U.S. enterprise is an active, non-marginal, controlled and at-risk investment. There is no minimum dollar amount of investment required, but the equity investment must be substantial in relation to the nature of the business. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise. The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Similarly, uncommitted funds in a bank account or similar security are not considered an investment. The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.

The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

E-3 Australian Specialty Worker

The E-3 visa category permits Australian citizens (either by birth or naturalization) to work temporarily in the U.S. in a specialty occupation for a U.S. employer who agrees to pay the employee the prevailing wage for the position offered. A specialty occupation requires the theoretical and practical application of a body of knowledge in professional fields, and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States. In addition, the job itself must also require a bachelor-level or higher qualification.

The E-3 visa, like the H-1B visa, requires as a first step the filing of a Labor Condition Application (LCA). Once the LCA is approved, the individual can apply for an E-3 visa directly at the U.S. consulate; the employer is not required to first file the petition with the U.S. Citizenship & Immigration Services (USCIS) as with the H-1B visa. The prospective employee must present the E-3 application and supporting documents at a U.S. consulate abroad to obtain an E-3 visa. Applicants who are already in the U.S. may apply at the consulate or file a petition with the USCIS.

E-3 visa status is initially granted for a period of two years and may be extended in two-year increments indefinitely, so long as required by business and so long as the employee can demonstrate the intent to return abroad after the temporary employment in the U.S. concludes. The spouse and unmarried minor children (under 21) of an E-3 worker are admitted in E-3D visa status for the same duration of stay as the E-3 worker. A spouse in E-3D visa status may obtain work authorization in the U.S., however children in E-3D visa status are not authorized to work.

H-1B Professional (Specialty Occupations)

The H-1B visa is the most common temporary work visa. This visa requires a U.S. employer to sponsor the foreign national for a specialty occupation, that is, an occupation requiring at least a U.S. Bachelor’s degree or foreign equivalent to perform the job duties. The U.S. employer must also attest to paying the same salary and benefits packages typically offered to U.S. workers in similar positions and to observing the H-1B program’s specific public notice and record keeping requirements.

There are three steps to obtaining H-1B visa status: (1) a Labor Condition Application (LCA) that is filed with the U.S. Department of Labor; (2) an H-1B visa petition that is filed with the U.S. Citizenship & Immigration Services; and (3) in some instances, an H-1B visa application that requires the employee to appear in person at a U.S. Embassy or Consulate abroad.

There is an annual limit or “cap” on the number of new foreign workers who can be granted H-1B visa status. Currently, the cap is set at 65,000. The H-1B visa numbers become available each fiscal year on April 1 for an October 1 start date. The annual limit does not apply to: (1) people who already have H-1B visa status and are seeking an extension of stay or a visa to allow them to travel; (2) people who already have H-1B visa status and are seeking to change employers; (3) physicians seeking H-1B visa status to work in a medically underserved area; (4) people seeking to work for an institution of higher education or a related nonprofit entity, a nonprofit research organization, or a government research organization; and (5) people who previously held H-1B visa status within the past 6 years and have not left the U.S. for more than one year after their last stay in H-1B visa status.

H-1B visa status is initially granted for a period of three years. It can be extended for an additional three years for a total period of six years. Extensions of H-1B visa status beyond six years may be granted to employees who remain outside the U.S. for more than one year or who spend less than half their time in the U.S. Extensions beyond six years are also available to employees who have applied for permanent resident status before the end of their fifth year in H-1B visa status. The spouse and unmarried minor children (under 21) of an H-1B worker may be admitted in H-4 visa status for the same duration of stay as the H-1B worker. H-4 visa status does not authorize them to work in the U.S.

H-3 Trainee

H-3 visas are available for foreign nationals who will enter the U.S. to receive training in any field other than graduate medical education or training. The H-3 visa requires a written training program that describes the training in great detail and explains exactly how the trainee will gain the knowledge (for example, observation, on-the-job training, or classroom instruction). In addition, the employer must show that the proposed training is not available in the trainee’s home country, assert that the trainee will not be placed in a position regularly held by a U.S. worker, state that the trainee will be employed outside the U.S. once the training has been completed, and describe how the training will provide the trainee with additional skills needed for employment abroad. The trainee may not engage in any productive employment while in the U.S. in H-3 visa status. If he or she does engage in productive employment, this employment must be strictly incidental to the training.

H-3 visa status may not be granted to foreign nationals who already possess considerable training and expertise in the proposed field of training. If the foreign national already possesses experience and/or expertise in that field, the petitioner must explain exactly what new information the trainee will learn.

An individual may be granted H-3 visa status for up to two years. Once someone has completed their training, they must generally remain outside the U.S. for at least six months prior to being granted H or L visa status.

The spouse and unmarried minor children (under 21 years of age) may be admitted to the U.S. in H-4 visa status. They are not authorized to work in the U.S.

J-1 Exchange Visitor / Trainee

The J-1 visa classification is for individuals approved to participate in work- and study-based exchange visitor programs that are overseen and approved by the U.S. Department of State (DOS). The purpose of these exchange programs is to foster global understanding through educational and cultural exchanges. Exchange visitors are expected to return to their home country upon completion of their program in order to share their exchange experiences. Examples of J-1 exchange program purposes include au pairs, camp counselors, college/university students, government or international visitors, interns/trainees, physicians, professors/research scholars, secondary students, short-term scholars, specialists, summer work or travel visitors, and teachers.

The first step in obtaining a J-1 visa is to submit a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (formerly known as an IAP-66). This form is provided by the approved sponsoring agency. Once the Form DS-2019 has been issued, the applicant may then apply for a J-1 visa at a U.S. Embassy or Consulate abroad. Foreign nationals applying for J-1 visa status must prove that they have sufficient “home ties” that will oblige them to return to their home country upon completion of their J-1 program. Duration of a J-1 program may be a few weeks to several years, depending on the category.

It is important to note that J-1 visa holders may be subject to a requirement that they return to and reside in their home country for a cumulative total of at least two years after the conclusion of the J-1 exchange program. They are not prohibited from traveling to the United States but may not obtain L-1 or H-1 visa status or U.S. permanent resident (green card) status until the foreign residency requirement is satisfied, unless they first obtain a waiver of this requirement from the U.S. government. While there are several bases for obtaining a J-1 waiver (not all of which are relevant to all individuals), the most common basis is the No Objection Statement, which requires applicants to obtain a statement from their home country that it has no objection to them not returning to their home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of them becoming lawful permanent residents of the U.S.

The spouse and minor children (under 21 years of age) are eligible for J-2 visas. J-2 spouses may apply to USCIS for employment authorization upon their arrival in the U.S. Children, however, are not authorized to work.

L-1 Intracompany Transferee

The L-1 nonimmigrant visa category allows existing employees of a multinational employer abroad to transfer to that employer’s U.S. enterprise. The L-1 category has no annual limitation on the number of employees that can be transferred to the U.S.

L-1 visa status is available to those individuals who have continuously worked for a company abroad for at least one year within the three years prior to applying for L-1 visa status in a managerial or executive position (L-1A), or in a position requiring highly specialized knowledge of the company’s business (L-1B), and who will be working in the U.S. for the same company, or a U.S. subsidiary, affiliate or parent of the foreign employer.

Generally, the U.S. company must sponsor the foreign worker by filing an L-1 visa petition with the U.S. Citizenship & Immigration Services (USCIS) and obtain USCIS approval before the employee can obtain an L-1 visa at a U.S. Embassy or Consulate abroad or change to L-1 visa status from another visa status. The U.S. government has provided a special set of procedures for certain large companies that are frequent users of the L-1 visa category to save time and effort in qualifying their employees for transfers. This expedited “blanket” L-1 program allows individual employees to skip the USCIS petitioning process and apply directly with a U.S. Embassy or Consulate abroad.

The maximum initial duration of L-1 visa status is three years, or one year if the sponsoring company in the U.S. has been doing business in the U.S. for less than one year at the time of filing the visa application. L-1 visa status may be extended for a maximum duration of five years for specialized knowledge employees (L-1B) and seven years for managers and executives (L-1A). The spouse and minor children (under 21) of an L-1 worker are admitted in L-2 status for the same duration of stay as the L-1 worker. A spouse in L-2 visa status may obtain work authorization in the U.S., however children in L-2 visa status are not authorized to work.

O Extraordinary Ability Workers

The O-1 visa is available to those individuals who have “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim” to come to the U.S. temporarily to continue work in the area of extraordinary ability. The O-1 visa is also available to individuals who have a record of extraordinary achievement in motion picture and/or television productions.

The “extraordinary ability” standard is a very high standard that requires either a major internationally recognized award (such as a Nobel Prize or Academy Award) or extensive documentation of achievements and recognition that meets the regulatory requirements described below.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the individual is one of a small percentage of individuals who has risen to the very top of his field of endeavor. Extraordinary ability in the field of arts means distinction – a high level of achievement in the field of the arts 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.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

O-2 classification applies to an individual who is coming temporarily to the U.S. solely to assist in the artistic or athletic performance by an O-1 beneficiary, and who has critical skills and experience with the O-1 beneficiary. O visas require a written advisory opinion from an appropriate institution describing the beneficiary’s ability and achievements in the field and duties to be performed, or simply not objecting to the petition.

The spouse and unmarried minor children (under 21 years of age) of an O-1 visa holder may be admitted to the U.S. in O-3 visa status. They are not authorized to work in the U.S.

R-1 Religious Worker

The R-1 visa is available to foreign nationals who are religious workers and who are coming to the U.S. to work for a non-profit religious organization in the U.S. that has tax-exempt status. To qualify, foreign nationals must have been members of the religious denomination they will work with for at least two years immediately preceding the filing of the petition and must plan to work in a professional capacity in a religious vocation. A job qualifying as a “religious vocation” includes ministers of religion who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy. The activity of an R-1 applicant must relate to a traditional religious function: it must embody the tenets of the religion and have religious significance, relating primarily, if not exclusively, to matters of the spirit as they apply to the religion. For example, rabbis, cantors, ministers and religious instructors would qualify as religious vocations, whereas janitors, fundraisers, and maintenance workers would not qualify.

The R-1 applicant’s prospective employer must file a petition with the U.S. Citizenship and Immigration Service (USCIS). Recently, R-1 visa petitions have been greatly scrutinized by the USCIS due to a high incidence of fraud. Therefore, the prospective employer should expect a possible site visit from a USCIS investigator prior to the petition approval to confirm that the organization is legitimate.

The maximum initial duration for qualified R-1 applicants is three years and R-1 visa holders may renew their status after that period expires. However, individuals may not remain in the U.S. on an R visa for more than five years. The spouse and unmarried minor children (under 21 years of age) may be eligible for R-2 classification. They are not authorized to work in the United States in R-2 visa status.

P Performance Workers (Artists and Athletes)

The P visa category includes the following categories:

– P-1: Internationally-known athletes (either individuals or members of a group or team) or entertainment group. An individual athlete is eligible for P-1 visa status if he or she is coming to the U.S. to compete and/or train in a sport in which he or she has received international recognition International recognition means a high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. If an athlete is applying as a team, the team must have received such international recognition. P-1 entertainer applicants must belong to an internationally recognized entertainment group that has sustained a high level of achievement for a substantial amount of time, and at least 75% of the members of the group must have had a substantial relationship with the group for at least one year. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential. Neither the one-year requirement nor the internationally recognized requirement applies to circus performers and essential circus personnel. It is important to note that individual entertainers not performing as part of a group are not eligible for P visa classification.

– P-2: Individual and group performing artists participating in a reciprocal exchange program. P-2 visa status is available for artists and entertainers coming to perform either individually or as part of a group, and under a reciprocal exchange program between an organization in the U.S. and an organization in another country. In order to qualify for P-2 visa status, a labor union must be involved in establishing (or acknowledging the validity of) the exchange program between the U.S. and the foreign country.

– P-3: Culturally unique artists and support personnel for primary P visa holders. P-3 visa status is for individuals coming to the U.S. to develop, interpret, represent, coach, or teach a culturally unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, the individual must be coming to the U.S. to participate in a cultural event or events that will further the understanding or development of the art form. The program may be of a commercial or noncommercial nature. Essential support personnel do not perform and cannot work apart from principal P visa holders, but provide highly skilled essential services that are integral to a performance and cannot readily be provided by a U.S. worker. Consultation with an appropriate labor union or peer group is required in all cases.

The spouse and unmarried minor children (under 21) of principals for the P visas may obtain derivative P-4 visas. They are not authorized to work in the U.S.

TN (Mexican & Canadian Citizens)

The TN non-immigrant visa category was created by the North American Free Trade Agreement (NAFTA). It allows for the expedited processing of Canadian and Mexican professionals seeking to enter the U.S. temporarily for employment purposes. TN visa status is similar to H-1B visa status, but it does not require the filing of a Labor Condition Application with the Department of Labor or a visa petition with the U.S. Citizenship and Immigration Service (USCIS). In addition, the TN visa category does not have an annual quota limitation.

The offered position must be on NAFTA’s specifically designated list of occupations. The employee must also be able to demonstrate that he or she possesses the specific requirements for the occupation and an intention to depart the U.S. after the completion of the temporary employment. Generally, a Bachelor’s level degree or a professional license is the minimum qualification necessary for TN visa status.

Canadian citizens seeking to enter the U.S. in TN status may apply directly with a U.S. immigration inspector at a designated U.S. port-of-entry or pre-flight inspection. Mexican citizens must apply for a TN visa prior to entering the U.S., which requires them to appear personally at a U.S. consulate abroad before applying for admission to the U.S. at a port of entry. Alternatively, Canadian or Mexican citizens who are already present in the U.S. can apply for TN status by filing a TN petition with a USCIS Service Center.

TN visa status may be initially granted for up to three years and can be renewed indefinitely in three-year increments.

The spouse and unmarried minor children (under 21) of a TN worker may be admitted in TD status for the same duration as the TN worker. They are not authorized to work in the United States.