Richard J. Block

Temporary Work Visas

Specialty Occupation Worker (H-1B Visa)

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are recognized specialty occupations.

The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in FY2010.

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered.

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

  1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status as an EB (I-140) immigrant, or
  2. 365 days or more have passed since the filing of an EB (I-140) immigrant petition.

Canadian Professional Worker (TN Visa)

The North American Free Trade Agreement (NAFTA) established a TN nonimmigrant visa category for Canadian and Mexican citizens. The TN category enables Canadian citizens (not landed immigrants) and Mexican citizens to be admitted to the United States to temporarily engage in "business activities at a professional level" in certain fields, for one or more specific employers.

To be eligible for admission in TN status, the individual must satisfactorily demonstrate to U.S. Customs and Border Protection (CBP) that:

  • the individual is a citizen of Canada or Mexico;
  • the individual will engage in employment that is on a list of qualifying professions
  • the position requires the individual to have at least a baccalaureate degree or appropriate credentials demonstrating status as a professional
  • The individual possesses the requisite educational background and experience for that profession.

Spouses and children (unmarried children under the age of 21) who are accompanying or following to join NAFTA Professionals (TN visa holders) may receive a derivative TD visa. Applicants must demonstrate a bona fide spousal or parent-child relationship to the principal TN visa holder. Dependents do not have to be citizens of Mexico or Canada. Spouses and children cannot work while in the U.S. They are permitted to study.

Canadian citizen spouses and children do not need visas, but they must have the following documents at the port of entry:

  1. Proof of Canadian citizenship;
  2. Proof of relationship to the principal applicant, such as marriage certificate and birth certificate; and
  3. Photocopies of entry documents of the principal applicant.

Mexican citizen spouses and children must apply for TD nonimmigrant visas at a U.S. embassy or consulate.

If the spouse and children are not Canadian citizens, they must get a TD nonimmigrant visa from a U.S. embassy or consulate. They must contact the U.S. embassy or consulate that serves their area for information on how to make visa applications.

Spouses or children following to join must show a valid I-94, thereby providing proof that the principal TN visa holder is maintaining his/her TN visa status.

The maximum period of admission into the U.S is three (3) years and extensions of stay may be granted in one to three year increments. There is no limit on the total number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence.

Intra-Company Transferee (L-1 Visa)

The L-1 visa is available to executives, managers or persons with “specialized knowledge” of their employer’s business. USCIS regulations provide detailed definitions of the above terms. The employee applying for an L-1 visa must also have worked for an affiliate of the U.S. employer outside of the U.S. for at least one (1) continuous year within the three (3) years preceding the application.

The L-1 visa petition is usually submitted by the prospective U.S. employer to the appropriate regional service center of USCIS. The one exception to this filing requirement is that under NAFTA, L-1 petitions on behalf of Canadian citizen beneficiaries may be adjudicated at a major port of entry (i.e., a port of entry to which a “Free Trade Examiner” has been assigned).

The initial L-1 period of stay granted by the USCIS is usually three (3) years. The initial period of stay may be extended to a maximum of seven (7) years for L-1 executives and managers, and five (5) years for L-1 employees with specialized knowledge.

Spouses and other dependents of L-1 visa holders receive L-2 visas, which allow them to stay in the U.S. concurrently with the L-1 visa holder. Spouses of L-1 visa holders are permitted to work in the U.S. provided they apply for and obtain employment authorization from the USCIS. Children of L-1visa holders, however, are not permitted to work in the U.S. Children on L-2 visas who are under 21 years of age may attend public school.

U.S. employers of a certain size or which have sponsored ten or more L-1 visas may qualify for “Blanket L” status, under which the USCIS pre-approves the corporate relationship between the U.S. employer and certain affiliates overseas. Applicants who meet all L requirements and who have worked for at least one year for one of the approved foreign entities may submit an abbreviated application form to their nearest U.S. Consulate or Embassy directly.

Treaty Investors and Traders (E-2 and E-1 Visas)

E visas are for nationals from certain countries (including many countries in Europe, as well as Scandinavia, Japan, Korea, Taiwan, some of the Americas) with companies who have made "substantial" investments in the U.S. (E-2 Visa), or are conducting a substantial amount of trade (at least 50% of their total trade) regularly with the U.S. (E-1 Visa).

E visa-holders must be principal investors, managers or employees with essential skills. Even small companies can have principals who qualify for an E visa. At least one job for a U.S. worker should be created.

E visas can be extended indefinitely (during the pendency of the company's investment or business activity). Tax considerations could make the E visa preferable to a green card.

Australian Specialty Occupation Worker (E-3 Visa)

The E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. A non- Australian spouse of an Australian E-3 visa holder is qualified for the E-3 visa as a dependant of his/her husband or wife. The E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation. The E-3 visa is similar to the H-1B visa, although unlike the H-1B, the E-3 worker need not file a petition with the USCIS. Consulate filing is acceptable. The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually. Spouses and children do not count against the numerical limitation nor are they required to possess the nationality of the principal.

A Labor Condition Application (LCA), containing attestations by the sponsoring employer related to wages and working conditions must be filed with and approved by the Department of Labor . The definition of a “specialty occupation” under the E-3 visa is similar to the definition of a “specialty occupation” under the H-1B visa. In general, a specialty occupation is one that 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 order to determine what constitutes a "specialty occupation," consular officers abroad will be guided by, and will apply, regulatory criteria already developed by the Department of Homeland Security for the H-1B classification.

Spouses of a principal E nonimmigrant are permitted to engage in employment in the United States. As is the case for the spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse's employment eligibility. Such spousal employment may be in a position other than a specialty occupation.

As with other E visas, the E-3 visa can be extended indefinitely as long as the worker continues employment in the proffered position at the required wages.

Persons of "Extraordinary Ability" (O-1 Visa)

O visas are issued to aliens of "extraordinary" ability in the sciences, arts, education, business or athletics, certain aliens accompanying or assisting those aliens, and their family members. To qualify for an O visa, one must have reached the top of the profession or endeavor for which the alien seeks admittance into the U.S.

Beneficiaries of O visas can remain in the U.S. until the event, project or activity for which they were admitted is completed. The initial period of stay can be as much as three years and thereafter extensions can be granted in one year increments.

Employers sponsoring an alien for an O visa must first consult with a peer group, labor organization, or management organization regarding the work to be performed and the alien's qualifications. In most cases the consultation takes the form of a written advisory opinion from a peer group.

The key requirements for the O visa are: receipt of a major, internationally-recognized award, or documentation of at least three of the following:

  • receipt of nationally or internationally recognized prizes or awards in the field of endeavor
  • membership in association in the field which requires outstanding achievement of their members
  • published material about the alien concerning the alien's work in the field
  • scientific, scholarly, or business-contributions of major significance in the field
  • authorship of scholarly articles in the field in professional journals or other major media
  • employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
  • high salary or other remuneration commanded by the alien
  • participation on a panel, or individually, as a judge of the works of others in the field.

Entertainer/Athlete Visa (P-1)

The P-1 visa is available for athletes and entertainers with international level recognition to enter as non-immigrant for up to five years. Consultation with unions is required.

The P-2 visa is for a reciprocal exchange program participant in the areas of athletics and entertainment, and the P-3 visa is for a participant in a culturally unique program.

Exchange Visitor (J-1 Visa)

The "J" exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Foreign nationals accepted as participants in a broad range of work and/or study programs approved by the U.S. Information Agency may apply for this visa.

Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

Each applicant for a J-1 exchange visitor visa must submit a completed Form IAP-66 Certificate of Eligibility for Exchange Visitor (J-1) Status prepared by a designated sponsoring organization and an application Form DS-156, completed and signed along with any other documentation required by the Consulate at which the alien applies.

J-1 visa holders can stay a maximum of 18 months.

H-3 Trainee Visa

The H-3 visa is for an alien coming to the U.S. to receive training from an employer in any field other than graduate education or training. This covers a specific course of job-related training that has been planned in the U.S. which may include employment incidental to the training period.

When an application is made in this category, the employer must state that the training is not available in foreign nationals, and why it is necessary for the alien to take training in the U.S.

"Special Exchange Visitors" may also apply for nonimmigrant visas under the H-3 category. A "Special Exchange Visitor" is one who seeks to enter the U.S. to gain practical training in educating children with physical, mental, or emotional disabilities. The alien must have a foreign residence that they have no intention of abandoning, and they may stay in the U.S. for up to eighteen months. Only 50 aliens per year may enter the U.S. in the Special Exchange Visitor category.

An H-3 visa for an alien trainee may be valid for a period of up to two years. An H-3 visa for an alien participant in a special education training program may be valid for up to 18 months. The spouse or unmarried child of an H-3 visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.