H-1B Classification (Specialized Knowledge Professional)
The H–1B nonimmigrant visa category is popular because its basic feature, qualification in an occupation that requires a university degree or its equivalent, can be met by a large number of foreign personnel needed by US employers. So long as the job is professional and meets prevailing wage requirements, a non-citizen who qualifies can usually obtain an H–1B visa. In recent years, employers have had difficulty obtaining H-1B visas for prospective employees due to numerical limitations in the H-1B category. The current annual cap on H-1B petitions is 65,000 with an additional 20,000 set aside for holders of US Master’s degrees. Each fiscal year, employers may file new H-1B petitions for prospective employees as early April 1st for an October 1st start date. In order to qualify for an H-1B visa, the individual (other than a fashion model) must be coming to the United States to perform services in a specialty occupation. A specialty occupation is one that requires a Bachelor’s degree or its equivalent in a specialized field. H–1B workers are generally limited to 6 years. The American Competitive Act in the Twenty First Century (ACWIA), however, provides for the extension of an H-1B employee’s status beyond 6 years under certain circumstances.
H-1B1 Classification (Chilean and Singaporean Professionals)
H-1B1 status is available to nationals of Chile or Singapore coming to the United States to work temporarily in a specialty occupation. The beneficiary must have at least a Bachelor’s degree or its equivalent in the specific specialty. The foreign national may apply for the visa directly at a US Consulate abroad. Admission is for 1 year and renewable indefinitely. The combined statutory limit of H-1B1 visas is 6,800 per year and not likely to be met.
E-3 Visa (Australian Professionals)
The E-3 visa is available to Australians who will be employed in a “specialty occupation” in the United States. As for H-1B classification, the position must require, and the beneficiary must possess, a Bachelor’s degree or its equivalent in a specialized field. Also like H-1B classification, the position must meet prevailing wage requirements, the employer must post notice at the place of employment and the employer must keep a public inspection file in accordance with Department of Labor regulations. Unlike H-1B classification, the E-3 visa does not require prior petition approval by USCIS. The Australian national may apply for the visa directly at a US consular post abroad. E-3 visas are granted for a period of 2 years and may be extended indefinitely in 2 year increments. Moreover, the annual limit of 10,500 E-3 visas is unlikely to be met. Also unlike H classification, spouses of E-3 visa holders (of any nationality) may apply for work authorization upon admission to the US in E-3 classification. It generally takes 3 months for USCIS to adjudicate the spouse’s work authorization application.
TN Classification (Mexican and Canadian Professionals)
The TN category was established as part of the North American Free Trade Agreement (NAFTA or “the Treaty”). Citizens of Canada or Mexico coming to the US on a temporary basis for professional employment with a specific employer may apply for TN status. The TN category allows Mexican or Canadian citizens to enter the US temporarily to engage in specific professions as defined by the Treaty. Generally, the applicant must have a Bachelor’s degree or appropriate credentials specifically listed in the Treaty. Canadian citizens may apply for TN status at a Port of Entry to the US. Mexican citizens must apply for a TN visa at a US consular post abroad. Admission is for 3 years and is renewable indefinitely.
L Classification (Intracompany Transferee): L-1A (Managerial or Executive); L-1B (Specialized Knowledge)
L-1 classification is available to an applicant who has been employed abroad for 1 year during the last 3 years by a firm or corporation or other legal entity that is a parent, branch, affiliate, or subsidiary of the US employer. The employee must work for the US employer in a managerial, executive or specialized knowledge capacity. L-1A classification refers to an intra-company transferee admitted to work in a managerial or executive capacity. L-1B classification refers to an intra-company transferee admitted to work in specialized knowledge capacity. L-1 visa holders are initially admitted for a period of 3 years and may renew their status in 2 year increments. L-1A status is limited to 7 consecutive years, and the L-1B is limited to 5 consecutive years. The spouses of L-1 visa holders may apply for work authorization upon admission to the US in L-2 status. It generally takes 3 months for USCIS to adjudicate the spouse’s work authorization application.
O Classification (Extraordinary Ability)
The O-1 visa is a temporary work visa available to foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics. The O−1 visa is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” To qualify for an O-1 visa, the foreign national must demonstrate that s/he possesses extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry and must be coming to the United States to perform temporary services for a US employer or agent. Extraordinary ability means a high level of expertise such that the foreign national is one of a small percentage at the top of his or her field. The standard in the Arts is slightly lower and requires prominence or distinction in the field.
Extraordinary ability must be demonstrated by “sustained national or international acclaim.” The O-1 petition requires specific evidence of the foreign national’s qualifications and international recognition. Extraordinary ability can be based on a one-time achievement (that is, a major, internationally recognized award, such as an Oscar, Nobel or Pulitzer Prize), or at least 3 of the following:
- Nationally or internationally recognized prizes or awards;
- Membership in associations which require outstanding achievements of their members;
- Published material about the foreign worker in professional or major trade publications or other major media;
- Participation, either individually or on a panel, as a judge of the work of others in the field;
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in professional or major trade publications or other major media;
- Display of the individual’s work in the field at artistic exhibitions or showcases;
- Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence of high remuneration for services; and/or
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
An Extraordinary Ability petition should also include testimonial/reference letters from substantial, recognized national or international organizations/institutes/government agencies with the expertise to state that the foreign worker is among the few individuals at the top of the field. An O-1 visa may be granted for up to 3 years and may be renewed in 1 year increments.
E Classification: E-1 (Treaty Trader) and E-2 (Treaty Investor)
E classification is available to a national of a country with which the United States maintains a treaty of commerce and navigation. E-1 nonimmigrant status permits certain employees of a qualified entity to enter the US to carry on “substantial trade” between the US and the country of which the employee is a citizen or national. E-2 nonimmigrant status permits investors or certain employees of a qualifying entity to enter the US to develop and direct the operations of an enterprise in which the qualifying investor or entity has invested or is in the process of investing a substantial amount of capital. Both the applicant and the company for which the applicant will work must have the nationality of the treaty country. The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. E treaty visa holders are admitted for a period of 2 to 5 years and may extend their stay indefinitely provided they maintain intent to resume permanent residence abroad.
I (Media) Visa
The I visa is a nonimmigrant visa for representatives of the foreign media temporarily traveling to the US to engage in their profession while having their home office in a foreign country. Media visas are for “representatives of the foreign media,” including members of the press, radio, film or print industries, whose activities are essential to the foreign media function, such as reporters, film crews, editors and persons in similar occupations. The applicant must be engaging in qualifying activities for a media organization having its home office in a foreign country. The activity must be essentially informational, and generally associated with the news gathering process.
The following generally qualify: primary employees of foreign information media engaged in filming a news event or documentary; members of the media engaged in the production or distribution of film if the material being filmed will be used to disseminate information or news and the primary source and distribution of funding is outside the US; journalists holding a credential issued by a professional journalistic organization, if working under contract on a product to be used abroad by an information or cultural medium to disseminate information or news not primarily intended for commercial entertainment or advertising; employees of independent production companies when those employees hold a credential issued by a professional journalistic association; foreign journalists working for an overseas branch office or subsidiary of a US network, newspaper or other media outlet if the journalist is going to the US to report on US events solely for a foreign audience; accredited representatives of tourist bureaus, controlled, operated, or subsidized in whole or in part by a foreign government, who engage primarily in disseminating factual tourist information about that country, and who are not entitled to A-2 visa classification; and employees in the US offices of organizations which distribute technical industrial information.
J Classification: Exchange Visitor
The J category is for exchange visitors participating in programs designed to promote the interchange of persons, knowledge and skills in the fields of education, arts and sciences. J-1 visas are available to individuals who take part in exchange visitor programs sponsored by schools, businesses, and a variety of organizations and institutions. These programs are designed for scholars, students, government visitors, medical students coming to the US as residents or interns, teachers, research assistants, summer camp counselors, au-pair programs, and business and industrial trainees and interns.
Business and industrial trainees and interns can be sponsored through an international exchange program authorized by the Department of State. In order to qualify as a business or industrial trainee, the applicant must have a Bachelor’s degree or professional certificate from a foreign post-secondary academic institution and at least 1 year of related work experience acquired abroad or 5 years of work experience acquired abroad. The maximum duration for a trainee program is 18 months. J-1 internships are available to applicants who are enrolled at a post-secondary institution outside the US or have graduated within the past 12 months. The maximum duration for an intern program is 12 months.
Both interns and trainees must be fluent in English and must secure health insurance in accordance with regulatory requirements. The company hosting the internship or training program must provide a detailed syllabus for the training and meet all other J-1 program requirements. Spouses and dependents of J-1 visa holders may apply for employment authorization on entry to the US in J-2 status so long as their employment is not for the primary purpose of supporting the J-1 visa holder. It generally takes USCIS 3 months to adjudicate the application for employment authorization.
It is important to note that some J-1 nonimmigrants are subject to a 2-year home residency requirement. This means that they will not be eligible to apply for an immigrant visa, or for an H or L nonimmigrant visa, until they have resided (been physically present) in their country of nationality or last residence for an aggregate of a least 2 years following departure from the United States. This rule applies to J-1 nonimmigrants who participated in a program that was financed by a US government agency; who are nationals or residents of a country which the Secretary of State has designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged; or who receive graduate medical education or training. J-1 nonimmigrants subject to the 2-year foreign residence requirement may be eligible to apply for a waiver of the requirement.