Nonimmigrant Employment Visas
Livesay & Myers works with United States employers to help them obtain and keep their foreign national employees. There are numerous visa options which will allow employers to sponsor a foreign national. Each visa will come with its own requirements and guidelines for the employer, position, and foreign national. Some of the temporary work visas which are most commonly used by companies in hiring qualified foreign national employees are covered below.
Treaty Trader (E-1) Visas. Treaty visas are available to citizens of designated countries in accordance with trade agreements with the United States. To qualify for a trade-based visa, a foreign national must be entering the U.S. to carry on substantial trade (in goods or services) between their country and the United States. This trade must be ongoing when the foreign national applies for the visa. The individual should be coming to the U.S. to perform in a managing and directing role at the company or have a special skill which is necessary to the company’s operations. Upon the termination of this status, the individual should intend to depart the United States.
Investor (E-2) Visas. E-2 visas are available to citizens of designated countries which have either invested or are in the process of investing a substantial amount of capital in a business which they plan to direct or develop operations. The business should be majority-owned by the foreign national and the investment must be at risk and substantial (generally over $100,000 or 50% of the value of the business, whichever is greater). Upon the termination of this status, the foreign national should intend to depart the United States.
Both E-1 and E-2 visas are applied for at the U.S. consulate through a visa application. An interview will be conducted at the same embassy by an U.S. consul. E visas are generally issued for a five year period and can be reissued through a consulate or embassy. The E visa holder may travel abroad and will typically be granted an automatic two-year period of readmission when returning to the United States. Extensions for this period can be sought through immigration in the U.S. Those qualifying under this status may remain in the United States indefinitely so long as they maintain their status and eligibility.
Intracompany (L) Visas. L-1 visas are available to employees of multinational companies who (1) have specialized knowledge of the company’s product, process, or techniques and its application in the international market or (2) hold an executive or management position within the company. The foreign national should be employed at an overseas office for a period of at least one year prior to application. The petitioning employer must have a relationship such as subsidiary, branch or affiliate with the foreign employer. An individual can stay in the United States for a maximum of five years in the specialized knowledge category and a maximum of seven years in the executive or manager category. At the end of that stay, the person must leave the U.S. for one year before he or she can return on a new L or H visa. L visa holders may bring their spouse and children with them as dependents under L-2 visas. L-2 spouses may obtain employment authorization under this visa; children may not be employed under L-2 visa status. Permanent residency may be sought while on an L visa.
Specialty Occupation (H-1B) Visas. One of the more sought-after employment visas is the H-1B visa (due to their limited quantity every year). An employer may petition a foreign national for a position which generally requires a minimum of a bachelor’s degree in a specific field of study relating to that position. The foreign national must possess the appropriate degree in the specified field or its equivalent. The foreign national can stay in the United States for a maximum of six years in this category. An individual must leave the U.S. for one year before he or she can be re-admitted in H-1B visa status for an additional six-year period. Both the H-1B and the L visa count time in the other category against the time limit. The H-1B visa is a cumulative visa; in other words, an employee cannot change employers and get a new six-year period with each employer.
Note that H-1B visa extensions beyond six years are allowed if the permanent residency “green card” process is initiated for an employee (by the employer’s filing a labor certification application and an immigrant visa petition) before the employee has spent five years in H-1B status. Thus, it is very important that any green card applications are filed before the fifth anniversary of the H-1B visa, unless the employee plans to return to his or her home country while seeking the green card. Spouses and minor children of H-1B holders may stay on an H-4 visa in the United States with the principal holder, although they are unable to seek employment.
Canadian and Mexican Professional (TN) Visas. TN visas are available to Canadian (T-1) and Mexican (T-2) citizens for positions qualifying under NAFTA’s professions list. The foreign national must have a Bachelor’s degree or professional license. Canadian citizens may apply for a T-1 visa at the port of entry while Mexican citizens must obtain a TN visa at the consulate. The visas are valid for one year with renewals available at one year increments.
Extraordinary Ability (O-1) Visas. O-1 visas are available to foreign nationals who are outstanding and widely recognized in their field. The individual should be considered within the very top of their field to qualify for this type of temporary visa. The specified fields for O-1 visas are limited, but include science, arts, education, business, and athletics. Substantial documentation is required to demonstrate the required international/national recognition. The types of evidence necessary include: national/international awards, articles in major publications, and significant contributions to the field.
Intern and Trainee (J-1) Visas. J-1 visas are sought through the Department of State (DOS) rather than U.S. Citizenship and Immigration Services. A company must be designated by DOS as an approved J-1 visa sponsor program or work with another approved sponsoring organization as a host company. Requirements for these visas are unique to each sponsor. Upon completion of the training or intern program the foreign national is expected to return to their home country. Note that some J-1 visas come with a mandatory two-year restriction, whereby the foreign national must return to their home country for two years before applying to return to the United States after their program. These programs typically are valid for 12-18 months depending on the type of visa.
B-1 Visas. For positions which would otherwise qualify for an H-1B visa, a “B-1 in lieu of an H-1B visa” may be an option to fill a short-term employment need. This is an exception to the general rule that B visa holders cannot work in the United States. B-1 in lieu of H-1B visa holders may temporarily be in the U.S. to perform in a specialty H-1B qualifying occupation. This visa will not apply for typical employer/employee relationships as the U.S. employer cannot provide salary or compensation. This situation is most beneficial for international organizations as the foreign branch of the organization may compensate the employee for the work. The applicant does need to prove that the work is temporary in nature, which is not a requirement for the H-1B visa.
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