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Non-Immigrant Visa Options for the United States of America Foreign nationals coming to the United States need a non-immigrant visa, unless they are Canadians, or are eligible for the Visa Waiver program, which allows business or tourist visits of up to 90 days. If non-U. S. citizens wish to live in the United States permanently, a “green card” or permanent resident status is required. The “green card” offers the ability to live, work or conduct business anywhere in the United States. An application for permanent residence often involves complex procedures which can take years to complete.
Most applicants obtain permanent resident or “green card” status through either family or job sponsorship. Since there are long waiting lines for most categories, temporary, non-immigrant visas are often required to visit, study, work or invest in the United States. Many of these visas provide relatively quick immigration status and can allow employment authorization. H-1B Specialty Occupation Visa for Professional Workers The basic requirement for a H-1B visa is a Bachelor’s degree or its equivalent, and a job offer which requires the degree. The visa petition is filed by the U. S. mployer and the work authorization is specific to the employer. It is necessary to obtain an approved labor condition attestation from the Department of Labor prior to filing the petition with the Immigration Service. This is required to ensure that the wages and working conditions do not undermine those for U. S. workers. The H-1B visa may be approved for up to three years and it can be extended for a total of six years. If an application for permanent residency is submitted at least one year prior to the last day of the sixth year, additional yearly extensions will be granted.
Spouses and minor children are eligible for H-4 dependent status, which does not grant employment authorization. Free-Trade Agreement H-1B1 Visas The Free-Trade Agreement H-1B1 visa is available to professionals from Chile and Singapore. There are 1,400 H-1B1 visas for Chileans and 5,400 H-1B1 visas set aside for Singaporeans. Free-Trade Agreement H-1B1 visas are issued for 18 months and are renewable. Spouses and minor children are eligible for H-4 dependent status, which does not grant employment authorization. L-I Intracompany Transferee Visa
The L-1 intracompany transferee visa is particularly useful for managers, executives and persons holding specialized knowledge who own or are employed by a business abroad. If the company has a U. S. branch office or affiliate, and they have a common ownership relationship, it is possible to obtain an L-1 intracompany transferee visa. The maximum period of admission for managers and executives is seven years, with a five-year limit for the specialized knowledge category. If the U. S. branch office is new, the L-1 is only approved for one year.
Extensions are not routine and usually require proof of employees and substantial business activity. Large sales revenue as well as several layers of employees are key to the extension. If the extension is obtained, and the overseas company continues to operate, it is usually possible to apply for permanent resident status as a first preference multinational manager. This can usually be accomplished relatively quickly. Spouses of L-1 visa holders are also allowed to obtain work authorization. E-1 Treaty Trader / E-2 Treaty Investor Visa
Nationals of many countries are eligible to obtain Treaty Trader or Treaty Investor visas. The E-1 Treaty Trader visa requires that at least 51% of the company’s trade be between the treaty country and the United States. The E-2 Treaty Investor visa requires a substantial investment in a U. S. business which must be controlled by treaty nationals. No fixed amount is required and “substantial” varies depending on the nature of the business. E visas may also be issued to managers, executives and essential employees of the same nationality who work for the U.
S. branch office. The visas may, depending on each treaty, be granted for an initial period of up to five years. However, the person’s stay is authorized by the Immigration Service in two-year increments granted upon each entry to the United States. The easiest way to extend E status while the visa is valid is to travel abroad and re-enter. This can only be done during the validity of the visa. The E visa can be extended as long as there is a need for the investor to direct and control the U. S. enterprise.
Essential employee E’s are expected to be replaced by U. S. trained personnel. Spouses of E visa holders are also allowed to request work authorization. E-3 Visa for Australian Professionals The E-3 visa is for Australian professionals coming to the United States to perform services in a specialty occupation, i. e. an occupation that usually requires a Bachelor’s degree as a minimum for entry into that occupation. The existing H-1B regulations are used as a basis to determine what constitutes a “specialty occupation. The E-3 visa is issued in two-year increments and may be renewed indefinitely. The E-3 is limited to 10,500 visas per year. Spouses of E-3 visa holders are also allowed to obtain work authorization. TN NAFTA Visas The North American Free Trade Agreement provides for work visas for certain Canadian and Mexican professionals with U. S. job offers. The TN visa is issued for one-year and can be renewed annually. Spouses and minor children are eligible for T. D. (Treaty Dependent) visas, which do not allow employment authorization. J-1 Trainee Visa
The J-1 Exchange Visitor Program is aimed at promoting cultural exchange and may be an option for students, researchers, specialists, visiting faculty, physicians, trainees, camp counselors and au pairs. The trainee category is suitable for certain individuals who may not have university degrees and are able to obtain an offer for training. This visa may be granted for an 18-month period and may provide exemptions from certain taxes. Spouses may also obtain discretionary employment authorization in certain instances. B-1 Visitor for Business / B-2 Visitor for Pleasure
The most common visa categories are the B-1 Visitor for Business and the B-2 Visitor for Pleasure. Depending on each country’s reciprocity schedule, these visas may be granted for up to ten years although periods of admission to the U. S. are normally authorized for stays of only six months for tourists. An extension may be granted for an additional six-month period. Persons holding visitor visas must be careful not to confuse the validity of the visa with the authorized period of stay granted upon admission. Persons who overstay their authorized admission automatically invalidates the visa even if the overstay is for one day.
B-1 business visitors are usually admitted for the period required to conduct their business, usually 1???2 months. Visitors are generally prohibited from working in the United States. Visa Waiver Program The visa waiver program permits business or pleasure visits for 90 days without having to apply for a visa. This option is now available to 26 countries. The program’s restrictions can create difficulties as persons who enter on the visa waiver may not apply for an extension of stay, nor can they have their status converted to other work categories in the United States.
Persons wishing to have their status changed must leave and obtain a new visa abroad. F-1 Student (or M-1 Vocational Student) Visa The F-1 Student or M-1 Vocational Student visa is useful to become acquainted with American culture and take advantage of the many fine educational institutions in the United States. Students may be eligible to apply for up to one year of employment authorization for the purpose of gaining practical training. Many graduating students may apply to convert to H-1B specialty occupation visas if they receive an offer of employment in the United States.
F-2 spouses and minor children are not eligible for employment authorization. F-2 spouses who wish to pursue full-time studies must apply for their own F-1 visas. F-1 students can only attend public school if the period of study does not exceed one year and the student reimburses the school. Persons who violate F-1 status by attending a private school and then transferring to a public school can be barred from the United States for five years. H-3 Trainee Visa
The H-3 trainee visa is available for up to two years for persons participating in an established training program. Requirements for the trainee visa include limitations on productive employment, which must be incidental to the training. Trainees are also restricted from later changing to H-1B specialty occupation status without returning home for six months. O Visas for Persons of Extraordinary Ability in Arts, Business, Education, Science or Athletics and P Visas for Group Entertainers and Athletes
The O and P visas are primarily for individuals in the entertainment industry and athletics but also includes persons of extraordinary ability in the arts, business, education, science or athletics, certain accompanying employees, and their family members. The law requires consultations with the relevant U. S. labor unions, peer and management organizations. These groups must provide advisory opinions as to whether the applicant shows “extraordinary ability” or “extraordinary achievement” in the field, and whether the position requires such high qualifications.
The O visa may be granted for up to three years, depending on the period of the event, but may be extended indefinitely. The eligibility criteria for businessmen, educators, scientists and athletes are high, but they are less rigorous for persons in the arts, as well as in the motion picture or television industries. The P Visa is for entertainers who perform as a group and for athletes. It requires consultation with unions regarding the nature of the work and the artists’ qualifications. The eligibility standards for P-1 classification give preference to established groups.
Admission of P applicants is limited to the period of the “event”. P-3 Culturally Unique Performances The P-3 visa is for performing artists who have not achieved international acclaim, but are culturally unique. They also require union and peer group advisories and may be approved for up to one year, which can be extended annually. Q Cultural Exchange Visa Individuals coming to participate in a cultural exchange who are over the age of eighteen may obtain a fifteen-month cultural exchange visa. This is non-extendible. No dependent visas are available under this category.
R-1 Religious Worker Visa The R-1 religious worker category has generous standards for persons affiliated with Internal Revenue Service-recognized tax-exempt religious organizations. This visa allows qualified religious workers to enter the United States for an initial period of admission of three years, but this visa may be extended for up to five years. * * * There are a variety of nonimmigrant visas stretching practically through the entire alphabet, starting with the A visa for diplomats and ending with the V visa for certain spouses of permanent residents.
To discuss any of these options, we invite you to contact Bernard Wolfsdorf, Stephen Dewar, Avi Friedman, Rita Kushner-Sostrin, Tien-Li Loke Walsh, Frieda Wong Dittmar Allison-Claire Acker, Lisa Yu, Naveen Rahman Bhora, Clifford Rosenthal, Jaime Wang, Alexander Dgebuadze, or Andrew Stevenson at (310) 570-4088 or 1-800-VISA LAW. We have a highly qualified, experienced professional staff of over 50 employees. Each is skilled and knowledgeable in their respective areas. We look forward to the privilege of serving you.