B-1 / B-2 Visa
Travelers may enter the United States using a B-1 (Visitor for Business) or a B-2 (Visitor for Pleasure) visa. the B-2 is used by visitors for the purpose of vacation activities or to visit relatives and friends. However if one is in the US with a B-1; an individual may conduct negotiations, solicit and plan sales or investments, attend meetings, interview and hire staff and perform research. B-1 entrants need to be careful that they do not violate their status by conducting activities which require an actual work visa, for example: running the day-to-day operations of a business, performing gainful employment receiving payment from an organization within the US for service performed within and participating as a professional in entertainment or sporting events.
Those entering on visitor/business visas will generally be granted six months admission on entry. It may be possible to obtain a six month extension to the visitor visa as long as the candidate will be maintaining visitor status, and there are good reasons to do so. It is also sometimes possible to change status to a different status while in the US as a visitor. Often, B-1 and B-2 entrants will change status to other non-immigrant visas or adjust status to permanent residency if they meet certain criteria. Before any B-1 or B-1 entrant decides to change status it is best that they stay within their I-94 entry period and that they confer with an attorney prior to filing any subsequent applications.
Visa Waiver
Individuals from certain countries may be eligible for a visa waiver entry in the United States. Visa Waiver entrants do not require a B-1 or B-2 visa to enter the United States and are entitled to stay in the US for a period of up to 90 days. If individuals from visa waiver countries desire to remain in the United States beyond the 90 day period, it may be best for them to enter on a B-1 or B-2 visa. Visa Waiver entrants should not violate their status while in the United States, because if they are placed in removal proceedings they will be unable to challenge their removal in most cases. Furthermore, Visa Waiver entrants are prohibited from filing for a change of status to a non-immigrant visa.
H-1B
The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. The regulations define a “specialty occupation” as requiring application of a body of highly specialized knowledge in fields including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent; and the appropriate state license necessary to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer but an H-1B recipient may always transfer the employment from one H-1B employer to another as long as they maintain their status.
The maximum duration of stay in H-1B status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of theses statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L-1 visa, later changed to H1B, it is necessary to add up the period of time spent on all of those categories towards the six year stay allowed. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker can apply for a change of status to anther non-immigrant status, find another H-1B employer as soon as possible or leave the US; since they are out status by no longer being employed as an H-1B beneficiary.
The law provides for certain exceptions to the limit on the six year stay. In a situation where an individual is being sponsored through adjustment of status via employment, the H-1B beneficiary can apply for one-year incremental extensions of H-1B status if she/he has remained in status and has a labor certification or I-140 pending for 365 days or more. H-1B applications also are subject to a cap of 65,000 visas per year but there are an additional 20,000 visas available for beneficiaries that have a US master’s degree of higher. There are certain exceptions to the cap for individuals who are being sponsored by non-profit organizations, government research organizations, institutions of higher learning and its affiliates; and certain physicians who have received J-1 waivers.
A typical H-1B application requires a labor condition application approval by the Department of Labor of the prevailing wage paid to the prospective beneficiary employee, and I-129 filing with USCIS by the sponsoring employer; and additional USCIS fees for fraud detection and prevention. It is an expensive process and prospective employers should consult with an attorney prior to considering this option.
L-1 Visa
The L-1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employees from its foreign operations to the US based subsidiary, parent, affiliate or branch office for up to seven years. The employee must have worked for the related company outside of the US for at least one out of the last three years.
Companies operating in the US can file an I-129 any other supporting applications with the relevant USCIS service center to initiate the L-1 process. The L-1 visa can be completed overseas through a US consulate or embassy, or within the United States via change of status. Applicant’s should provide USCIS with evidence of the foreign and US based operations and supplement this with a business plan for the US based enterprise.
There are two types of employees who may be sponsored for L-1 visas:
1. Multinational Managers/Executives
The legal definition of management and executive roles for these purposes is quite strict, and a detailed description of the duties attached to the position will be required. In particular, the multinational executive or manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer. Staff with this visa are issued an L-1A.
2. Specialized Knowledge Staff
This category covers those with specialized knowledge of the company’s products/services, research, systems, proprietary techniques, management, or procedures. Staff in this category are issued an L1-B visa.
On completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L or H-1B status. One advantage of the L-1A visa process is that it can lead to legal permanent residency through the first preference employment based (EB-1) visa category as the requirements for a multinational executive/manager under the EB-1 category are similar to those for L-1A status.
E-1 & E-2 Visa
The E-1 treaty trader visa is a non-immigrant visa which allows foreign nationals of a treaty nation to enter the U.S. to develop and direct the business operations of an enterprise involved in substantial international trade. In order to qualify for an E-1, a treaty trader needs to originate from a nation that maintains a treaty of commerce and navigation or a bilateral agreement with the U.S. The list of qualifying countries is available in the US Department of State website. Not all qualifying countries have access to both E-1 and E-2 visas, so it may be wise to distinguish between the requirements for both visas prior to filing an application.
You may qualify for E1 Visa if:
- You are an executive, manager or exhibit highly specialized skills necessary for the operations of the treaty nation company operating in the U.S., or you own 50 percent of the company.
- The Nationals of your county own at least 50 percent of the stock of the company i.e. the firm has the nationality of the treaty country.
- You are a citizen of a treaty trade country, and you are involved in international trade.
- The E-2 visa is a non-immigrant visa, available to countries from nations which have bilateral investment, commerce, and navigation treaties with the United States. Individuals who qualify will have made a substantial investment in a United States company, and wish to come to the U.S. to develop and direct the business operations of that enterprise. The list of qualifying countries is available in the US Department of State website. Not all qualifying countries have access to both E-1 and E-2 visas, so it may be wise to distinguish between the requirements for both visas prior to filing an application.
Alien investors who meet the following requirements may qualify for an E-2 visa:
- The investor’s home country maintains a treaty of commerce and navigation or bilateral investment with the United States;
- The investor has made a “substantial investment” (typically $50,000 or more) in a U.S. business; this depends on the type of investment and the start-up/operating costs;
- The business in which the investment was made is not less than 50 percent owned by citizens of the treaty country;
- The investor intends to come to the United States to direct the operations of the enterprise in a capacity that is either executive, supervisory, or involves specialized skills;
- The investment will result in the creation of jobs within the United States.
Like the L visas, obtaining an E visa is a very challenging process that goes beyond just filing an I-129 form and any supporting USCIS applications. Applicants should provide detailed information about the corporate organization and origin of investment funds, and a business plan detailing the expected operations of the U.S. based enterprise. The application process can be completed from within the United States via change of status or from abroad through the consulate.
The usual initial statutory limitation on the period of stay for an alien with an E-1 or E-2 is no longer than two years. However an E-visa or status can be extended indefinitely as long as the U.S. based sponsoring enterprise is viable and the holder of the visa declares that he or she will depart the United States when the period of authorized stay ends. Although an E visa is generally not considered a direct path to permanent residency, in some circumstances, the holder of an E visa may qualify to apply for permanent residency in the United States if they meet the requirements of the relevant employment based permanent residency visa category.
O-Visas
The O-1 visa is a temporary work visa available to those foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics” which “have been demonstrated by sustained national or international acclaim.” It is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” USCIS interprets the law very broadly to encompass most fields of creative endeavor. For example, chefs, carpenters and lecturers can all obtain O-1 visas.
O-1 Status is distinguished from other employment related statuses in that it applies to more types of work than other areas and is not limited to certain type of individuals as the H, E or L visas. In other words you do not necessarily have to be an executive or a professional with a bachelor’s degree as required for other visas.
A U.S. based employer or agent must file a Form I-129 – Petition for a Non-Immigrant Work Visa to apply for an O1 visa. Along with the Form I-129, supporting documents showing the evidence of the sponsored individual’s extraordinary ability, achievements and distinction should be submitted. O-1 extraordinary ability visa are usually issued initially for three years and may be renewed in one year increments if the employee needs additional time to complete their duties.
Student Visas
The Immigration and Nationality Act provides non-immigrant visa categories for persons wishing to study in the United States. The “F” visa is reserved for non-immigrants wishing to pursue academic studies and/or language training programs and the “M” visa is reserved for non-immigrants wishing to pursue nonacademic or vocational studies. Recipients of these student visas must maintain a full-time course of study while in the United States and are restricted from working unless the employment is related to their course of study or post-education training.
When an individual has a student status or visa, they will usually be admitted for the duration of their student status, which means they can stay as long as they remain full time students. This is the case even if the visa expires while the individual is studying in the United States. Durational Status is often abbreviated in one’s passport or I-94 card as “D/S”.
In certain cases, F-1 status holders are eligible for a period of post-education training after their studies are completed. Students authorized for Optional Practical Training (OPT) must apply for a USCIS-issued Employment Authorization Document (EAD). When authorized, Optional Practical Training (OPT) is temporary employment that is directly related to the eligible F-1 student’s area of study. The OPT period is dependent upon the student’s degree type and level of education.
J-1 Visas and Waivers
There is a J-1 non-immigrant visa category for persons to participate in exchange visitor programs in the United States. The exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences, designated by the U.S. Department of State. In certain situations, J-1 visas have a durational status period which expires once the exchange visitor program ends rather than an exact date for departure.
To obtain a J-1 visa, the sponsor of the designated program must be accredited through the Exchange Visitor Program designated by the U.S. Department of State. Individuals who qualify for J-1 status if sponsored through an accredited Exchange Visitor Program include: 1) Secondary school and college students, including students working towards a graduate degree 2) Business trainees 3) Primary and secondary school teachers 4) College professors 5) Research scholars 6) Specialists and 7) Medical residents or interns receiving medical training within the U.S.
In certain situation, an individual with J-1 status may be subject to a two year home residency requirement under INA 212(e) prior to being eligible for adjustment of status. the two year home requirement means that certain individuals will have to return to their home country, or country of law permanent residence for at least two years after their J-1 program ends prior to applying for adjustment of status or changing to non-immigrant status (H-1B or L1, for example). For certain individuals, the two year home residency requirement may not be possible due to family or career situations. if such as is the case, an individual will have to apply for a waiver of the two year home residency requirement.
If you are subject to the INA 212(e) and want a waiver of the two year foreign residence requirement, there are five (5) grounds for waivers:
1. No Objection Statement (NOS) from the applicant’s home country;
2. Request by an interested US government agency (IGA);
3. Fear of Persecution in one’s home country;
4. Exceptional Hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor if applicant has to fulfill two-year residency requirement;
5. Request by a designated State Department of Public Health or its equivalent.
The J-1 waiver process is very complicated and should be done with care. However, if done properly and a waiver is granted, the applicant will then be free to continue with his or her legal permanent residency process.