Temporary, or nonimmigrant visas, allow individuals to enter the United States for work, study, business, tourism, or medical treatment

Some visas are dual intent, meaning that the visa holder may attempt to obtain permanent residence while in the United States under that classification. In other cases, nonimmigrant visa holders must provide evidence that they maintain a foreign residence that they have no intention of abandoning and that they do not intend to immigrate to the United States.

What is a Visa?

With the exception of Canadian citizens, who are visa exempt, and citizens of visa waiver countries traveling to the United States as visitors, a foreign citizen must obtain a visa in his or her passport to enter the United States.   A visa does not guarantee entry to the United States, however.   A visa simply indicates that the application has been reviewed by a U.S. consular officer at a U.S. embassy or consulate abroad, and that the officer has determined that the individual is eligible to enter the country for a specific purpose.  The visa expiration date is shown on the visa and a visa can be issued for any number of entries, from one entry to an unlimited number of entries.  The length of issuance of the visa and the number of entries depend on the reciprocity that the U.S. government has with the country of the visa-holder’s citizenship.

A visa allows an individual to travel to the United States as far as the port of entry (airport or land border crossing) and ask the U.S. Customs and Border Protection (CBP) officer to allow him or her to enter the country.  Only the (CBP) officer has the authority to permit a person to enter the United States, and will decide the length of stay to authorize for that particular visit.

There are two categories of U.S. visas: nonimmigrant and immigrant.  Nonimmigrant visas are for people with permanent residence outside the United States but who wish to be in the United States on a temporary basis for tourism, medical treatment, business, pursuit of investment, or study.  Immigrant visas are for people who intend to live permanently in the United States.

What is an I-94 Record?

When a person enters the United States, the Customs and Border Protection (CBP) officer creates an electronic Arrival-Departure Record, Form I-94 (or Form I-94W for the Visa Waiver Program).  In this record, the CBP officer records the status in which a person is admitted to the United States along with either a specific date until which the person is authorized to remain in the country or “D/S” (duration of status) for certain student and trainee visas.  The I-94/I-94W record, rather than the visa in the person’s passport, governs a person’s authorized period of stay in the United States for any given visit. The record may be retrieved from the CBP website.

If a person is admitted to the United States until a specific date, and overstays the end date of the I-94 record without filing a timely application for extension of stay or change of status, this action will automatically void or cancel all visas the person may have in his or her passport.  In addition, such a person may be required to obtain future U.S. visas only in his or her home country. If a person remains in the United States for more than 180 days but less than one year beyond the end date of the I-94 record then she or he will be barred for admission to the United States for three years from the date of her or his departure. If a person remains in the United States for one year or more beyond the end date of the I-94 record then she or he will be barred for admission to the United States for 10 years from the date of her or his departure.

B-1 Visa

Overview

The B-1 business visitor visa is for individuals desiring to enter the United States temporarily for business activities, such as:

  • Consulting or meeting with business associates;
  • Attending a scientific, educational, religious, or professional conference;
  • Negotiating contracts;
  • Attending a meeting of the Board of Directors of a U.S. corporation, if the visitor is a member of the Board;
  • Engaging in non-productive training that benefits the visitors foreign employer;
  • Conducting types of missionary work;
  • Performing services as a domestic servant of B, E, F, H, I, J, L, O, P, Q, or R nonimmigrant workers;
  • Performing services as a domestic servant of a U.S. citizen who permanently resides abroad or who is temporarily assigned to the United States;
  • Conducting independent research;
  • Participating in nonsalaried professional athletic events;
  • Investigating a potential E-2 investment or, for foreign corporate employees, coming to set up a U.S. subsidiary; or
  • Participating in voluntary religious activities.

A B-1 visitor is not allowed to perform productive work in the United States.  The issue of what constitutes work is critical, but difficult to define.  It is important to note that receiving pay from U.S. sources is not the determining factor in whether a person’s activities constitute work.  Productive activities performed on behalf of a U.S. entity while in the United States are likely to be viewed as work even if performed voluntarily or where the pay comes from foreign sources.

To prove eligibility for a B-1 visa, the applicant must demonstrate that he or she intends to remain for a specific, limited period; has funds to cover the purpose of the U.S. visit; has family, social, and economic ties abroad; and maintains a residence in a foreign country that will ensure his or her return abroad at the end of the visit.  The B-1 visitor will generally remain on a foreign employer’s payroll and perform all duties for the benefit of the foreign employer, and is not allowed to receive compensation from a U.S. source, other than reimbursement for incidental expenses. Applications for a B-1 visa may be made directly at a U.S. embassy or consulate abroad.

B-2 Visa

Overview

The B-2 visitor for pleasure visa is for individuals desiring to enter the United States temporarily for activities including tourism; social visits to friends or relatives; medical treatment; participating in conventions of social organizations; participating in amateur musical or sports events; accompanying D or B-1 visitors; and accompanying a non-spouse long-time partner (regardless of gender) in E, H, or L status.

A B-2 visitor is not allowed to work in the United States and must demonstrate that he or she intends to remain for a specific, limited period; has funds to cover expenses in the United States; has social and economic ties abroad; and maintains a residence outside the United States that will ensure his or her return abroad at the end of the visit.  Applications for a B-2 visa may be made directly at a U.S. embassy or consulate abroad.

Prospective students seeking admission in B-2 status who plan to change to F-1 student status must declare this intent to immigration officials at the port of entry.  The immigration official will note this intention on the person’s Form I-94.  This notation is required in order for the student to change to F-1 status while inside the United States.

B-2 Duration

B-2 visitors are generally admitted for the period of time necessary to conduct the stated activities.  Although a B-2 visitor may be admitted for up to one year, officers at the port of entry often will admit a B-2 visitor for six months, or for a shorter period of time.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of B-2 visitors may also apply for B-2 status, and are not authorized to work in the United States.

Visa Waiver Program

Overview

B-1 and B-2 visitors coming to the United States for 90 days or less who are citizens of qualified countries may be eligible to enter without a visa if they have a valid passport issued by the participating country.  As of October 1, 2003, nationals of Belgium must have machine readable passports to qualify for Visa Waiver Program entry.  In the future, nationals of the other participating countries will also need machine readable passports.

Visa Waiver Program nationals are permitted to enter the United States under the same rules as the B-1/B-2 classifications, for up to 90 days.  A person admitted under the Visa Waiver Program is not eligible for change of status, extension of status, or adjustment of status (unless it is on the basis of an immediate relative petition).  In an emergency, it may be possible for a Visa Waiver Program entrant to obtain an additional period of 30 days to depart the United States, after prior approval from U.S. Citizenship & Immigration Services.

E-1 Visa

Overview

The E-1 treaty trader classification allows individuals who are nationals of countries with which the United States maintains certain treaties to come to the United States to conduct substantial trade that is international in scope, including trade in services or technology. A current list of the treaty countries can be found at the U.S. State Department website.  Eligible treaties include treaties of friendship, commerce, and navigation, bilateral investment treaties, or other arrangements such as the North American Free Trade Agreement (NAFTA).  The qualifying trade must be primarily between the United States and the country of the E-1 applicant’s nationality, meaning that more than 50% of the total volume of international trade conducted by the U.S. entity must be between the United States and the treaty country. If the U.S. entity is a branch office, then the foreign entity must conduct more than 50% of its trade with the United States.  The E-1 applicant generally must demonstrate that the trade is already in existence at the time of the application for E-1 status.

E-1 nonimmigrants are not required to maintain a foreign residence, but they must have an ultimate intention to depart the United States and not permanently remain.

To qualify for E-1 status, at least 50% of the U.S. entity must be owned by nationals of the treaty country who are resident abroad or who are in the United States in E status.  Ownership by nationals who are lawful permanent residents of the United States or in the United States in any other nonimmigrant status (other than E) cannot be counted.  If the company is publicly traded, the company’s nationality is considered to be that of the country in which the firm’s stock is listed and traded on a stock exchange.

E-1 Application Procedures

Before an individual can apply for an E-1 visa, the U.S. entity for which he or she will work must become E-1 qualified.  A company applies to become E-1 qualified by filing a request to register the U.S. company for E-1 status along with at least one individual’s E-1 visa application at the U.S. embassy or consulate that has jurisdiction over the treaty country.  Once the company is E-1 qualified, any national of the treaty country who is coming to work as an executive or supervisor, or essential employee, may apply for an E-1 visa at a U.S. embassy or consulate abroad to enter the United States.  While it is possible to file a change of status application to E-1 status with U.S. Citizenship and Immigration Services (USCIS), the E-1 worker cannot travel internationally without applying for an E-1 visa at a U.S. embassy or consulate abroad, after first completing the corporate registration process outlined above.  For this reason, most E-1 applicants apply for their visas initially at a U.S. embassy or consulate abroad.

E-1 petitions filed through USCIS rather than through a U.S. consulate can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

E-1 Duration

E-1 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-1 status.  Upon each entry to the United States, E-1 visa holders are generally granted two years of E-1 status as recorded in the individual’s I-94 record, provided that the E-1 visa is valid at the time of entry.  E-1 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with U.S. Citizenship & and Immigration Services.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of E-1 visa holders are also eligible for E-1 dependent visas, and E-1 spouses may apply for work authorization in the United States for the principal’s period of admission or status, not to exceed two years.

E-2 Visa

Overview

The E-2 treaty investor classification allows individuals who are nationals of countries with which the United States maintains certain treaties to come to the United States to further a U.S. enterprise that is a result of a substantial investment by individuals or businesses that are nationals of the treaty country. A current list of the treaty countries can be found at the U.S. State Department website.  Eligible treaties include treaties of friendship, commerce, and navigation, bilateral investment treaties, or other arrangements such as the North American Free Trade Agreement (NAFTA).  E-2 nonimmigrants may develop and direct (or act in a supervisory, executive, or essential employee capacity for) the U.S. enterprise.   Whether the actual amount invested is substantial depends on the type of business and the amount normally necessary to establish a viable enterprise.

The funds invested in the enterprise must be at risk, meaning that the funds must be subject to partial or total loss if the investment is not successful.  The investment must not be marginal, meaning that it must have the present or future capacity to generate more than a minimal living for the investor and his or her family, expand job opportunities for other individuals, or generate other sources of income.  If the U.S. enterprise is a new venture and has not started to generate profits, it is generally necessary to provide revenue projections for at least a five-year period.

E-2 nonimmigrants are not required to maintain a foreign residence, but they must have an ultimate intention to depart the United States and not permanently remain.

To qualify for E-2 status, at least 50% of the U.S. entity must be owned by nationals of the treaty country who are resident abroad or who are in the United States in E status.  Ownership by nationals who are lawful permanent residents of the United States or in the United States in any other nonimmigrant status (other than E) cannot be counted.  If the company is publicly traded, the company’s nationality is considered to be that of the country in which the firm’s stock is listed and traded on a stock exchange.

E-2 Application Procedures

Before an individual can apply for an E-2 visa, the U.S. entity for which he or she will work must become E-2 qualified.  A company applies to become E-2 qualified by filing a request to register the U.S. company for E-2 status along with at least one individual’s E-2 visa application at the U.S. embassy or consulate that has jurisdiction over the treaty country.  Once the company is E-2 qualified, any national of the treaty country who is coming to develop and direct the enterprise, or act in a supervisory, executive, or essential employee capacity, may apply for an E-2 visa to enter the United States.  While it is possible to file a change of status application to E-2 status with U.S. Citizenship and Immigration Services (USCIS), the E-2 worker cannot travel internationally without applying for an E-2 visa at a U.S. embassy or consulate abroad, after first completing the corporate registration process outlined above.  For this reason, most E-2 applicants apply for their visas initially at a U.S. embassy or consulate abroad.

E-1 petitions filed through USCIS rather than through a U.S. consulate can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

E-2 Duration

E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continue to qualify for E-2 status.  Upon each entry to the United States, E-2 visa holders are generally granted two years of E-2 status on Form I-94, provided that the E-2 visa is valid at the time of entry.  E-2 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with U.S. Citizenship & Immigration Services.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of E-2 visa holders are also eligible for E-2 dependent visas, and E-2 spouses may apply for work authorization in the United States for the principal’s period of admission or status, not to exceed two years.

E-3 Visa

Overview

The E-3 classification is available only for individuals who are nationals of the Commonwealth of Australia who will be performing a specialty occupation in the United States.  A specialty occupation requires theoretical and practical application of a body of knowledge in a professional field and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the U.S.  The E-3 visa has the same specialty occupation requirement as the H-1B specialty occupation visa.  It also requires that a Labor Condition Application (LCA) be filed with the U.S. Department of Labor, and the employer must pay the prevailing wage for the occupation in that geographic area.

Although the E-3 visa shares characteristics with the H-1B visa, there are some differences.  The training fee and anti-fraud fees that are associated with new H-1B petitions and some H-1B extensions are not required for E-3 petitions.  Also, E-3 employers are not defined to be “E-3 dependent” for having a certain percentage of E-3 employees in its workforce.  Finally, the E-3 visa allows dependents on E-3D visas to apply for employment authorization in the U.S., while H-1B dependents on H-4 visas are not authorized to work in the U.S.  E-3 visas are limited to 10,500 per fiscal year, running from October 1st to September 30th, and only new E-3 petitions are counted towards the annual cap.  To date, the E-3 cap has not been reached in any fiscal year.

E-3 Application Procedures

An Australian national can apply for an E-3 visa at the U.S.consulate in Australiaor any other consulate or embassy overseas that accepts nonimmigrant visa applications from third country nationals.  At the consular interview, the applicant must present qualifying documentation including: 1) an Australian passport (permanent residents of Australia do not qualify for an E-3 visa); 2) a letter from a prospective U.S. employer describing the applicant’s occupation, anticipated length of stay, and salary; 3) documentation that the applicant meets the educational requirements for the position, or its equivalent using a combination of education and experience, and any licensing requirements; and 4) an LCA designated for the E-3 specialty occupation with the employer’s original signature.

Individuals who are already in the U.S. can request a change of status to E-3 classification, or extend their current E-3 status while remaining in the U.S.  For a change of E-3 employer within the U.S., the individual does not need to reapply for a new E-3 visa, but needs to submit a change of employer petition to USCIS.  An E-3 change of employer petition is counted against the annual E-3 cap.

E-3 Duration

E-3 visas will be granted for a period of two years with extensions of two years, granted indefinitely as long as the individual meets the E-3 qualifications.  The E-3 visa holder must intend to depart the U.S.at the expiration of E status.

Dependents

Spouses and unmarried children under age 21 can apply with the principal E-3 applicant at the consulate for E-3D status.  Dependents do not have to be Australian nationals.

Once in the U.S., E-3D spouses can apply for employment authorization to USCIS on Form I-765.  E-3D spouses are not required to be employed in a specialty occupation.

F-1 Visa

Overview

An F-1 visa allows an individual to come to the United States to attend an academic program as a full time student.  An F-1 student must maintain a full course of study, which is usually defined as 12 credits per semester/quarter for undergraduates at colleges or universities.  F-1 students may not attend public elementary schools or certain publicly-funded adult education programs, and may only attend a public secondary school if the course of study is 12 months or less and the student reimburses the school for the full, unsubsidized cost of the education.

F-1 students must have an unabandoned foreign residence and sufficient financial resources to support themselves during the course of study.  “Immigrant intent” is the most common reason for denial of an F-1 visa.

F-1 Application Procedures

The first step in obtaining F-1 status is for the prospective student to gain admission to a school authorized to issue a Form I-20.  Using a Form I-20 issued by the school, the prospective student then applies for an F-1 visa at a U.S. embassy or consulate abroad within 60 days of the commencement of the school term.  Upon entry to the United States, F-1 students are issued an I-94 card with the annotation “D/S,” meaning duration of status, and may remain in the United States for the time period listed on Form I-20 to finish their educational program.  It is also possible for an individual who entered the United States in another status to change status to F-1, but the change of status must be approved by U.S. Citizenship & Immigration Services (USCIS) before the student may begin school.  Following completion of the academic program (or completion of any Optional Practical Training authorized), F-1 students have a grace period of 60 days to depart the United States.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of F-1 visitors may apply for F-2 status.  Dependents in F-2 status are not authorized to work in the United States.

F-1 Employment

F-1 nonimmigrants are eligible for on-campus employment for up to 20 hours a week during the school year, and full time when school is not in session.  F-1 students may also apply for off-campus employment, but are not allowed to work off-campus during their first academic year unless they can show severe economic hardship or are offered an internship with an international organization.  F-1 students may also be eligible to engage in practical training in the field in which they studied.   There are two types of practical training:  Curricular Practical Training and Optional Practical Training.

Curricular Practical Training

Curricular Practical Training (CPT) includes work/study, internships, cooperative education, and other types of internships required by the student’s course of study.  F-1 students are eligible for CPT only after being enrolled full-time for at least nine consecutive months.  To engage in CPT, the student applies directly with the educational institution and is not required to apply for an Employment Authorization Card from USCIS.  After authorizing the student’s CPT, the designated school official will endorse the student’s original Form I-20 with the dates the student is eligible to work and the number of hours per week.  An F-1 student with CPT must present an original Form I-20 indicating CPT approval to an intended employer before beginning employment.  Most F-1 students receive academic credit for CPT, rather than wages.  An F-1 student who obtains one year or more of full-time CPT is not eligible for Optional Practical Training.

Optional Practical Training

Optional Practical Training (OPT) is granted to students who wish to work in their field of study, but not as part of an academic program.   A student can obtain a total of 12 months of OPT during each degree program, which can be used during vacations, during the academic year, or after graduation.   If a student uses OPT during the school year, the student may only work 20 hours a week.   Post-graduate OPT or OPT used when school is not in session can be full-time.  A student must apply for post-graduate OPT before completion of the course of study, and must complete the OPT within 14 months of graduation.   To engage in OPT, a student must apply for an Employment Authorization Document (EAD) with USCIS, and cannot begin employment until receiving the EAD card.  After authorizing the student’s OPT, the designated school official will endorse the student’s original Form I-20 with the dates the student is eligible to work in the applicable field of study.

H-1B Visa

Overview

H-1B classification is available to individuals performing services in a specialty occupation, fashion models of distinguished merit and ability, or certain individuals working on projects for the Department of Defense.  A specialty occupation is one requiring the theoretical and practical application of highly specialized knowledge.  Generally, the position itself must require completion of a Bachelor’s Degree in a specialized field, and the individual applying for H-1B classification must have earned a Bachelor’s Degree, or equivalent education or work experience in the field.  The H-1B classification allows dual intent, which means that H-1B workers are not required to maintain a foreign residence and may seek permanent residence in the United States.

The H-1B classification requires an employer sponsor, and an H-1B worker is employment authorized only with the petitioning employer.  It is possible for an individual to hold H-1B status with more than one employer, but each employer must file a separate petition with U.S. Citizenship & Immigration Services (USCIS).

Prior to filing an H-1B petition, the employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA requires the employer to make certain attestations to ensure that the foreign worker does not adversely affect the wages or working conditions of U.S. workers.  The employer must maintain a public access file that is available to interested parties within one day after the LCA is filed, containing all documentation supporting the LCA.

H-1B petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

Once the H-1B petition is approved, the employer must begin paying the H-1B worker the salary stated on the LCA and petition within 30 days of entry in H-1B status or, if the employee is already in the United States, within 60 days from the approval of a change of status or extension of stay request.  H-1B employers are not allowed to bench a full-time or part-time H-1B employee due to lack of work.  An employer that dismisses an H-1B employee before the end of the approved period of employment must pay the reasonable cost of transporting the worker to his or her last country of residence.

H-1B Portability

An H-1B worker who wishes to transfer to a new employer must have the prospective employer file a new H-1B petition.  In some circumstances, an individual who was previously in H-1B status or issued an H-1B visa may be able to begin work upon filing of the H-1B petition under a legal provision known as H-1B portability.  Portability requires that:

  • The individual was lawfully admitted to the United States;
  • The new petition is non-frivolous;
  • The new petition was filed before the date of expiration of the previous period of stay;
  • The H-1B beneficiary has not worked without authorization since his or her last entry.

Since the portability provisions contain certain restrictions, it is important for the individual and employer to consult with immigration counsel to ensure that portability attaches, and for the H-1B worker to continue with his or her present employment until the new H-1B petition is filed.  Individuals not already holding H-1B status must wait for USCIS approval before beginning work.

H-1B Duration

H-1B petitions may be approved for up to three years, and can be extended for up to a total of six years with all U.S. employers.   Any time spent in H-4 or L status is also counted toward the six-year period.  After six years of H-1B status, an individual must reside outside of the United States for a full year before becoming eligible to reapply for H or L status.  Time spent in the United States during this year is not counted toward fulfillment of that requirement.  However, H-1B workers who have had a labor certification application or I-140 immigrant petition filed on their behalf at least 365 days prior to reaching the six-year H-1B limit may be eligible to extend their status beyond six years, in one-year increments.  Seasonal or intermittent H-1B workers, or H-1B workers who are in the United States for less than six months per year, may be exempt from the overall six-year limitation on H-1B stay.  For fiscal year 2004 (October 1, 2003 – September 30, 2004), new H-1B grants are limited to 65,000 annually.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status. Dependents in H-4 status are not authorized to work in the United States.

H-1B1 Visa

Overview

H-1B1 visas are authorized by the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement.  As of January 1, 2004, an individual from either Chile or Singapore who seeks to enter the U.S. for temporary employment in a specialty occupation in the U.S can be granted H-1B1 classification.  A specialty occupation requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher (or its equivalent) as a minimum for entry into the occupation in the U.S.  The specialty occupation requirements are identical to the H-1B visa except for certain occupations that allow for alternative credentials with an H-1B1 visa.  For agricultural managers and physical therapists from Chile, the U.S. has agreed to accept a combination of a post-secondary certificate and three years of experience in lieu of the bachelor’s degree requirement.  For management consultants and disaster relief claims adjusters from Chile or Singapore, a combination of three years of specialized training and experience is also acceptable in lieu of the bachelor’s degree requirement. T here are a total of 1,400 H-1B1 visas allotted for Chile, and 5,400 H-1B1 visas allotted for Singapore per year.  These H-1B1 visas are included in the 65,000 annual H-1B visa cap, and the H-1B cap is reduced by the number of H-1B1 visas used for that fiscal year.

H-1B1 Procedure

The H-1B1 visa does not require a petition to U.S. Immigration Citizenship & Immigration Services (USCIS) on Form I-129, as required for an H-1B petition.  An individual can apply for the initial H-1B1 directly at a U.S. consulate abroad.  The visa application will include an employment offer letter, proof of the applicant’s qualifications, and proof of the filing of a Labor Condition Application (LCA) by the employer with the U.S. Department of Labor (DOL).  If the consular officer grants the H-1B1 visa, it is valid for 18 months and permits multiple entries.  The H-1B1 visa holder is initially admitted to the U.S. for a maximum period of one year and extensions are granted in one year increments. Extensions of stay can be granted indefinitely as long as the individual is able to demonstrate that he or she will not remain or work in the U.S. indefinitely.  Unlike the H-1B visa, there is no six-year maximum period for the H-1B1 visa.  A petition to USCIS on Form I-129 is required for an extension of H-1B1 status, change of H-1B1 employer, or change from another nonimmigrant status to H-1B1. No premium processing service is available for H-1B1 visa petitions.

Foreign Residence Requirement

The H-1B1 applicant must show his or her intent to maintain a foreign residence abroad, and not seek legal permanent resident status in the U.S.  This is an important difference from the H-1B classification, which allows for dual intent.

Dependents

Spouses and children of H-1B1 visa holders are granted H-4 status.  Dependents in H-4 status are not authorized to work in the U.S.

H-3 Visas

Overview

The H-3 classification permits an individual to enter the United States to receive training that is not available in the individual’s home country, and that will aid the individual in pursuing a career outside of the United States.  H-3 trainees must not be placed in positions in which U.S. citizen and resident workers are regularly employed, and can only engage in productive employment if it is incidental and necessary to the training.

H-3 training programs must include the following elements:

  • The kind of training to be given;
  • The proportion of time that will be devoted to productive employment;
  • The number of classroom instruction hours;
  • The number of hours in on-the-job training, both supervised and unsupervised;
  • The position for which the training will prepare the individual;
  • The reason why the individual cannot obtain the trainee in his or her country of origin and why the training must be given in the United States;
  • The reason why the training program is a benefit to the petitioning company; and
  • The source of remuneration received by the trainee.

H-3 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

H-3 Duration

H-3 trainees are admitted for the length of the training program, which can last no longer than two years.  No extension, change of status, or readmission will be granted unless the H-3 trainee has resided out of the United States for six months.  This rule does not apply if the training is seasonal, intermittent, or lasts for less than six months.

Dependents

Spouses and children of H-3 visa holders are granted H-4 status.  Dependents in H-4 status are not authorized to work in the U.S.

J-1 Visas

Overview

J-1 classification is available to individuals participating in programs designated by the U.S. Department of State to promote educational and cultural exchange between the United States and other countries.  Common J-1 visa categories include Trainees, Interns, Professors and Research Scholars, Short Term Scholars, and College or University Students.  Other categories are Teachers, Secondary School Students, Graduate Medical Education or Training, International and Government Visitors, Camp Counselors, Summer Work/Travel Students, and Au Pairs.

J-1 non-immigrants must have an un-abandoned foreign residence to which they intend to return following completion of the J-1 purpose.

J-1 Trainees

J-1 programs for trainees allow foreign nationals to complete paid or unpaid training programs with private companies or non-profit organizations.  The company or organization, or its attorneys, may work with an approved J-1 program sponsor to acquire J-1 visas for prospective trainees.

To qualify as a J-1 trainee, the foreign national must enter the U.S. to participate in a structured and guided work-based training program in his or her field and meet one of these requirements:

  1. The foreign national must have a degree or professional certificate from a foreign post-secondary academic institution and at least one year of related work experience in his or her field acquired outside the U.S; or
  2. The foreign national must have five years of related work experience outside the U.S. in his or her field.

The J-1 trainee can be admitted to the U.S. for a period of up to 18 months.  Upon the completion of a J-1 training program, the individual may apply for an additional training program after a two-year residency period outside the U.S.

J-1 Interns

J-1 programs for interns also allow foreign nationals to enter the U.S. to participate in work-based internship programs to build on academic experience or to develop practical skills in the academic or career field.

To qualify as an intern, the foreign national must meet one of these requirements:

  1. The foreign national must be currently enrolled in, and pursuing studies at, a degree or certificate granting post-secondary academic institution outside the U.S; or
  2. The foreign national must have graduated from an academic institution no more than 12 months prior to his or her internship program start date.

The maximum duration for an internship program for a J-1 intern is 12 months, but an individual can participate in an additional internship in his or her original field of study for up to 12 months if the individual changes majors in a baccalaureate degree program. An individual who pursues another degree at the next higher level (i.e., master’s degree) can also qualify for an additional 12 month internship.  If the individual no longer qualifies for an internship, the individual can apply for J-1 trainee status after a two-year residency period outside the U.S.

J-1 Research Scholars and Students

The J-1 programs for Research Scholars and College or University Students allow J-1 visa holders to complete their studies in the United States.  J-1 students are generally admitted for the length of their educational studies in the United States, plus a period of authorized practical training, similar to that available to F-1 students.  Employment authorization for such training can be issued directly by the J-1 program sponsor and does not require prior approval from U.S. Citizenship & Immigration Services (USCIS).

Dependents

Dependents (spouses and unmarried children under 21 years of age) of J-1 visitors are entitled to J-2 status, and may obtain work authorization by separate application to USCIS as long as it is demonstrated that their income is not necessary to support the J-1 nonimmigrant.

Foreign Residency Requirement

Some J-1 holders are subject to a 2-year foreign residency requirement which must be fulfilled after the completion of the J-1 program. The foreign residency requirement applies to:

  1. J-1 holders who participate in programs that are financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the J-1 visitor’s government, or
  2. J-1 holders who are nationals or residents of a country that has been designated by the U.S. Department of State’s Skills List as requiring the skills of the J-1 visitor.

Such J-1 visitors (and their J-2 dependents) must return to their country of nationality or last residence after completing their program in the United States, and reside there physically for an aggregate of two years before they are eligible to apply for an H, L, or immigrant visa, or apply for a change of status to any nonimmigrant status (except A or G).

Waiver of Foreign Residency Requirement

The two-year foreign residency requirement may be waived under one of five grounds:

  1. No Objection statement from the applicant’s country of nationality or last residence;
  2. Request by an interested U.S. government agency;
  3. Persecution in the country where the J-1 visitor would have to return;
  4. Exceptional hardship to a U.S. citizen or permanent resident spouse or child; or
  5. Request by a designated State Department of Health, or its equivalent (for foreign medical graduates only).

For detailed information concerning how to obtain a J-1 waiver, please see the Department of State website:  http://travel.state.gov/visa/temp/info/info_1296.html

K-1 Visas

Overview

K-1 classification is available to a fiancé/fiancée of a U.S. citizen who seeks to enter the United States to enter into a valid marriage with the U.S. citizen.  The couple must marry within 90 days after entry of the K-1 fiancé/fiancée.  A K-1 visa holder may not change to any other visa classification while in the United States nor may he or she adjust status to permanent residence by any means other than through marriage to the intended spouse.

The K-1 entrant is eligible to apply for work authorization through U.S. Citizenship & Immigration Services (USCIS).  The individual may not work until an Employment Authorization Document (EAD) is issued. K-1 entrants may also apply for work and travel authorization as part of their application for lawful permanent residence.

K-1 Duration

The K-1 visa will generally be approved by the U.S. embassy or consulate for six months and allow for a single entry.  The fiancé/fiancée will be admitted for 90 days, during which the couple must marry.  The couple then may file an I-485 application for adjustment of status to obtain conditional residency for the foreign spouse.  The foreign spouse will be issued conditional resident status for two years, and must obtain permanent residence by applying for the conditional basis to be lifted within the 90 days prior to the expiration of the conditional resident status.

Dependents

Unmarried children under 21 years of age of K-1 visitors are entitled to K-2 status, and may also apply for work authorization in the United States.

L-1 Visas

Overview

L-1 classification is available to intracompany transferees who, within the three preceding years, have been employed continuously outside of the United States for at least one year, and who will be employed by a qualifying U.S. entity in a managerial, executive, or specialized knowledge capacity.  An L-1 candidate cannot count any time spent visiting the United States as part of the one year foreign employment requirement.  To qualify to sponsor an L-1 worker, the U.S. entity must be a branch, parent, affiliate, or subsidiary that has at least 50% common ownership with the foreign employer.  The L-1 classification allows dual intent:  L-1 workers are not required to maintain a foreign residence and may seek permanent residence in the United States.

There are two categories of L-1 status:

  1. L-1A classification applies to candidates who will perform managerial or executive-level work in the United States;
  2. L-1B classification applies to candidates who will perform work in the United States requiring specialized knowledge of the company’s processes and procedures.

L-1 visa petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

L-1 Duration

L-1 visa status may generally be approved for up to three years, and can be extended for up to a total of seven years for an L-1A (manager or executive) or five years for an L-1B (specialized knowledge).  After the end of the maximum L-1 period of stay, an individual must reside outside of the United States for a full year before becoming eligible to reapply for H or L status.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status, and L-2 spouses may apply for work authorization in the United States.

Blanket L Application

If a company has an approved Blanket L petition, most candidates will qualify to present a visa application under the Blanket L petition directly to a U.S. embassy or consulate abroad, without having to file an application through USCIS.

Specialized knowledge candidates must be a “professional” to apply for L-1 status through a blanket petition. This generally requires the candidate to possess a university degree or experience deemed equivalent by an education evaluation service.

O-1 Visa

Overview

O-1 classification is available to a person who has extraordinary ability in the sciences, arts, education, business, or athletics, demonstrated by sustained national or international acclaim.  Special rules apply to artists and entertainers in the motion picture or television industries, who must have a demonstrated record of extraordinary achievement.  Individuals seeking to qualify for O-1 status must demonstrate their achievements through extensive documentation from objective sources in their occupational field, including expert affidavits, contracts, awards, and other documentation.

The O-1 classification allows dual intent:  the approval of a permanent labor certification or the filing of a preference petition for an individual shall not be a basis for denying an O-1 petition.  In addition, O-1 workers are not required to maintain an unabandoned foreign residence.

If the O-1 worker is dismissed before the end of the approved period of employment, the employer and petitioner (if different) are jointly and severally liable for the reasonable costs of transporting the worker to his or her last country of residence.

O-1 Application Procedures

To apply for O-1 status, the employer must file a petition with U.S. Citizenship & Immigration Services (USCIS).  An O-1 petition may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.  O-1 petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of the additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.   Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

O-1 Duration

O-1 status may be approved initially for up to three years, and may be renewed indefinitely in one-year increments to complete or continue the activities.  One advantage of the O-1 category is that, unlike the H-1B visa category, the O-1 has no annual limits per fiscal year.  Further, unlike the H-1B or L-1 nonimmigrant visa categories, there is no overall limit on the number of years an individual may remain in the United States in O-1 status.

Proving Extraordinary Ability in Science, Education, Business, or Athletics

Extraordinary ability in science, education, business, or athletics means a level of expertise indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor, evidenced by sustained national or international acclaim.  National or international acclaim can be demonstrated by receipt of a major internationally-recognized award, such as the Nobel Prize, or by documenting accomplishments in three of the following categories:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
  • Membership in an association in the field that requires outstanding achievement of its members, as judged by recognized national or international experts;
  • Published material in professional or major trade publications or major media about the prospective employee;
  • Judgment of the work of others in the field;
  • Original scientific, scholarly, or business-related contributions of major significance in the field;
  • Authorship of scholarly articles in the field in professional journals or other major media;
  • Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
  • High salary or other remuneration commanded for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or
  • Other comparable evidence.

Proving Extraordinary Ability in the Arts

Extraordinary ability in the arts means distinction, a high level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered.  To prove extraordinary ability in the arts, an individual need not be a principal creator or performer.  Essential persons, such as directors, set/lighting/sound designers, choreographers, conductors, coaches, arrangers, costume designers, and makeup artists, may also qualify. For the purpose of this category, arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts.

This category requires proof that the artist is prominent in his or her field by being nominated for or the recipient of a significant international or national award or prize, such as an Academy Award, Emmy, Grammy, or Directors Guild Award, or by documenting accomplishments in three of the following categories:

  • Performance in a lead, starring, or critical role for organizations and establishments of distinguished reputation, evidenced by articles in newspapers, trade journals, publications, or testimonials;
  • A record of major commercial or critically acclaimed success, evidenced by title, ratings, box office receipts, motion picture or TV ratings, or other published articles by or about the beneficiary in trade journals, major newspapers, magazines, etc.
  • Receipt of significant recognition for achievements from organizations, critics, government agencies, and/or recognized experts in the field;
  • High salary or other remuneration commanded for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or
  • Other comparable evidence.

Individuals seeking to prove extraordinary achievement in the motion picture or television industries will be evaluated on the same criteria used to prove distinction in the arts, except that a person of extraordinary achievement will be required to meet a higher standard.

Consultation Requirement

O-1 petitions must include a written advisory opinion from an appropriate union, if one exists, describing the individual’s ability and achievements in the field and the duties to be performed.  If no union exists, the petition may include non-union opinions from a peer group or other expert source.  O-1 petitions for individuals in the motion picture or television industry must include a written advisory opinion from the appropriate union, as well as the management group, describing the individual’s achievements in the field.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of O-1 and O-2 workers are entitled to O-3 status. Dependents in O-3 status are not authorized to work in the United States.

O-2 Accompanying Employees

The O-2 classification is available to foreign nationals seeking to accompany and assist O-1 employees in the arts, motion picture and television productions, and athletics.   O-2 nonimmigrants are not allowed to work in the United States, other than for the O-1 principal, and must be named in the O-1 petition.  Unlike the principal O-1 employer, O-2 nonimmigrants must maintain an unabandoned foreign residence.

Individuals seeking admission to accompany an O-1 employee must meet the following criteria: (1) they must be an integral part of the actual performance; (2) they must have critical skills and experience with the O-1 employee that are not general and cannot be performed by other individuals; and (3) they must have a foreign residence that they do not intend to abandon.   In addition, O-2 foreign nationals involved in motion picture and television productions must have skills and experience that are not general, that are critical, and that are based on a pre-existing and long-standing working relationship.

P-1 Visa

Overview

The P-1 classification is available to a person who performs as an athlete, either individually or as part of a team, or to entertainment groups that are internationally recognized who wish to enter the United States temporarily to perform in a competition, event, or performance.  An athlete or entertainer is internationally recognized if the person has obtained a high level of achievement evidenced by recognition and above ordinary skill that is renowned or well-known in more than one country.  Persons who hold P-1 status must maintain a foreign residence abroad.

Entertainment groups need to consist of at least 2 or more persons and must also show that 75 percent of the group had a substantial and sustained relationship and were performing together for at least one year.  If this 75 percent rule is not met, the solo entertainer can try to qualify as O-1 and the supporting entertainers as O-2s.  Both the international recognition requirement and the one year prior relationship rule may be waived for entertainers in certain cases.   For example, the one year prior relationship rule is waived in the event of exigent circumstances for an entertainment group (i.e. last minute substitution of a supporting musician due to illness).  The international recognition requirement and the one year prior rule are also waived for group circus performers provided that they have sustained national recognition.

P-1 visa petitions can be filed with a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.  Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

P-2

The P-2 classification is available to an entertainer who temporarily enters the U.S under a reciprocal exchange program for entertainers or groups between a U.S organization and a foreign organization.  The entertainers who are participating in the exchange must have similar qualifications and work under similar conditions.

P-3

The P-3 classification is available to an entertainer, either individually or as part of a group, who enters the United States temporarily to perform, teach, or coach in a culturally unique event that will further the understanding of the cultural art form.  There is no requirement that the group exist for any duration of time before the performance or tour.

Essential Support Staff

Persons who are considered an integral part of a competition, event, or performance and are necessary to support the performance of an athlete or entertainer are also eligible for P-1, P-2 or P-3 status.

Dependents

The P-4 classification is available to spouses and children of any person holding P-1, P-2 or P-3 status. There is no employment unless authorized and dependents are granted the same term of admission as the P visa holder.

Duration

Petitioners for a P visa must enter the U.S temporarily and solely for the purpose of performing in a competition, event, or performance.  Individual P-1 athletes may be admitted for a period of up to five years, with one extension for up to five years, but a petition for a P-1 athletic team or entertainment group, P-2 and P-3 petitioners, and essential support personnel cannot exceed more than one year.  Extensions of stay can also be requested for up to one year.

Evidence for P Status

All documentation showing proof of the competition, event, or performance, such as contracts or summaries of oral contracts, must be submitted with the petition.  If there is more than one employer or multiple work locations, an itinerary also needs to be submitted. For P-1 athletes and entertainers, the petition must provide affidavits, awards, expert opinions, or similar documentation proving that the athlete or entertainer has achieved international recognition in the field.  Entertainment groups must also show a list of members and dates employed in order to prove that they have been performing together for one year.  P-2 entertainers must show a formal reciprocal exchange agreement and statement from sponsoring organizations and evidence that an appropriate U.S labor organization negotiated the reciprocal exchange program with similarly qualified participants, wages, and working conditions for both sides.  P-3 entertainers need to submit documentation proving their unique artistic skills and published materials proving that their performance is culturally unique and will take place at a cultural event.

Consultation Requirement

P-1 petitions must include a written advisory opinion from an authorized official of an appropriate labor organization, if one exists, describing the individual’s or teams abilities and achievements in the field and the services to be performed.  If no labor organization exists, the petition may include non-union opinions from a peer group or other expert source.

TN Visas

Overview

TN classification is available to Canadian and Mexican citizens pursuant to the North American Free Trade Agreement (NAFTA).  Under NAFTA, Canadian and Mexican citizens may temporarily enter the United States to engage in business activities at a professional level.   To qualify for TN status, a candidate must intend to enter the United States to work in a profession designated on Schedule A of NAFTA.

Educational and experience requirements for TN professions vary, but many qualifying TN professions require completion of a Bachelor’s or Licenciatura Degree.  Generally, U.S. Citizenship & Immigration Services (USCIS) will expect a TN candidate to possess a degree related to the professional field.  In addition, if a degree is required and the candidate’s degree was gained at an educational institution outside of North America (i.e. Canada, Mexico, or the United States), the degree must be evaluated by a credentials evaluation service as the equivalent to a U.S. degree.

Unlike H-1B or L-1 classifications, TN workers are required to maintain a foreign residence and may not have the intention of seeking permanent residence in the United States.  It is therefore very important for TN workers to maintain ties to Canada or Mexico during their employment in the United States, such as real property, leases, bank accounts, credit cards, etc., and be able to provide documentation of these ties if required.

TN classification requires an employer sponsor, and the TN worker is employment authorized only with the petitioning company.  It is possible for an individual to hold TN status with more than one employer, but the individual must obtain separate approval for each TN employment.

Initial TN application procedures for Canadian and Mexican citizens differ.  Canadians may apply for TN-1 status at any Class A port of entry (includes air, sea, and land ports). Typically, Canadian citizens flying to the United States from Canada will apply for TN-1 status at a Pre-Flight Inspection Station at a Canadian international airport, before leaving Canada.

Currently, Mexican applicants for TN-2 status must obtain a TN-2 visa from a U.S. embassy or consulate prior to entering the United States.

Initial TN petitions as well as TN extension petitions for both Mexicans and Canadians can be filed directly with USCIS and may include a request for premium processing, which guarantees a response from USCIS within 15 days upon payment of an additional premium processing fee and allows immigration counsel or the petitioner to make direct contact with USCIS concerning the case.   Regular processing usually takes several months, although the time frame depends upon the current processing times for each USCIS Service Center.

TN Duration

TN status may be approved in three-year increments, but can arguably be renewed indefinitely (also in three-year increments) after initial entry.  One advantage of the TN category is that, unlike the H-1B visa category, the TN has no annual limits per fiscal year.   Further, unlike the H-1B or L-1 nonimmigrant visa categories, there is no set overall limit on the number of years a Canadian or Mexican citizen may remain in the United States in TN status.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of TN workers are entitled to TD status. Dependents in TD status are not authorized to work in the United States.