Employment and Other Nonimmigrant Visas

Although many people desire to reside permanently in the U.S., others wish to visit the U.S. temporarily for business or pleasure visits, education, and employment with U.S. companies. But our laws do not freely authorize just anyone to enter the country for these purposes – an individual must be in possession of a valid nonimmigrant status in order to enter the U.S. on a temporary basis. These nonimmigrant visas can be issued for a number of different purposes for certain designated periods of time, and each has its own specific requirements.

There are not many visas that authorize employment in the U.S., and those that do are difficult to obtain. The following visa categories are most often available to individuals seeking to work in the U.S.:

E Treaty Trader or Investors (E-1, E-2, and E-3) –

The E visa category includes treaty traders and investors who come to the U.S. under a treaty of commerce between the U.S., the treaty trader’s country of citizenship, and the country of citizenship of the majority of the foreign firm’s owners. The E-1 visa can authorize employment in the U.S. for an essential employee, supervisor or executive, or for highly specialized skills essential to the operation of the firm.

Similarly, the E-2 treaty investor authorizes employment for any citizen of a qualifying treaty country to come to the U.S. to develop and direct an enterprise as the principal investor, essential employee, supervisor or executive, or in a highly specialized skill capacity. The investor can be coming as an employee of another investing company but can also invest in his or her own enterprise. Either way, the investment must be substantial, with investment funds or assets committed and irrevocable; the investment must be a real operating enterprise, it must generate significantly more income than just to provide a living to the investor and family or if must have a significant economic impact in the U.S., and the investor must have control of the funds and the investment must be at risk in a commercial sense.

This category also includes Australian specialty occupation workers, which is essentially an H-1B visa only for Australians.

H1B Specialized Occupation Professional –

The H-1B visa allows U.S. companies to employ workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in IT, finance, education, architecture, engineering, mathematics, science, medicine, etc. and other jobs that require as entry into the field at least a four-year specialized (not a general or broad) degree. Any professional level job that usually requires you to have a bachelors degree or higher can come under the H-1B visa for specialty occupations. You may also be able to show degree equivalence through work experience and/or other qualifications in lieu of a degree, but this requires substantial experience and a professional evaluation. 

But the downside with the H-1B visa is that it is subject to an annual numerical cap of 65,000 visas per fiscal year plus an additional 20,000 for graduates of U.S. master’s degree programs. The fiscal year runs from every October through the following September, which is when these visas refresh. A company can petition an employee to begin working on the visa as of that October 1 until the visas are exhausted. In the past, petitions could be filed up to and past October; but in recent years, this has not been the case. Filing for the upcoming H-1B season begins the first week of October because such petitions can be filed up to 180 days in advance of the start date of employment (October 1). But lately many more petitions than the 85,000 have been filed during the first five days of filing, and USCIS conducts a random lottery in these instances to fill the 85,000. Unfortunately, this means that thousands of petitions are rejected and not selected for an H-1B for that year despite the position and the individual’s qualifications.

With this environment, it is important to fully discuss all of your employment options and to have a back-up plans. Some employers are exempt from the H-1B cap and are able to file for the petitions at any time not subject to the cap. Other visa options may be available, and permanent residency may also be a reasonable alternative.

H-3 Trainees – This visa category allows foreign nationals to come temporarily to the U.S. as a trainee to receive training in any field of endeavor other than graduate medical education or training that is not available in the foreign national’s home country, and is intended to benefit the beneficiary in pursuing a career abroad. The classification is not intended for U.S. employment; rather, it is meant to provide a foreign national with job- related training for work that will ultimately be performed outside the U.S. 

L International Transferee Manager or Specialized Knowledge Occupation – The L visa is intended for international companies with subsidiaries, affiliates, or parent companies in the U.S. to transfer certain employees from the foreign office to the U.S. or to open a new office in the U.S. The laws have specific requirements for the nature of the legal and structural relationships between the entities that analyze ownership and control. The L- 1A nonimmigrant visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S., and the L-1B visa applies to foreign workers that possess highly specialized knowledge that is not available within the U.S. workforce.

O Aliens of Extraordinary Ability – The O-1 visa is for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

R Religious Workers – An R-1 is a foreign national who is seeking temporary employment in the U.S. as a minister or in another religious vocation or occupation at least part time (average of at least 20 hours per week) by: a non-profit religious organization in the United States; a religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or a non-profit religious organization which is affiliated with a religious denomination in the United States. To qualify as a religious occupation, the job duties must primarily relate to a traditional religious function; be recognized as a religious occupation within the denomination; and be primarily related to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.

The R visa’s requirements have often caused irreparable harm to well-meaning religious workers and their religious organizations. Churches and other religious institutions have attempted to manage these filings on their own only to miss important deadlines and fail to properly maintain the nonimmigrant status of the worker. It is important to carefully time visa extensions and adequately document these paper-heavy filings. In some instances, the R visa can carry over into permanent residency through the I-360 Special Immigrant Religious Worker petition for ministers, priests, rabbis, imams, and the like who have at least 2 years work experience in the field.

TN Visa – NAFTA created special economic and trade relationships for the U.S., Canada, and Mexico. The TN visa permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The visa allows much more flexibility than the H-1B visa and is not subject to the annual numerical cap and does not require a pre-filed USCIS petition at all; however, the employment position must be listed on the NAFTA professionals list.

Our office handled some of the area’s largest international companies back when immigration was just a boutique practice area. As these companies’ demands grew, our firm chose to focus on smaller employers and local businesses to provide a more personal and attentive service environment where employers and employees together work directly with an attorney rather than through in-house staff and paralegals. We pride ourselves on handling unique job occupations and explaining these complicated processes fully to individuals with little experience in the area. We will take the time to understand your business needs, specialty, job requirements, and the skills of your intended employee. 

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