Any foreign individual or company that wants to work or to do business in the United States must carefully consider U.S. immigration laws. Also, the success of a new operation may depend on company’s ability to transfer personnel to the United States. Fortunately, there are a number of visa classifications that enable foreign nationals to be employed in the United States.
1. Non-Immigrant Visa - O-1 visa
O-1 visa or O-1 status is available to foreign nationals who have extraordinary ability in science, art, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.
Short-term work visas are available to certain people doing specialized work, including the O visa for outstanding workers in the sciences, arts, athletics, education, or business. A job offer from a U.S. employer is a basic requirement for the O visa. There is no annual limit on the number of people who can receive O visas.
The O-1 nonimmigrant visa is for the 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 have been recognized nationally or internationally for those achievements. The O nonimmigrant classification is commonly referred to as:
- O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).
- O-1B: individuals with an extraordinary ability in the arts, or extraordinary achievement in motion picture or television industry.
- O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2's assistance must be an "integral part" of the O-1A's activity. For an O-1B, the O-2's assistance must be "essential" to the completion of the O-1B's production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1.
- O-3: individuals who are the spouse or children of O-1's and O-2's.
2. Non-Immigrant Visa - H-1B visa
H-1B visa is a temporary nonimmigrant visa which allows alien professionals to work up to six years in the United States, and it also entitles the H-1B visa holder's spouse and children under the age of 21 to accompany them and legally live in the United States on an H-4 visa.
The H-1B is a temporary nonimmigrant visa which allows alien professionals to work up to six years in the United States. An alien worker must leave the U.S. after six years in H-1B status. There are exceptions including those alien workers who have a Labor Certification pending for more than 365 days, or Form I-140 approved, or those who changed their status to H-4. A H-1B holder's time periods outside the U.S. may be reclaimed in requests for an extension. The H-1B applicant must have experience or education in a specialty occupation.
The H-1B visa is designed to attract highly skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. In an H-1B application process, the employer is the petitioner, while the alien worker is the beneficiary. The U.S. employer must offer employment in a specialty occupation, either on a full time or part time basis. A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include engineers, nurses, professors, researchers, computer programmers, and other professionals.
The educational requirement specifies that the alien possess at least a bachelor's degree or its equivalent. If the applicant was awarded the degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.
3. Non-Immigrant Visa - J-1 visa
J-1 visas are for people who want to participate in an exchange visitor program in the US. The J-1 visa is intended for students needing practical training that is not available in their home country to complete their academic program. The training must be directly related to the academic program. The J-1 visa obligates the student to return to their home country for a minimum of two years after the end of their studies in the US.
The Immigration and Nationality Act provides 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.
A J-1 visa is a non-immigrant visa available to aliens that fall under the designation of "exchange visitor". To obtain a J-1 visa, the sponsor 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:
- Secondary school and college students, including students working towards a graduate degree.
- Business trainees
- Primary and secondary school teachers.
- College professors.
- Research scholars.
- Medical residents or interns receiving medical training within the U.S.
The spouse and minor children of J-1 visa holder may apply for derivative J-2 visas to accompany or follow to join the principal alien by presenting a copy of the principal's SEVIS DS-2019 Form (or IAP-66 Form). They must demonstrate that they will have sufficient financial resources to cover all expenses while in the United States. Dependents may apply to the USCIS for authorization to accept employment in the United States.
4. Non-Immigrant Visa - L-1 visa
The L-1 intracompany transferee visa allows managers, executives, and especially knowledgeable employees who work outside the U.S. for a company that has an affiliated entity inside the U.S. to come to the U.S. and perform services for that entity. There are no limits on how many people can get L-1 visas every year.
The U.S. Congress created the L-1 nonimmigrant visa category in 1970, primarily to assist multinational companies that experienced difficulties in bringing to the United States critical personnel temporarily from abroad. To be eligible for an L-1 visa, a foreign national normally must have been employed by the foreign company continuously for at least one year during the preceding three years in a managerial or executive position, or in a position where the individual gained specialized knowledge.
The individual must be coming to the United States to provide services to the same employer or a branch office, subsidiary or affiliate. For this reason, L-1 visa holders are known as intracompany transferees. Executives and managers enter the United States on an L-1A visa. Employees with specialized knowledge enter the United States on an L-1B visa.
To qualify for specialized knowledge, the employee must possess special knowledge of the petitioning employer's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge in the employer's processes and procedures.
The L-1A visa enables a multinational company to transfer an executive or manager from one of its foreign offices to one of its offices in the United States. The L-1A visa also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. To apply for a L-1A visa, the employer must file a Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.
The L-1B visa enables a U.S. employer to transfer a professional employee with specialized knowledge relating to its interests from one of its affiliated foreign offices to one of its offices in the United States. The L-1B visa also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. To apply for a L-1B visa, the employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.
5. Non-Immigrant Visa - P visa
P visa is a short-term U.S. work visa, and it consists of four classifications: P1 visa, P2 visa, P3 visa and P4 visa. The P visa classification covers aliens who are internationally recognized athletes, artists or entertainers. The P visa is available to outstanding athletes, athletic teams, and entertainment companies including circuses with a job offer from a U.S. employer. Their essential support personnel may also be granted P visas, and there is no annual limit on the number of people who can receive P visas.
A short-term U.S. work visa known as the P visa is available to outstanding athletes, athletic teams, and entertainment companies (including circuses) with a job offer from a U.S. employer. Their essential support personnel may also be granted visas. There is no annual limit on the number of people who can receive P visas.
P visa is for certain athletes, artists and entertainers who wish to live and work temporarily in the United States. To begin the application process, the future employer must file a Form I-129 (Petition for a Nonimmigrant Worker) in the United States with U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security. If approved, the USCIS will mail the petitioner a Form I-797 (Notice of Action). The beneficiary may then apply for a P visa at the United States Embassy or Consulate. The P visa consists of four classifications: P-1, P-2, P-3 and P-4. The P visa classification covers aliens that are internationally recognized athletes, artists or entertainers.
The spouse and unmarried children of the P visa holder may also accompany the P visa holder to the United States during his or her duration of stay. The P-1 visa may be issued to an individual or to a team or group. The P visa allows for individuals that are part of a team or entertainment group to come to the United States and perform temporarily. Other classifications under the P visa cover individuals who perform, teach or coach in culturally unique programs.
P1 visa is for internationally recognized athletes and entertainers. An internationally recognized athlete traveling to the United States to compete and his or her essential support personnel can require P1 visas. P1 visa include alien athletes who compete individually or as part of a team at an internationally recognized level, and P1 visa also includes aliens who perform with or are an integral and essential part of the performance of an entertainment group that has received international recognition as outstanding for a sustained and substantial period of time.
P2 visa is for artists and entertainers. It includes individuals or groups, who seek to be admitted through a reciprocal exchange program between a foreign-based and US-based organization, which are engaged in the temporary exchange of artists and entertainers. The exchange of artists or entertainers must be similar in terms of caliber of artists or entertainers, terms and conditions of employment, and number of artists or entertainers involved in the exchange.
P3 visa is for culturally unique programs. An artist or entertainer who is traveling to the United States to perform, teach, or coach under a culturally unique program requires a P3 visa.
P4 visa is for spouse and children of a P visa holder. P4 visa is for spouses and children under the age of 21 to travel with or follow-to-join the principal P visa alien in the United States.
6. Immigrant Visa - EB1 Extraordinary Ability
EB1 Extraordinary Ability immigrant visa application is in the employment-based immigration visa first preference (EB1 visa) category known as EB-1A. Aliens of Extraordinary Ability may be eligible for a First Employment-Based Preference (EB-1A or EB1-EA). A Green Card applicant with extraordinary ability in the arts, sciences, education, business or athletics is eligible for treatment as a priority worker in the EB1 immigration category.
Certain aliens are exempted from the Labor Certification application process by virtue of their extraordinary ability, outstanding research, positions as international managers and executives, or their work in U.S. national interest. An immigrant application filed on behalf of an alien with extraordinary ability must demonstrate that the alien possesses a level of expertise indicating that he or she has risen to the top of the field of endeavor.
If you have extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation, then you will qualify as an alien of extraordinary ability. If you are a member of the "small percentage who have risen to the very top of the field of endeavor", then you can apply under this category.
A Green Card applicant with extraordinary ability in the sciences, arts, education, business, or athletics is eligible for treatment as a priority worker in the EB1 category. Individuals who qualify for this category as persons with extraordinary ability can waive both the Labor Certification and offer of employment requirements. The extraordinary ability category does not require a job offer or a U.S. employer's sponsorship. Therefore, no labor certification is required. Consequently, aliens can apply for themselves without the assistance of an employer. However, it will be important for the alien to establish that he or she will continue to work in the area of his/her specialty in United States.
7. Immigrant Visa - EB1 Outstanding Researcher or Professor
EB1 Outstanding Researcher or Professor immigrant application is in the employment-based immigration visa first preference (EB1 visa) category known as EB-1B. If a foreign national has an international reputation for being outstanding in a particular academic field, that person may, with an offer of work from a U.S. employer, qualify for a Green Card as a priority worker within the outstanding professors and researchers subcategory. The foreign national will have to show at least three years experience at either teaching or research in the relevant academic field.
The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Or, if the position is at a research organization, it must be a permanent position - showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year, but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding.
Not every type of employer can make use of this visa category. It must be a qualified employer, meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research.
8. Immigrant Visa - EB1 Multinational Executive or Manager
EB1 Multinational Executive or Manager immigrant application is in the employment-based immigration visa first preference (EB1 visa) category known as EB-1C or L1A green card. In order to qualify as a multinational executive or manager under this category, during the three years preceding the application, the applicant must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity. The labor certification is not required for international managers and executives. The EB-1C petition requires the individual to have a permanent job offer from the U.S. company to work in an executive or managerial position.
This subcategory of the EB-1C priority worker category is limited to executives or managers who have been working for a qualified company outside the U.S. for at least one out of the past three years. Or, if the person is already in the U.S. on a temporary visa, it’s possible to qualify based on having been employed as an executive or manager at that company for one of the three years before arrival in the United States.
The foreign national must be planning to take a managerial or executive position with a U.S. branch, affiliate, or subsidiary of the very same company. The U.S. office will need to show that it has been in business for at least one year. The prerequisites are similar to those for L-1 intra-company transferee nonimmigrant visas. Not only does the foreign national need to meet the various qualification requirements under this subcategory, but the employer, including its foreign and U.S.-based offices, must also meet certain qualifications, including that the two are either:
different branches of the same company;
a joint venture where the parent company owns half or has equal control and veto power;
related so that one company is a majority-controlled subsidiary of the other, or;
affiliated such that both companies are under the control of the same person, persons, company, or group of companies.
9. Immigrant Visa - EB2 National Interest Waiver
National Interest Waiver green card application is in the employment-based immigration visa second preference (EB2) category known as EB2 NIW. Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications.
To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver application is pending.
A person qualifies for the EB2 National Interest Waiver category if he or she falls within the second preference employment-based category, namely a person in the professions who either holds an advanced degree or is considered possessing exceptional ability in the sciences, business or arts.
While the USCIS has not established specific criteria for approving NIW applications, many USCIS examiners rely on a decision in a case decided previously. In that case, the USCIS Administrative Appeals Office (AAO) suggested that the following seven factors could be taken into consideration:
1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and under-qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the U.S. and making more productive use of natural resources;
7. A request from an interested U.S. government agency or improving international cultural understanding.
Typically, alien applicants should establish themselves as having some unique and exceptional skill, experience, or knowledge, that sets them apart from their professional peers. Documents stating that he or she only possesses a certain level of competence will not be sufficient to receive a National Interest Waiver approval. Rather, a proficiency that is greater than mere competence is expected for those seeking a National Interest Waiver application approval.
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