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U.S. Temporary (Non-Immigrant) Visas

1. B-1 Visa for Business Visitors

The B-1 can be very useful for a business person who needs to travel to the U.S. on short notice to attend meetings and the like. An individual in B-1 status can not engage in local work in the U.S. A very limited exception is obtaining the B-1 visa to install or repair equipment in connection with a contract to sell the equipment that includes this service as a term of sale, which usually requires sending technical expert to oversee installation. This exception does not apply to the sale of services. 

The B-1 visa is designed to allow an individual to enter the United States temporarily to carry on limited activities for the benefit of a foreign employer. The business activity must be associated with international trade or commerce. It is critical that an applicant prepares for the visa interview. Entry to the U.S. with a B-1 visa entails some added risk because Customs and Border Protection (CBP) officials inspecting visitors may not understand that the foreign national’s intended activities are within the scope of the B-1.

The B-1 visa classification is often used by sales personnel to enter the United States, to solicit sales for foreign-made products. The B-1 visa is also often used by executives or managers of foreign companies to enter the United States to do certain preliminary work necessary to start up a business in the United States.

2. H-1B Professional Visa

The H-1B is a nonimmigrant visa category in the United States under the Immigration and Nationality Act. It allows U.S. employers to seek temporary help from skilled foreigners who have the equivalent U.S. Bachelor's Degree education. H-1B employees are employed temporarily in a job category that is considered by the U.S. Citizenship and Immigration Services (USCIS) to be a "specialty occupation". 

A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts may be considered to be specialty occupations.

The H-1B category has an annual quota and is be subject to a "labor attestation" requirement. The U.S. employer must attest to the U.S. Department of Labor that certain conditions of employment have been satisfied before hiring a foreign worker for a temporary period in the H-1B visa category.

3. L-1 Visa for Intra-company Transferee

A large multinational company that regularly transfers employees to the U.S. may be eligible to file a Blanket L-1 Petition, which can enhance the efficiency of the L-1 category. A blanket petition is used to obtain pre-approval of the corporate structure as qualifying for use of the L-1s. 

The L-1 visa is available to an individual who has been employed by a foreign company for at least one year during the preceding three-year period outside the United States, as an executive, manager, or person with specialized knowledge, and who seeks to enter the United States affiliate of the foreign company in one of these capacities.

To qualify as an executive or manager, the employee’s duties must primarily involve supervising, managing or directing the work either employees or a key department or function of the company’s business. A specialized-knowledge employee is one who either has special knowledge of a product and its application in international markets or has an advanced level of knowledge of the company’s processes and procedure. To be eligible for this classification, the foreign and U.S. operations must have a "qualifying relationship." This relationship must be carefully examined to ensure that it satisfies the affiliation rules for immigration purposes.

The burden to prove that a worker has specialized knowledge is high, as it usually requires showing special knowledge of the company’s products or services, or an advanced level of knowledge of corporate practices. Unlike the H-1B, the L-1 category is not subject to an annual limit, and the L-1 dependents are eligible to request employment authorization. 

4. TN for Nationals of Canada and Mexico 

The North American Free Trade Agreement allows certain Canadian and Mexican professionals to enter the United States pursuant to a TN visa to work for a U.S. employer. To be eligible in this category, the alien must demonstrate that he or she is a member of one of the professions listed in the appendix of the Free Trade Agreement.

The TN category is a potential option for citizens of Canada and Mexico. There is no numerical limit or cap on the number of TNs that may be issued. The category is for professionals, engaged in a specified list of occupations. Many of these are scientific professionals. The applicants must possess specified degrees and licenses, appropriate to the particular profession. With the exception of management consultants, all TNs must have job offers from U.S. employers.

TNs are granted in one-year increments, without any maximum limit. There is no initial filing with the USCIS. The applications are made either at the port of entry for Canadians, or at the consulate for Mexicans. 

5. H-1B1 for Nationals of Chile and Singapore 

Often overlooked and underutilized, the H-1B1 nonimmigrant visa category was created after President George W. Bush signed into law certain Free Trade Agreements (FTAs) with Chile and Singapore on September 3, 2003. The H-1B1 provides a potential alternative to the H-1B, for foreign nationals from the countries of Chile and Singapore. 

The H-1B1 category has numerical limits that are carved out of the available H-1B cap. That is, the H-1B cap is reduced by the numbers available for the H-1B1 for nationals of Chile and Singapore. Despite the relatively low numbers, this category has not been used to its full potential so far. 

The requirements are identical to those of the regular H-1B category. Additionally, the H-1B1 nonimmigrant classification is available to certain professionals who may not possess post-secondary degrees or the equivalent, but who will engage in the profession of Agricultural Managers or Physical Therapists (for Chilean nationals only); or Disaster Relief Claims Adjusters or Management Consultants (for both Chilean and Singaporean nationals).

Similar to the TN visa for Canadian and Mexican citizens, one advantage of the H-1B1 category is that H-1B1 beneficiaries do not need to first obtain approval of the H-1B1 Petition from the USCIS. Consequently, H-1B1s can apply directly for their visas at a U.S. consulate. 

H-1B1 visas are only valid in one-year increments, and do not provide certain protections available to H-1B and L-1 holders under the doctrine of dual intent. This means that H-1B1 beneficiaries may not pursue permanent residence in the United States while in H-1B1 status. The availability of this category, however, does not preclude Singaporean and Chilean nationals from applying for regular H-1B status at a later point, which would be appropriate if they decided to process for permanent residence. 

6. O-1 for Individuals with Extraordinary Ability 

An alternative to the H-1B that is available to some people is the O-1 category. A successful O-1 petition requires that a company show the sponsored person has "extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim." 

Proving extraordinary ability for O-1 in the categories other than arts requires either the receipt of a major, internationally recognized prize, or at least three of the criteria listed in the law. These criteria are: 

1) receipt of nationally and/or internationally-recognized awards; 

2) membership in organizations that require outstanding achievement; 

3) published materials about the foreign national in professional and/or major trade publications; 

4) judging the work of others; 

5) original scientific and/or scholarly work of major significance; 

6) authorship of scholarly work; 

7) employment at an organization with a distinguished reputation; 

8) receipt of a high salary in relation to others in the field. 

As expected, far more people qualify for H-1B status than for O-1. The O-1 has no cap, or limitation. Additionally, persons who previously held J-1 Exchange Visitor status, and who are required to return to the country of last permanent residence for two years, may be eligible for this status, without the J-1 waiver that would be required of him/her in H-1B status. 

7. H-2A for Agricultural Seasonal Workers and H-2B for Skilled and Unskilled Nonagricultural Workers 

With both the H-2A and the H-2B status categories, a business’s need for the services of a worker must be temporary. For the H-2A, the work must be seasonal. For the H-2B, the need must be the result of a one-time occurrence, seasonal demands, a peak load making the number of people permanently employed in the job temporarily insufficient, or an intermittent need. 

In each case, the need must be documented carefully, and an application for Labor Certification (LC) must be filed with the U.S. Department of Labor (DOL), showing that there are no U.S. workers in the local area capable of performing the services required. The approval of this LC usually allows work for no more than one yearm, and is filed with the USCIS petition for approval of the H-2A or H-2B. 

Unlike H-2A cases, the LC approval for the H-2B is only advisory, which means USCIS could disagree with the DOL's certification of the company’s need of foreign workers. A company may include multiple beneficiaries in the USCIS petition, but must list each name. In a petition for H-2A workers, the employer can leave out the names of potential hires who are outside the U.S. As with any worker abroad, each person must apply for a U.S. visa. Employers should consider this stage in calculating the start date.

8. E-1 for Treaty Traders and E-2 for Treaty Investors 

Alternatively, some businesses may be able to use the E-1 Treaty Trader or E-2 Treaty Investor Visas designed for nationals of countries with which the U.S. has treaties of commerce and navigation or similar agreements. The E-1 is for individuals coming to the U.S. to carry on substantial trade in goods or services. The E-2 is used for coming to the U.S. to invest substantial capital or direct and develop the operations of an entity by investing funds. 

One can qualify as a principal trader or investor, or as an employee of the trader or investor company, but all three must have the same treaty country nationality. These visas are for executives, managers, or others with skills and experience that are "essential" to the success of the operation. As with the O-1 category, there is no numerical limit on the E category and E dependents are eligible to work.

9. E-3 for Nationals of Australia 

Effective September 2, 2005, the U.S. Department of State expanded the definition of treaty trader / investor by recognizing a new nonimmigrant treaty alien (E-3), a national of Australia, entering the United States solely to perform services in a specialty occupation. There is an annual numerical limit of 10,500 E-3 visas. A spouse may apply for an employment authorization document from the USCIS. 

This visa category is a hybrid between an E visa and an H-1B. This category is in addition to E-1 and E-2 visas, for which Australians are also eligible. The definition of a specialty occupation follows the regulatory criteria already developed by the USCIS for the H-1B category. Like the H-1B, the E-3 requires the filing of a Labor Condition Attestation (LCA) with the U.S. Department of Labor. 

The E-3 petition is not submitted to the USCIS for pre-approval. Instead, one presents the application directly at the U.S. consulate abroad and requests the visa for travel. The application should include the original LCA evidence of the employee's credentials, and the necessary specialty occupation information, as covered above, and each consulate has the discretion to accept a copy of the LCA in lieu of the original.

The E-3 does not have a statutory limit. Therefore, the visa should be issued for the time requested in the LCA document. Typically, a two-year period is requested, and it may be repeatedly extended. At this time, the USCIS has not promulgated any regulations for extending the visa while an individual is present in the U.S. or for one to file for a change of status (COS) to an E-3 within the U.S. The USCIS, however, has provided guidance that a COS or EOS may be filed in certain circumstances, although often this is not practical due to delays and the unavailability of premium processing for the E-3 classification.



 


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