Non-Immigrant or Temporary Visas

B-1 Visitors for Business

The B-1 visa is available to foreign nationals who wish to enter the US temporarily to engage in business such as contract negotiations, set up a US corporation, consult with clients or business associates, attend trade shows and conventions or board meetings, file or defend against a lawsuit,  or compete for tournament money (professional athletes).

It does not allow the foreign national to be employed or collect a salary in the US. Personal or domestic servants of returning US citizens or nonimmigrants may be issued B-1 visas as long as the domestic can show that he was employed by the US citizen for at least one year abroad and the US citizen agrees to enter into a contract with the domestic and pay the prevailing wage.

B-2 Visitors for Pleasure

The B-2 visa is available to foreign nationals who wish to enter the US temporarily as tourists. Other permissible activities include: visiting friends or relatives, undergoing medical treatment, participating in social organizations, participating in amateur events and even coming to the US to marry a USC with the intention of departing and applying for a visa in his home country. A domestic partner may qualify for a B-2 visa if the intent is to accompany the principal partner.

H-1B Specialty Workers

There are several types or categories of H visas. The following description is limited to H-1B specialty workers. The H-1B visa is available to a foreign national who is coming to the US temporarily to work in a specialty occupation, or as a fashion model of distinguished merit and ability, or a person providing services to the Department of Defense cooperative research and development project. Although the H-1B process starts with the US Company filing a petition, an H-1B petition for a professional or specialty worker or fashion model cannot be approved without an underlying approved Labor Condition Application (LCA).

The Labor Condition Application (LCA)

An LCA is a document filed with the US Department of Labor (DOL) containing attestations from the H-1B employer that: it will pay the H-1B worker the prevailing wage or higher for the position, it is providing the H-1B worker with the same benefits as all other workers in the work place so that filing the petition will not adversely affect the wages and working conditions of other US workers at the work site, it has notified all workers of the employer’s intent to file an H-1B petition in support of a the foreign worker by two 10-day internal postings, and there has been no work stoppage in the area of employment. In addition to preparing and maintaining a public access file and obtaining an approved LCA from the Department of Labor, the employer must agree that in the event the H-1B worker is terminated prior to the natural expiration of his H-1B petition validity period, the employer shall be responsible for paying the worker’s return air fare to his home country. However, if the H-1B worker voluntarily terminates his employment before the H-1B petition expires, then the petitioning employer is no longer liable for the H-1B worker’s return airfare. All employers of H, L and O nonimmigrant workers are required to attest that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and have determined that either a license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person or if a license is required to release such technology or technical data to the worker, the petitioner will prevent access to the controlled technology or technical data by the worker until and unless the petitioner has received the required license or other authorization to release it to the worker. The H-1B employer must pay the stated wage within 30 days of the H-1B’s admission into the US or 60 days from the H-1B employee’s change of status if already in the US. An H-1B employer must pay for the H-1B petition process. An employer cannot “bench” an H-1B employee (regardless of whether the H-1B worker is a full- or part-time employee) because of lack of work. The petitioning employer is required to pay for the costs of the petition process including attorney’s fees and filing fees and cannot seek reimbursement for these costs. To do so would be in violation of the law and the employer would be subject to penalties.

Dual Intent

An H-1B worker may continue to maintain nonimmigrant status and have a PERM labor certification or visa petition pending or approved on his behalf. This is also true for L and O workers.

Admissions and Extensions

The H-1B petition may be approved for up to three years and cannot exceed the period on the underlying approved LCA with the exception of DOD projects where the petition may be approved for up to five years. There is a six-year maximum period for H-1Bs. Periods spent outside the US during the H-1B validity period may be recaptured. If the H-1B worker spends one year outside the US, the six-year maximum period restarts. An H-1B worker may extend his stay beyond the six years if a PERM labor certification application or I-140 visa petition has been filed on his behalf and remains pending for 365 days or more. If this is the case, the H-1B worker may extend his H-1B status in increments of one year at a time for as long the PERM labor certification or I-140 visa petition remains pending. Sec. 106 (a). An H-1B worker may extend his stay beyond the six years if he has an approved I-140 visa petition in his name. If this is the case, the H-1B worker may extend his H-1B status in increments of three years. Sec. 104(c).

Dependents of H-1B Workers are Classified as “H-4”

Certain H-4 dependent souses can apply, for a work permit under certain circumstances.The spouse and minor children of an H-1 worker can remain in the US for as long as the H-1 worker’s validity period.

L Intracompany Workers

An L visa is a temporary nonimmigrant visa for a foreign employee who has been employed abroad for at least one year in the three years immediately preceding the filing of the petition at a foreign company that is the affiliate, subsidiary, branch or parent company of a US company. There are two types of L visas:

L-1A for Executive or Manager

To qualify, the L-1A applicant must be (1) continuously employed for at least one year (in the last 3 years) by a firm, corporation, or other legal entity that is the parent, affiliate or subsidiary of a US company and (2) the L-1A must be seeking entry into the US in order to continue to render temporary services to the same employer or to its subsidiary in a managerial or executive capacity.

An executive is someone who directs the management of the organization or a major component or function of the organization; establishes the goals and policies of the organization, component, or function; exercises wide latitude in discretionary decision-making; and receives only general supervision or direction from higher level executives

A manager is someone who manages the organization, department, subdivision, function or component of the organization; supervises and controls the work of other supervisory professionals or manages an essential function within the organization or department or subdivision of the organization; has authority to hire and fire or recommend personnel actions, or functions at a senior level; and exercises discretion over day-to-day operations of the activity or function over which he has authority

Caveat: First line supervisors are not considered managers unless the employees they supervise are professional. The maximum period of stay for an L-1A is seven years.

L-1B for Special Knowledge Worker

To be eligible, the L-1B must have special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has advanced level knowledge of processes or procedures of the company. Where the specialized knowledge is of a company product, the knowledge must be “noteworthy” or “uncommon”. The maximum period of stay for an L-1B is five years.

Blanket L Petitions

A blanket L petition is available for a US company and other qualifying organizations that have been doing business in the US for at least one year; successfully filed at least 10 “L” petitions for managers, executives, or specialized knowledge professionals within a 12-month period OR have combined sales of at least $25 million OR have at least 1,000 employees in the US; and engaged in commercial trade or services.

The US company may file a blanket petition which if approved, would allow its L workers to apply for an L visa directly with the US embassy or consulate abroad. The L visa applicant may apply as a manager, executive or specialized knowledge professional.

Dependents of L’s are classified as “L-2”

The spouse of an L worker may apply for work authorization after being admitted into the US as an L-2. The spouse and minor children of an L can remain in the US for as long as the L worker’s validity period.

TN Visas

The North American Free Trade Agreement (NAFTA) facilitates the expeditious entry of temporary business visitors (B-1s), traders and investors (E-1s and E-2s), intracompany transferees (L-1s), and professionals (TNs) who are citizens of Canada and to a more limited extent, citizens of Mexico.

Caveat: Unlike Canadian citizens who can apply for temporary visas under NAFTA at a port of entry (Pre-flight Inspection or “Class A” port of entry), Mexican citizens cannot apply for a temporary visa under NAFTA at a port of entry and must obtain a TN visa at a US consulate in Mexico.

TN status can be granted for up to three years with unlimited extensions for Canadians. For a Mexican citizen, a TN visa is issued for only one year but the Mexican TN can be admitted into the US for three years. Dependents of TN visa holders are designated

E VISAS  (Treaty Traders and Investors)

The E visa category includes treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national. This category also includes Australian specialty occupation workers.

Eligibility

Before entering the United States, treaty traders or investors and Australian specialty occupation workers must apply and receive an E-1, E-2, or E-3 visa from a U.S. consulate or embassy overseas. A U.S. company may also request a change of status to E-1, E-2, or E-3 for a nonimmigrant that is already in the United States.

Treaty traders (E-1) conduct substantial trade in goods, including but not limited to services and technology, mainly between the United States and their country of origin of which they are citizens or nationals.

Treaty investors (E-2) invest a substantial amount of money and direct the operations of an enterprise they have invested in, or are actively investing in.

Australian specialty occupation workers (E-3) perform services in a specialty occupation.

Philippines is one of the countries the United States maintains a treaty of commerce and navigation with.

General Eligibility for E-1 Classification

To qualify for E-1 classification, you must:

  • Be a national of a country the United States maintains a treaty of commerce and navigation with;
  • Carry on substantial trade; and
  • Carry on principal trade between the United States and the treaty country which qualified you for E-1 classification.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. 

General Eligibility for E-2 Classification

To qualify for E-2 classification, you must:

  • Be a national of a country the United States maintains a treaty of commerce and navigation with;
  • Have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.

General Eligibility for E-3 Classification

To qualify for E-3 classification, you must:

  • Be a national of Australia;
  • Have a legitimate offer of employment in the United States;
  • Have the necessary academic or other qualifying credentials; and
  • Fill a position that qualifies as a specialty occupation.

E-1 or E-2 Classification as an Employee of a Treaty Trader or Treaty Investor

To qualify for E-1 or E-2 classification, you must:

  • Be the same nationality as the main alien employer (who must have the nationality of the treaty country);
  • Meet the definition of “employee” under relevant law; and
  • Be either engaging in duties of an executive or supervisory position, or if employed in a lesser capacity, have special qualifications.

F (Academic Student) Non-Immigrant Visa

A student who wishes to study in the United States may be eligible to apply for an F-1 student visa abroad or change of status to F-1 if he is already in the US by obtaining an I-20 form from an accredited US educational institution. The spouse and minor children of the F-1 principal may apply for F-2 visa/status. An F-2 spouse is not eligible for work authorization. However the F-2 minor children may enroll in a US school and attend classes until 12th grade. If the F-2 wishes to attend beyond 12th grade, then the F-2 must apply for a change of status to F-1 and obtain her own I-20.

The F-1 holder must intend to pursue a full course of study and depart the US upon completion of her program; seek to enter the US temporarily for the sole purpose of pursuing a course of study at educational institution approved by ICE in compliance with the SEVIS program; and have sufficient financial support.

The application and supporting documentation are filed with the consular post abroad or if the applicant is in the US, the petition and supporting documentation are filed with the Service Center.

After the F-1 visa is issued, the F-1 may be admitted at least 30 days before the program start date. Upon arrival at a US port of entry, the F-1 will be admitted for “Duration of Status” (D/S) or until completion of the educational program plus 60 days. The 60-day period can be used to prepare for departure, change status, change educational levels, or change educational institutions.

Optional Practical Training (OPT)

Optional practical training may be pre-completion or post-completion (after completion of all course requirements for bachelor’s, master’s, or doctoral degree program and course of study). The Designated School Official (DSO) must make a recommendation for OPT under SEVIS and must indicate whether employment will be part-time or full-time with the start and end dates. Duration of post-completion OPT: 12 months

STEM OPT

If the field of study is in the sciences, technology, engineering, or mathematics (STEM), the F-1 student can obtain an additional 17 months OPT for a total of 29 months. However, the F-1’s major or dual major must be in the STEM subject. If the STEM subject is only a minor, the F-1 will not qualify for the additional 17 months.

Caveat: The employer of the F-1 OPT must be participating in E-verify and agree to report the F-1s departure within 48 hours. It is the responsibility of the STEM F-1 to report to the DSO every six months. The F-1 cannot be unemployed for 90 days or more during the 12-month period of OPT or 120 days or more during the 29-month period of STEM OPT.

J Exchange Visitor

The J visa is a way for an advanced student or professional to expand his or her skillset while learning about another culture and way of life as an exchange visitor in the United States. It requires a host organization to contract with a program sponsor so it can participate in the J Visitor Exchange Program. For more information, please go to http://www.j1visa.state.gov.

O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is for the individual who has 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.

Eligibility

The O nonimmigrant classification are 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; and
  • O-3: Individuals who are the spouse or children of O-1 and O-2 visa holders.

Period of Stay

O1 visa holder will be granted an initial period of stay includes the time needed to complete the event or activity, not to exceed three years.

O1s may be eligible to extend stay in increments of up to one year to continue or complete the same event or activity.

P-1A (Athletes); P1B(Entertainment Group)

P1A

The P-1A classification allows you to come to the United States temporarily to perform as an athlete.

he P-1A classification applies to you if you are coming temporarily to the United States solely for the purpose of performing at a specific athletic competition as:

  • An individual athlete at an internationally recognized level of performance; 
  • Part of a group or team at an internationally recognized level of performance; 
  • A professional athlete; or 
  • An athlete or coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association. 

The P-1A classification also applies to professional or amateur athletes coming temporarily to the United States solely to perform in a specific theatrical ice skating production or tour, individually or as part of a group.

P1B

The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of an entertainment group that has been established for a minimum of one year and recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

At least 75 percent of the members of your group must have had a substantial and sustained relationship with the group for at least one year.

Your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.

Note: Individual entertainers not performing as part of a group are not eligible for this visa classification.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please at www.tancinco.com . We have assisted clients in all aspects of immigration law for more than 28 years.

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