Individuals who wish to work temporarily in the United States must hold a nonimmigrant visa specified for the type of work being performed and for the purpose of travel to the United States. Various categories (classifications) of nonimmigrant visas are available to individuals to work temporarily in the United States.
Employers in the United States may employ foreign nationals in specialty occupations pursuant to H-1B visa status. A “specialty occupation” is defined as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor, including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts. A specialty occupation requires the attainment of a bachelor’s degree or its equivalent (at a minimum). The foreign national worker must possess at least a bachelor’s degree (or its equivalent) and state licensure if required in the occupation. H-1B work authorization is limited to the employment position described in the H-1B petition and the petitioning employer.
Although it is a nonimmigrant visa category, H-1B is one of the few visa categories recognized as “dual intent.” Dual intent means an intention to immigrate (pursue permanent resident status) at some time in the future while legally maintaining a nonimmigrant status. The employment-based immigration process to obtain permanent residence (a green card) can take many years for foreign nationals from certain countries (e.g. India, the Philippines, and China). Consequently, many foreign nationals must renew their H-1B visas in one (1) year or three (3) year increments to continue their legal status while their permanent resident (green card) application is pending.
Spouses and unmarried minor children of the H-1B visa holder may obtainH-4 visas to reside and study in the United States; however, they are not eligible to work in this visa classification.
The H-2B visa category is for foreign nationals coming temporarily to the United States to perform temporary services or labor (other than agricultural services or labor) for which there are insufficient U.S. workers capable of performing such services or labor. “Temporary” refers to any job for which the employer’s need is temporary regardless of whether the job is one that could be described as permanent or temporary. Absent extraordinary circumstances, the period of the employer’s need must be for one (1) year or less and be either a one-time occurrence, a seasonal need, a peak load need, or an occasional or intermittent need. A temporary labor certification from the Department of Labor (DOL) must be obtained before an H-2B visa petition can be approved.
The H-3 visa is a nonimmigrant visa that allows a foreign national to come to the United States temporarily as a trainee to receive training that is not available in the trainee’s home country or as a special education exchange visitor.
Firms and companies working with a parent company or subsidiary abroad most often use the H-3 visa in order to provide training to the foreign national. The H-3 visa category includes training in areas such as commerce, agriculture, government, professions, finance, agriculture, or in an industrial establishment (but not graduate or medical training). The U.S. organization that is providing the training program files the H-3 visa petition. H-3 trainees cannot be placed in positions regularly held by U.S. citizens and resident alien workers and cannot be productively employed, except if necessary in the approved training program.
Spouses and unmarried children under the age of 21 may obtain H-4 visas to accompany the H-3 principal. They may not work without first obtaining appropriate work authorization but may study without having to obtain a separate F-1 student visa.
The I visa category is for representatives of the foreign media press, radio, film, or other foreign information industries. Applicants must meet specific requirements to qualify for the I visa. Applicants must demonstrate that they are representatives of the foreign media whose activities are essentially informational and essential to the foreign media function. Examples include reporters, film crews, editors, and persons in similar occupations who are traveling to the United States to engage in their profession. The applicant also must be engaging in qualifying activities for a media organization having its home office in a foreign country.
Spouses and/or children under the age of 21 who wish to accompany the principal I visa holder for the duration of his/her stay in the United States require I visas as well (derivative I visas). They may not work without obtaining an appropriate work visa but may study in the United States without requiring a student (F-1) visa. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but who wish to visit, may be eligible to apply for visitor (B-2) visas or to travel without visas pursuant to the Visa Waiver Program.
The L-1 visa category enables companies to transfer an employee from a foreign office to its U.S. office or to send an employee to the United States to establish a new affiliated U.S. office. It is a nonimmigrant visa category.
The L-1A visa is available to employees working in a managerial or executive capacity. The L-1B visa is available to employees with specialized knowledge of the organization’s product/services and its application in international markets or to employees who have an advanced level of knowledge of the organization’s processes and procedures.
An employee coming to the United States to establish a U.S. office is allowed a maximum initial stay of one (1) year. All other qualified employees are allowed a maximum initial stay of up to three (3) years. L-1A employees may be granted extensions of stay in increments of up to two (2) years, with a maximum of seven (7) years stay in the United States. L-1B employees may be granted an extension of stay in increments of up to two (2) years, with a maximum of five (5) years stay in the United States.
Two types of L-1 visas are available to qualifying organizations:
- Individual L-1 visas, for which the employer files an individual petition for the employee with United States Citizenship and Immigration Services (USCIS); and
- Blanket L-1 Visas, which allow employers to file a blanket L petition with USCIS to provide flexibility with transferring eligible employees quickly without having to file individual L petitions for each employee.
If a blanket L petition has been approved, an employee generally needs only to file a shortened version of the L petition and submit a copy of the approved blanket petition notice (along with supporting documents) with the U.S. consulate or embassy.
Spouses and unmarried children under the age of 21 who wish to accompany the principal L visa holder for the duration of his/her stay in the United States may seek admission in the L-2 visa classification. Spouses of L-1 visa holders may obtain work authorization to work in the United States.
The O-1 visa is available to foreign nationals having extraordinary ability in the sciences, arts, education, business, or athletics that is demonstrated by sustained national or international acclaim and who are coming temporarily to the United States to continue work in the area of extraordinary ability. It is also available to individuals who have demonstrated extraordinary achievement in the television or motion picture industry.
The O-2 visa category is designated for essential support personnel that accompany and assist an O-1 visa holder in a specific athletic or artistic event or in the motion picture or television industry. O-2 visas are not available for those who accompany or assist O-1 visa holders in education, science, or business. The O-2 visa applicant must be an integral part of the O-1 visa holder’s actual performances or events and must be experienced utilizing critical skills and services for the O-1 alien that cannot be performed or possessed by others. In the case of a motion picture or television production, the O-2 visa applicant additionally must have a long standing working relationship with the O-1 alien that is essential to the successful completion of a production that is taking place both inside and outside the United States.
Spouses and dependent children accompanying or following to join the O-1 or O-2 visa holder are eligible to apply for an O-3 visa. The O-3 dependent may not work in this classification but may engage in full-time or part-time study.
The P visa category is divided into 4 distinct classifications that relate to foreign athletes and entertainers:
The P-1 visa is designated for foreign athletes, entertainers, and artists who are coming temporarily to the United States to perform at a specific event, performance, or competition (either individually or as part of a group or team). The P-1 visa is available to the athlete who is coming for a specific competition to perform at an internationally recognized level of performance. This visa also is available to the foreign national coming to perform with an entertainment group that has been recognized internationally for being outstanding in the discipline and who has a sustained and substantial relationship with the group for a significant period of time (generally for at least one (1) year).
The P-2 visa is designated for artists or entertainers (individually or as part of a group) entering the United States temporarily as a part of a government-recognized reciprocal exchange program. The reciprocal exchange program is between organizations in the United States and in one or more foreign states.
The P-3 visa is designated for artists or entertainers coming temporarily to the United States to perform, teach, or coach (individually or as part of a group) under a program that is culturally unique.
Spouses and unmarried children under the age of 21 of a P-1, P-2, or P-3 visa holder may obtain a P-4 visa to accompany the principal visa holder to the United States. The P-4 dependent may engage in full-time or part-time study but may not work without receiving work authorization.
The Religious Worker (R) visa is for foreign nationals coming to the United States temporarily to work in a religious capacity. Religious workers include persons who carry on the activities of a minister or who otherwise work in a religious vocation or occupation for, or at the request of, a religious denomination having a bona fide non-profit religious organization in the United States. The applicant must have been a member of the denomination for at least the two (2) year period immediately preceding application for religious worker status.
Religious workers include “ministers of religion” who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy of that denomination. The term does not apply to lay preachers or persons not authorized to perform clergy duties. A “religious vocation” means a calling to religious life, evidenced by the demonstration of a lifelong commitment (such as the taking of vows). Examples include nuns, monks, and religious brothers and sisters. The primary duties of a “religious occupation” must relate to a traditional religious function and be recognized as carrying out the religious creeds and beliefs of the denomination; positions that are primarily administrative or support-related are not included (such as janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations).
R visa holders may remain in the United States for up to five (5) years to pursue their vocation.
Spouses and unmarried children under the age of 21 may be granted R-2visa status. They may engage in full-time or part-time study but may not accept employment in the United States.