H-1B Professionals

The H-1B visa is a useful working visa for employing noncitizens in many professional and other specialty occupations requiring a Bachelor's Degree or the equivalent education and/or experience. The INA requires that the foreign worker have a Bachelor's Degree or equivalent or relevant experience that the job offered require a Bachelor's Degree or equivalent or relevant experience.

The H-1B visa status may initially be approved for up to three years with extensions available for an additional three years. The maximum period of stay for any noncitizen person under H-1B status is six years.

Examples of H-1B positions:

Accountants Architects Attorneys Biologists Chemists Computer Programmers Consultants

Engineers Entry and mid-level managers Financial Analysts Information Technology Personnel Management Analysts Occupational Therapists Oceanographers/Marine Biologists

Physical Therapists Physicians Professors Teachers Software Engineers Statisticians Wholesalers

H-2B Laborers

Temporary Skilled and Unskilled Workers

H-2B status may only be conferred upon a nonimmigrant if qualified domestic workers are unavailable or unwilling to take the employment. The employer must first file an Application for Temporary Labor Certification (TLC) with the Department of Labor. Temporary Labor Certification is very similar to Permanent Labor Certification (discussed earlier), except that a TLC is quicker, reduction in recruitment is unavailable , and the employer must establish that its need for the workers is only temporary in addition to showing that qualified U.S. workers are unavailable. An employer's need will generally be considered "temporary" if that need will exist for one year or less, is a one-time occurrence, is seasonal, is peak-load, or is intermittent. In some extraordinary circumstances, the need may be allowed to exceed one year.

H-2B status may be approved initially for up to one year, and in extraordinary circumstances may be extended for up to three years. H-2B status is a very useful status for employers who seek high volume seasonal or temporary skilled and/or unskilled labor, such as resorts and hotels, construction companies, or marinas.

Examples of H-2B positions/situations:

• Seasonal, peakload, or one-time occurrences.
• Fishing Vessel Workers.
• Professional Athletes.
• Construction Workers.
• Hotel/resort staff workers.
• Marine Welders.
• Landscaping Position

H-3 Trainees

H-3 status is for foreign trainees who are seeking entry into the U.S. at the invitation of a U.S. employer (corporation or individual) for the purpose of receiving training. The H-3 trainee typically is coming to the U.S. to receive industrial or professional training that will assist him or her in pursuing a career outside the U.S. In many instances, a multinational corporation with an established corporate-wide training program can utilize the H-3 classification to bring groups of foreign employees to the U.S. facility for training if such training is not available elsewhere.
The H-3 classification is not available to foreign physicians. Also, the H-3 training program cannot be used to employ trainees in "productive" U.S. employment. In other words, the training must be actual training with only incidental employment.
Because the INS sometimes takes up to a couple of months to adjudicate an H-3 petition, some employers may be better served pursuing what is referred to as "B-1 in lieu of an H-3" status. The B-1 status may be used in the alternative and can often be obtained more expeditiously at the embassy or consulate.

Qualifying Requirements

To qualify for H-3 status, the petitioning employer is required to show that:

1. The training is not available in the alien's home country;
2. The training is not designed to recruit/train aliens for eventual U.S. staffing;
3. The trainee will not engage in productive employment unless incidental or necessary; and
4. The training will assist the trainee in pursuing a career outside the U.S.

Traits of an Approvable Training Program

Explicit description of the type of training and supervision the employer will provide including the specific subject matter of the training and the training program's fixed schedule and objectives:

• Detailed program structure, akin to a course curriculum, showing the time to be spent in classroom;
• Full explanation of the proportion of time to be spent in "productive" employment as opposed to classroom instruction and/or "on-the-job" training;
• Discusses the alien's proposed career abroad and how training will assist him or her;
• Explains why such training is not available in alien's home country;
• Explains the source of any remuneration the alien may receive and the benefits that may accrue to the employer as a result of providing the training.

Duration or Length of Stay

• Total initial validity period of up to 2 years.
• Extensions are difficult to obtain because the employer must explain why the initial period of stay was insufficient, although extensions may ostensibly be obtained in some instances.
  

Application Procedure

The H-3 process is a one-step process (sometimes two-step process). The employer files the Form I-129 petition with the U.S. Immigration and Naturalization Service. H-3 petitions generally take 90 days to process with the INS Service Center. However, the employer may pay an additional $1,000 Premium Processing fee to obtain a more expedited decision (generally two weeks).

When the INS approves the H-3 petition, it will cable the approval notice to the designated U.S. Embassy or Consulate. At the U.S. Embassy or Consulate, the H-3 trainee will then apply for the H-3 visa stamp to enter the United States as an H-3 trainee.

Spouse and Children of H-3 Trainees

The spouse and unmarried minor children of the H-3 trainees may reside temporarily in the U.S. in H-4 derivative status. However, U.S. Embassies and Consulates may be reluctant to issue the H-3 trainee visa if the trainee cannot show strong ties to the home country. Attempting to bring dependents on H-4 status may affect the ability to show strong ties. Although the H-4 status does not authorize the spouse and children for U.S. employment, they may be able to change to H-1B or some other work-authorizing status if they meet the qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in H-4 status.

D-1 Status: Ship/Airline Crewman

A non-citizen person who serves in any capacity required for operation and service on board a vessel or airplane, including trainees and those people employed by owners or concessionaires (e.g., beautician or bartender), may be conferred with a D-1 Crewmen classification visa status. This definition does not generally include persons on U.S.-based fishing vessels, Longshoremen, or Outer Continental Shelf workers. These particular persons may qualify under a different nonimmigrant classification. Under this classification, the D-1 nonimmigrant may only remain in the U.S. for 29 days and work on board the ship or plane. An alien in D status cannot generally apply for extensions of stay, changes of status, or an adjustment of status.

D visa status has two subcategories: 1) Individual D status (such as described above); or 2) Crew List status where all members of the crew are listed on the manifest and submitted to a U.S. consular officer who may issue a status for one entry covering the entire crew. This status will l be valid for six (6) months.

Examples of D-1 positions/situations:

• Crewman
• Flight Attendants
• Pilots

TN Status: Canadian and Mexican Professionals

Canadian and Mexican professionals and highly skilled workers may qualify for TN status to work in the U.S.

Qualifying Requirements
Canadian and Mexican professionals with occupations listed in the North American Free Trade Agreement (NAFTA) may qualify for TN classification if they possess the necessary credentials for an occupation on the NAFTA list (see abridged list below).

The TN is often an available option for Canadian and Mexican professionals who may not otherwise qualify for H-1B status. H-1B status is for degreed professionals (or possess degree equivalent) who are being sponsored by a U.S. employer for a position that requires the services of a person with a bachelor's degree.

Common TN positions (Annex 1603, p.1. of NAFTA):

Accountants Agronomists Architects Astronomers Biologists Chemists Computer Systems Analyst Dentists Economists Engineers

Geneticists Geologists Geophysicists Graphic Designers Horticulturists Hotel Managers Lawyers Librarians Management Consultants Mathematicians

Medical Laboratory Technologists Occupational Therapists Physical Therapists Physicians Professors Registered Nurses Research Assistants Zoologists

Duration of Status

TN status is granted in one-year increments and may be extended indefinitely.

However, INS regulations require TN's to have "pure nonimmigrant intent" i.e., the intent to remain in the United States only temporarily. The longer a person remains in TN status the more likely it is that the INS will infer that the person intends to remain in the United States permanently and deny the application for an extension.

Application Procedure

Canadian professionals may apply for TN status at any Class A Port of Entry (POE) or at a Pre-flight Inspection station (PFI). Thus, a Canadian may obtain TN status in one day (without first having to apply with the INS or Embassy or Consulate).

By contrast, Mexican professionals seeking TN status must file an I-129 petition with the INS Nebraska Service Center. In addition, the U.S. employer must offer at least 95% of the prevailing wage to the Mexican TN professional. U.S. employers of Canadian TN workers are not required to offer prevailing wages. Once the INS has approved the TN petition for the Mexican worker, he or she must apply for a TN visa stamp at the U.S. Consulate or Embassy in Mexico. Once issued, the visa stamp will be valid for one year and may be extended for additional increments of one year.

Spouse and Children of TN Workers

The spouse and unmarried minor children of the TN professional may reside temporarily in the U.S. in TN derivative status. Although the TN status does not authorize the spouse and children for U.S. employment, they may be able to change to some other work authorizing status if they meet qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in TN status.

Strategies for Scientific Technicians/Techologists

TN status is very useful for non-degreed Canadians and Mexicans coming to the U.S. to assist a U.S. professional (e.g. engineer). This type of TN occupation as stated in NAFTA is a "scientific technician/ technologist."

Both NAFTA and U.S. immigration laws require the U.S. professional (to whom the scientific technician/technologist will report) to possess as a minimum, a bachelor’s degree and a license if such license is required. With respect to the Mexican or Canadian scientific technician/technologist, her or she “must possess both theoretical knowledge in any of the listed scientific disciplines which include engineering.” In short, the scientific technician/technologist must be coming to the U.S. to provide direct support to an engineer or other professional.

Applications for TN status for scientific technician/technologist receive more scrutiny than some other occupations. This category of TN status has long been the favorite of computer companies importing computer technicians coming to the U.S. to support U.S. software engineers.

The INS recently stated that “all engineering specialties are included” so long as the requisite degree or licensing requirements are met. While the Mexican or Canadian scientific technician/technologist would not require a degree or post secondary diploma to qualify for TN status, the immigration officer must be satisfied that the applicant possesses the requisite theoretical knowledge. In short, a very senior electrician with licensing credentials and years of experience in the field may be able to qualify for a one year TN status.

L-1A: Multinational Executives/Managers

L visa status is for intracompany employee transfers. The L-1 category is one of the most useful nonimmigrant worker visas available to noncitizen multinational corporation business persons. In order to qualify for L-1 status, the noncitizen must have employment abroad by an affiliate of the petitioning employer, the employment abroad must have lasted for a period of one continuous year during the previous three years of employment, the employment abroad must have been in a managerial, executive, or specialized knowledge capacity position, and the proposed employment in the United States must also be a managerial, executive, or specialized knowledge position. Managerial and executive capacity noncitizen employees qualify for the L-1A subcategory status. Specialized knowledge noncitizen employees qualify for the L-1B subcategory status. These noncitizen employees must have "special knowledge" of the employer's product, service, research, equipment, techniques, management, processes, or procedures. Special knowledge is that which is considered not readily available to other employees of the company and is proprietary to the employer, i.e., relates to something owned by and unique to the employer.

L-1 status may be initially approved for up to three years with a maximum period of stay seven years for the L-1A subcategory and five years for the L-1B subcategory. In order to obtain L-1 status for an noncitizen employee, the employer must file a petition on behalf of the employee with the INS.

Examples of L-1 positions/situations:

• CEOs
• Corporate Executives.
• Regional Managers
• Technicians and Upper-level Engineers
• Board of Directors Members

O status: Extraordinary Ability Non-citizens

O visa status is for artists, entertainers, athletes, scientists, and certain business professionals with extraordinary ability in their field, and persons needed to accompany and assist them. O status may be initially granted for the time necessary to complete the event or activity for which the non-citizen was admitted with a cap of three years on the initial period of stay. Extensions may be granted in one-year increments to continue or complete the event or to complete additional events not contained within the original petition. For example, an O-1 non-citizen athlete could qualify for this status and the event could be designated as the contract itself.

Examples of O-1 positions/situations:

• Top athlete in foreign professional league.
• Top amateur athlete in foreign or world rankings.
• Scientist who discovers new trend, treatment, or cure.
• Academy Award winning actor, director, or producer.
• Nobel Prize Winner.

P Status: Athletes and Entertainers

P visa status is for performing artists, entertainers, and athletes. It similar to O visa status, but easier to obtain and intended more for group entertainers or athletes who come to the U.S. for a specific performance or tour. The P-1 category is set aside for non-citizens who compete individually or as part of a team at an internationally recognized level; or who perform with an entertainment group that has received international recognition as out standing for a substantial period of time. For example, a contract between a Major League Baseball team and non-citizen will serve as such evidence for a P-1 athlete.

The P-2 category includes artists and entertainers coming to the United States under a reciprocal exchange agreement between a foreign-based and domestic-based organization. This agreement must be a formal agreement written and negotiated by the appropriate domestic labor organization. The P-3 category is for artists and entertainers coming to the United States under a culturally unique program.

P status may be initially granted for the time necessary to complete the event or activity for which the non-citizen was admitted with a cap of one year on the initial period of stay. P-1 athletes may be granted an extension for an additional period of five years with a maximum total period of stay not to exceed ten years.

Examples of P positions/situations:

• Top foreign musical group or entertainer.
• Professional athlete or team.

E Status: Investors

E status is for traders or investors covered by the commercial treaties between the United States and foreign countries, as well as spouses and children of E-visa holders. To be eligible for E status, the person must be entering solely to carry on substantial trade between the U.S. and the foreign state of which the alien is a national (E-1 treaty trader) or solely to develop and direct the operations of an enterprise in which the alien has invested, or of an enterprise in which s/he is actively in the process of investing a substantial amount of capital (E-2 treaty investor), or is a key employee of an alien who is either E-1 or E-2 status holder.

An E status may be initially granted for one year admission and granted extensions of stay for up to 2 years. However, if person who has been granted 2 year extension departs, s/he will be granted only one year admission upon return, even if extension would have covered longer period.

Family of Es: can work without being subject to deportation but cannot adjust or change status.

Examples of E-1/E-2 positions/situations:

• Trader in goods, tangible commodities or merchandise having intrinsic value, and/or services, such as banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
• Person who develops and directs a Commercial Enterprise that does not involve a passive investment (e.g., stocks, undeveloped land).
• Person who develops land (e.g., builds a casino or resort).

E3 Visa for Australians

The US Congress brought good news to many Australians when it announced in early May 2005 that it would designate 10,500 newly created E-3 visas just for Australians.

Who is eligible?
The E-3 visa is for nationals of Australia who wish to enter the US to perform services in a "specialty occupation."

The term "specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B specialty occupation.

Spouses of E-3 visa holders are entitled to work authorization.

For employers
The petitioning employer will be required to file a Labor Condition Application with the Secretary of Labor. The process for this should be nearly the same as the process currently used with H-1Bs. Employers must also file labor condition applications like in H-1B cases and make the same attestations including those regarding paying the prevailing and actual wages, not breaking up strikes, maintaining public access files, etc.

Time limits on E-3s
E-3 I-94 time limits between two and five years. More significant, however, is that they can be renewed indefinitely.

Filing
Applications can be submitted immediately as implementing regulations are not required. In practice, however, USCIS may not adjudicate these cases until they have at least established guidelines.

F-1 Students

F visas are for students in full-time academic programs, from the elementary school level up to the post-graduate level, as well as spouses and children of F-visa holders. F visas allow some restricted employment for fewer than 20 hours per week, mainly at certain on-campus jobs typically done by students.

After the completion of course work, the student may receive employment authorization for a period of twelve months to work in a field directly related to the major area of course work undertaken by the F-1 nonimmigrant. The F-1 status is valid for as long as the non-citizen student is engaged in a full course of study at the sponsoring institution or engaged in practical training following the completion of the curriculum. A full course of study is determined by the amount of hours necessary to be considered "full-time" by the sponsoring institution.

B-1 Business Visitors

B-1 Business Visitor classification is probably the most useful of all temporary visa classifications. Business visitors may be admitted for the purpose of engaging in business but not for gainful U.S. employment. The term "business" encompasses many legitimate commercial and professional activities but specifically does not include local employment or labor for hire.

B-1 visas are issued by the U.S. Consulates and Embassies and the Department of State’s Foreign Affairs Manual is a primary source for determining B-1 eligible activities.

Types of B-1 Activities

• Traveling to U.S. to engage in Commercial Transactions, Negotiations, Consultations & Litigation
• Participation in Conferences, Conventions and Seminar
• Members of Board of Directors of U.S. Corporations
• Professional Athletes from Foreign Sports Teams
• Yacht Crewmen & Coasting Officers
• Investors Seeking Investment in U.S.
• Horse Racing Activities: Jockeys, Trainers, Grooms
• Outer Continental Shelf Employees
• Installing, Servicing or Repairing Equipment Purchased From Company Outside U.S.
• Foreign Airline Employees (Precluded from E because no Treaty)
• Employees of Foreign or U.S. Exhibitors
• Aliens Otherwise Classifiable for H-1 or H-3 status
• H-3 Trainees

Duration or Length of Stay

• Not more than 1 year initially
• May obtain extensions of 6 months or less

Extensions are difficult to obtain because the employer must explain why the initial period of stay was insufficient, although extensions may ostensibly be obtained in some instances.

Factors in Determining Entitlement to B-1 Visitor Classification

In determining whether an alien is entitled to B-1 Visitor Classification, consular officers look at the following factors:

1. Whether applicant has residence in a foreign country and does not intend to abandon it;
2. Whether applicant intends to enter the U.S. for a period of limited duration;
3. Whether applicant intends to enter for the sole purpose of engaging in the prescribed and legitimate activities of business or pleasure.

The consular officer will look to see if the applicant has adequate funds to avoid unlawful employment. In addition, the officer will also consider the applicant’s ties to the home country and the likelihood of the applicant’s return to the home country at the end of the proposed stay.

B-1 Crewmen and OCS Workers

Coasting officers and crew members of private yachts sailing out of foreign home ports that will be cruising in U.S. Waters for more than 29 days are properly classifiable as B-1 business visitors, not as D-1 crewmen. However, in contrast to these and other crewmen, OCS workers are unique for a multitude of reasons. The main difference is that the actual issuance of a B-1 OCS status designation involves the concurrent governance under the Outer Continental Shelf Lands Act (OCSLA), Coast Guard Regulations, and the INA. Generally, employers engaged in OCS activity may only employ U.S. citizens or LPRs necessary for the unit's routine functioning unless there are not sufficient USCs or LPRs qualified and available or the unit is over 50% owned by citizens of a foreign nation. The unit's routine functioning personnel generally includes marine officers and crew; industrial personnel; and support personnel. This generally will not include specialists, professionals, or other technically trained personnel.