THE H-1B NONIMMIGRANT VISA
SPECIALTY OCCUPATION WORKERS
The popular H-1B visa is an employer-specific visa which allows U.S. companies to hire degreed foreign professionals. Employees holding H-1B visas may work in the U.S. for an initial period of three years, renewable for a maximum of six years total. It is possible to apply for permanent residence while in the U.S. on H-1B status (dual intent is permitted). Dependent family members of H-1B visa holders can be admitted in the H-4 visa category, but may not engage in employment in the U.S.
The H-1B visa requires that a sponsoring U.S. company make certain attestations to the Department of Labor (for instance, that the foreign employee will be paid within a range of the prevailing wage for that occupation in the employer's specific geographical area) in the form of a Labor Condition Application. A petition is subsequently filed with the INS.
The number of H-1B visas is limited per INS fiscal year. Because of the popularity of this visa, the "visa cap" is often reached fairly early in the fiscal year, resulting in backlogs.
THE L-1 NONIMMIGRANT VISA
The L-1 nonimmigrant visa category allows international organizations to bring foreign employees to the United States. The L-1A category is reserved for executives and managers, while the L-1B classification is for workers with specialized knowledge. Employees on L visas may stay in the United States for an initial period of three years, renewable up to a maximum of either five (L-1B) or seven (L-1A) years total. It is possible to apply for permanent residence while in the U.S. on L-1 status (dual intent is permitted).
To qualify for an L-1 visa, the employee must have worked abroad for the foreign employer for an uninterrupted period of one year within the preceding three years in an executive/managerial or specialized knowledge capacity and must be coming to the U.S. to fill an executive/managerial or specialized knowledge position. The person must be qualified for the position in the U.S. by virtue of his/her experience abroad. The foreign company must be related to the U.S. company in a specific manner defined by law (such as a parent, subsidiary, or affiliate), and the U.S. company must be a qualifying organization under the law-one that is doing business in the U.S. and another country during the entire period of the transfer.
Dependent family members of L-1 visa-holders can be admitted in the L-2 visa category, but may not engage in employment in the U.S.
THE O-1 NONIMMIGRANT VISA
ALIENS OF EXTRAORDINARY ABILITY
The O-1 visa category is reserved for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. No numerical cap is placed on the annual admission of these aliens, but the requirements for admission are quite restrictive; the classification is only appropriate for the small percentage of persons who have risen to the very top of their respective professions.
While the alien must be coming to the U.S. to work in his or her area of extraordinary ability, the position in the U.S. need not require an O-1 caliber alien. In other words, it is the alien, not the position, which need be extraordinary. O-1 aliens may be admitted for a maximum of three years initially, with additional one-year extensions available as long as the alien continues the activity for which he or she was admitted. Dependent family members of O-1 visa holders may be admitted in the O-3 visa category.
To qualify for an O-1 visa, an alien must demonstrate sustained national or international acclaim and recognition for achievements in his or her field of expertise by providing evidence of:
- Receipt of a major, internationally-recognized award (such as the Nobel Prize); or
- At least three of the following forms of documentation:
- Receipt of nationally or internationally recognized prizes or awards
- Membership in associations which require outstanding achievements of their members (as judged by recognized national or international experts)
- Published material in professional or major trade publications or major media about the alien and his/her work in the field
- Participation on a panel, or individually, as a judge of the work of others
- Scientific, scholarly, or business-related contributions of major significance
- Authorship of scholarly articles in the field in professional journals or other major media
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
- High salary or other remuneration commanded for services (as evidenced by contracts or other reliable documents)
- Other comparable evidence
THE TN VISA
The TN visa category allows certain citizens of Canada and Mexico to enter and work in the U.S. under the North American Free Trade Agreement. For qualified Canadian citizens, processing can be accomplished directly at the border. The status may be approved in one-year increments and there is no maximum time period permitted, although this category may be problematic for those ultimately intending to apply for permanent residency. Please call our office for more information on this visa classification.
Dependent family members of TN visa-holders can be admitted in the TD visa category, but may not engage in employment in the U.S.
There are many other nonimmigrant visa classifications which have not been summarized here. Please call our office for assistance. The categories described on this Web site have been briefly summarized for quick reference and are not intended to be comprehensive guidelines.