What is a temporary or nonimmigrant visa?
Temporary or nonimmigrant visas are given to foreign nationals who enter the US with permission and with what is called “nonimmigrant intent”, meaning that the person does not intend to stay in the US permanently.
Visas for Business Visitors (B-1/B-2)
Available to visitors coming to the U.S. for business or pleasure.
B-1 business visitor visas are for a short duration and must not involve local employment. Nationals of certain countries may be eligible to visit the U.S. for up to 90 days without obtaining a visa.
The B-1 Business Visitor Visa
The B-1 Business Visitor category is available to persons who can demonstrate that they 1) have no intention of abandoning their residence abroad and 2) they are visiting the US temporarily for business. Entry is, theoretically, granted for up to a year, but most B-1 admissions are approved for just the period necessary to conduct business and are normally no longer than 3 months.
Business visitors are quite limited in the activities in which they are permitted to engage. B-1 business visitors must not be engaging in productive employment in the US either for a US employer or on an independent basis. Work done in the US must be for a foreign employer and paid by the foreign employer. The work should also be related to international commerce or trade. The consulate will consider several factors when reviewing the case including whether a US worker could be hired to perform the work, whether the work product is predominantly created in the US, and whether the work is controlled mainly by a US company. If the answer to any of these questions is "yes" then the B visa is likely to be denied. The following are some activities normally considered appropriate for the B-1 visa:
- employees of a US company's foreign office coming to the US to consult with the US company
- an employee of a foreign company coming to the US to handle sales transactions and purchases and to negotiate and service contracts
- coming to the US to conduct business or market research
- coming to the US to interview for a professional position in order to gain experience to help in finding a position in one's home country
- attending business conferences, seminars, or conventions
- an investor coming to set up an investment in the US or to open a US office
- personal or domestic servants who can show they are not abandoning a residence abroad, have worked for the employer for a year and the employer is not residing in the US permanently
- airline employees who are paid in the US but an E visa is not available because no treaty exists between the US and the airline's country
- professional athletes who are not paid a salary in the US and are coming to participate in a tournament
- a member of a board of a US company coming to a board meeting
The B-2 Tourist Visa
Of the more than 20 million nonimmigrants admitted annually to the US, more than three fourths come as tourists. The appropriate visa category for a tourist is the B-2 visa (the B-2 actually covers tourists, visits to relatives or friends, visits for health reasons, participation in conferences, prospective F-1 students, participation in incidental or short courses of study and participation in amateur arts and entertainment events).
The process for obtaining the B-2 visa can be quite simple or very difficult depending on the national origin of the applicant, the age and marital status of the applicant, and the applicant's ties to the US and his/her home country.
Tourists are normally given a six-month visa, which can be extended in some circumstances for an additional six months. Unlike most other nonimmigrant visas, application is made at a US consulate and no INS approval is necessary. Also, the applicant's spouse and children must independently qualify for the B-2.
In order to qualify for a tourist visa, an individual must meet five broad requirements necessary to show nonimmigrant intent:
- The alien is coming to the US for a specific period of time.
- The alien will not be engaging in work and will be engage solely in legitimate activities relating to pleasure.
- The alien will maintain a residence which he or she has no intention of abandoning during the period of the alien's stay in the US.
For a tourist to show nonimmigrant intent and demonstrate compliance with the above tests, the key issues are financial arrangements for the trip, specificity of trip plans, ties to the alien's home country and ties to the US.
More specifically, consular officers are instructed to consider the following factors:
- whether the arrangements for defraying expenses during the visit and return passage are adequate to obviate the need for obtaining employment in order to provide the funds to return home;
- if relatives or friends are sponsoring, whether the ties between the alien and the supporter are compelling enough to make the offer credible;
- whether the alien has specific and realistic plans for the visit (not just vague and uncertain intentions) for the entire period of the contemplated visit.
- the period of time planned for the visit is consistent with the purpose of the trip and the alien has established with reasonable certainty that departure from the US will take place when the visit is over.
- the applicant's proposed length of stay is consistent with the timeframe limitation offered by the hosting relative or friend (an alien's stated intention to remain in the US for the maximum period allowable by US authorities will be looked upon negatively);
- whether the applicant can show reasonably good and permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations which indicate a strong inducement to return abroad;
- whether the alien has adequate means to support a spouse or children while in the US when the applicant is the family's main wage earner (if the alien requests an extension of stay, he/she will be requested to show the reason for the lengthy family separation and evidence of the employer's awareness of a contemplated extended absence from work)
With respect to financial arrangements, the alien should possess the following:
a round-trip plane ticket and evidence of sufficient funds to cover the duration and purpose of the trip and if the alien appears only marginally able to pay for the trip, an affidavit of support on INS Form I-134 from the person who the alien is visiting in the US should be provided.
With regard to specificity of the trip arrangements, the alien should show such items as confirmed hotel reservations, car rentals, internal travel arrangements such as domestic flights or tourist packages, and/or a letter of invitation from a US source.
With respect to ties abroad, the alien must demonstrate steady employment, substantial business or property interests abroad and close family ties. A lease on or ownership of real property is helpful as well. These items are particularly important if the alien has close ties with the US such as close family members here. The scrutiny in this category is particularly tight for persons from "high-risk" countries - aliens from countries with a high rate of visa refusal and a low rate of compliance - who are single, young and well educated.
Nationals of some countries are allowed to participate in the Visa Waiver Pilot Program, which allows visits for up to 90 days without having to obtain the B-2 visa. The waiver countries are the following:
Andorra, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Holland, Iceland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, Norway, San Marino, Spain, Sweden, Switzerland and the United Kingdom. All Canadian citizens and certain Canadian "landed immigrants" are also exempt under a different law.
Visas for Investors and Traders (E-1/E-2)
Investors and traders and their employees may receive visas to carry on their businesses in the U.S. if their home country has a commercial treaty with the US conferring visa eligibility.
E-1 Treaty Trader Visas
E-1 Treaty Trader Visas are available to person entering the US solely to carry on substantial trade, including trade in services or trade in technology, principally between the US and the foreign country of which he or she is a national. The US and the trader's home country must have a ratified bilateral trade treaty. At least 50% of the ownership of the trading firm must be in the hands of nationals of the visa applicant's home country. Owners, managers, executives, or "essential" positions are eligible for E-1 Treaty Trader Visas if they are nationals of the treaty country. Some of the most important requirements for an E-1 visa include the following:
The trading company must be "trading." "Trading" can include the exchange, purchase, or sale of goods or services, which is intended to develop international commercial trade between the US and the treaty country.
The trading must involve an actual exchange of qualifying commodities (including goods, services, or money) and the consideration must be traceable or identifiable. A transfer of tile must pass from one trader to the other.
Trade between the foreign company and the US must already exist. The visa applicant should be prepared to document existing and past contractual trade relationships.
The trading company must be engaged in "substantial" trade with the US. The visa applicant must show numerous transactions over time and a significant monetary value of business. There is no statutory minimum amount of trade, but the visa applicant should at least be able to show the volume of trade is enough to support the business as well as the visa applicant and his or her family.
Over 50 percent of the total volume of trade must be between the US and the treaty country.
Applications for E-1 visas are made directly to the US consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-1 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation accompanying the application. The length of time the visa will be issued is determined by agreements between the US and the Treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-1 status. Spouses and children of E-1s are entitled to visas as well. E-1 family members are not subject to deportation proceedings because they accept employment, but they will be considered out of status and ineligible to change status in the US. Furthermore, they would be subject to paying a large financial penalty for being out of status when it comes time to adjust to permanent residency. There are no restrictions on family members pursuing studies while in E-1 status.
The following countries have ratified trade treaties with the US and their nationals are eligible to apply for E-1 status:
E-2 Treaty Investor Visas
E-2 Treaty Investor Visas are available to persons entering the US "solely to develop and direct the operations of an enterprise in which he has invested, or 85 is actively in the process of investing, a substantial amount of capital." At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the US and the home country have a ratified bilateral investment treaty. Employees of the enterprise who are working in management, executive or "essential" positions are also eligible for the visa if the ownership breakdown meets the above test. Some of the most important requirements for an E-2 visa include the following:
- The investment is active, not passive.
- The investment must be substantial. While "substantial" defined, the Department of State uses a proportionately test to see if this requirement is met. The amount invested must be weighed against the total value of the enterprise for established enterprises or the amount considered necessary to set up a viable enterprise for new businesses. For small to mid-sized firms, "substantial" means the investment must be more than half the value of the enterprise. For service businesses, the test is whether the amount is adequate to establish a viable enterprise.
- The investment cannot be marginal. The State Department will look at whether the investment will generate more funds than just enough for the owner to make a living and whether the investment will create jobs.
The investor must manage the business and exercise a controlling interest in the business.
Applications for E-2 visas are made directly to the consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation accompany the application. The length of time the visa will be issued is determined by agreements between the US and the Treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status. Spouses and children of E-2s are entitled to visas as well. E-2 family members are not subject to deportation proceedings because they accept employment, but they will be considered out of status and ineligible to change status in the US. Furthermore, they would be subject to paying a large financial penalty for being out of status when it comes time to adjust to permanent residency. There are no restrictions on family members pursuing studies while in E-2 status.
The following countries have ratified investment treaties with the US and their nationals can apply for E-2 status:
Trinidad & Tobago
Visas for Students Visas (F-1)
Persons seeking to pursue a full course of study at a school in the United States may be eligible for a visa for the course of their study plus, in some cases, a period for practical training in their field of study.
F-1 Student Visa
The Immigration and Nationality Act permits persons seeking to study in the US, from elementary school students all they up to those engaged in postdoctoral studies, to apply for an F-1 non-immigrant visa. To qualify in student status, an applicant must meet a number of criteria:
- the applicant can show he or she is a bona fide student coming to the US to pursue a full course of studies. A full course of studies means the following:
- postgraduate studies - a program certified by the university as a full course of study. Programs lasting more than three years will be closely scrutinized.
- undergraduate studies - normally 12 semester hours per term
- post-secondary non-vocational - 12 semester hours
- primary or academic high school
- the student is enrolling in an "established institution of higher learning or other recognized place of study in the United States."
- the institution where the student will enroll has been approved by the US government
- the applicant must be proficient in English or first enroll in an English language program in the US
- the applicant has a foreign residence that the applicant has no intentions of abandoning and must intend to leave the US upon completing his or her studies.
- the applicant must demonstrate adequate financial support, which is defined to mean that "the applicant is required to establish the unlikelihood of becoming a public charge ... and of resorting to unauthorized US employment to maintain solvency."
If the applicant is applying for a change of status to F-1 student status from within the US, the student needs to submit to INS Form I-539, Form I-20A-B, the supporting documentation showing non-immigrant intent and financial support, a filing fee of $75 and a copy of Form I-94 (the arrival-departure document given to the applicant at the time of entry to the US). One note of caution: the INS is extremely reluctant to approve change of status applications for persons switching from B visitor visa status to an F-1 visa unless the applicant informed the consulate that he or she intended to apply to change status in the US (in this case, the consulate will often issue a B-2 visa stating that the applicant is a "prospective student- school not yet chosen"). The student will be expected to present a strong case that he or she did not originally intend to come to the US to study.
There are a number of types of documents and evidence that can be presented to show a student's financial resources. They include the following:
- financial aid statement from the school
- financial aid from the private groups or organizations
- funding from the student's home country government or university
- family assets
- the student's personal assets
- proof of close family members remaining in the applicant's home country (letters from family members, proof that family members are not likely to leave the home country (such as letters from employers or proof of a long-standing family business), proof of family financial holdings, etc.)
- documents of assets held in the applicant's home country
- proof of career opportunities in the applicant's home country (letters from prospective employers can be very helpful)
- proof of strong community involvement in the applicant's home country (proof of memberships and affiliations should be submitted).
- an affidavit or letter from the applicant showing how studying in the US will present better opportunities for the applicant in the home country.
- proof that the applicant is obligated by his or her government, either by contract or by a posted bond, to return home upon completion of studies.
Students are permitted to work under very limited circumstances. Part-time employment on campus is relatively easy to obtain, but is limited to just 20 hours per week. Off-campus employment is permissible if there are unforeseen severe economic circumstances presented to the student. Supporting documentation and the support of the foreign student advisor will be needed. Curricular Practical Training is available if an internship or work requirement is a required part of a student's curriculum. To apply for curricular practical training, the student must submit Form I-538 and Form I-20 to the school's foreign student advisor. Optional pre- and post-graduation practical training are also available to the student for a total period of twelve months. Time spent in pre-graduation practical training will be counted against the twelve months of available post-graduation practical training. Practical training is not available to students in language training programs and the student will not be given a new twelve month practical training period if the student goes on to pursue a higher degree. The student can apply for practical training by first giving the foreign student advisor Form I-538 and I-20 for the advisor's recommendation and then submitting Form I-765 with the regional INS office.
Visas for Professionals (H-1B)
Professional workers with at least a bachelor's degree (or its equivalent work experience) may be eligible for a non-immigrant visa if their employers can demonstrate that they are to be paid at least the prevailing wage for the position.
Updates: In 1998, the annual cap of 65,000 H-1B workers was reached in May, more than four months before the end of the 1998 fiscal year. After a dramatic battle, Congress raised the cap for three years starting with a lifting of the cap to 115,000 for the current year. Problem solved, right? Wrong. Even with 115,000 visas, the H-1B cap was hit only two thirds of the way into the 1999 fiscal year (which ran from October 1, 1998 to September 30, 1999). We are now in the 2000 fiscal year and predictions are that the H-1B cap will be hit much earlier than in the 1999 fiscal year. Also, a major piece of legislation to temporarily raise the H-1B cap to 200,000 and to exempt many workers from the cap altogether was introduced in the Senate in early February 2000. To keepinformed on important developments, please visit Siskind’s H-1B Emergency Update Page located at: http://www.visalaw.com/h1bpage.html
H-1 B Visa Program
For thousands of American employers, the H-1B visa program is the primary method for bringing in professional level foreign employees. The visa has been the subject of considerable media attention in recent years because Congress has set limits on the numbers of workers allowed in on H-1B visas and employers have, with some success, pushed for increasing the cap in order to keep up with the demands of a hot economy.
The H-1B visa allows workers in specialty occupations – areas that normally require a college degree – to work in the US for up to a total of six years. One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home. Thus, assuming the applicant meets all of the statutory requirements for the H-1B visa, the main reason it would be denied is if the consular officer feels there is good reason to believe the applicant will not comply with the terms of the visa (such as having a history of failing to comply with the terms of a visa).There is annual limit of 65,000 visas under the Immigration Act of 1998. In 1998, Congress temporarily raised the limit to under a temporary hike in the visa cap, the current limit is 115,000.
Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided. Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer need only verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.
STEPS TO OBTAINING AN H-1B VISA
In an H-1B visa application, the US employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid at least 95% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency. The benefit of relying on a state wage determination is that it cannot be challenged later by the US Department of Labor. On the other hand, state determinations are frequently not a close match to the job performed and are slow in being issued.
Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is typically submitted by fax and the Department of Labor only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases where violations of the regulations appear to be occurring.
When the LCA form is returned to the petitioner, it is to be submitted to the INS as part of the H-1B petition package. Other information that should be included in the INS petition includes documentation of the beneficiary’s qualifications, the petitioner’s type of business, and the type of work the beneficiary will be performing. Each of these will be further detailed below.
THE LABOR CONDITION APPLICATION
The requirement of a LCA was imposed in the 1990 Immigration Act. It serves two related purposes – ensuring that US wages are not depressed by the hiring of foreign labor and that foreign workers are not exploited.On this document, the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:
- The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
- The employment of H-1B workers will not adversely effect the working conditions of US workers
- When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
A few new requirements were added in 1998, when the annual H-1B cap was raised.However, these requirements apply only to “H-1B dependent” employers, a concept also created in 1998.Whether an employer is H-1B dependent depends on the following guidelines:
- If the employer has over 50 employees, the employer is H-1B dependent if at least 15% of the workforce is comprised of H-1B visa holders
- If the employer has 26-50 employees, the employer is H-1B dependent if it employs more than 12 H-1B workers
- If the employer has 25 or fewer employees, the employer is H-1B dependent if it employs more than seven H-1B workers
- While in most cases the new requirements apply only to H-1B dependent employers, they also apply to employers who have been found to have committed a willful failure or misrepresentation with regard to any attestation made on the LCA.Also, H-1B dependent employers are not subject to the new requirements when they are filing an LCA that covers only “exempt” H-1B workers. Exempt workers are those who are paid at least $60,000 annually or who have obtained a master’s degree or higher in a field related to the intended employment.If the employer is H-1B dependent, it must comply with these requirements:
- The employer must attest (swear under oath) that it has not and will not “displace” a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed.
- The employer must attest that it has taken “good faith steps” to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B nonimmigrant.
- Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated fax back system, the Department of Labor still frequently takes more (sometimes much more) than seven days to certify an LCA.
- Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
- In addition, the employer must keep other information that need not be made available to the public.This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA.
THE INS PETITION
Obtaining an LCA is only the first step in the H-1B process. The application for an H-1B visa must present evidence that will convince the INS of three basic truths:
- The employer has a legitimate need for a “specialty occupation worker”
- The position offered is in a “specialty occupation”
- The prospective employee is qualified for the position.
1. The employer’s need
This is often the easiest aspect of an H-1B petition to demonstrate. As a general rule large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker.Problems can be encountered if the employer is small, or if the business was recently started. In such cases the INS has requested evidence relating to the stability of the business, such as tax returns and payroll records.Court decisions have, in the past, said the INS is not supposed to examine the financial background of a company. However, the INS routinely asks for such documentation even for many large employers.
2. The nature of the position
Demonstrating that a position is in a specialty occupation is quite easy with some jobs, such as lawyers, accountants, engineers and professors. With many positions, however, it is not so simple.In these situations, the application must carefully define and describe the job. Two volumes published by the Department of Labor are helpful in this area. They are the Dictionary of Occupational Titles and the Occupational Outlook Handbook. The Dictionary of Occupational Titles contains a list of job titles and lists job duties that are associated with each. The Occupational Outlook Handbook lists general educational requirements for entry into certain areas of employment, but often it deals with such broad fields that it is of limited usefulness. While the books are helpful in documenting a case, neither is binding on the INS and the use of the publication should always be used with caution.
In cases where the specialty nature of the position is not evident, many types of evidence may be used.Trade and association publications may be presented. Petitioners may also procure affidavits from authorities in the field. Such an affidavit would be especially useful if written by someone who has personally observed the workplace and the position’s role in it. One of the best types of evidence is the employer’s own hiring practice in hiring for the position. Evidence of the minimum qualifications required for positions below that for which an H-1B worker is sought can also be helpful, especially if such people are required to have a university degree.
If the occupation is little known or is relatively new, extensive documentation will be required to convince the INS of the need for an H-1B worker. In these cases appropriate evidence would include affidavits from other employers in the field and professional organizations in the field.
3. The alien’s qualifications
To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent. Therefore, one of the most important parts of an H-1B case is documenting the alien’s education and/or experience. A diploma may be submitted if it indicates the alien’s field of study and that field is relevant to the position sought. If this is not the case, transcripts should also be submitted. If the relevance of the subjects studied is not apparent, course descriptions from the school catalog may be included. If the alien did not attend school in the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a US bachelor’s degree. Note that if the alien attended college abroad, and then obtained an advanced degree in the US, no evaluation of their undergraduate degree is required because it is presumed that the US graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor’s degree.
While possession of a degree is the most common way of establishing a person’s ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa.The applicant can demonstrate through work experience or a combination of education and experience that they have the equivalent of a bachelor’s degree. If work experience will be used, the INS requires affidavits from former employers outlining the alien’s responsibilities and skills learned while there.Under INS rules, three years of work experience is equal to one year in college.
If there are any additional requirements that the alien must meet to take the position offered, documentation that these requirements are met must be submitted.An example would be when a license is required by the state in which the alien will be working.
The INS and the State Department charge various fees at the time an H-1B petition is submitted as well as at the time a visa is issued at the consulate. The INS charges a base fee of $110 as well as $500 for worker retraining. The $500 fee must be paid by the employer, though certain petitioners can avoid paying. Universities as well as certain research institutions can submit a form I-129W requesting the exemption. The consulate will also charge an application fee and a fee to issue a machine-readable visa.
EXTENSIONS OF STAY
The maximum authorized stay in the US in H-1B status is six years. Because the initial petition is valid for a maximum of only three years, most H-1B visa holders will want to extend their visa.If there have been no changes in the conditions of employment, this is a relatively simple process.All that needs to be submitted are the appropriate forms and a new LCA. In such circumstances, the INS’ principle concern is the amount of time the H-1B visa holder has spent in the US in H-1B status.
CHANGING EMPLOYMENT AND ADDING EMPLOYERS
H-1B employees may apply for a change of status from one employer to another. The application process is fairly similar to applying for a brand new H-1B except that the process can be completed in the US without a trip abroad to a US consulate. H-1B employees may also work for more than one employer at the same time as long as a separate H-1B approval notice is obtained for each employer.
One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa status is to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.
The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.
The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by the INS.That means that each time a worker moves to a new employer, a new H-1B approval is required. It is possible to apply for a change of status to switch employers from the US without having to leave and get a new visa stamp, however. But it is important to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.
At one time, it was thought that changing H-1B employers meant that a new visa stamp would be needed the next time someone leaves and reenters after a change of status in the US.The INS and State Department now make it clear that as long as the visa remains unexpired the applicant remains in H-1B classification. Note that someone who changed from another visa to H-1B status in the US (such as from F-1 to H-1B) and never has had a visa stamp will still need to get an H-1B visa at a consulate.
Whether the applicant for a change of status can work for the new employer while the application is pending is a question with no clear answer. More than 20 years ago, the courts said that work for a new employer while a change of status application was legal. However, the INS has never agreed to this and takes the position that such work is illegal. Consequently, many immigration lawyers take a conservative view on this and tell their clients not to start work for the new employer until the change of status is approved.
What about the H-1B cap when a change of status is requested? The INS has stated that the limit on the number of H-1B visas does not apply in this situation. However, if one leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again.
Also, the new H-1B $500 worker-retraining fee would be due once again for a new employer (assuming the new employer is not otherwise exempt from the fee).
What if you change employers and then decide to go back to the first employer? The news here is good. The H-1B petition continues to remain valid until it expires or until the employer has it revoked.The INS takes the position that if neither of the above has occurred, one can resume work for the first employer without filing a new petition or an amendment.
Another common question is what to do when several employers file H-1Bs for a worker.Let’s say that two employers successfully file an H-1B and the worker enters to work for Company 1.After coming here, the worker decides to go work for Company 2 instead. Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.
What about the case where an employee accepts a job with a second employer without giving up the first position? There is no legal reason why this cannot take place. An H-1B worker can work for several employers simultaneously if desired.However, each employer must have a separate approval for the worker to work there. Also, the INS does not recognize "co-employer" arrangements so if this is the case either one employer must designate itself as the petitioner or each employer must file a separate petition.
There are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition.The INS position is that if the change in employment is "material" then an amendment must be filed.So, for example, if there is a significant change in job duties, then a new petition will probably be necessary.Also, being transferred to a different legal entity within the same corporation would trigger an amendment.Also, in certain cases, changing job locations could require an amendment.
Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that the INS presumes that the position is really a new one.
Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required.This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a "successor in interest" then a new petition is normally not necessary. Changes in a company’s name will not trigger the need for an amendment or a refiling, but an amendment is useful in order to avoid confusion when the worker reenters the country later on. As the issues here are quite complex, it is best to consult with an immigration law with a corporate law background or an immigration lawyer who can check with corporate counsel in order to determine how an H-1B petition is affected.Before the ink even dries on a corporate closing document, all of a firm’s visa holders can be rendered illegal aliens if these issues are not explored first.
Visas for Unskilled Temporary Workers (H-2B)
The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers.
The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers.The annual cap on this type of visa is 66,000.However, because of the limits and requirements of the category, usage of the visa is marginal.For example, in 1995, only 2,398 H-2B visas were issued. Nevertheless, in limited circumstances, the visa can be useful.
The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers. The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories.
US employers and agents are allowed to petition for temporary H-2B workers.US agents are allowed to file petitions for self-employed aliens, cases where there will be multiple employers, and cases involving foreign employers. When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment.The agent must also provide a complete itinerary of the planned employment. When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent’s authority to act on behalf of the employer. In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under US immigration law.
One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary. The Department of Labor recognizes four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. It is this requirement that makes this visa category so rarely used, not only must the employer promise to employ the worker for a limited period of time, the employer must verify that its need for the worker is temporary.
A labor certification by the Department of Labor (DOL) is required for the INS to issue an H-2B visa. The DOL must determine that there are no unemployed, qualified US workers available for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of US workers. To satisfy the DOL, the employer must conduct a recruitment campaign.Before beginning this campaign, the employer should contact the state employment office to discover what type of recruiting efforts will be required in that area. It is also important to note that a US worker who is otherwise employed, but expresses willingness to take the position recruited for is not considered unemployed.
The H-2B category could provide a much needed way of working through some of the nation’s labor shortages, but so long as it carries its current stringent requirements, it will likely continue to be underused.
Visas for Nurses (H-1C)
In 1999, Congress passed a bill to allow physicians working in medically underserved areas to qualify for permanent residency on the grounds that their work is in the national interest. The legislation also created a new visa category – the H-1C visa – for nurses working in medically underserved areas.
The basic intention of the “Nursing Relief for Disadvantaged Areas Act of 1999” is to deliver health care to underserved areas. However, the bill contains a broad array of restrictions that will make it available to only a small percentage of employers hiring nurses (even if they are in an underserved area). Generally, large, urban hospitals with a substantial elderly and indigent population will benefit. Rural communities are not likely to be helped.
The bill creates a new H-1C visa for registered nurses. The program is very similar to the old H-1A visa category, but limits the number of visas issued annually to 500 and restricts the category to facilities in health professional shortage areas.
The H-1A visa program was created by the Immigration Nursing Relief Act of 1989. The program lasted until September 1, 1995 and Congress permitted nurses already in the country to work until September 30, 1997. The H-1A visa had no cap and was used by as many as 6,500 nurses a year. Nurses on H-1A visas could stay for up to five years.
Under the new H-1C program, nurses must meet the following qualifications:
the nurse must have obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained his or her nursing education or, in the alternative, the nurse must have been educated in the United States; the nurse has passed an appropriate examination (recognized in regulations that must be issued by the Department of Health and Human Services) or has a full and unrestricted license under the laws of the state where the nurse intends to work; and the nurse is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility.
These provisions are very similar to the old H-1A rules.
Also like the old H-1A category, employers must keep an attestation notice on file regarding the H-1C nurse. The employer must attest to the following:
- the employer meets the definition of “facility” contained in the statute (more on this below);
- the employment of the alien will not adversely affect the wages and working conditions of other RNs similarly employed;
- the alien will be paid the wage rate for nurses similarly employed by the facility; the facility has taken (after the date of the bill’s enactment) and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are US citizens or permanent residents who are authorized to perform nursing services in order to end the facility’s dependence on the H-1C program;
- there is not a strike or lockout in the course of a labor dispute, the facility has not had layoffs and will not lay off an RN within 90 days before and after the filing of an H-1C petition, and the hiring of the H-1C nurse is not intended to influence the election of a union to represent nurses at the facility;
- at the time of filing the petition, notice of the filing of the petition has been provided to the union for the nurses or, where there is no union, notice of the filing has been given via posting of the notice in conspicuous locations the facility will not employ a number of H-1C nurses that exceeds 33% of the total number of RNs employed at the facility. [This would seem to be a relatively meaningless requirement given the fact that the most H-1C visas that are allocated to a state in a year is 50.]
- the facility will not let H-1C nurses perform nursing services at any work site other than a work site controlled by the facility or transfer the place of employment of the H-1C nurse from one work site to another.
Every nurse at the facility is supposed to be provided with a copy of the attestation within 30 days of the filing of the H-1C petition.
With regard to the “significant steps” to recruit and retain nurses, the statute provides a list of methods that will meet the test (though employers may take other steps as well and potentially meet the requirements of the statute). The list is as follows:
- operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere; providing career development programs and other methods of facilitating health care workers to become registered nurses;
- paying RNs at a higher rate than nurses similarly employed are making at other facilities in the geographic area;
- providing reasonable opportunities for meaningful salary advancement by RNs.
A facility does not need to take more than one step if it can show that a second step is not reasonable.
The requirements that are likely to most drastically reduce the number of employer taking advantage of the new law are provisions that define the type of “facility” covered by the legislation. First, eligible hospitals must have no less than 190 acute care beds. A number of experts indicated that this requirement effectively eliminates most rural hospitals, which tend to be much smaller. Generally, only large urban hospitals in health professional shortage areas will be able to meet the test.Also, not less than 35% of the patient’s must be on Medicare and not less than 28% must be on Medicaid.
The attestations will remain valid for one year or at the end of the period of admission (the expiration date of the I-94) of the last H-1C nurse with respect to whose admission the attestation was applied. The attestation can cover nurses who file during the one-year period if the employer is still complying with the conditions in the attestation. More than one nurse can be covered in the same attestation.
H-1C visa holders can receive a period of admission for up to three years. Changes of status to the H-1C visa can be made at any time after the date that interim or final regulations are made. Interim regulations are due no later than the beginning of February.
The statute calls on the Department of Labor to make various reports and disclosures. First, the DOL must make a list of facilities that file H-1C visas and make available to the public a copy of the facility’s attestation, accompanying documentation and petitions filed). By no later than four years from now (but, hopefully sooner, according to the legislative report accompanying the bill), the DOL must issue a report (jointly with the Department of Health and Human Services) that contains recommendations to Congress on a program to eliminate the dependence of certain hospitals on H-1C foreign nurses by providing for a permanent resolution.
The report is also supposed to recommend ways to more effectively enforce the qualification and attestation requirements of the H-1C program. Among those measures that might be discussed are programs to recruit more college-educated into the nursing profession, programs to retain people already in the field, programs to give financial help to needy young people willing to work in medically underserved areas, studies to determine what will get experienced nurses to work in underserved areas and the expansion of federal programs that already deal with these problems. [Editorial note: One has to wonder why a study is needed on this since only a maximum of 500 nurses a year will come in on the program and the number of facilities where they may work is extremely limited. The chances of this small population having any measurable impact on the labor market for RNs is probably Nil.]
Like the H-1A and H-1B visa regulations, fines may be imposed on employers who do not comply with the attestation rules. Such fines may be up to $10,000 for a single violation and employers can be barred from being approved to take H-1C workers for a year.
The Labor Department is authorized under the bill to charge a filing fee for attestations. No amount is set, but the Labor Department may charge up to $250.
Finally, the bill contains certain exemptions regarding certification that relate to the 1996 Immigration Act. That law provides for a certification process for aliens seeking to enter the US to work as non-physician health care workers. The law was created with the stated purpose of ensuring that the credentials of alien health care workers are authentic and that they have sufficient training and English language ability to adequately do their work.
- The new law exempts H-1C nurses from this bill when the Commission on Graduates of Foreign Nursing Schools (or an approved equivalent independent credentialing organization certifies that the alien has
- a valid and unrestricted license as a nurse in a state where the alien will be working and the state verifies that the foreign nurse’s license is authentic and unencumbered; passed the National Council Licensure Examination (NCLEX);
- is the graduate of a nursing program taught in English and either the CGFNS has designated the country where the nursing program is located within 30 days of this new law is passed based on an assessment of the quality of nursing education in that country and the English language skills of those country’s nursing graduates is sufficient or the CGNFS and any other designated credentialing organization unanimously later agree to the country being added; and
- is a graduate of a nursing program, which was in operation on or before the date of enactment of the bill or has been approved by unanimous consent of CGFNS and any other approved credentialing organization. The bill has a four-year sunset provision, though Congress may choose to extend it.
Visas for Physicians, Business Trainees, Professors and Other Educational and Cultural Exchange Visitors. (J-1 Exchange Visitor Visas)
Persons coming to the U.S. in an approved exchange program may be eligible for the J-1 Exchange Visitor's visa. J-1 programs often cover students, short-term scholars, business trainees, teachers, professors and research scholars, specialists, international visitors, government visitors, camp counselors and au pairs. In some cases, participation in a J-1 program will be coupled with the requirement that the beneficiary spend at least two years outside of the U.S. before being permitted to switch to a different non-immigrant visa or to permanent residency.
The J-1 non-immigrant visa category was created to promote educational and cultural exchange activities between the United States and other countries. First begun in 1948, the J-1 exchange visitor program is presently overseen by the United States Information Agency (USIA). The program is credited with exposing millions of foreign visitors to the United States, its peoples, cultures, business techniques and educational institutions.
The J-1 exchange visitor is broadly defined by the Immigration and Nationality Act (INA) as an alien having a residence abroad, which he has no intention of abandoning, who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge; who is coming temporarily to the United States as a participant in a program designated by the USIA, for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.
The following types of individuals are eligible to apply for J visas:
Individuals pursuing a formal course of study at either the university or secondary school level are eligible. University students are eligible for up to eighteen months of practical training upon completion of their studies.
- Short-Term Scholars
Professors, research scholars or persons with similar skills may come to the U.S. to lecture, observe, consult or participate in workshops, seminars, conferences, and the like, for a period of four months.
Individuals seeking to enhance their skill level in either "specialty" or "non-specialty" occupations by participating in a USIA approved training program may enter the U.S. for up to eighteen months.
Individuals teaching full-time in a primary or secondary school may receive J-1 status for up to three years.
- Professors and Research Scholars
Aliens within this category may enter for a three-year period, initially, and the program sponsor may approve a six-month extension. In addition, the USIA is authorized to extend an individual's stay up to thirty-six months beyond the initial three years.
Experts in a field of specialized knowledge or skill may come to the U.S. to observe, consult or demonstrate special skills. Stay is limited to three years and short-term scholars, professors and research scholars, and alien physicians in graduate medical training are specifically excluded.
- Alien Physicians
Graduates of foreign medical schools may enter the United States to pursue graduate medical training or education. This category is highly regulated. The program sponsor for foreign medical graduate students is the Educational Commission for Foreign Medical Graduates (ECFMG). The duration of authorized stay is generally limited to the time necessary to complete the program or seven years. Caution: Individuals participating in this category are automatically subject to the two-year home country physical presence requirement of INA §212(e).
- International Visitors
Individual participants in a USIA sponsored program for people-to-people exchanges. Stay is limited to one year.
- Government Visitors
This category is for the exclusive use of U.S. federal, state or local government agencies. The period of stay is limited to not more than eighteen months.
- Camp Counselors
A Foreign national who is at least eighteen-years of age and either a bona fide youth worker, student, teacher or an individual with a special skill may qualify as a summer camp counselor. This category is limited to a four-month stay.
- Au Pairs
This special category facilitates entry of individuals between the ages of eighteen to twenty-six, who are coming to perform childcare services for a U.S. host family while attending a post-secondary school. This category is set to sunset on September 30, 1997.
- Special Education Exchange Visitors
This category is limited to fifty individuals per year and permits an alien to enter the United States for up to eighteen months to obtain practical training and experience in the education of children with physical, mental or emotional disabilities.
In addition to the qualifying alien, the spouse and minor children of a J-1 visitor are permitted to enter the United States in J-2 status.
- HOW THE EXCHANGE VISITOR PROGRAM WORKS
Each exchange visitor must be sponsored. The sponsor of the J-1 visa program is a legal entity designated by the Director of USIA to conduct an exchange visitor program. The following entities are eligible to apply for designation as a sponsor:
- United States federal, state and local government agencies;
- International organizations of which the U.S. is a member and which have an office in the United States; or
- Reputable organizations, which are citizens of the United States. The sponsoring entity is required to submit an application (IAP-37) to USIA and to comply with all provisions of 22 CFR Part 514. Alternatively, if USIA has not designated the organization as a sponsor, the organization may participate in the program through an intermediary, known as an umbrella organization, which acts as the sponsoring agency.
An alien admitted in J-1 status may be subject to a two-year foreign (home country) residence requirement before being eligible to apply for a change within the US to a non-immigrant visa, any change to permanent residence, or any change to an H or L non-immigrant visa. An alien is subject to the home residence requirement if:
- The alien's participation in an exchange visitor program was financed by the government of the country of his or her last residence;
- At the time of admission, the alien was a national or resident of a country which USIA had designated as clearly requiring the services of individuals with the alien's special skills or knowledge; or
- The alien came to the United States to receive graduate medical education or training. Limited waivers of the two-year foreign residence requirement are available in certain situations.
Visas for Intracompany Transfers (L-1 Visas)
L-1 visas are available to executives, managers and specialized knowledge employees transferring to their employer's U.S. affiliate. Executives and managers holding L-1 visas may be eligible for permanent residency without the need for a labor certification.
L-1 Intracompany Transfer Visas are non-immigrant visas available to persons coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US. While there are a number of important requirements to qualify in this category, the category offers a number of advantages that make it worth considering over other types of visas. For example, there is no annual limit on the number issued, one may pursue permanent residency while on an L-1 visa and for many L-1s, there is a matching permanent residency category that makes getting a green card relatively quick and pain-free.
The first requirement for the L-1 is for the applicant to have been continuously employed abroad for one year of the last three for a parent, affiliate, or subsidiary of a US employer. The employer may be a company or other legal entity including a profit, non-profit, religious, or charitable organization. It does not matter if the company is incorporated or not.Any time spent working in the US will not count toward the one year of required employment, though time spent in the US will not be considered to have disrupted the continuity of employment abroad. It is possible to use a combination of part-time employment for affiliated companies under certain circumstances.
Second, the foreign firm and the US firm must have a “qualifying relationship.”The US and the foreign firm must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity. Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own approximately the same amount of both the US and the foreign company.This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.
Third, the applicant must be coming as a manager, executive or specialized knowledge employee. "Specialized knowledge" refers to employees with a special knowledge of the company's products and their applications in world markets and/or an advanced or proprietary knowledge of the company's processes or procedures.
An “executive” is one who directs the management of the company or a major part or function of the organization. Typical executive positions are presidents, vice-presidents and controllers.An executive is expected to have a supervisory role in the company (either over personnel or a function) and would not include people who are primarily performing the specific tasks of production or providing service to customers. A “manager” directs the organization, a department, or a function of the organization. Like executives, a qualifying manager will not be overseeing the primary performance of a task. Exceptions apply when a manager or executive is coming to open a new office.
Fourth, the applicant must intend to depart the US when his or her stay is over. But the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend an L visa.This is because the doctrine of dual intent applies to L-1 visas (just like H-1B visas). This makes the L visa a popular option for multinational firms.
Executives and managers may stay in L-1 status for up to seven years. They are granted L-1A status. Specialized knowledge employees may stay in the US for up to five years. Their visas are called L-1Bs.The visas will be granted with an expiration of up to three years. Whether the visas are multiple entry or not depends on the applicant’s country of origin.
Persons coming to open up a new office in the US will only be granted a one-year stay in the US. The INS will also typically require additional information about the plans for the new office such as proof that office space has been obtained, that the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant's transfer to the US.If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.
The INS will also more closely scrutinize cases where the transferred employee also has an ownership interest in the company, since the INS may not believe the owner intends to ever leave the US. The US employer will need to show here that the firm's need for the transferee is not indefinite and that the transferee's foreign business interests are a strong lure for the person to return upon the expiration of the transferee's stay in the US.
Applications for L-1 visa status must first be approved by the Regional INS Service Center having jurisdiction over the location where the transferred employee will be situated.The employer must send the Application for Non-Immigrant Visa and L Supplement, petition letter, supporting documentation and filing fee to the INS Service Center. After the INS Service Center approves the application, the employee must apply at the US Consulate for the visa. The Consulate normally approves the application unless it believes the INS has been defrauded or the INS was not aware of important information.
There are special procedures that make it easier for companies sending over large numbers of applicants to get L-1 visas for their employees.Companies that qualify can receive a “blanket approval” for all of their workers rather than having to apply to INS individually for each employee. To qualify for a blanket petition, the company must meet the following tests:
- The US and foreign offices must be engaged in commercial trade or services; The employer's US office must have been in business for at least a year; The employer must have at least three domestic or foreign branches, subsidiaries, or affiliates;
- The Employer must show one of the following: a) at least ten L-1 visas were approved in the last year; b) the company had US sales of at least $25 million, or c) the US work force numbers over 1,000 workers.
The procedures for filing are largely similar to a normal L-1 application except that the employer must also submit evidence showing the above requirements are met and the firm's petition letter can be replaced with a company letter summarizing the basis for the L-1 petition.
It is also worth noting that the EB-1 Multinational Manager/Executive category for employment-based green cards closely resembles the L-1A visa category. The green card requires a showing of all of the same evidence. The main additional requirement is that the US operation be in existence for at least a year. The category is very popular because applicants can avoid the onerous labor certification process, they can have an ownership interest in the company and they can proceed to the green card relatively quickly.
Visas for Foreign Nationals of Extraordinary Ability (O-1 Visas)
The O-1 category is set aside for foreign nationals with extraordinary ability. This includes entertainers, athletes, scientists, and businesspersons.
The O-1 non-immigrant visa classification is designed for highly talented or recognized individuals and is often an attractive alternative to other non-immigrant categories such as the E, L, H, or J classifications. The category is open to artists, athletes, scientists, educators, entertainers and business people. A professional degree is not necessary and there is no prevailing wage requirement. O-2 visas are available for certain aliens accompanying O-1 aliens in the arts or athletics. The O-3 visa is for dependents of O-1 and O-2 visa holders.
O-1 applicants in the arts, athletics, education or the sciences must show extraordinary ability "demonstrated by sustained national or international acclaim." The definition of "extraordinary" differs depending on whether one is an artist or entertainer as whether one is one of the other fields. And within the entertainment field, there are special criteria for people affiliated with motion pictures or television production.
Persons coming to the US to work in the sciences, education, business, or athletics must demonstrate "extraordinary ability" by showing they have a "level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor." The petitioner for the beneficiary must show the receipt of a "major internationally-recognized award, such as the Nobel Prize" or documentation of at least three of the following:
- Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
- Membership in associations in the field that require outstanding achievement of their members, as judged by recognized or international experts;
- Published material in professional or major trade publications or major media about the alien;
- Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
- Original scientific, scholarly, or business-related contributions of major significance; Authorship of scholarly articles in professional journals or other major media; Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
- Other "comparable evidence" of eligibility.
Persons coming to work in the arts or entertainment, with the exception of those affiliated with motion pictures or television production, must show "extraordinary ability" by demonstrating they have "distinction" in their field. "Distinction," in turn, means a "high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." INS regulations define "arts" to include "any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts and performing arts." The INS has stated that "behind-the-scenes" occupations such as set designers, choreographers, music coaches and others could qualify in the O-1 category. The regulation should be read broadly to include a number of professions.
To demonstrate "distinction" the petitioner must demonstrate that the beneficiary has been nominated for or has received a significant national or international prize such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award or that the beneficiary meets at least three of the following:
- Has performed services as a lead or starring participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contract or endorsements;
- National or international recognition for achievements through critical reviews, other published materials by or about the beneficiary in major trade papers, trade journals, magazines, and so forth.
- Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, and similar write-ups.
- Has a record of major commercial or critically acclaimed success; Has achieved significant recognition from organizations, critics, government agencies and recognized experts.
- Has commanded or will command a high salary or other remuneration in comparison to others in the field;
- Other "comparable evidence" to demonstrate "distinction."
The rules for people in the motion picture and television production industries vary somewhat from the normal rules for artists and entertainers. First, the definition of "extraordinary" is different. For these individuals, "extraordinary achievement" is defined as "a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is recognized as outstanding, leading, or well-known in the motion picture or television field." Despite the different definition of "extraordinary," INS regulations use basically the same list of evidentiary documents here as is the case for the regular artist and entertainer category. The only major difference is the fact that there is no category for "comparable evidence." The INS says that the real difference between the two categories is that it will apply a higher standard to artists and entertainers in movies and television.
Aside from meeting the evidence tests described above, a key requirement for O-1 applicants is consulting with an appropriate peer group, labor and/or management organization regarding the type of work to be performed and the qualifications of the proposed beneficiary. The "peer group" (basically, an organization of person in the same field as the beneficiary (and this group is normally a union)) must normally provide a written opinion to the INS, but the opinion is not binding. The INS Operations Instructions provides a list of acceptable peer group organizations, but this list is not exclusive.
Where an application does not include an advisory opinion or a case needs to be handled on an expedited basis, the INS will attempt to contact the peer group directly. The peer group will have one day to respond of the INS will process the application without the opinion. If the organization responds within one day, it then has another five working days to provide a written opinion. If an application is received with an advisory opinion from a peer group that is not a union and a union exists in the field, the INS will normally forward a copy of the application to the appropriate union within five days of receipt. The union then has fifteen days to respond with a written opinion. The INS will then adjudicate the application within fourteen days. In those cases where the peer group opinion is the basis of denial, the petitioner is given a chance to respond in a written rebuttal.
There are circumstances where there are no appropriate peer groups in a given field. In those cases, the INS will normally make a decision without a peer group consultation. Also, the INS will not require a new consultation if the beneficiary is reentering the US in the O-1 category within two years of a previous peer group consultation.
In motion picture and television production cases, the petitioner must consult with both a union and a management organization in the appropriate area. The opinion is expected to discuss the beneficiary's achievements and whether the position sought would normally require a person with extraordinary ability. The Alliance of Motion Picture and TV Producers normally provides the management consultation in all television and movie cases.
Application for the O-1 visa is made using the I-129 Non-Immigrant Visa Application and the O Supplement. O-2 applications are submitted with a separate application. The application is filed with all of the required evidence to the regional INS service center having jurisdiction over the place where the beneficiary will be working. There are additional rules for aliens working in more than one location or who are working for more than one employer. Acceptable O-1 petitioners include US firms, foreign employers and "established" American agents. Agents are required to provide detailed information regarding the beneficiary's itinerary and contract. O-1 applicants cannot petition for themselves. O-1 beneficiaries are not limited by any statutory limits on their stay in the US except that they are not permitted to be in the US longer than the period of the "event" described in the application. The INS will also only grant up to three years stay initially with an unlimited number of one-year extensions. Beneficiaries can enter the US up to ten days in advance of the approved activity and stay for ten days afterwards, but may not work during either ten-day period.
Finally, it is important to note that the requirements for the O-1 non-immigrant visa are very similar to the rules for the EB-1 permanent residency category for extraordinary ability aliens. One key difference is the fact that a peer group consultation is not required in the permanent category. Another is that in the permanent category, the alien can self-petition. Obviously, the main reason why people use the O-1 category instead of the permanent residency category is because the O-1 visa can be obtained much more quickly than the EB-1.
Note: The INS Operations Instructions list of Peer Group Organizations is being added this week to the SSHC Documents Collection at our firm's web site.
Visas for Artists, Athletes and Entertainers (P-1)
This category is available to entertainment groups and athletes who have achieved national or international recognition as outstanding in their discipline and who are coming temporarily to the United States.
The P-1 visa category is available to entertainment groups and athletes who have achieved national or international recognition as outstanding in their discipline and who are coming temporarily to the United States.
To perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance, or To perform with, or as an integral and essential part of the performance of, an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, and who has had a sustained and substantial relationship with the group (ordinarily for at least one year) and provides functions integral to the performance of the group.
Individual artists and entertainers must apply for a visa under other categories such as the O-1 or the H-2B.
P-1 visa petitions can be filed on behalf of the applicant or applicants by either a US or a foreign employer, agent, or event organizer. P-1 athletes must be coming to perform at a specific athletic competition and P-1 entertainment groups may be admitted for the period of time necessary to complete the performance of an event. "Competition, event, or performance" is defined in the regulations to include the following: "an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short vacations, promotional appearances, and stopovers, which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event."
Support staff can be included in the P-1 petition as long as the persons perform support services which cannot be readily performed by a US worker and which are essential to the principal alien's performance. The person must also have experience working with the performer or athlete.
In order to qualify for P-1 status, an athlete or entertainment group must rigorous standards to prove international recognition. The regulations define this to mean "a high level of achievement in the 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."
For an athletic team, a petition must be accompanied by evidence that the team as a unit has achieved international recognition in the sport. Each member of the team is accorded P-1 status based on the international reputation of the team. A petition for an athlete who will compete individually or as a member of a United States team must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation.
A petition for a P-1 athlete or athletic team shall include:
- A tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, and
- Documentation of at least two of the following:
- Evidence of having participated to a significant extent in a prior season with a major United States sports league;
- Evidence of having participated in international competition with a national team;
- Evidence of having participated to a significant extent in a prior season for a United States college or university in intercollegiate competition;
- A written statement from an official of a major United States sports league or an official of the governing body of the sport which details how the alien or team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
- Evidence that the individual or team is ranked if the sport has international rankings; or
- Evidence that the alien or team has received a significant honor or award in the sport.
Entertainers must establish that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time. Furthermore, seventy-five percent of the members of the group must have had a sustained and substantial relationship with the group for at least one year and must provide functions integral to the group's performance. There is an exception to this rule for circus performers working in a circus with a strong national reputation.
A petition for P-1 classification for the members of an entertainment group shall be accompanied by:
- Evidence that the group, under the name shown on the petition, has been established and performing regularly for a period of at least one year;
- A statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and
- Evidence that the group has been internationally recognized in the discipline. This may be demonstrated by the submission of evidence of the group's nomination or receipt of significant international awards or prizes for outstanding achievement in its field or by three of the following different types of documentation: a) Evidence that the group has performed and will perform as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsement;
b) Evidence that the group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;
c) Evidence that the group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
d) Evidence that the group has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings, standing in the field, box office receipts, record, cassette, or video sales, and other achievements in the field as reported in trade journals, major newspapers, or other publications;
e) Evidence that the group has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or
f) Evidence that the group has commanded or now commands a high salary or other substantial remuneration for services comparable to others similarly situated in the field as evidenced by contracts or other reliable evidence.
P-1 athletes and entertainment groups must also seek a consultation with a peer group organization (usually a labor union) in order to get the visa. Most of the time, evidence of the consultation can take the form of a written advisory opinion from the organization. The advisory opinion need not be submitted in cases where expeditious handling is requested, there is no appropriate consulting organization, or a consultation has been made in connection with another visa application by the applicant within the previous two years.
A favorable advisory opinion will normally focus on the athlete or group's ability and achievements, whether an entertainment group is internationally recognized and whether the group is coming to perform services where someone with that type of background is needed.
Finally, P visas are considered dual intent. That means that while a P nonimmigrant must seek to enter the US temporarily and must show a residence abroad they do not intend to abandon, they can pursue permanent residency without violating the terms of the visa.
Visas for Religious Worker Visas (R-1 Visa)
The R-1 visa is a nonimmigrant visa that enables a religious worker to be employed by a nonprofit religious organization in the United States
The R-1 visa is a nonimmigrant visa that enables a religious worker to be employed by a nonprofit religious organization in the United States. The religious worker, who must have been a member of a recognized religious denomination for the two years immediately preceding the time of application, must be coming to work for that religious organization in the U.S. as a minister, in a professional capacity, or in a religious vocation or occupation.
In order to qualify for the R-1 visa, the sponsoring religious organization must be a "bona fide" religion. The Immigration and Naturalization Service defines a religious denomination as "a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious service and ceremonies, established places of religious worship, and religious congregations." The denomination must be eligible for U.S. tax-exempt status for religious organizations.
In addition, the religious worker must show that he is coming to the United States for one of the following purposes:
- To carry on the vocation of a minister of that religious denomination. A minister is defined as an individual authorized to conduct religious worship and all other duties usually performed by authorized members of the clergy of that religion. Therefore, a lay preacher who only conducts services would not be eligible for a R-1 visa as a minister; To work in a professional capacity in a religious vocation or occupation. A professional position is one that requires, at a minimum, a bachelor's degree;
- To work in a religious vocation or occupation. A religious vocation means a calling to religious life as indicated by the taking of vows. Examples include nuns and monks. A religious occupation should relate to a traditional religious function. Examples include liturgical workers, religious instructors, religious counselors, cantors, catechists, and religious broadcasters. Maintenance workers, clerks, or fundraisers would not be considered religious occupations.
The visa is initially issued for a period of three years and may be extended for an additional two years. After the nonimmigrant has remained in the United States for five years, he must leave the U.S. for at least one year before he can apply again for R-1 status. The religious worker's spouse and children may accompany or follow to join him in R-2 status. However, as dependents, they are not eligible to work in the U.S.
Visas Under the North American Free Trade Agreement (TN Status)
A special category has been set up for nationals of Canada and Mexico under the provisions of the North American Free Trade Agreement.
When the North American Free Trade Agreement between the US, Canada and Mexico went into effect on January 1, 1994, it was intended to do more than just lift barriers to the trade of goods between the signatory countries. It also created several new nonimmigrant visa categories, which are designed to ease the trade of services between the member countries. Four categories of businesspersons - B-1 temporary visitors for business; E traders and investors; TN professional workers; and L-1 intracompany transferees - are covered by NAFTA.
Business visitors who are paid from an overseas source and who accrue profits abroad, who are engaged in business of an international scope and who do not seek to enter the US work force are permitted to apply for the B-1. These requirements are the same as B-1 business visitor requirements applicable to any foreign national. The visa is issued at the border and can be granted for up to a year. NAFTA includes a schedule listing acceptable B-1 business activities, though nothing will preclude persons not on the list from securing a B-1 visa if the person otherwise meets the requirements for the B-1. The list includes certain persons engaged in the following occupation:
- technical, scientific, and statistical researchers
- harvester owners
- purchasing and production management personnel
- market researchers and analysts
- trade fair and promotional personnel attending a show
- sales representatives and agents
- transportation operators
- customs brokers providing brokerage or consulting services
- after-sales installers, repair and maintenance personnel professionals (whose professions are included in the list of professions eligible for the TN visa) engaged in a business activity who are not receiving payment from a US source
- management and supervisory personnel
- financial services personnel
- public relations and advertising personnel
- tourism personnel attending conferences or leading a tour tour bus operators translators
The B-1 visitor must be coming to the US to perform work in their field and certain workers are only permitted to engage in very limited activities (such as meeting with a client or attending a conference). Unlike normal B-1 visas, NAFTA B-1 visas can be granted to self-employed persons (assuming all of the other tests for the B-1 are also met).
The procedures for Canadians receiving a B-1 under NAFTA are very similar to the normal B-1 visa. The Canadian must present proof that he or she is Canadian, that he or she is engaged in a profession listed in Schedule 1 (unless another acceptable activity is intended) and supporting evidence showing that the general criteria for the B-1 visa are met. Such evidence should include information related to the source of payment for work performed and proof that the profits from the work will flow out of the US.
For Mexicans, the procedure for applying for the NAFTA B-1 is the same as prior to NAFTA’s effectiveness. Persons possessing border crossing cards, which are stamped in a passport, do not need visas. Border crossing cards (which are issued at the US consulates in Juarez, Hermosillo, Nuevo Laredo, Matamoros, and Tijuana) are issued to those temporary visitors who are otherwise eligible for a visa. Those without border crossing cards must secure a B-1 visa stamp, which can also be obtained at a US consulate.
Similar to the H-1B program, the TN visa is designed for professionals entering the country to work for a US employer or on multiple projects for a Canadian or Mexican firm. Unlike the H-1B visa, however, the TN visa is limited to professions specifically listed by a schedule in NAFTA. The following professions are listed:
- disaster relief insurance claims adjuster
- graphic designer
- hotel manager
- industrial designer
- interior designer
- land surveyor
- landscape architect
- management consultant
- range manager/range conservationist
- research assistant
- scientific technician/technologist
- social worker
- technical publications writer
- urban planner
- vocational counselor
- medical/allied professional (dentist, dietitian, medical laboratory technologist, nutritionist, occupational therapist, pharmacist, physician, physical therapist, psychologist, recreational therapist, registered nurse and veterinarian) scientist (agriculturist, animal breeder, animal scientist, apiculturist, astronomer, biochemist, biologist, chemist, dairy scientist, entomologist, epidemiologist, geneticist, geochemist, geologist, geophysicist, geologist, geophysicist, horticulturist, meteorologist, pharmacologist, physicist, plant breeder, poultry scientist, soil scientist and zoologist)
- teacher (college, seminary, university)
The schedule of occupations also lists the credentials an alien must possess in order to be considered a member of a particular profession.
The TN visa is granted for up to one year initially and, as long as the purpose of the stay is still temporary, the visa may be extended in one-year increments (and unlike the H and L visas, there is no limit on renewing the TN visa).
For Canadians, the TN visa, like the NAFTA B-1 visa, may be issued at the border or point of entry without prior INS clearance. TN professionals should check with officials at the port of entry or their attorney regarding how much time should be allowed for processing at a particular location. The Canadian professional is required to document that he or she is a member of one of the scheduled professions with the appropriate educational credentials. Mexican professionals, however, must apply for the TN visa in the same manner as for the H-1B (i.e. a labor condition application and INS filing are required and the visa must be stamped at a US consulate).
Special notes: One should carefully check the rules on self-employment in advance of an application as there are a number of restrictions on such activities. Also, persons who change positions in the United States must file an I-129 nonimmigrant visa application with the INS (though a Canadian is not precluded from simply reapplying at the border without INS pre-approval). Unlike the H-1B visa, persons transferred to a different location in the US by the same employer are not required to take any action. Mexican nationals should be aware that there is a 5,500 annual limit on the number of TN visas issued to Mexicans. Finally, like the H and L visas, dependents of TN visa holders may enter the US. The TD visa is available to spouses and minor children and work is not permitted for TD visaholders (though attending school is allowed).
While NAFTA permits Mexicans for the first time to apply for status as an E-1 Treaty Trader and E-2 Treaty Investor, procedures for obtaining the E visa under NAFTA are basically the same as E applicants from other countries. One key difference, however, is that Canadian and Mexican E applicants may be denied entry when the Department of Labor certifies the occurrence of a strike and the applicant’s entry would negatively affect settlement of the strike or the employment of a striking worker.
L-1 visa options are also largely unchanged for Mexican and Canadian intracompany transferees. There is a strike provision similar to the one described above for E visa applicants. One new key benefit for Canadians, however, is the ability to apply at a port of entry or pre-flight station without prior approval of the INS and a US consulate. That same benefit does not apply to Mexicans.