(Visitors for Business): This visa status does not permit employment of any kind in the United States. Visitors for business are admitted to perform a business function in international trade for a foreign employer. Because permissible activities are so limited, entering as a visitor and then attempting to “change status” to a student or employment category can be risky. This visa is applied for and obtained directly from a United States Consulate in the country in which the foreign national resides. The period of admission depends upon the purpose of the entry into the U.S. but may be up to six (6) months. The United States also has a “visa waiver” program with about 30 countries (including, but not limited to, Australia, most of western Europe and Japan) allowing citizens of these countries to travel to the United States for up to ninety (90) days without obtaining a visa. The visa waiver may be used to bring business visitors to the United States, as long as they are performing services on behalf of a foreign employer and do not receive compensation from a United States employer. Caution is advised, however, because an extension of stay or change or adjustment to another visa category is not possible if the visa waiver is utilized. Whether entering on a formal B-1 visa or through the visa waiver program, no hands-on, productive employment is permitted.
(Interns and Trainees): The J-1 visa category is very broad and may include students, teachers, research scholars and physicians but also includes interns and trainees. To qualify as a J-1 intern, the foreign national must be currently enrolled in a post-secondary institution or has graduated no more than 12 months prior to the proposed start date of the internship. To qualify as a J-1 trainee, the foreign national must either hold a degree and at least one year of relevant work experience outside the U.S. or five years of relevant work experience. Interns and trainees must be fluent in English and carry sufficient medical insurance. The period of stay in the U.S. is limited to 12 to 18 months. Productive employment is not permitted, and instead activity must consist of traditional training opportunities. Additionally, the J-1 category is intended to provide foreign nationals with training in the U.S. for the express purpose of utilizing the training outside the U.S. at the conclusion of the training program. Some J-1 approvals also include a home residency requirement wherein the J-1 visa holder must return to their home country for two (2) years before seeking new immigration benefits in the U.S. Waivers of the two year home rule may be available.
H-1B (Professional Employees working in a “Specialty Occupation”): A foreign national who is seeking admission to be employed in an occupation which requires highly specialized knowledge and a bachelor’s degree in a particular discipline or its equivalent may be eligible for the H-1B visa. It is used extensively by U.S. employers to employ foreign nationals who have attended a U.S. (or foreign) university and who seek professional employment in the U.S. following graduation. A foreign national may be present in the United States in H-1B visa status for up to six (6) years. The H-1B visa category is the most common, employment-sponsored visa category and, as such, is highly regulated and subject to an annual limit which is currently exhausted approximately six (6) months prior to the start of the fiscal year. As such, advanced planning is imperative.
L-1A/L-1B (Intra-Company Managers/ Executives and Employees with “Specialized Knowledge”): This visa category is available to foreign nationals who have been continuously employed for at least one (1) year in a qualifying capacity by a company outside the United States, and who seek to enter the United States temporarily in order to continue rendering services to the same employer, or an affiliate, subsidiary, or parent of the overseas employer. The foreign national’s employment, both prior to and following transfer to the U.S., must be in a capacity that is managerial or executive, or in a capacity which requires specialized knowledge. This visa may be granted for up to seven (7) years in the case of executives and managers (“L-1A” visa), and for up to five (5) years for foreign nationals who qualify with specialized knowledge (“L-1B” visa).
TN (Designated Canadian and Mexican Professionals): The North American Free Trade Agreement (“NAFTA”) provides a unique visa category for certain Canadian and Mexican professionals. Although limited to Canadian and Mexican nationals, TN status under NAFTA is similar to H-1B status in requiring professional level activities. However, TN status is not subject to the quota limitation for H-1B visas, nor are individuals subject to a maximum 6 year limit on admissibility in this status. It is available only to certain designated occupations such as systems analysts, engineers, management consultants, research assistants and scientists, including agriculturists, animal breeders, animal scientists, biochemists, chemists, dairy scientists, geneticists, horticulturists, pharmacologists, plant breeders, plant pathologists, poultry scientists and soil scientists.
H-1B1 (Chile and Singapore) and E-3 (Australia): Similar to TN, there are additional visa categories available based on some of the country’s other free trade agreements. These categories are similar to TN and H-1B as they are limited to professionals. There also are quotas in place but those numerical limitations are rarely reached. Periods of approval are limited to one (1) year for H-1B1 and for two (2) years for E-3 with no maximum period of stay for either category.
(Treaty Traders and Treaty Investors): Any foreign national may apply for this visa if there is a Treaty of Friendship, Commerce, and Navigation or a Bilateral Investment Treaty in effect between the United States and the foreign national’s home country. Qualifying treaties do not exist with Brazil, Russia, India or mainland China. To qualify, the foreign national must enter the United States either (i) to carry on substantial trade, primarily between the United States and his/her own country (E 1 visa); or (ii) to develop and direct the operation of an enterprise in which the foreign national or foreign based enterprise has made a substantial investment (E-2 visa). E visa holders are granted a five year visa but are only admitted to the U.S. for stays of up to two years upon each entry into the U.S.
O-1 (Aliens of Extraordinary ability in the sciences, arts, education, business or athletics): The applicant must demonstrate “sustained or international acclaim” in sciences, arts, education, business or athletics in the foreign national’s field of expertise. This visa category is for the “small percentage of individuals who have risen to the very top of field of endeavor” as demonstrated by a one-time achievement such as a major internationally recognized award (e.g., Nobel Prize), or documentation of a minimum of three (3) of the following: receipt of nationally or internationally recognized awards; membership in an organization that requires outstanding achievement; published material about person in professional or major trade publications; judgment of the work of others; original scientific or scholarly work of major significance in the field; authorship of scholarly work; employment in a critical or essential capacity at an organization with distinguished reputation; or commands a high salary in relation to others in the field.
Permanent Residence or Green Card Sponsorship
Permanent resident status, commonly referred to as “green card,” is usually obtained either by having a close family relationship to a United States citizen or through a permanent job offer in the United States. The employment-based permanent visas are divided into five (5) categories, based primarily on the education and skill required for the offered position. Due to numerical quotas, the waiting period in certain categories may be many years dependent upon the assigned preference classification and the applicant’s country of birth. In most cases, however, the foreign national is present in the United States in a temporary visa status while awaiting permanent status. The five (5) employment-based categories are as follows:
Priority Workers. This category includes persons of “extraordinary ability” in the sciences, arts, education, business or athletics (similar to the O-1 non-immigrant visa category); outstanding professors and researchers; certain multi-national executives and managers who have been employed abroad for at least one (1) year by the same employer (similar to the L-1A non-immigrant visa category). The burdensome requirement of labor market testing is not required for immigrants in this category.
Professionals Holding Advanced Degrees and Foreign Nationals of “Exceptional Ability.” These are members of the professions holding advanced degrees, i.e. a degree which requires at least one (1) year of graduate study following completion of a four (4) year undergraduate degree. The category also includes foreign nationals with “exceptional ability” in the sciences, arts, or business, if their presence will substantially benefit the United States prospectively.
For most foreign nationals in this category, the United States employer must obtain “labor certification” from the Department of Labor as a prerequisite to obtaining approval of an immigrant visa petition. This process requires advertisement of the position and certification that no qualified United States workers could be found.
Skilled Workers, Professionals Holding Basic Degrees, and “Other Workers.” “Professionals” must have baccalaureate degrees, while “Skilled Workers” must have two (2) years of training or experience for the position offered. The “Unskilled Worker” category is a catch-all provision for individuals who fail to qualify in a higher category. As noted, a substantial delay for visas in the “Unskilled Worker” category may be expected. Labor certification is required in this category which consists of a rigorous labor market test to prove there are no U.S. workers qualified and available for the offered position.
Special Immigrants. This category includes ministers and religious workers, and certain other special groups.
Investors. Individuals who make a capital investment of at least One Million Dollars ($1,000,000) and who employ ten (10) or more United States workers may qualify for a limited number of “Investor Visas.” Investment of Five Hundred Thousand Dollars ($500,000) will suffice for investors in certain targeted areas of unemployment.
Emerging Opportunities in U.S. Immigration
On November 20, 2014, President Obama announced executive action on immigration largely covering the controversial area of illegal immigration which could provide substantial relief to the overburdened and unworkable H-2A and H-2B visa programs for agricultural and other seasonal labor. Relief for the estimated five million undocumented immigrants was expected but the President’s actions also include a surprising number of policy improvements to employment-sponsored immigration. With the exception of the deferred action programs discussed below, however, most of these changes come without a specific timeline for implementation. It remains to be seen whether the President’s actions will withstand legal scrutiny but regardless, the concepts below are worth consideration.
Deferred Action for Childhood Arrivals (DACA)
is an expansion of a program introduced in 2012 granting temporary relief from deportation through the use of prosecutorial discretion and employment permission to individuals who were brought to the US as children.
Deferred Action for Parental Accountability (DAPA) is a new program that provides deferred action and employment permission for three years to parents of US citizens or permanent residents (green card holders) who have been present in the US since January 1, 2010, as of the date of the President’s announcement (November 20th), and at the time of the DAPA request. Similar to DACA, the parental program is only available to those not currently in lawful status and who have not been convicted of certain crimes. The President’s executive action also calls for improvements to the provisional waiver process whereby relatives of U.S. citizens and permanent residents can establish their deportation would result in extreme hardship to their relative(s).
Other business immigration changes include:
providing work permission for H-4 spouses of highly skilled H-1B workers
bringing greater consistency in adjudication of petitions for L-1B specialized knowledge workers
modernizing the employment-based green card system by tracking unused immigrant visa numbers
streamlining the labor certification process
increasing worker portability for those with pending green card applications
reforming and extending period of OPT available to foreign students to counteract H-1B quota limitations and permit foreign entrepreneurs sufficient time to work in self-employed capacity
promoting research and development in the U.S. through expansion of the underutilized “national interest waiver” path to green card and the granting of temporary parole to certain qualifying foreign entrepreneurs, researchers and inventors.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.