Common Work Visas
The B-1 visa is designed for temporary business activities that promote international trade, commerce, or investment. Business visitors cannot engage in productive work, i.e., enter the local employment market, or be paid a salary by a U.S. company. A B-1 business visitor may, however, engage in some limited types of activities that are temporary in nature but are not covered by any other visa category. As engaging in unlawful work in the U.S. can result in serious consequences for both the employer and the individual employee (including fines, removal of the employee, and inability of the employee to re-enter the U.S.), our experience is essential to helping you determine the appropriate arrangements.
The following activities are permitted under the B-1 or visa waiver category:
- Attend a meeting of the board of directors or perform other functions resulting from membership on the board of directors of a U.S. corporation.
- Undertake training, not productive employment, for a limited duration. To do so, the employee must continue to receive a salary from the foreign employer and receive no salary or other remuneration from a United States source other than an expense allowance or other reimbursement for expenses (including room and board).
- Observe the conduct of business or other professional or vocational activity.
- Participate in scientific, educational, professional or business conventions, conferences, or seminars
- Install or maintain equipment produced abroad, or train workers on the equipment if installation, maintenance and training are part of the sales contract between the B-1 visitor’s foreign employer and a U.S. company.
- A B-1 visitor for “usual academic activity” can be paid honoraria and associated expenses for a period of no more than nine days at any single institution of higher learning or affiliated non-profit entity, and may not accept honoraria from more than five institutions within a six-month period.
B-1 visas are generally issued for a year or more by a U.S. Consulate and are sometimes issued for up to ten years. B-1 visitors have for many years been issued permission to stay for six months upon entry into the U.S. The period of admission each individual receives upon entry will be indicated on the I-94 arrival record issued at the port-of-entry or noted in the CBP’s website (https://i94.cbp.dhs.gov/I94/#/home).
A tourist visa is similar to the business visitor visa. Entry, however, is strictly for tourist purposes; no business activities are allowed. Tourists may be required to provide evidence of funds adequate to support their visit to the U.S. and are required to overcome the presumption that they intend to immigrate to the U.S.
Visitor Visa Waiver Program
Citizens of certain countries may enter the U.S. as visitors without a visa under the Visa Waiver Program (VWP) to visit the U.S.A. for ninety (90) days or less for limited business or tourist purposes. As of 2015, 38 countries have been authorized to participate in the Visa Waiver program. A complete list can be found at http://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.
Visitors are now required to obtain approval through the Electronic System for Travel Authorization (ESTA) in advance of a visit to the U.S. Travelers may apply for the authorization via the ESTA Website at https://esta.cbp.dhs.gov. Upon admission to the U.S., the visitor is granted entry for up to 90 days. This should be noted in the visitor’s passport and in the CBP’s online system at https://i94.cbp.dhs.gov/I94/#/home where the entry details will be recorded.
Visitors who enter under the VWP can perform certain work-related services similar to a B-1 visa holder and can, of course, engage in tourist activities. Unlike other visitors, an individual who enters under the visa waiver program generally cannot extend his or her stay beyond the 90 days, or change to another status.
H-1B Visa for Individuals Employed in Specialty Occupations
Taylor & Ryan works with U.S. employers of all sizes to bring in talented professionals under the H-1B program. It is a complex program, highly regulated by the USCIS, the Department of Labor, and Department of State. Each of these agencies have stepped up investigations to ensure program integrity. We work closely with our clients to ensure that the process is smooth and that they are in compliance throughout the process.
The H-1B program permits employers to hire foreign nationals to work in a “specialty occupation.” Specialty occupations require “theoretical and practical application of a body of highly specialized knowledge” as well as a bachelor’s degree or its equivalent. Examples of specialty occupations are accountants, software engineers, teachers, and systems analysts. Individuals seeking H-1B status must hold a four year Baccalaureate Degree (or a foreign equivalent) in a field related to the position. Some individuals who do not have a four-year degree may be able to obtain an evaluation to determine that that their combination of education and qualifying experience is the equivalent of at least a U.S. four-year degree in the field.
To obtain an approved H-1B petition, employers first file a labor condition application with the DOL. Once the application is certified, a petition for the H-1B petition is filed with the USCIS. If the person is in the U.S., a request maybe made for a change or extension of status. If the person is outside of the U.S., the USCIS will send the approval to the State Department. That individual will then apply for a visa stamp at a U.S. consulate and can use that visa stamp to apply to enter the U.S.
Employers must meet a number of requirements, including payment of a required wage that is the higher of the prevailing wage in the geographic area or the actual wage paid by the employer to similarly employed workers. An employer must also maintain substantial supporting documentation to establish compliance with all requirements. Failure to comply with all of the H-1B regulations, including the documentation requirements, can result in the sponsor’s being disqualified from hiring any additional H-1B workers, as well as being fined and ordered to pay back pay to affected individuals.
Duration: An H-1B visa can be valid initially for up to three (3) years and can be extended an additional three (3) years for a total of six years. Individuals may hold H-1B status for six years regardless of the number of petitions filed during that time. Extensions beyond 6 years may be obtained if the individual is sponsored for permanent residence a year before he or she uses the 6 years of H-1B time. If the individual has an approved I-140 application, he or she may be eligible to secure a three year extension of H-1B time, no matter when the case was filed, depending on a number of factors.
Dependents: The spouses and children may accompany the H-1B to the U.S. in H-4 status. H-4 status does not permit employment. Should employment authorization be desired, the individual will have to seek an H-1B or other status that permits employment. There is an exception for H-4 status holders that may permit them to seek employment authorization depending on where their spouse is in the permanent residence process.
Please click here for answers to frequently asked questions.
L Visas for Intra-Company Transferees
Companies often need to move highly qualified employees of foreign affiliates to the U.S. We work to address this need quickly and professionally. A U.S. company that has a foreign branch, parent, subsidiary, or affiliate may transfer employees from the related foreign entity to work as managers, executives, or in positions that require specialized knowledge of the related U.S. company under the L-1 visa category.
The employee must have worked for the overseas branch or affiliate for at least one full year within the 3 years preceding their entry into the United States in L status.
To qualify as an L-1A manager or executive, the employer must show that the employee makes broad decisions about the direction of the business, supervises other personnel of the company, or manages an important function of the business.
To qualify as an L-1B employee with specialized knowledge, the employer must show that she or he has specialized knowledge of the company’s “product, service, research, equipment, techniques, management or other interests” as it applies to international sales and markets.
Duration: L-1 visas are issued for an initial period of one to three years. The time limit for L-1A status for managers and executives is a maximum of seven (7) years. L-1B status (for specialized knowledge employees) can be renewed in two-year increments for a maximum of five (5) years. L-1 petitions for a new office are limited to an initial one-year period.
Dependents: Spouses and children may accompany the L-1 status holder, using L-2 visas. Spouses, but not children, of L visa holders are eligible to apply for work authorization in the U.S.
Please click here for answers to frequently asked questions.
O-1 Visas for Individuals of Extraordinary Ability
While we believe that all of our clients are extraordinary, some also qualify under the USCIS standards for O-1 status. O status is a temporary status available for aliens of extraordinary ability in the fields of science, education, business, or athletics coming to perform services for a U.S. entity. An employer or agent must petition for an O-1 on behalf of the extraordinary individual. An O visa is an excellent alternative to the H-1B for university professors and researchers.
To obtain O-1 status, the individual must be able to demonstrate “extraordinary ability” and must be coming to the U.S. to work in a position that requires extraordinary ability.
Duration: O status may be requested for an initial period of three years with available one-year extensions.
Dependents: Family members can accompany the principal beneficiary as O-3 visa holders, but cannot work in that status.
Please click here for more detailed information.
TN Visas for Canadians and Mexicans
The North American Free Trade Agreement created a visa category, the Treaty NAFTA (or “TN Visa”), for Canadian and Mexican citizens seeking temporary entry for business or professional activities. The specific jobs eligible for TN entry are listed in the treaty.
Some of the more common occupations on NAFTA’s list of TN occupations are: architect, computer systems analyst, librarian, dentist, physical therapist, medical technologist, scientific technician, statistician, registered nurse, veterinarian, horticulturist, teacher, and social worker. For many of these occupations, a 3-year Canadian college degree will qualify the beneficiary for TN status. For Computer Systems Analyst, a two-year diploma and three years related experience can be substituted for the Canadian degree. The specific educational and experience requirements are set out in the treaty. Degree equivalents based on experience are not permitted.
TN requires that the TN holder work as an employee or under contract for a U.S. employer; self-employment is not permitted.
Canadians: Application for entry under the TN is made to the Customs and Border Protection (CBP) at the border or at the pre-clearance stations at an international airport in Canada. There is no USCIS application form for TN status, unless the person is already in the United States. Depending on the port of entry, the approval process should take no more than a couple of hours. Canadians are admitted upon proof of Canadian citizenship and of qualifications meeting the criteria of the TN visa which includes educational credentials and an offer of employment or contract from a U.S. employer.
Mexicans: Mexican citizens must apply for a TN visa at a U.S. Consulate rather than applying at the border.
Duration: The TN period of validity has been extended to three years, similar to the H-1B.
Dependents: The spouse and children of the TN receive TD status and cannot work under that category in the U.S.
P Visas for Artists, Entertainers, and Athletes
P visas are available to artists, entertainers, and athletes. There are several different classifications under the P. All petitions will, at a minimum, require copies of written contracts or summaries of oral contracts, affidavits, awards, or similar documentation regarding achievements and expert opinions. The additional documentation required will depend on the particular classification requested.
P-1A Athlete or Member of an Athletic Group or Team
The P-1 is available to athletes seeking to enter the U.S. to perform at a specific athletic competition as an athlete, individually or as a part of a group or team, at an internationally recognized level of performance. The team or athlete must provide evidence of “international recognition.”
P-1B Member of Entertainment Group
Members of a foreign-based entertainment group that has been recognized internationally as outstanding for a sustained duration of time may qualify for P-1 status. The group must have been together for at least one year and at least three quarters of the members must have been in the group for one year.
P-2 Artists and Entertainers in Exchange Programs
This classification is for artists or entertainers, individually or as a group, coming to the U.S. to perform under a reciprocal exchange program. The visa applicants must possess skills similar to those of the U.S. artists and entertainer staking part in the program outside the U.S. The employment offered must be for a similar period of time and approximately the same number of individuals as the U.S. group.
P-3 Culturally Unique Artists and Entertainers
Artists or entertainers, individually or as a group, coming to the U.S.to engage in culturally unique performances may qualify for a P-3 visa. Culturally unique has been defined as a style or artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.
Essential Support Personnel
Essential support personnel of the P visa holders are eligible to accompany the P visa holder. The support personnel must perform support services that can not be readily performed by a U.S. worker. The support personnel must possess appropriate qualifications and critical knowledge of the performers’ work and must have experience performing the work.
Duration: An individual P-1 athlete may seek a visa for a period of up to five years. For the other categories, the authorized period of stay will be the time required for the event(s), but in any case, no longer than one year.
Dependents: The spouse and children of the P visa holders are eligible to receive P-4 status to accompany the P visa holder. Neither the spouse nor the children may work in the US while in P-4 status.
E-1 (Treaty Trader) and E-2 (Treaty Investor) Visas
Certain countries have treaties with the U.S. that allow for E visas based either on trade or investment. The U.S. business and the individual must have the same nationality. The E-1 and E-2 visas allow for executives, managers, and other workers with very specialized skills to enter the United States to work for their companies.
E-1 Visa Treaty Trader
To qualify for an E 1 (Treaty Trader) visa, a citizen from a treaty country must be engaged in a substantial volume of trade which is principally (51% or more) between the U.S. and the treaty country. Trade includes the sale of goods as well as services such as banking, insurance, transportation, communications, data processing, advertising, accounting, design, engineering, management consulting, tourism, and technology transfer.
E-2 Visa Treaty Investor
To qualify for an E 2 (Treaty Investor) visa, the applicant or his employer must have made, or be in the process of making, a substantial investment in a U.S. business.
The investment must involve an active commercial enterprise, not a passive investment directed by others or held solely for future use or sale. There is no minimum dollar amount of investment required, but the equity investment must be substantial in relation to the nature of the business.
In a small business, the equity invested may need to be 100% of the value of the enterprise, or of the amount normally necessary to establish a viable enterprise of that nature.
In a larger enterprise, an equity investment of half the value of the enterprise or less may be sufficient. In all cases, loans secured by the assets or stock of the enterprise are not counted as investment capital, even if the investor is fully liable for repayment of the loan.
Duration: E -1 and E-2 visa holders have U.S. visas that are valid for 5 years and can be renewed for an indefinite amount of time. This is an especially good route to take if the investor is not interested in receiving permanent resident status.
Dependents: Family members obtain derivative E visa status, and the spouses of investors (but not children) can apply for work authorization once they are in the United States.
J-1 Visas for Cultural Exchange Visitors
The J visa is based on exchanges between the United States and foreign countries and is a comprehensive visa covering several different categories: (1) students, (2) trainees, (3) teachers, (4) professors, (5) international visitors, (6) alien physicians, (7) government visitors, (8) researchers, (9) short term scholars, (10) specialists, (11) camp counselors, and (12) au pairs. Most of these categories permit full-time work authorization for varying time units. Organizations must use an existing program or set up their own J-1 program in order to sponsor exchange visitors. We can assist employers in setting up a J program or in locating an organization with a J-1 program appropriate to your needs.
Two-year Home Residence Requirements: Participation in certain J-1 programs may impose a two-year home residence requirement upon the visa holder. The two-year home residence requirement must be satisfied or waived before the J-1 visa holder is permitted to change status to H-1B or L, or to adjust status to permanent resident.
Waiver of the Two-Year Home Residence Requirements: Whether and how waivers may be obtained depends upon the basis of the obligation. Some obligations maybe waived by obtaining a no objection statement from the home country of the J-1. Other obligations may only be waived if an interested government agency petitions on behalf of the J-1. Finally, if the J-1 can demonstrate that his or her return home for two years would impose exceptional hardship on a U.S. citizen or legal permanent resident spouse, a hardship waiver may be available. Please click here for more detailed information.
Duration: The different categories of J-1 exchanges have different time limits ranging from just a few months to several years.
Dependents: Unlike most other nonimmigrant categories, J-2 family members of J-1s may obtain work authorization if they can show that income is not needed to support the J-1 alien.
F-1 Student Status
Foreign students may be issued F-1 visas to attend U.S. colleges or universities as long as they can demonstrate that they have the resources to support themselves and cover all tuition and expenses and they have not abandoned their residence abroad. Foreign students, upon acceptance at the college of their choice will be issued a Form I-20 by the college. With the I-20, the student may apply at a U.S. Consulate for an F-1 visa. Students who come to the U.S. on a visitor visa to investigate schools are advised to provide this information to the U.S. Consulate who will put the designation of prospective student on the visa. While the F-1 permits students to enroll in a wide range of schools, attendance must be full-time. Limited employment may be authorized in certain situations.
On-Campus Employment: If the F-1 student is maintaining a valid F-1 status, the student may work on campus no more than 20 hours per week while school is in session, but may work full time when school is not in session.
Off-Campus Employment: An F-1 student may request off-campus employment work authorization based upon severe economic hardship caused by unforeseen circumstances beyond the student’s control.
Curricular Practical Training: Another work option for hiring F-1 students is Curricular Practical Training. CPT is work authorized by the foreign student advisors and shown to be an integral part of an established curriculum. A student is not eligible for CPT unless the student is legally enrolled on a full-time basis for at least nine months, although this can be waived in certain instances for graduate students. If a student accumulates more than twelve months of CPT, the student is ineligible for Optional Practical Training.
Optional Practical Training: Students who have graduated can be hired for a period of up to one year upon graduation in a period of Optional Practical Training (OPT). Authorization must be obtained from the university’s Foreign Student Advisor, and then the student must apply for an employment authorization document (EAD) from the USCIS. This process should be started at least 90 days prior to graduation and cannot be obtained if filed later than 60 days after graduation. The student cannot commence work until the EAD is issued. An application or receipt notice is not sufficient. The standard period of OPT is one year, but students with STEM degrees, i.e., degrees in science, technology, engineering, and math can apply for a 24 month extension of OPT.
Duration: Student status will be valid as long as the student is in full time study; part-time study may be sufficient in very limited circumstances.
Family: Family members may accompany the student in F-2status. F-2 status does not permit employment.
J Status for Students
J-1 status is less common than the F-1, but is still available to students who wish to study in the U.S. J-1 students may work on or off campus if there is an unexpected financial hardship. Employment is limited to 20 hours per week while school is in session or full time when school is not in session.
Academic training: J-1s may receive up to 18 months of academic training (36 months if postdoctoral research). A J-1 need not apply for an employment authorization document, but rather is authorized to work based on a letter from the program sponsor (called the “designated school official” or DSO) that certifies that the employment is related to the degree.
Duration: Student status will be valid for the duration of the student’s participation in the J program.
Family: Family members may accompany the student in J-2 status. J-2 status holders are permitted to seek work authorization from the USCIS and can work when an employment card is received.
Training Visas: J-1, H-3, and B-1
J-1 trainee status can be obtained through an international exchange program authorized by the Department of State. This category allows the trainee to work for a U.S. firm and engage in productive employment as part of training for up to 18 months. Unlike many of the other visa options, the spouse of the J-1 trainee can be granted work authorization. For more information about J-1 click here.
An H-3 training visa requires a detailed training curriculum set up by the employer. This visa allows the trainee to engage in productive employment only if it is incidental to the training. The H-3 is valid with extensions for up to two years. We provide specialized immigration law advice to establish and present the best case for approval for an H-3 training program. Spouses and children (under age 21) can enter in H-4 status but cannot work.
A B-1 visa can be used for short term training of less than one year. The trainee must be an employee of a foreign company. The employee must be compensated (except for expenses) by the foreign firm. Spouses and children of B-1 trainees can accompany the trainee but cannot work in the United States.