The H-1B visa allows foreign nationals to work temporarily in the U.S. in a specialty occupation.  The H-1B is commonly used as the first step towards permanent immigration to the U.S.

Qualifications and Application Process

To qualify for an H-1B visa, the foreign national must have completed his or her bachelor’s degree from a U.S. institution or an equivalent and be sponsored by a U.S. employer.  The occupation must also be considered a “specialty occupation,” such as an engineer, accountant, or architect.

There are 3 steps involved in obtaining H-1B visa status: (1) a Labor Condition Application (LCA) that is filed with the U.S. Department of Labor (DOL); (2) an H-1B visa petition that is filed with the U.S. Citizenship and Immigration Services (USCIS); and (3) an appearance at the U.S. consulate, which is required in some H-1B visa applications.

H-1B status is typically granted for a period of 3 years and can be extended for an additional 3 years.  Extensions beyond 6 years are available to employees who spend less than half their time in the U.S., or who remain outside the U.S. for more than 1 year. Extensions beyond 6 years are also available to an employee who has applied for permanent resident status before the end of his or her fifth year in H-1B visa status.

Annual Limit and Exemptions

There is currently an annual limit or “cap” on the number of employees who can be granted H-1B status.  Accordingly, H-1B status becomes unavailable for months at a time during a given year.  Foreign students and first-time H-1B applicants are most affected by the “cap.”

The annual limit does not apply to (1) individuals who already have H-1B status and are seeking an extension of stay; (2) individuals who already have H-1B status and are seeking to change employers; (3) individuals seeking to work for an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization; or (4) physicians seeking H-1B status to work in a medically underserved area.

The Spouse and Minor Children of H-1B Employees

The H-1B employee may be accompanied by his or her spouse and any unmarried children under age 21 in H-4 dependent status.  In order to legally work in the U.S., H-4 dependents must independently qualify for a work visa.  H-4 dependents are permitted to attend school while in the U.S.

The H-1B1 visa resembles the H-1B visa, but is reserved for foreign nationals of Chile and Singapore.  This category was created as a result of the Free Trade Agreements between the U.S. and Chile and between the U.S. and Singapore.

To qualify for an H-1B1 classification, the applicant must be a citizen of Chile or Singapore and must possess a bachelor’s degree from a U.S. institution.  The applicant must also be sponsored by a U.S. employer for a job requiring a bachelor’s degree or its equivalent.

The H-1B1 employee may be accompanied by his or her spouse and unmarried children under age 21 in H-4 dependent status.  In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa.  H-4 dependents are permitted to attend school while in the U.S.

The H-2A visa allows foreign nationals to enter the U.S. for up to a year to perform agricultural labor or services that are temporary or seasonal and where there is a shortage of U.S. workers.  This visa is reserved for foreign nationals from certain countries.  The U.S. employer must submit a temporary labor certification to the Department of Labor (DOL) demonstrating a shortage of U.S. workers after a recruitment period has been completed.

The spouse and unmarried children under age 21 are allowed to accompany the H-2A employee in H-4 dependent status. In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa.  H-4 dependents are permitted to attend school while in the U.S.

The H-2B visa allows foreign nationals to enter the U.S. for up to a year to provide temporary non-agricultural services. The U.S. employer’s need for the service or labor should be a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.  The H-2B visa requires a U.S. employer to submit a temporary labor certification to the Department of Labor (DOL) demonstrating a shortage of U.S. workers after a recruitment period has been completed.

This visa may also be an alternative visa for foreign nationals who may qualify for an O or P visa, but were unable to obtain one.

The spouse and unmarried children under age 21 are allowed to accompany the H-2B employee in H-4 dependent status. In order to work legally in the U.S., H-4 dependents must independently qualify for a work visa.  H-4 dependents are permitted to attend school while in the U.S.

The H-3 visa allows foreign nationals to remain in the U.S. for up to 2 years as a trainee in any field except graduate medical education or medical residency.

To qualify for the visa, the applicant must demonstrate an intent to depart the U.S. at the completion of the training.  The sponsoring employer must establish that

• the proposed training is not available in the foreign national's home country;
• confirm that the foreign national will not be placed in a position regularly held by a U.S. worker;
• and demonstrate that the training will provide the trainee with the additional skills needed for employment in his or her home country.

The trainee is not permitted to engage in any productive employment in the U.S other than employment that is strictly incidental to the training.

The spouse and unmarried children under age 21 are allowed to accompany the trainee in H-4 dependent status. H-4 dependents cannot work unless they independently qualify for a work visa. H-4 dependents are permitted to attend school while in the U.S.

The L-1 visa allows existing employees of multinational employers to transfer employees to the U.S. from affiliated companies or offices outside the U.S.  Unlike the H-1B visa, the L-1 is not subject to an annual limitation or “cap.”

To qualify for an L-1 visa, the applicant must have worked for the employer abroad for at least 1 year within the past 3 years before assuming temporary U.S. employment in either an executive/managerial (L-1A) or a specialized knowledge (L-1B) capacity.

The U.S. entity of the employer must have a parent, subsidiary, affiliate, branch, or 50-50 joint venture relationship with the entity abroad from which the employee is transferring.

Application Process and Extensions

Sponsoring U.S. employers must first petition approval for L-1 employees from the U.S. Citizenship and Immigration Services (USCIS) in the U.S. and obtain approval before the employee can obtain an L-1 visa or change to L-1 from another visa status.

Once approved, the employee may apply for an L-1 visa at a U.S. consulate abroad. Employees apply for either an L-1A (Executives and Managers) or an L-1B (Persons Holding Highly Specialized Knowledge) visa.

The U.S. government has established an expedited L-1 program for certain large-scale, high-mobility organizations regularly transferring employees to the U.S. as part of their ongoing multinational operations.  The expedited program allows individual employees to skip the petitioning process and apply directly with the U.S. consulate.

The maximum initial duration of an L-1 visa is typically 3 years from the time of arrival to the U.S., or 1 year if the sponsoring company has had a U.S. presence of less than 1 year.  2 year extensions are available for L employees, with maximum stays capped at 7 years for L-1A visas for managers and executives and 5 years for L-1B visas for specialized knowledge employees.

The spouse and unmarried children under age 21 of an L-1 employee can acquire L-2 dependent status.  The L-2 spouse may also apply for separate work authorization upon arrival in the U.S., but children in L-2 status are not authorized to work.

O-1

The O-1 visa allows foreign nationals who have reached the top of their field by achieving national or international acclaim in their particular area to temporarily enter the U.S.  The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business, or athletics.  The O-1B visa is for individuals with an extraordinary ability in the arts, or extraordinary achievement in the motion picture or television industry.

Applicants can prove that they possess the requisite “extraordinary ability” by being the recipient of an internationally recognized award (Nobel Prize or Academy Award) or by extensive documentation of their achievements and recognition.

O-2

The O-2 visa allows individuals assisting in the artistic or athletic performance by an O-1 to temporarily enter the U.S. if they possess critical skills and experience with the O-1 applicant.

O visas require a written advisory opinion from an appropriate institution describing the beneficiary’s ability and achievements in the field as well as the duties to be performed.

The O visa is often used as an alternative to other nonimmigrant visas, including the H-1B visa, because the O status can be extended almost indefinitely and is not subject to a “cap.”  Moreover, the October 1 start date for for-profit petitioners and the “prevailing wage” requirement does not apply to O visas.

The P visa allows performers and performing groups to temporarily enter the U.S.  This classification includes 3 subcategories: (1) P-1 internationally-known or entertainment group athletes (either individuals or members of a group or team); (2) P-2 individual and group performing artists participating in a reciprocal exchange program; and (3) P-3 culturally unique artists and support personnel for primary P visa holders.

P-1

P-1 athlete applicants must have received international recognition, either individually or as a team.  The applicant(s) must demonstrate a high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

P-1 entertainer applicants must belong to an entertainment group that has received sustained international recognition for a substantial period of time, and each member must have had a relationship with the group for more than a year, with some exceptions.

P-2

To obtain a P-2 visa, a labor union must be involved in establishing (or acknowledging the validity of) the exchange program between the U.S. and the foreign country in which the applicant participates.

P-3

P-3 visas allow individuals to temporarily enter the U.S. to develop, interpret, represent, coach, or teach an art or discipline that can be classified as a culturally unique style of artistic expression, methodology, or medium that is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group. Essential support personnel do not perform and cannot work apart from principal Ps, but provide highly skilled essential services that are integral to a performance and cannot readily be provided by a U.S. employee.

The R-1 visa allows religious workers to temporarily enter the U.S. to work with a U.S. non-profit organization (or an organization which is affiliated with the religious denomination in the U.S.) as a minister or person in a religious vocation or occupation. Liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, religious broadcasters, ministers, nuns, monks, and religious brothers and sisters are examples of religious workers.

R-1 visas are typically issued by a U.S. Embassy or consular Office. R-1 visa applicants must demonstrate that they intend on leaving the U.S. at the end of their R-1 visa status.

The spouse and unmarried children under age 21 are allowed to accompany an R-1 religious worker in R-2 dependent status.  R-2 dependents are not authorized to legally work in the U.S., but may attend school.

The TN visa allows Canadian and Mexican citizens to temporarily enter the U.S. for employment in certain professions. With a few exceptions, a bachelor’s level degree or a professional license is the minimum qualification necessary for obtaining TN status. In addition, a job offer must be made by a U.S. employer and be classified as a professional occupation as defined in the NAFTA Treaty. The TN status is granted for up to 3 years and can be renewed indefinitely in 3 year increments.

The spouse and unmarried children of a TN employee are allowed to accompany the employee in TD dependent status.  TD dependents are not permitted to work but they may attend school.

Canadian and Mexican Citizens Present in the U.S.

A Canadian or Mexican citizen already in the U.S. can apply for a TN visa with a U.S. Citizenship and Immigration Services (USCIS) Service Center.  Processing times are similar to H-1B processing times.

Canadian and Mexican Citizens Outside the U.S.

A Canadian citizen seeking TN status can apply directly to a U.S. immigration inspector at a U.S. port-of-entry (either land border or pre-flight inspection at a designated airport in Canada).  The application is typically processed within one or two hours, after which the person can enter the U.S. and commence employment.

A Mexican citizen located outside of the U.S. must apply for a TN visa at a U.S. consulate abroad.