B Visa Category
The B visa is the most often used nonimmigrant visa. There are two types of B visas: B-1 visas for business visitors, and B-2 visas for pleasure.
B-1 business visitor category
The B-1 business visitor category is available to applicants who can demonstrate that they:
1.have no intention of abandoning their residence abroad, and
2.are visiting the U.S. temporarily for business.
A B-1 visa can often be extended for up to a year, but most B-1 admissions are approved for just the period necessary to conduct business. In other words, B-1 applicants are commonly granted between 3 and 6 months, but can receive a 6 month extension upon proper filing of an extension application.
Upon entering the U.S., business visitors are limited in the activities in which they are permitted to engage. B-1 visa holders must not engage in productive employment in the U.S, and any work done in the U.S. must be performed on behalf of a foreign employer and paid for by the foreign employer.
Clients who are interested in investor visas often can enter the U.S. on a B-1 visa, if an appropriate invitation letter is provided by the U.S. based seller or investment company.
B-2 pleasure visitor category
The B-2 visa is primarily for tourists (however, a B-2 visa also covers such purposes as visits to relatives or friends, visits for health reasons, participation in conferences, participation in incidental or short courses of study and participation in amateur arts and entertainment events). The B-2 visa applicant must show sufficient ties in their home country and enough income to afford the stay in the U.S., and a residence in their home country which they will not abandon. Spouses and children must independently apply, and time granted is usually 6 months with an option to extend the visa for another 6 months.
Generally speaking, an applicant’s chances for getting a visa will be improved if the planned trip is short, the itinerary is clearly listed, the applicant can easily prove he or she has the money to pay for the trip, and the applicant has a job at home and can show that the time away has been approved by the employer. Retirees will have a better chance if they can show strong family and economic ties to the home country and finances to support the trip. Of course, in all cases the home country makes a big difference. The lower the visa overstay rate for nationals of a particular country, the better the chances overall that the application will be approved.
B visa holders can change their status upon entering the U.S., but any change within 30 days of entering the U.S. could be interpreted by US CIS as having had intent to mislead US CIS when entering the country.
E-1/E-2 Treaty Trader/Investor Visas
Our firm travels to numerous countries presenting conferences entitled “Investing and Living in the United States.” These conferences are presented to business groups and associations where we provide specific instructions on the process for the E-1, E-2, and EB-5 applications.
An investor can create a new business or buy an existing business in the United States with a minimum investment of about $75,000, and the investor (and family) can live in the United States as long as the business is active. The United States signs treaties with other countries designed to promote trade and investment between the U.S. and the Treaty Country.
E-visas come in two types: an E-1 treaty trader visa is set aside for companies that trade goods and services with the United States, while the E-2 investor visa is for an individual or enterprise that invests a substantial amount of funds in the United States with the prospect of job creation.
The E-visa may be used by companies owned by a single investor, as well as by large multinational companies. In addition, once an E visa is approved, it is also available to key foreign personnel to work for the E company as specialty workers. The visa is valid indefinitely (or as long as the applicant is maintaining his or her investments or trade) and may be renewed, generally, in 2 year or 5 year increments. In order to qualify for E-1 or E-2 status, the U.S. must have a treaty with the home country of the foreign national.
E-1 Treaty Trader
The E-1 classification is available if trade of a substantial nature occurs principally between the United States and the alien’s country of nationality. The trade must include international exchange of items between the U.S. and a treaty country.
For an E-1 visa, the trade between the U.S. and Treaty country must be substantial. The majority of trade conducted by the E-1 visa holder must be between the United States and the treaty country of which the E-1 visa holder is a national. The E-1 alien employer must be an enterprise or organization owned by persons having the nationality of the treaty country (E-1 holder must own at least 50% of the company). In addition, if the applicant is not the principal trader, then the alien must be employed in a supervisory or executive capacity, or possesses special qualifications that make the alien’s services essential to the successful and efficient operation of the enterprise. Finally, the employee must have the same nationality as the E-1 visa owner.
E-2 Investment Visas
The E-2 visa is for investors, employees, executives, supervisors and essential employees. As an investor, the foreign national applicant must purchase an existing business/enterprise, invest into an existing business/enterprise or invest into a new business/enterprise. There is no restriction on the type of business as long as it is not considered a passive business such as ownership of stock, bonds, land etc.
The E-2 applicant must own at least 50% of the business and must invest a “substantial” amount of capital into the investment. To qualify for an E-2 investor visa, the applicant must develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital. The applicant must be a foreign national of a country that has a qualifying treaty with the United States.
The E-2 investment visa may be filed directly at the consulate or embassy of the applicant without the prior approval of the US CIS, or can be filed while the applicant is in the United States. An E-2 visa may be approved in a few weeks if the applicant is filing under premium processing in the United States. The spouse of the E-2 visa holder is entitled to an employment authorization card which allows the spouse to work legally in the United States. The E-2 visa is usually extended every five years, and the visa can be extended indefinitely as long as the business is ongoing.
Employee of E-2 Investor
The Employee must be of the same nationality of the E-2 investor. If the applicant is not the principal investor, they must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise.
E-3 Visas for Work- Australians Only
Only citizens of Australia are eligible for the E-3 visa. E-3 visa holders will enter the U.S. temporarily to perform services in a “specialty occupation”. The E-3 visa allows Australians to avoid any H-1B cap issues; however, it has a 10,500 per year limit. A specialty occupation is defined in the H-1B category. E-3 visas are valid in increments of two years but can be renewed indefinitely, and spouses (similar to the E and L visas) can obtain work authorization.
As of right now, there are 65,000 H-1Bs available per fiscal year, with an additional 20,000 available for applicants with a U.S. master’s degree. (There are some non-profit, government and education sector jobs that are exempt from the fiscal year cap.) An applicant must have a 4 year bachelor’s degree or 3 years of experience in the specialty field for every year the applicant is lacking college education. For example, if the applicant has two years of college and 6 years of work experience in the specialty field, the applicant qualifies as long the job title is consistent with the applicant’s experience. A specialty occupation must consist of the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. Typical positions include law, accounting, engineering, architecture, mathematics, physical sciences, business specialties, theology and the arts.
An employer can file an H-1B application 180 days in advance of the start date. Applicants who are seeking an amendment, extension or transfer of their current H-1B visa are not subject to the cap.
An H-1B holder is allowed to have a dual intent (i.e. they can intend to remain permanently in the U.S.). An H-1B can be granted for up to 6 years, and if one full year passes while the applicant is out of the U.S., the applicant can be granted another 6 year H-1B period.
If the H-1B holder has applied for permanent residency through employment, they can extend their H-1B in one year increments if:
one year (365 days) or more have passed since the filing of their labor certification (perm), or
365 days or more have passed since the filing of their I-140 immigrant visa petition
H-1B portability means that an H-1B worker can start working for the new employer upon filing the new H-1B application (they do not need to wait for the approval).
H-2A Agricultural Visas
The H-2A agricultural visa is a temporary visa for applicants who come to work for seasonal agricultural labor or services. An agriculture company or employer (or authorized agent) can file the H-2A visa applications if they foresee a shortage of U.S. workers needed to perform temporary or seasonal agricultural labor or services.
The H-2A visas are issued for one year and extensions are available for up to one year (H-2A visa holders cannot exceed a 3 year stay). After the 3 years, the H-2A visa holder must leave the country for a minimum of 6 months.
H-2B Temporary Visas
H-2B visa applicants are eligible to fill jobs that are seasonal, one-time occurrences and peak load or intermittent jobs; the time table for the employment must be for less than one year. In addition, there must be no qualified, willing or able U.S. Citizen or Lawful Permanent Resident workers that can perform the job. Skilled or unskilled workers may be employed on an H-2B visa and the numerical limitation is presently 66,000 split over a year time period (33,000 every 6 months).
H-3 visa applicants are eligible for U.S. training which is unavailable in their home country in any field of endeavor except graduate medical training. There is no dual intent allowed for H-3 visa holders.
The employer must show that the work to be done as part of the training is not part of the normal operation of business which would ordinarily be filled by a U.S. worker and that it does not constitute employment. The purpose of the applicant’s training must be to enable the alien to gain skills that can be used to further their career in the home country.
Dependants of H-1B and H-3 applicants (Spouse and all children under 21 years of age).
J-1 Educational and Cultural Exchange Visa
J-1 applicants enter the U.S. to participate in an approved educational, training or cultural program. A J-1 visa can be used to teach, instruct, lecture, study, observe, conduct research, consult, demonstrate special skills, or receive training. Each applicant must be sponsored by an organization designated by the State Department to sponsor J-1 exchange visitors. Each organization that sponsors J visa applicants will have specific rules that will coincide with their program. The J-1 applicant should be aware of the possibility of the two-year foreign residency requirement which mandates that applicants return to their home country for a minimum of 2 years. There are available waivers; however, depending on the situation and home country, the waivers can be difficult to obtain. Often, clients do not even know they are subject to the 2 year home residency requirement. We always recommend that the J applicant check with the sponsoring company to obtain clarification regarding the waiver issue.
L-1 Multi-National Executives
The L-1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers enter the U.S. as intra-company transferees who are entering temporarily to perform services either in a managerial or executive capacity (L-1A) or which entail specialized knowledge (L-1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad. The employee is required to have been employed abroad by the foreign company (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify for the L category. The salary level is not prescribed, but the U.S. income must be sufficient to prevent the alien from becoming a public charge. The maximum period of admission for managers and executives is seven years, with a five-year limit for the specialized knowledge category. Once the L visa is obtained, the applicant may apply for permanent resident status as a first preference multinational manager.
Dependents (spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status. Dependent children may be students in the U.S. while remaining in L-2 status, and dependent spouses can receive an Employment Authorization Document, which allows them to work in the U.S.
L-1 Blanket Petition
Companies can transfer a number of foreign employees on short notice as the L-1 blanket petition regulations permit intra-company transferees to apply for L-1 visas directly at U.S. consular facilities abroad without the prior approval by USCIS of an individual petition. To be qualified as a Blanket L-1 petitioner, the petitioner must meet the following requirements:
The petitioner and each of the qualifying entities are engaged in commercial trade or services;
The petitioner has an office in the US that has been doing business for one year or more;
The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
The petitioner and the other qualifying organization have obtained approval of petitions for at least 10 “L” managers, executives, or a specialized knowledge professional during the previous 12 months; or the U.S. Company had sales of at least a million dollars; or has a U.S. work force of at least 1,000 employees.
Canadian citizens may apply directly at a Class A port of entry for L-1 status based on an approved blanket petition by presenting the same documentation as is required for a consular application.
O Extraordinary Ability Temporary Visa
O-1 Temporary Visas are available to applicants of “extraordinary ability” in the fields of sciences, arts, education, business or athletics. This category is quite broad and can be appropriate for such diverse applicants as cutting-edge scientific researchers, professors, innovative corporate executives, jazz musicians, judo instructors, graphic designers, art directors, silk screen artists, gymnastics coaches, and computer software specialists – as long as the applicants can show their extraordinary ability in their respective field. The burden of proof is on the petitioner (O-1 visa applicant); however, there are many creative ways in which to prove extraordinary ability.
Individuals seeking this visa must be able to demonstrate their extraordinary ability through documentation of sustained national or international acclaim in their field. O-1 petitions have a higher success rate if a beneficiary has received national or international awards, has a record of press reports about their work, authored writings in publications, made original contributions to their field, worked for companies, organizations or on projects with a distinguished reputation, earns a high salary or has other recognized achievements in their field.
In order to qualify for an O-1 visa in the motion picture or television industry, the applicant must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field. Moreover, the O applicant must be coming to the U.S. to work in his or her area of extraordinary ability or achievement.
Those individuals who can qualify for the O-1 Temporary visa can usually also meet the legal standard for the corresponding immigrant classification, the EB-1 (extraordinary ability).
P Visa for Athletes and Entertainers
Applicants who perform in athletics or entertainment are eligible for the P visa.
Entertainers are often part of an entertainment group which must be internationally recognized. Similarly, athletic teams or individual athletes must have achieved some kind of international recognition. In addition, essential support personnel for both entertainers and athletes are provided P-3 visas.
Q-1 International Cultural Exchange Visa
This visa is for applicants who will participate in an international cultural exchange program. The Q-1 visa allows the foreign national to engage in practical training and employment which is related to sharing the history, culture and traditions of their home country. The visa is granted for no more than 15 months and the time period is based on the length of the program.
R Visas for Religious Ministers and Workers
R-1 visas are available for religious workers who will work for a religious organization or an affiliate for no more than 5 years. Thereafter, if the R-1 applicant is outside the U.S. for a full year, they can receive an additional 5 years on an R-1 visa.
R-2 visas are issued to spouses and children of R-1 non-immigrants, and they are not allowed to work under R-2 status.
TN Visas (Canada/Mexico)
The North American Free Trade Agreement (NAFTA) gives an additional visa option to Canadian and Mexican nationals. The criteria is that the employee must engage in “activities at a professional level” which require a bachelor’s degree or credentials and experience demonstrating that the person is a professional. (Government regulations list which professions qualify for TN status)
For Canadians, TN visas can be obtained at a preflight inspection, are not restricted by an annual cap, and can be renewed indefinitely. However, there is no dual intent allowed for a TN visa.
Spouses and children of TN visa holders are given TD visas. Work is not authorized for TD visa holders, but TD visa holders may attend school.
Visa Waiver Program
Certain nationals of countries are allowed to visit for up to 90 days without having to obtain the B-2 visa, however, there are severe restrictions in changing status inside the U.S. when entering under the Visa Waiver Program.