Devendorf Law has extensive experience providing nonimmigrant visa strategies to facilitate temporary employment and business assignments across the United States. While not exhaustive, below are some of the most commonly utilized nonimmigrant visa classifications.
B-1/B-2 Temporary Visitor for Business or Tourism
Individuals may enter the United States for legitimate business visitor activities associated with international trade or commerce, however, B-1 business visitors are not authorized to engage in productive employment in the United States. Permissible activities may include attending business meetings, conferences or seminars; soliciting sales, negotiating contracts, or taking orders from established customers for work that will be performed outside of the United States; purchasing goods, components, or raw materials for use outside of the United States; performing activities in conjunction with litigation; setting up investments in the United States; and others. Individuals entering the United States in B-1 business visitor status should remain on the foreign employer's payroll in the home country and cannot receive remuneration from a United States source, other than reimbursement for incidental expenses. Moreover, the principal benefit of the B-1 business visitor's activities in the United States must accrue to the individual's employer abroad. B-1 business visitors are typically admitted for periods of 30 to 90 days, although some may be admitted for a maximum period of up to six months. Prolonged business visits may create a presumption that a B-1 business visitor is engaged in unauthorized productive employment in the United States. B-1 business visitors must maintain a foreign residence abroad to which the individuals intends to return at the end of the authorized period of stay (“nonimmigrant intent”).
Visa Wavier Program: Individuals from 38 countries may be eligible to enter the United States for legitimate business visitor or tourism activities for a period of up to 90 days without requiring a B-1/B-2 visa. Visa Waiver Program countries include Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
E-1 Treaty Trader
The E-1 treaty trader classification is for individuals and companies engaged in substantial trade between the United States and the qualifying treaty country. An employer must demonstrate that the United States business has created substantial trade between the United States and the treaty country before employees may qualify for the E-1 trader treaty classification. Moreover, non-U.S. resident nationals of the treaty county must ultimately own at least 50% of the United States entity.
E-1 treaty trader countries include: Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, Chile, Colombia, Costa Rica, Denmark (does not include Faroe Islands or Greenland), Estonia, Ethiopia, Finland, France (includes Martinique, Guadeloupe, French Guiana and Reunion), Germany, Greece, Honduras, Ireland, Israel, Italy, Japan (includes Bonin and Ryukyu Islands), Jordan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands (includes Aruba and Netherlands Antilles), New Zealand, Norway (does not include Svalbard), Oman, Pakistan, Paraguay, Philippines, Poland, Singapore, Spain (applies to all territories), Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, United Kingdom (applies only to British territories in Europe), and Yugoslavia (valid for new Republics that arose out of former Yugoslavia). Iran is also a treaty trader country, but the treaty is inoperative due to the Executive Order preventing trade with Iran.
E-2 Treaty Investor
The E-2 treaty investor classification is for individuals seeking to work in the United States in furtherance of a substantial, at-risk investment in a United States-based enterprise made by individuals or businesses that are citizens of a treaty country. An employer must demonstrate that a substantial investment in the United States enterprise has been made by individuals or companies that are citizens of the treaty country. Whether or not the actual amount invested is substantial depends on the type of business and may be based on a variety of other factors. The investment may not be made solely for the purpose of earning a living (i.e., “marginal”). As with the E-1 treaty trader classification, non-U.S. resident nationals of the treaty county must ultimately own at least 50% of the United States entity in order to qualify for E-2 treaty investor nonimmigrant status.
E-2 treaty investor countries include: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo (Brazzaville), Congo (Democratic Republic of), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France (includes Martinique, Guadeloupe, French Guiana and Reunion), Georgia, Germany, Grenada, Honduras, Iran, Ireland, Israel, Italy, Jamaica, Japan (includes Bonin and Ryukyu Islands), Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands (includes Aruba and Netherlands Antilles), New Zealand, Norway (does not include Svalbard), Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Spain (applies to all territories), Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom (applies only to British territories in Europe), and Yugoslavia (valid for new Republics that arose out of former Yugoslavia).
E-3 Australian Specialty Occupation
The E-3 Australian specialty occupation category is for Australian citizens coming to the United States to work in a “specialty occupation.” A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge, and one that requires a bachelor's degree or higher (or its equivalent) in that specialty as a minimum qualification for entry into the occupation. This is the same legal standard that applies to eligibility for H-1B nonimmigrant status. The E-3 Australian specialty occupation classification shares a number of similarities to the H-1B classification. There is an annual numerical cap of 10,500 E-3 Australian specialty occupation nonimmigrant visas available each fiscal year. Individuals may hold E-3 nonimmigrant status in increments of up to two years and E-3 nonimmigrant status may be renewed indefinitely.
The F-1 student classification allows individuals to come to the United States in order to enroll in and pursue an academic educational program or language-training program. The primary purpose of the F-1 student classification is academic study, however, there are circumstances under which an F-1 student may obtain United States work authorization during the course of the academic program (e.g., Curricular Practical Training, pre-completion Optional Practical Training, on-campus employment, etc.) or in the immediate period following completion of the academic program (e.g., post-completion Optional Practical Training). Individuals who have completed a qualifying Science, Technology, Engineering or Mathematics (“STEM”) academic program may be eligible to apply for an additional 24-month period of post-completion Optional Practical Training under certain circumstances.
H-1B Specialty Occupation
The H-1B specialty occupation category allows individuals coming to the United States to work in a “specialty occupation.” A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's degree or higher (or its equivalent) in that specialty as a minimum qualification for entry into the occupation. The H-1B specialty occupation classification allows individuals to work for a specific petitioning employer. The H-1B specialty occupation classification is subject to an annual numerical quota of 65,000 visas for individuals holding a bachelor's degree or higher (or its equivalent) and 20,000 for individuals holding an advanced degree from a qualifying United States university, college or educational institution. Individuals may hold H-1B nonimmigrant status in increments of up to three years and are permitted a total period of six years in H-1B nonimmigrant status. Under provisions of the American Competitiveness in the Twenty-First Century Act (“AC21”), there are circumstances where individuals may qualify for H-1B nonimmigrant status beyond the six-year “maximum” period. The H-1B specialty occupation is among the most heavily regulated and nuanced areas of United States immigration law and, as such, it is strongly advisable that an employer consult with competent legal counsel in order to understand the obligations and responsibilities that attach to this nonimmigrant classification. Moreover, the H-1B specialty occupation is a "dual intent" classification, meaning that an individual in H-1B nonimmigrant status may intend to pursue permanent resident status.
H-1B1 Specialty Occupation for Citizens of Chile and Singapore
The H-1B1 specialty occupation allows individuals who are citizens of either Chile or Singapore to come to the United States to work in a “specialty occupation.” The definition of specialty occupation mirrors that of the H-1B specialty occupation classification, however, there are a number of distinctions with respect to the rights, obligations and processes of the H-1B1 nonimmigrant classification. The H-1B1 nonimmigrant classification allocates 1,400 visas for citizens of Chile and 5,400 visas for citizens of Singapore annually.
The H-3 trainee classification allows trainees and special education exchange visitors to come temporarily to the United States to receive training that will benefit them in pursuing a career in their field of endeavor outside of the United States.
I-Visa for Representatives of Foreign Media
The I-visa classification allows representatives of foreign media outlets with a home office in a foreign country to work in the United States where the individual’s activities are essential to the function of the foreign media organization. Occupations under this category typically include reporters, film crews, editors, radio personnel and similar occupations.
J-1 Exchange Visitor
The J-1 exchange visitor classification is available to individuals who will participate in a recognized international work, training or study-based exchange program. The J-1 exchange visitor classification is designed to promote cultural and educational exchange between the United States and other countries. There are various types of J-1 exchange programs, including programs for Professors and Research Scholars, Short-term Scholars, Trainees, College or University Students, Teachers, Secondary School Students, Graduate Medical Education or Training, International and Government Visitors, Camp Counselors, Summer Work/Travel Students and Au Pairs. Moreover, the duration of an individual’s period of authorized stay may vary significantly depending on the nature and terms of the J-1 exchange program.
L-1 Intracompany Transferee
The L-1 intracompany transferee classification permits individuals who, within the preceding three year period, have been employed outside of the United States for one full, continuous year in a managerial, executive or specialized knowledge capacity with a parent, subsidiary, affiliate or branch of the United States employer to work in the United States in a managerial, executive or specialized knowledge capacity. United States employers with frequent use of the L-1 intracompany transferee classification may also be eligible to submit a Blanket L petition with United States Citizenship and Immigration Services (“USCIS”) to facilitate the transfer of L-1 intercompany transferees. Individuals working in the United States in a managerial or executive capacity may hold L-1A nonimmigrant status for an initial period of up to three years with the possibility of extensions (in two year increments) for up to seven years of total L-1A nonimmigrant status. Individuals working in the United States in a specialized knowledge capacity may be granted L-1B nonimmigrant status for an initial period of up to three years with the possibility of extensions for up to five years of total L-1B nonimmigrant status. Moreover, the L-1 intracompany transferee is a "dual intent" classification, meaning that an individual in L-1 nonimmigrant status may intend to pursue permanent resident status.
O-1 Individual of Extraordinary Ability
The O-1 extraordinary ability classification is available to individuals who have risen to the top of their field of endeavor in the arts, athletics, business, education, or science. An individual must demonstrate sustained national or international acclaim through the submission of extensive documentation of the individual’s achievements and recognition in the field of endeavor. Individuals in the television and motion picture industries must meet a slightly different legal standard and show a record of extraordinary achievement. Individuals in the arts must demonstrate “distinction” and “prominence” in the field as evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The petitioning employer must submit evidence that the prospective employee satisfies the O-1 regulatory criteria, that the position offered requires an individual of extraordinary ability, and that the individual is coming to the United States to continue to work in the area of extraordinary ability. O-1 nonimmigrant status may be granted for an initial period of up to three years, and it may be renewed indefinitely in increments of one year.
P-1 Internationally Recognized Athletes, Artists or Entertainers
The P-1 nonimmigrant classification allows individuals who are internationally recognized athletes, artists, or members of a team or group to compete or perform in the United States. The P-2 nonimmigrant classification encompasses individuals who are temporarily coming to the United States to perform as an artist or entertainer, individually or as part of a group, under a reciprocal exchange program between an organization in the United States and an organization in another country. The P-3 visa classification applies to an individual who is coming temporarily to the United States to perform, teach, or coach, individually or as part of a group, an art form that is culturally unique. In addition, the P-1S, P-2S, or P-3S nonimmigrant classifications are available to essential support personnel who are highly skilled individuals coming to the United States temporarily as an essential and integral part of the competition or performance of a principal P-1, P-2, or P-3 nonimmigrant.
R-1 Religious Worker
The R-1 religious worker classification is available to individuals coming to the United States to work temporarily at a not-for-profit religious organization as a minister or in a religious vocation or occupation. To qualify as a minister, an individual must be fully authorized and trained to conduct religious worship according to the particular religious denomination. A religious occupation is an activity that relates to a traditional religious function. Furthermore, a religious vocation is associated with a formal, lifetime commitment to the religion as may be taken by a nun or a monk.
TN-1 Canadian NAFTA Professional
The North American Free Trade Agreement (“NAFTA”) permits Canadian citizens to temporarily work in the United States in a specified professional occupation. The NAFTA treaty between the United States, Canada and Mexico enumerates the specific professional occupations that will qualify for the TN-1 nonimmigrant classification. Employers may submit a petition for TN-1 nonimmigrant status directly to United States Citizenship and Immigration Services (“USCIS”) or the sponsored individual may lodge the petition at a United States-Canada land border crossing or approved Class A port of entry (e.g., preflight inspection). Individuals may be approved for TN-1 nonimmigrant status in increments of up to three years for an indefinite period of time provided the individual continues to satisfy the requirements of the TN-1 nonimmigrant classification.
TN-2 Mexican NAFTA Professional
The North American Free Trade Agreement (“NAFTA”) also permits Mexican citizens to temporarily work in the United States in a specified professional occupation. The NAFTA treaty between the United States, Canada and Mexico enumerates the specific professional occupations that will qualify for the TN-2 nonimmigrant classification. Individuals seeking TN-2 nonimmigrant status from outside of the United States must lodge the petition at a United States Embassy or Consulate abroad. For individuals already in the United States in TN-2 nonimmigrant status or seeking to change from another nonimmigrant status to the TN-2 nonimmigrant classification, an employer has the additional option of submitting a petition for TN-2 nonimmigrant status directly United States Citizenship and Immigration Services (“USCIS”). Individuals may be approved for TN-2 nonimmigrant status in increments of up to three years for an indefinite period of time provided the individual continues to satisfy the requirements of the TN-2 nonimmigrant classification.