Temporary NonImmigrant Work Visas

This visa category applies to people who wish to perform services in a specialty occupation, or services of exceptional merit and ability.

Eligibility Criteria – General Requirements

The job must meet one of the following criteria to qualify as a specialty occupation:

• Bachelor’s degree or higher degree or its equivalent, is normally the minimum entry requirement for the position requested.  The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
• The employer normally requires a degree or its equivalent for the position.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

In order for you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

• Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
• Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  
• Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Period of Stay

As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period maybe extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

H-1B Cap

The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Family of H-1B Visa Holders

Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs for which U.S. workers are not available. H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. A U.S. employer (or an association of U.S. agricultural producers named as a joint employer) must file a Form I-129, Petition for Nonimmigrant Worker on a prospective worker’s behalf.

To qualify for H-2A nonimmigrant classification:

• The job offered must be of a temporary or seasonal nature.
  
• The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
  
• The employer must show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  
• Generally, a single, valid temporary labor certification from the U.S. Department of Labor must be submitted with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details). 
  

H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program. The list of H-2A eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2A list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

Period of Stay

Generally, USCIS may grant H-2A classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H-2A classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2A classification is three (3) years.

An individual who has held H-2A nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2A nonimmigrant. See 8 CFR 214.2(h)(5)(viii)(C) for further details regarding departure requirements.

Family of H-2A Workers

Any spouse and unmarried children under 21 years of age of an H-2A worker may seek admission in H-4 nonimmigrant classification. Family members in H-4 nonimmigrant classification may not engage in employment in the United States.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

To qualify for H-2B nonimmigrant classification:

• The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
  
• The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;
  
• The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
  
• Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

L-1 INTRACOMPANY TRANSFEREE EXECUTIVE OR MANAGER

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.

The following describes some of the features and requirements of the L-1 nonimmigrant visa program.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
  
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
  

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  
• Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.
  

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.

The P-1 classification applies to you if you are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

Individual Athletes Eligibility Criteria

If you are an individual, you must be coming to the United States to participate in individual event, competition or performance in which you are internationally recognized with a high level of achievement.

If you are coming as a team member, you must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which your team is participating must be distinguished and require the participation of athletic teams of international recognitio n.

Application Process

To come to the United States your U.S. employer must file a Form I-129, Petition for Non-Immigrant Worker, accompanied by the appropriate fee and supporting documentation, including a written consultation from an appropriate labor organization, as well as a copy of the contract with a major U.S. sports league or team, or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport, along with an explanation of the event and itinerary.

P-2 INDIVIDUAL PERFORMER OR PART OF A GROUP ENTERING TO PERFORM UNDER A RECIPROCAL EXCHANGE PROGRAM

The P-2 classification applies to you if you are coming temporarily to perform as an artist or entertainer, individually or as part of a group, who will perform under a U.S. recognized reciprocal exchange program between an organization in the United States and an organization in another country.

Application Process

In order to qualify for a P-2 visa, a sponsoring labor organization in the United States, or your U.S. employer, must file a Form I-129, Petition for a Non-Immigrant Worker . The petition must include a written consultation by an appropriate labor organization; copy of the formal reciprocal exchange agreement between the sponsoring U.S. organization and the organization in a foreign country which will receive the United States artist or entertainer; and, statement from the sponsoring organization describing the reciprocal exchange of United States artists or entertainers as it relates to the specific petition for which classification is sought.

Essential Support Personnel

Essential support personnel who are an integral part of the performance of a P-2 artist or entertainer and who perform support services that cannot be readily performed by a U.S. worker, are also eligible for P-2 classification. Support personnel may include stage hands, trainers, or those persons having critical knowledge of the specific services to be performed.

P-3 ARTIST OR ENTERTAINER COMING TO BE PART OF A CULTURALLY UN IQUE PROGRAM

The P-3 classification applies to you if you are coming temporarily to perform, teach or coach as artists or entertainers, individually or as a part of a group, for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, you must be coming to the United States to participate in a cultural event or events which will further the understanding or development of your art form. The program may be of a commercial or noncommercial nature.

Application Process

Your U.S. employer or sponsoring organization must submit Form I-129, Petition for a Non-Immigrant Worker. Please note that a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent.

Supporting Documents

The I-129 petition must include written consultation from an appropriate labor organization; copy of the contract between the petitioner and the beneficiary or the summary of the terms of an oral agreement between the petitioner and the beneficiary; explanation of the event and itinerary; and affidavits, testimonials, or letters from recognized experts attesting to the authenticity of your or your group’s skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of your or your group’s skills; OR documentation that your or your group’s performance is culturally unique as evidenced by reviews in newspapers, journals, or other published materials; and documentation that all of the performances or presentations will be culturally unique events. Note: If the events or performances will take place in multiple areas, an itinerary must be submitted. The itinerary must list dates and locations of the events.

Period of Stay/Extension of Stay

The initial period of stay for the time needed to complete the event, or activity may not exceed one (1) year. Additional increments of up to 1 year may be granted in order to continue or complete the event, activity or performance. The Form I-129 is used to apply for a change of status, extension of stay, or change of employment.

Q CULTURAL EXCHANGE

The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States.

Eligibility Criteria

Only employers who administer cultural exchange programs are allowed to petition for Q non-immigrants. The purpose of the Q non-immigrant visa is to facilitate the sharing of international cultures.

Application Process

The sponsoring organization must file Form I-129, Petition for Non-immigrant Worker, with USCIS. In addition, the employer must submit evidence that the employer maintains an established international cultural exchange program. This may be demonstrated by submitting copies of catalogs, brochures or other types of material which illustrate that the cultural component of the program is designed to give an overview of the attitude, customs, history, heritage, philosophy, tradition and/or other cultural attributes of the participant’s home country.

In addition, the employer must establish that it has designated a qualified employee to administer the program and serve as liaison with USCIS; that it will offer the alien wages and working conditions comparable to those accorded local workers similarly employed; and that it has the financial ability to compensate the participant(s), as shown by a copy of the employer’s most recent annual report, business income tax return, or other form of certified accountant’s report.

Period of Stay

The initial period of stay may be granted for up to 15 months. Q beneficiaries are required to spend 1 year outside the United States before applying for participation in the Q cultural exchange program again.

R-1 TEMPORARY NONIMMIGRANT RELIGIOUS WORKERS

The R-1 is for persons coming to the United States temporarily to be employed at least part time (average of at least 20 hours per week) by a non-profit religious organization in the United States (or an organization which is affiliated with the religious denomination in the United States) to work as a minister or in a religious vocation or occupation. To qualify, the foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years preceding the filing of the Form I-129, Petition for Non-immigrant Worker. Every petition for an R-1 worker must be filed by a prospective or existing U.S. employer through the filing of the Form I-129. An R-1 visa cannot be issued at a U.S. Embassy or Consulate abroad without prior approval by USCIS. If the foreign national is visa-exempt (e.g. Canadian), he or she must present the original Form I-797, Notice of Action, reflecting an approval of a valid I-129R petition at the port of entry. There are certain general requirements which must be satisfied by the petitioning organization as well as by the religious worker, the beneficiary of the petition.

The petitioning employer must submit the Form I-129, with evidence of tax exempt status and proof of membership in a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the application.

TN NAFTA PROFESSIONALS

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Among the eligible professionals for TN status and visas are accountants, engineers, lawyers, pharmacists, scientists, and teachers, as well as numerous others listed in the NAFTA Appendix. You may be eligible for TN nonimmigrant status if you are a citizen of Canada or Mexico; your profession qualifies under the regulations; the position in the United States requires a NAFTA professional; you have a prearranged full-time or part-time job with a U.S. employer; and you have the qualifications of the profession.

If you are a Canadian citizen, then you are not required to apply for a visa with a U.S. consulate or file a petition with USCIS. You can request admission as a TN nonimmigrant at a U.S. port of entry, if you are eligible following inspection by a U.S. Customs and Border Protection (CBP) Officer, then you will be admitted as a TN nonimmigrant. Form I-94, Arrival/Departure Record, will evidence your admission.

If you are a Mexican citizen, you are not required to file a petition with USCIS. However, you are required to obtain a visa to enter the United States as a TN nonimmigrant. You should apply for TN visa directly at a U.S. embassy or consulate in Mexico.

Once you are approved for a TN visa you may apply for admission at a United States port-of-entry. If you are eligible following inspection by a CBP Officer, then you will be admitted as a TN nonimmigrant. Form I-94, Arrival/Departure Record, will evidence your admission.

Period of Stay

TN status may be initially granted for up to 3 years. If you wish to stay beyond the time indicated on Form I-94, you must seek an extension of stay. If you are in the United States, your employer may file Form I-129, Petition for Nonimmigrant Worker, with USCIS.

STUDENTS AND EXCHANGE VISITORS

If you wish to pursue full-time academic or vocational studies in the United States, you may be eligible for one of two nonimmigrant student categories. The “F” category is for academic students and the “M” category is for vocational students. If you wish to participate in an exchange program, you may be eligible for the “J” category for exchange visitors. The J visa program is for educational and cultural exchange programs.