Working Nonimmigrant Visas For the United States

Aliens from all over the world coming to the United States to work as nonimmigrants may fall under H-1B, H-IC, H-2A, H-2B, H-3, (nonimmigrant working or training visa), R-1 (nonimmigrant religious visa), I (nonimmigrant media representatives visa), D crewperson (nonimmigrant landing permit), J-1 (nonimmigrant exchange, trainee)., A and G (nonimmigrant diplomatic visa), O and P (nonimmigrant entertainment visa), L-1 (nonimmigrant intra-company transferee visa), and TN (nonimmigrant visa for professional Canadians and Mexicans).

Whether an alien qualifies for a nonimmigrant working (or training) visa depends on whether the requirements of the particular visa can be complied with by the alien applicant or beneficiary.

Nonimmigrant Working and Training Visas: H-1b, H-1c, H-2a, H-2b, H-3, and J-1:

This category covers nonimmigrant working or training visas for business personnel of companies operating in the United States. It permits employment in the United States for longer duration and facilitates temporary residence for the duration of the allowed stay.

Each visa or status requires the prior approval of a U.S. employer’s or trainor’s petition, which states the qualifications of the alien beneficiary or trainee and the requirements of the position.

1. H-1B: Specialty Occupation:

The annual cap of 65,000 H-1B visas is reduced to 58,200 after deducting 6,800 H-1B1 visas for Chile and Singapore. H-1B employer can file the petition on April 01 of each year and even thereafter, if the annual cap is not used up.

The U.S. petitioner-employer is required to submit a Labor Condition Application (LCA) certification from the U.S. Department of Labor (DOL) that such application (ETA 9035E) in the occupational specialty has been electronically filed thereat and monitored at ICertPortal.

The filing fee for the Form I-129 petition to be paid by the employer totals $2,320 ($320 + $1,500) (or $750 if employer has 25 or less employees) + one time $500 fraud fee), payable to the Department of Homeland Security.

Not all occupations are specialty occupations, which require a body of highly specialized knowledge and the attainment of a 4-year bachelor’s or higher degree in the specific specialty or its equivalent, as the minimum entry requirement for the occupation.

The employer must pay 100 percent of the prevailing wage now determined by the DOL National Prevailing Wage Help Center in Washington, D.C., at the time of filing the LCA. The employer is also required to maintain a public access file within one day after the LCA filing, and post notice of the LCA filing in two (2) locations for ten (10) days.

An H-1B petition may be approved up to three (3) years with extensions up to maximum of six (6) years, and beyond, if a Form I-140 employment-based petition has been filed and pending for at least 365 days prior to the 6th year limit.

2. H-1C: Foreign-Trained Nurses:

Limited (500 visas per year, 25 visas for State with nine (9) million or less population and 50 visas for State with over nine (9) million population) H-1C visas are issued to foreign-trained registered nurses licensed to practice in the State and to work temporarily at hospitals in designated Health Professional Shortage Areas (HPSAA), as defined by the U.S. Department of Health and Human Services (HHS) and determined by the DOL.

Initial period of stay is up to three (3) years and limited to three (3) years. But this classification had expired on December 20, 2009.

3. H-2A, H-2B, H-3 and J-1 (Agriculture/Seasonal/Trainees):

(a) H-2A visas are for foreign workers to perform temporary or seasonal agricultural work at the time and place where there are insufficient U.S. workers who are able, willing, and available to do the work.

The H-2A employer must obtain a labor certification determination from the DOL that the employment of an alien worker would not adversely affect the wages and working conditions of similarly employed U.S. workers, as well as provide housing and worker’s compensation insurance.

(b) H-2B visas capped at 66,000 a year are for foreign workers to perform work for a one-time occurrence or a seasonal or peak or intermittent need in nonagricultural sectors of the economy.

An application for labor certification is likewise filed by the U.S. employer and approval obtained from DOL. And as in all H applications, Form I-129 is filed with the U.S. Citizenship and Immigration Services (USCIS).

Foreign workers are admitted initially for the time stated in the labor certification, with a maximum of one (1) year, subject to yearly extensions, to a maximum work stay of three (3) years, and a 6-month foreign residency requirement prior to another application.

(c) H-3 visas are designed for aliens coming to receive instruction and training not designed to provide productive employment, unless incidental and necessary to the training and pursuing a career outside the United States.

They are admitted for the duration of the approved training program for a maximum length of two (2) years, subject to a 6-month foreign residency requirement prior to a subsequent application for the same beneficiary alien.

The type of training program should not exist in the alien’s home country or country of origin, and is not readily available in any other country.

(d) J visas are issued by U.S. Consuls abroad and meant for exchange visitors, foreign physicians, professors, students, teachers, bona fide trainees or interns, au pair youths, etc.; who have sufficient funds and are fluent in English.

A trainee program for agriculture, hotel, and tourism is limited to twelve (12) months with some exceptions. Other training programs may last eighteen (18) months. In order to get additional training, trainees should be outside the United States for the 2-year foreign residency requirement, unless a waiver thereof is granted by the USCIS.

Waivers may be based on:

(i) possible persecution in country of origin;

(ii) exceptional hardship on U.S. citizen or lawful permanent resident spouse or child;

(iii) no objection by country of origin; and

(iv) request by interested state or federal agency.

4. R-1, I, D, A and G Visas:

(a) R-1 visas are for religious workers (ministers, professionals in religious occupation [cantors, liturgical workers, broadcasters, etc.] or religious vocations [monks, nuns, etc.]) who: (1) two (2) years immediately before the filing of the application on Form I-129 has been a member of the religious denomination having a nonprofit religious organization in the U.S.; and (2) will be working for the U.S. religious organization or affiliate.

The R-1 status is initially for three (3) years, but limited to a maximum of five (5) years. The spouse and minor children may accompany or follow to join in R-2 status.

The R-1 religious worker may be eligible again for the same status after five (5) years, if he or she resides outside of the U.S. for one year, unless he or she is able to adjust to lawful permanent resident status as a special immigrant (Forms I-360 and I-485).

(b) I visas are for representatives of media (foreign press, television, radio, film, etc.) who will perform solely their vocation in the U.S. They may be employed by a branch, subsidiary, or affiliate in the U.S. of the foreign media company to perform activities for the benefit of the foreign media.

Their admission is for duration of status, which could be indefinitely. And they may adjust to lawful permanent residence without restrictions. Dependents designated also as “I” are required separate employment authorization to work in the U.S.

(c) D visas are for foreign crewmen who are coming to the U.S. to join and work on board a vessel. They include crewmen for the normal operation of the vessel as well as trainees, cooks, employees of concessions on board such as barbers, beauticians, and waiters on cruise ships.

They may be issued C-1 (transit) visas to join the ship in the U.S. Thereafter, they may be issued Form I-95 (landing permit) to be allowed in U.S. ports.

Initial admission is for twenty-nine (29) days. No extension nor change of status is allowed. If only on C-1 visa, they cannot adjust status to lawful permanent resident. If on D status, they cannot adjust even if married to a U.S. citizen, unless grandfathered under Section 245(i) of the Immigration and Nationality Act (a family or employment-based immigrant petition was filed on or before January 14, 1998, or the latest before April 30, 2001, [if the later applicant were physically in the U.S. on December 21, 2000]).

(d) A and G diplomatic and international organizations visas are for ambassadors, ministers, diplomats, officers, and their families (A-1), other officials and employees of foreign governments and their families (A-2), and personal employees and servants (maids) of A-1 and A-2 and their families (A-3), as well as resident representative, staff, and families of permanent mission of a foreign government to the U.N., I.M.F., O.A.S., etc. (G-1), other accredited representatives of foreign government, military officers, personnel, and immediate families (G-2), as well as G-1 and G-2 from foreign governments not recognized by the U.S. (G-3), officers and employees of international organizations and immediate families (G-4), and lastly attendants, servants, and personal employees of G-1 to G-4, who may be admitted for three (3) years with renewals (G-5).

5. O and P Entertainment Visas:

(a) O visas are for aliens who have “extraordinary ability in the sciences, arts, education, business or athletics,” who have demonstrated such ability “by sustained national or international acclaim.”

They enter the U.S. to continue the type of work they do abroad, although the work in the U.S. does not require a person of extraordinary ability.

O-1 applicants cannot self-petition; they are petitioned through Form I-129 by U.S. agents or promoters of their artistic or athletic performances on special events, who submit itineraries with the application to USCIS.

Persons assisting O-1 applicants as integral part of their performances may be issued O-2 visas, and spouses and children of O-1 and O-2 beneficiaries may accompany or follow to join them on O-3 status.

O-1 and O-2 petitions are required to contain written advisory opinion from the proper union or guild, attesting to the beneficiary’s expertise/skills and “no objection” to the performance(s) or event(s) in the United States, unless re-entering the U.S. to perform similar activities within two (2) years of obtaining consultation, or merely requesting for extensions of stay.

Initial admission is for the time the USCIS approves to perform the activities, but not exceeding three (3) years. Extensions of one (1) year increments may be granted for the same event(s) or series of performances.

(b) P visas are particularly for internationally-recognized athletes or group performers, such as musical groups or bands performing for at least one (1) year, (P-1A) as well as persons who are integral or essential part of an entertainment group who have had a sustained and substantial relationship with the group for at least one (1) year (P-1B).

International recognition and the one (1) year relationship may be waived for certain performers. P visa holders are allowed to stay temporarily to perform in competition or event or performance. Spouses and minor children may come accompanying or following to join as P-4.

As in O visas, consultation with a proper union or guild is required for P petition (Form I-129) approval. P-1 athletes may be admitted up to five (5) years with one (1) extension, while admission of a P-1 entertainment group may not exceed one (1) year. And spouses and children may be admitted for the duration of stay of the principal beneficiary.

6. L-1 and TN Visas:

(a) L-1 visas are for intra-company transferees, who are employed abroad as managers, executives, or persons with specialized skill for one (1) year of the past three (3) years by a parent, branch, subsidiary, or affiliate of a U.S. company, before the filing of its application (Form I-129).

The alien beneficiary enters to work in a managerial or executive (L-1A) capacity, or in work involving specialized knowledge (L-1B) for the U.S. company, which may be for profit or nonprofit. No prevailing wage is required as compensation, and the job need not be full-time.

Moreover, the parent and subsidiary companies abroad and in the U.S. need not be in the same business or occupation. Nor is there any capitalization requirement for the U.S. company.

Aside from the regular Form I-129 fee of $320.00, a one-time fraud fee of $500.00 is required for L-1 applications. If the U.S. company is a start-up, admission for L-1 is for one (1) year. Otherwise, managers and executives are limited to seven (7) years and those with specialized knowledge to five (5) years. Spouses and children may be admitted on L-2 visas for the duration of stay of the principal beneficiary.

Spouses of L-1 may be issued employment authorization (Form I-766) for the period of stay not to exceed two (2) years.

(b) TN visas are for citizens form Canada and Mexico coming to engage in professional activities for U.S. employers under the North American Free Trade Agreement (NAFTA), signed on December 08, 1993.

NAFTA defines “activities at a professional level” as requiring “at least a baccalaureate (bachelor’s) degree or appropriate credentials demonstrating status as a professional.” The regulations (8 C.F.R. §214.6(c)) list the professions covered by NAFTA.

No Form I-129 is required, nor a labor condition application (LCA), nor a labor certification approval, only documentation at a port of entry or station for Canadians. A TN visa is required for Mexicans, but likewise no approved Form I-129, nor LCA.

Form I-94 (Departure Document) is issued as a multiple entry for one (1) year and can be extended on Form I-129. No license to practice is required to enter as a TN, but licensure may be enforced by the state agency involved.

***This article does not constitute legal advice or a legal opinion on any specific facts or circumstances. Its contents are intended as general information only. The reader is urged to consult his/her own attorney concerning his/her specific legal questions.)

Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 – 9481 for a free consultation today!

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