B1 Visa: Temporary Visit to Participate in Business Activity
A B-1 visa permits an individual to come to the United States temporarily in order to participate in business activities of a commercial or professional nature. These activities include:
- Consulting with business associates
- Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
- Settling an estate
- Negotiating a contract
- Participating in short-term training
- Transiting through the United States: certain persons may transit the United States with a B-1 visa
- Seeking or examining potential investment opportunities, including investments that may qualify the individual for status as an E-2 nonimmigrant investor
Applicants should take caution when entering the U.S. on a B-1 visa, or when maintaining B-1 status, to remember that this visa generally does not permit gainful employment. While the limited business-related activities above may be permissible, a B-1 traveler is precluded from performing productive labor or actively participating in the management of a business in which he/she has invested.
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B-2 Visa: Temporary Visit for Pleasure
A B-2 visa permits an individual to enter the U.S. temporarily for pleasure. The most often reason for entry on a B-2 visa is typically for tourism or family visits. However, a B-2 visa may also be appropriate for those who seek to enter the U.S. for health purposes or to receive medical treatment, or to participate in conventions, conferences, or other meetings of social or service organizations.
Residence Abroad
In addition to satisfying one of the permissible purposes above, and consistent with the “nonimmigrant” nature of B-1/B-2 visa status, an applicant must also demonstrate that his or her intended stay in the U.S. will only be temporary, i.e. that the individual plans to remain in the U.S. for a specific limited period of time. The individual may also be required to show that she will maintain a residence outside of the U.S. that she does not intend to abandon and to which she intends to return upon the conclusion of her visit to the U.S. Finally, the individual may be required to demonstrate that she has sufficient financial resources available to cover the expenses of her stay in the U.S.
Period of Stay
Although B-1/B-2 visas issued in applicants’ passports are often times valid for a period of 10 years, individuals may be admitted to the United States for only up to a maximum of 6 months at a time on a B-1/B-2 visa. In certain circumstances, it may be possible to extend one’s B-1/B-2 status for an additional 6 months, for a total of 1 year, if the need arises to remain in the U.S. longer than the initial period granted.
In some cases, those who enter the U.S. as a visitor may have a change in plans and decide to change status to an employment-authorized status. It is generally advisable to depart the U.S. following approval of an employment-based petition to consular process for the employment-based visa rather than applying for a change of status within the U.S., as such changes of status are often regarded by consular officers as an attempt to evade consular review.
Visa Waiver Program
As an alternative to obtaining a B-1 or B-2 visitor visa, citizens/nationals of many countries are able to travel to the United States for tourism or business, for stays of 90 days or less, without obtaining a visa, under what is known as the Visa Waiver Program. The same restrictions above regarding permissible activities apply to Visa Waiver entries. Travel to the U.S. on the Visa Waiver Program requires that travelers obtain approval through the Electronic System for Travel Authorization (ESTA) prior to travel. The Visa Waiver Program is limited to citizens/nationals of certain countries and therefore may not be available to all travelers
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E-1 Visa: Treaty Traders
The E-1 nonimmigrant visa category is reserved for foreign nationals seeking to enter the U.S. to carry on substantial international trade, including trade in goods and/ or services, chiefly between the U.S. and the applicant’s country of citizenship. An applicant may qualify as the trader or as an employee of a qualifying trading company only if he possesses the same nationality as the company.
The spouse and child(ren) of an E-1 Treaty Trader are also accorded E-1 status as dependents, regardless of their nationality.
E-1 spouses may apply for unrestricted employment authorization following the initial entry into the U.S. as an E-1 spouse.
Basic requirements for E-1 classification:
- Requisite treaty exists- The foreign national must be a citizen of a country that maintains a treaty of commerce and navigation with the U.S.
- Individual possesses same nationality as the company–
- The visa applicant’s nationality is documented through his or her passport.
- The nationality of the company must be traced up to its individual owners and the owners’ nationality must be documented through passports as well. Nationals of the treaty country must own at least 50 percent of the business. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the country in which the exchange is located.
- International Trade Requirements
- Trade must constitute a substantial international exchange. The trade must be documented at the time the visa application is made. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. Items which qualify as items of trade include, but are not limited to, goods, services, technology, banking, insurance, transportation, tourism, communications, and some news gathering services.
- The trade must be substantial enough to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction. In the case of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.
- Trade must be principally (50% or more) between the U.S. and the country of the visa applicant’s nationality. Domestic trade is not considered. The trade can be demonstrated through purchase orders, bills of lading, sales contracts or contracts for services, letters for credit, trade brochures, accounts receivable, and the like.
Who Is the Treaty Trader?
The Treaty Trader may either be an individual or a corporation. If the Trader is a corporation, it may send key foreign national employees to the U.S. in E-1 status. Key employees may be Executives, Managers, Supervisory, or Essential Skills employees.
There is no requirement that an E-1 business be incorporated in the United States. Employees of foreign companies who will engage in international trade in the United States may qualify for E-1 status.
E-Visa Validity Period
E visas are typically issued by U.S. consular posts abroad with a five-year validity period. However, the E-1 visa holder ordinarily is admitted to the U.S. and issued an I-94 entry document for a period of up to two years (but not for more than 6 months beyond the passport expiration date). Each time the visa holder travels abroad and reenters the US during the visa validity period, he usually is admitted for a fresh 2 year period. There is no limit on the number of extensions or the total time a nonimmigrant USCIS may extend E status. However, the E-1 visa remains a nonimmigrant visa and requires the visa applicant to maintain the intention to depart the U.S. at the conclusion of his or her period of stay.
USCIS may extend E status in increments of up to two years without limit on the number of extensions. However, USCIS can only approve extensions of stay and if someone with a USCIS E-1 extension travels abroad, he must still apply for a new E-1 visa if he does not current visa in his passport, and the U.S. consulate abroad will re-adjudicate E-1 visa eligibility. Therefore, where there are certain situations in which it makes sense to apply for E-1 extension with USCIS due to timing issues, it is usually best to apply for a new E-1 visa abroad rather than filing a petition with USCIS.
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E-2 Visa: Treaty Investors
E-2 status is reserved for foreign nationals seeking to enter the U.S. to the U.S. to actively invest in a real and operating commercial enterprise. The visa applicant may qualify either as the principal investor and owner of the treaty enterprise or as a key employee of the treaty enterprise. Dependent spouses and children under the age of 21 are eligible for E-2 dependent status.
Basic Requirements for E-2 Classification
- Requisite treaty exists- The foreign national must be a citizen of a country that maintains a treaty of commerce and navigation with the U.S.
- Individual possesses same nationality as the company–
- The visa applicant’s nationality is documented through his or her passport.
- The nationality of the company must be traced up to its individual owners and the owners’ nationality must be documented through passports as well. Nationals of the treaty country must own at least 50 percent of the business. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the country in which the exchange is located.
- Investment Requirements:
- Principal investors/ owners must have already invested in the treaty enterprise or be actively engaged in the process of investing. In order for the activity to be considered an “investment,” the applicant must be using funds he has legally obtained, whether through savings, as a gift, an inheritance or by winning the lottery. The source of the funds must be fully documented. In addition, the applicant must be placing those funds at risk in a commercial sense in the hope of earning a financial return. If the applicant has not already invested the funds in the enterprise, they must be irrevocably committed.
- Investment must be in a real and operating commercial enterprise, e.g., through a business plan, business licenses, and marketing materials if it is a new enterprise or, for more established enterprises, through business transaction records, tax return, employee payroll records, invoices from suppliers, utility bills, etc.
- Investment must be substantial & not marginal. A substantial investment is one that will ensure that the enterprise is not merely speculative or one that will merely support the investor and his/her family, but will also provide jobs for U.S. workers and services or goods that serve the community. The amount of capital needed depends on the size and type of business. The investor must document the total funds needed to start operations and must have a substantial portion of the required funds in hand for the project. The larger the cost of start-up operations, the lower the percentage of funds required at the outset.
- Applicant must either develop & direct the enterprise or act in an executive/supervisory position or possesses “essential skills” to the enterprise.
E-Visa Validity Period
E visas are typically issued by U.S. consular posts abroad with a five-year validity period. However, the E-2 visa holder ordinarily is admitted to the U.S. and issued an I-94 entry document for a period of up to two years (but not for more than 6 months beyond the passport expiration date). Each time the visa holder travels abroad and reenters the US during the visa validity period, he usually is admitted for a fresh 2 year period. There is no limit on the number of extensions or the total time a nonimmigrant USCIS may extend E status. However, the E-2 visa remains a nonimmigrant visa and requires the visa applicant to maintain the intention to depart the U.S. at the conclusion of his or her period of stay.
USCIS may extend E status in increments of up to two years without limit on the number of extensions. However, USCIS can only approve extensions of stay and if someone with a USCIS E-2 extension travels abroad, he must still apply for a new E-2 visa if he does not current visa in his passport, and the U.S. consulate abroad will re-adjudicate E-2 visa eligibility. Therefore, where there are certain situations in which it makes sense to apply for E-2 extension with USCIS due to timing issues, it is usually best to apply for a new E-2 visa abroad rather than filing a petition with USCIS.
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E-3 Visa: Specialty Occupations for Australians
The E-3 visa classification is a treaty-based visa available only to Australian nationals. The law allows for the temporary entry of Australian professionals to perform services in a “specialty occupation” for a United States employer. The requirements for E-3 classification are very similar to those applicable to H-1B status, with notable exceptions.
Spouses and unmarried children under the age of 21 are eligible for E-3 status as dependents. E-3 spouses may obtain employment authorization by applying separately for that benefit following the initial admission to the U.S. in E-3 status.
Specialty Occupation
A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, in a specific specialty as a minimum for entry into the occupation in the United States.
E-3 Requirements
The following basic requirements must be met in order to qualify for E-3 status:
- Must be an Australian national.
- Must be sponsored by a United States employer who has obtained a certified Labor Condition Application (“LCA”) on behalf of the foreign worker’s proposed U.S. position.
- Must be entering the U.S. to work in a specialty occupation requiring attainment of a bachelor’s degree or equivalent in a specific academic field.
- Must possess the necessary bachelor’s or higher degree, or equivalent, in the specific specialty.
E-3 status can be obtained more quickly than most other nonimmigrant classifications because it does not require prior approval of an I-129 petition with USCIS. Applicants may apply for an E-3 visa directly at a U.S. consular post outside of the U.S. They must present the following documents at a visa interview:
- A certified Labor Condition Application (“LCA”) – must be filed by the prospective U.S. employer
- Evidence of academic or other qualifying credentials
- Job offer letter from the U.S. employer, outlining the nature of the job duties and demonstrating that they fit within a “specialty occupation”
- A certified copy of any required license or other official permission to practice the occupation in the state of intended employment, if required
While most E-3 applicants file their visa applications at the U.S. consulates in Australia, the U.S. consulates in other countries may accept E-3 visa applications as well, on a discretionary basis. The U.S. consulates in Canada are particularly familiar with processing E-3 visas.
For those E-3 applicants who are already in the U.S. in another nonimmigrant status, or who are in E-3 status with another employer and wish to change jobs, the U.S. employer/petitioner may file an I-129 petition on his or her behalf to change his status to E-3 or to change E-3 employers. This option is very time-consuming, however, and therefore often is not chosen. I-129 petition processing takes several months under unprecedented USCIS backlogs, and “Premium Processing” service is not available on E-3s. In addition, E-3 visa holders who seek a change of employer cannot start working at the new job until the I-129 has been approved. It therefore is often quicker for the E-3 applicant to leave the country once the Labor Condition Application has been certified, apply for a visa abroad, and reenter the United States in E-3 status with the new company.
E-3 status is granted for an initial 2-year period and can be extended in 2-year increments with no limit on the number of extensions or new visas that can be issued. However, those in E-3 status must maintain “nonimmigrant intent,” or the intention to resume their residence abroad at the conclusion of their stay.
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F-1 Visa: Student Visa
The F-1 student visa is just what it sounds like – it is for individuals who wish to come to the U.S. to pursue full-time studies.
Criteria:
- must be enrolled in an “academic “ educational program, a language-training program or a vocational program
- the school you plan to attend must be approved by the Student and Exchange Visitors Program (SEVIS)
- must be enrolled full-time
- must be proficient in English or be enrolled in courses leading to English proficiency
- must have sufficient funds available
- must maintain a residence abroad which the individual has no intention of giving up
Employment as a Student
There are different types of work available to an F-1 student both during the program of study and after graduation. During the first year of full-time studies, the student may not work off-campus but may accept on-campus employment subject to certain conditions. After the first full year of study the student has three types of off-campus employment they may apply for:
- Curricular Practical Training (CPT) – Permits employment that is pre-authorized by the school and academic program as being integral to the student’s course of study and must be completed during the academic period prior to graduation.
- Optional Practical Training (OPT) – Provides one-year of work authorization that a student may apply for (with the school’s assistance) directly to USCIS in order to obtain an Employment Authorization Document (EAD) and must only work in a job related to his/her field of study.
- STEM Optional Practical Training Extension (OPT) – Provides a two-year extension of the OPT period to those students who graduated from a STEM (Science, Technology, Engineering, or Math) program and are working in that field. Must be employed with a U.S. employer that is enrolled in E-Verify.
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H-1B: Temporary Professional Worker
The H-1B visa category allows a U.S. company to employ a foreign worker temporarily in a “specialty occupation,” such as architecture, biotechnology, chemistry, engineering, mathematics, physical sciences, social sciences, medicine, education, law, or accounting. H-1B status is available for an initial period of up to three years and can be extended for an additional three years beyond that. The H-1B status is limited to a total of six years but under certain circumstances can be extended beyond the six-year time frame where a permanent resident petition is in process for a certain amount of time. Please consult with an attorney BEFORE the start of the fifth year of H-1B status if you wish to employ your H-1B employee on a permanent basis.
Basic Eligibility Requirements:
- The foreign national beneficiary must possess at least a four-year university degree or equivalent in education and/or experience in a specific specialty.
- The U.S. employer must agree to pay the beneficiary at or above the “prevailing wage” for the area of employment or the wage paid to other similarly qualified employees, whichever is higher.
- The job must require the specific four-year university degree or equivalent that the beneficiary possesses.
The H-1B Quota or “Cap”
The H-1B visa has an annual numerical limit or “cap” of 65,000 visa numbers each fiscal year, with an additional 20,000 available to those workers who have earned a Master’s level degree or higher from a U.S. Institution of Higher Education. Employers may file an H-1B petition for a worker up to six months before the proposed employment start date. H-1B visas become available each government fiscal year (October 1 – September 30) which means the earliest possible filing date is April 1. In the past several years the demand for the 85,000 available visas has been at around 200,000 applicants – as a result, USCIS uses a lottery system in the first week of April for processing the high volume of petitions received. This results in only about 30-35% of petitions filed being selected in the lottery and the rest are returned to the employer without the contents having been reviewed or filing fee checks cashed.
We recommend that cap-subject employers begin preparing H-1B petitions in January or February and strategize the best plan with the attorney as to any other visa options that may be available for their worker.
Certain Employers are Cap-Exempt
Some Employers qualify for a cap-exempt status and may petition on behalf of their workers at any time of the year without concern for the quota. These cap-exempt employers are:
- Institutions of Higher Education
- Non-Profit Entities “related to” or “affiliated with” an Institution of Higher Education
- Non- Profit Research Organizations
- Government Research Organizations
*Please note that you can also work “at” a cap-exempt location to be considered cap-exempt.
FAQs
Q. Who may obtain H-1B status?
A. H-1B nonimmigrant status is available for individuals who are coming to the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who currently are in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.
Q. What is a specialty occupation?
A. A specialty occupation is defined as an occupation that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree; a foreign equivalent degree; or a combination of education and/or experience that is equivalent to a U.S. bachelor’s degree. Generally, three years of progressively more responsible experience is equivalent to 1 year of university education.
Q. Is there a certain wage that must be paid to an H-1B employee?
A. Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position), or 2) the “actual wage” (the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question.”)
Q. How long may an individual remain in H-1B status?
A. A foreign national may hold H-1B status for up to six years, with certain key exceptions. H-1B visas are typically valid for 3 years but can be extended for an additional 3 years. In computing whether a noncitizen has held an H-1B visa for the maximum period of six years, USCIS looks at all employers of the noncitizen under which s/he held H-1B and L-1 status, not just the current employer. At the end of the six-year period, an individual must depart the United States if he is not far enough along in the permanent residency sponsorship process to support a post-6th year extension of H-1B status.
Q. What is the immigration status of an H-1B employee’s family in the U.S.?
A. A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. The H-4 dependent spouse and children of an H-1B nonimmigrant are entitled to H nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary. Most H-4 dependents may not accept employment unless he or she is the beneficiary of an approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment. However, some H-4 spouses may obtain an H-4 Employment Authorization Document (“H-4 EAD”) if the principal H-1B nonimmigrant is the beneficiary of an approved I-140 petition or has received a post-6th year extension of H-1B status based on the American Competitiveness in the Twenty-First Century Act.
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H-1B1 Visa: Nationals of Chile and Singapore
The H-1B1 visa is an employment-based visa category that is substantively identical to the H-1B . Like the H-1B, the H-1B1 visa requires that the offered position be in a specialty occupation – one that requires the theoretical and practical application of a body of specialized knowledge, i.e., that it requires a bachelor’s degree or higher in a specific field for entry into the position/occupation. It also requires that the foreign national possess the required post-secondary degree.
There are, however, some major distinctions between the H-1B and the H-1B1:
- The H-1B1 visa is limited to nationals of Chile and Singapore. The H-1B1 visa classification was created as a byproduct of free trade agreements between the U.S. and these countries. Like the H-1B, the H-1B1 is subject to an annual numerical cap on the number of visas available – 1,400 H-1B1 visas are available for Chileans, while 5,400 H-1B1 visas are available for Singaporeans. However, traditionally, these caps are rarely reached, and therefore H-1B1 visas are routinely available to qualifying individuals from Chile and/or Singapore.
- While the H-1B visa requires the employer to submit a Form I-129, Petition for Nonimmigrant Worker, to U.S. Citizenship & Immigration Services, this step is not required for an H-1B1 visa if the individual that an employer seeks to hire on an H-1B1 visa is located outside of the United States; instead, an individual/employee can apply for an H-1B1 visa directly at a US consulate/embassy abroad, by submitting a certified Labor Condition Application, a detailed support letter from the employer outlining the nature of the offered position and of the individual’s qualifications, and other relevant supporting documents demonstrating the employee’s credentials. If the individual is in the United States and is seeking a change to or extension of H-1B1 status, then a Form I-129 petition must be submitted to USCIS.
- While H-1B visa status can be approved for up to three years at a time, for a maximum of six years, the H-1B1 is generally approved in one-year increments, with no six-year limit.
- Unlike the H-1B visa, which is a “dual intent” visa, the H-1B1 is a single-intent, nonimmigrant visa.
Dependents of H-1B1 beneficiaries may be admitted to the United States in H-4 status for the duration of the principal’s period of stay but may not work in the U.S.
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H-2A Visa: Temporary or Seasonal Agricultural Work
The H-2A visa allows United States agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, he or she may bring a nonimmigrant worker into the country for a period of up to 10 months.
Requirements for an H-2A Employer
Employers are required to meet the following requirements in order to demonstrate eligibility for the H-2A Program:
- The position must be “agricultural” – this means work performed on the farm
- The job must be for less than one year (usually no more than 10 months) and tied to a crop or commodity
- There must be no qualified and willing American workers available for the position
- Employer’s must agree to pay H-2A workers and U.S. workers in H-2A positions in accordance with the U.S. Government’s Adverse Effect Wage Rate, which varies by state
- Employer must provide H-2A workers and those American workers who are not reasonably able to return to their residence at the end of the day with free housing
- Employer must pay inbound transportation and subsistence expenses, as well as return transportation in some cases set by the Federal Government each year
- Employer must guarantee its H-2A and U.S. workers in corresponding employment work for ¾ of the contract period
- Employer must provide free housing
- Employer must provide 3 meals/day (chargeable to workers) or provide kitchen facilities
- Employer must provide Workers Compensation Insurance
Before employing H-2A workers, an agricultural employer must make an active effort to recruit U.S. workers. This means newspaper advertising in areas of the expected labor supply, which may include up to 3 difference states as determine by DOL.
Requirements for an H-2A Employee
Almost every admissible alien is eligible to become an H-2A worker if they are on the “eligible country list”. To be eligible, an alien must meet two requirements:
- The alien must have a valid job offer from an eligible H-2A employer; and
- The alien must intend to return to his or her home country at the expiration of the H-2A visa.
Filing Procedure
Generally, there are three things that must be done before a nonimmigrant worker can begin his or her employment.
- Labor certification:
The first step in the H-2A visa application process is filing a labor certification application (Form ETA-9142) with DOL. In filing this, the employer must demonstrate that qualified workers are not available in the United States and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers. The State Department of Labor will inspect worker housing. The U.S. Department of Labor (DOL) will either grant or deny the labor certification.
- Employer’s Visa application:
The second step is petitioning the USCIS for the actual H-2A visa with form I-129. If your application is approved, the USCIS will notify the consulate in the alien’s home country.
- Employee’s Visa application with the U.S. Consulate:
Finally, the worker has to file their own visa application with the consulate in their home country. It is important to note that the employer’s petition approval does not guarantee the visa approval of the alien.
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H-2B Visa: Temporary Non-Agriculture Services or Labor on a One-Time, Seasonal, Peak Load or Intermittent Basis
What is H-2B?
The H-2B visa allows United States seasonal employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform non-agricultural labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, he or she may bring a nonimmigrant worker into the country for a maximum of 364 days. During that time, the nonimmigrant worker is guaranteed certain rights.
There are 66,000 H-2B visas available per year, which is split between 2 seasons:
- October 1 (1st Half of FY)
- April 1 (2nd Half of FY)
Fiscal Year is designated by the calendar year in which it ends:
- 1st Half of FY = October 1 to March 31
- 2nd Half of FY = April 1 to September 30
Requirements for an H-2B Employer
Employers are required to meet the following requirements in order to file for an H-2B visa:
- The job offer must be for a temporary/seasonal position (seasonal, intermittent, peak load, one-time occurrence, etc) in which the employer anticipates a shortage of domestic workers
- The job must be for less than one year (no more than 10 months)
- There must be no qualified and willing American workers available for the position
- Employer’s must agree to pay H-2B workers in accordance with the government’s prevailing wage for area of employment
- Employer must pay inbound transportation and subsistence expenses and should reimburse workers for these expenses within the first week of work
- Employer must pay work return transportation of worker if the contract period is terminated early
- Employer must reimburse workers for visa related expenses at the U.S. Consulate in their home country, including recruiter/agent fees and consular processing visa fees. These expenses should be reimbursed within the first week of work
- Employer must provide Workers Compensation Insurance
- Employer must pay all workers the required Prevailing Wage Rate plus overtime for over 40 hours
- While the employer is NOT required to provide housing to H-2B workers, the employer should make arrangements for housing in advance of the workers arrival. The workers are responsible for all housing costs and related expenses
- Employer must withhold tax and pay all applicable state, federal and social security taxes for H-2B workers.
Before employing H-2B workers, an employer must make an active effort to recruit U.S. workers. This includes placing a job order with the State Department of Labor and 2 newspaper advertisements in area of intended employment, among other steps.
What is a “Temporary Need”
The Department of Labor defines “temporary need” as …“Services where the petitioner’s need for the duties to be performed, rather than the job itself, is temporary. It is the nature of the employer’s need, not the nature of the duties that is controlling.”
The nature of the employer’s temporary need for H-2B employment must be seasonal, peak load, intermittent, or a one-time occurrence as defined in 8 CFR 214.2(h)(6)(ii).
One-Time Occurrence
The petitioner must establish that the employer:
- Has not employed workers to perform the services or labor in the past and that it will NOT need workers to perform the services or labor in the future; or
- Has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker
Seasonal Need
The petitioner must establish that the services or labor is:
- Traditionally tied to a season of the year by an event or pattern; and
- Of a recurring nature
Peak Load Need
The petitioner must establish that:
- The employer regularly employs permanent workers to perform the services or labor at the place of employment;
- The employer needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand; and
- The temporary additions to staff will not become part of the petitioner’s regular operation
Intermittent Need
The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Requirements for an H-2B Employee:
Almost every admissible foreign national is eligible to become an H-2B worker, as long as they are from a country designated by USCIS and the U.S. Department of State. To be eligible an foreign national must meet three requirements:
- The foreign national must be from a country designated by the U.S. government to participate in the H-2B program;
- The foreign national must have a valid job offer from an eligible H-2B employer; and
- The foreign national must intend to return to his or her home country at the expiration of the H-2B visa.
Filing Procedures
The H-2B application may not be filed earlier than 75 to 90 days prior to the date of need.
The steps in the H-2B filing process include:
- Filing Prevailing Wage Determination (Form ETA 9141) with the U.S. Department of Labor through DOL’s FLAG portalThis form details the job offer, duties, requirements and location of the position. Within 30-40 days, U.S. Department of Labor will issue a formal prevailing wage determination specifying the required wage to be paid to the worker. This must be completed prior to filing the application.It is recommended that the Prevailing Wage Determination be filed 5 months prior to need to allow for sufficient processing time.
- Filing Form ETA9142 with U.S. Department of Labor and Placing the Job Order with the State Workforce AgencyOnce the U.S. DOL issues the prevailing wage determination, the employer must concurrently file a job order with the State Department of Labor (SWA), which it will include with the formal ETA9142 filing with the U.S. Department of Labor through DOL’s FLAG portal.
- Notice of Acceptance and RecruitmentWithin 7 days of submission, the U.S. Department of Labor will issue either a Notice of Deficiency or Notice of Acceptance. DOL will instruct the employer to conduct advertising within 14 days of receipt of the Notice of Acceptance, which will include newspaper advertising, contacting former U.S. workers in the occupation, placing a Notice of Filing at the workplace, and conducting additional recruitment directed by the CO. The NOA will direct the employer to submit a recruitment report on a specified date.
- Labor CertificationOnce the recruitment report has been submitted, the CO will determine whether to certify or deny the application and issue a final determination.
- Employer’s Visa Petition with USCISOnce the U.S. DOL approves the labor certification application, the employer will file application paperwork with U.S. Citizenship and Immigration Services on Form I-129. The petition will specify the number of workers needed and the country in which they will apply. If your application is approved, the USCIS will notify the consulate in the foreign national’s home country.In most cases, premium processing will be required, since “normal” processing time is approximately 4 months. With premium processing, USCIS will adjudicate the petition within 15 days.
- Employee’s Visa application with the U.S. ConsulateFinally, the worker has to file their own visa application with the consulate in their country. It is important to note that the employer’s petition approval does not guarantee the visa approval of the foreign national.
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Immigrant Visas
Our Immigration attorneys also have in-depth experience obtaining immigrant visas on behalf of clients seeking permanent U.S. resident status. We routinely process permanent resident petitions in accordance with established guidelines and policies for employment-based visas, family-based visas, and annual diversity visa lotteries. We provide counsel on all facets of the employment based permanent residence visa process including PERM-based labor certification applications, national interest waivers, multinational executives and managers, outstanding researcher and professors, and extraordinary ability foreign nationals. We prepare J visa waivers and naturalization applications for U.S. citizenship.
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J-1 Visa: Exchange Visitor
The Exchange Visitor non-immigrant visa category is reserved for individuals approved to participate in work and study-based exchange visitor programs. Participants are integral to the success of the program. There are many different categories of J-1 participants under the exchange visitor program. The State Department designates more than 1,500 for-profit, non-profit or federal state and local government entities to conduct such programs.
J-1 Program Categories
- Professors/Research Scholars – promote the exchange of ideas, research, and linkages between research and academic institutions in the U.S. other countries.
- Short-term Scholars – professors, scholars, and other accomplished individuals travel on a short-term visit to lecture, observe, consult , train at U.S. Research and academic institutions, museums, and libraries.
- Trainees – professionals with a degree, professional certificate or relevant work experience gain exposure to U.S. culture and receive training in U.S. Business practices through a structured and guided work-based program.
- Interns – students or recent grads gain exposure to U.S. business practices in their chosen occupational field.
- Students – for study at a U.S. degree graniting post-secondary accredited academic institution
- Teachers – educators teach fulltime at a U.S. accredited primary or secondary school
- Specialists – experts in a field of specialized knowledge observe U.S. Institutions methods and share knowledge with colleagues.
- Alien Physicians – foreign medical graduates pursue graduate medical education or training at a U.S. accredited school of medicine or scientific institution
- Camp Counselors – post-secondary students, youth workers, teacher interact with American youth at U.S. Camps.
- Au Pairs – live with host family for 12 months
- Summer Work Travel program – college students work in seasonal or temporary jobs during the summer months.
- Government Visitors – distinguished international visitors and their U.S. counterparts in federal state or local government agencies.
- International Visitors – Reserved for State Department-sponsored and funded exchange participants
FAQs
Q. What is the two-year home residency requirement?
A. Those who have the J-1 visa can stay in the U.S for the time that they are enrolled in an academic, scholarly, or research program. Some J-1 visa holders have to return to their home country after their visa expires. The two-year home residence requirement means that J-1 visa holders must return to their home countries and be physically present there for two years. After the two years are completed, they can return to the U.S or any other country.
Q. What is a DS-2019?
A. The DS-2019 is the immigration document associated with the J-1 program, issued by the Alternate Responsible officer via SEVIS (Student and Exchange Visitor Information System). The J-1 visitor must be issued this by the J-1 program sponsor prior to applying for a J-1 visa at a U.S. Consulate abroad and must present it upon entry to the U.S. along with other immigration documents and passport.
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O-1 Visa: Individuals with Extraordinary Ability or Achievement
O-1B: Proving Extraordinary Ability in the Arts
- Arts can include any field of creative activity such as fine arts, and performing arts (dancers, musicians) among others.
- The Petitioner must show that the O-1 artist or performer is recognized as being prominent in his or her field by showing either Receipt of a major international award (such as Academy Award or Grammy OR at least three of the following:
- That he/she has performed or will perform services as a lead participant in productions or events with distinguished reputations as shown by critical reviews, ads, publicity releases, or endorsements
- Evidence of high salary
- Evidence that the person of extraordinary ability has achieved national or international recognition by providing publications or other published material
- Evidence of the beneficiary’s successes by providing film or television rankings or box office receipts or other indicators of rank or success
- Evidence that the person had achieved significant recognition in their field for their work from organizations, agencies, and other experts in the field
Application Process and Required Evidence
The Petitioner (employer or agent) submits the Form I-129 with all required supporting evidence including a “Consultation” which is a written advisory opinion from a peer group or person with expertise in the beneficiary’s field. The petitioner also must include a copy of the written employment contract, if any, and an itinerary for the event or activities in the field of extraordinary ability.
Agent Filings for Multiple Employers or Foreign Employer:
An Agent may file as the Petitioner for several employers or on behalf of a foreign employer as long as certain pre-conditions are met, including contractual relationships between each of the employers and the agent. The following must be included with the petition:
- Supporting documentation including a complete itinerary of the event or events which specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed
- Contracts between the actual employers and the beneficiary; and
- An explanation of the terms and conditions of the employment with required documentation.
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P Visa: Athletes, Artists and Entertainers
From world-renowned artists, actors, filmmakers and dancers, to internationally recognized Horse Jockeys, Athletes, and their essential support staff, Harris Beach is called upon to assist these extraordinary individuals obtaining the necessary visas to enter the U.S.
P-1A Internationally Recognized Athlete
The P-1 classification applies to individuals 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.
The athlete must be coming to the United States to participate in an individual event, competition or performance in which they are internationally recognized with a high level of achievement; evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned, leading or well known in more than one country.
Athletic Teams Eligibility Criteria
Member of an athletic team 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 the team is participating must be distinguished and require the participation of athletic teams of international recognition.
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. Please note a petitioner who will be filing as an agent for multiple employers must establish that it is duly authorized to act as an agent.
The U.S. employer must submit a consultation from an appropriate labor organization. The consultation must describe the work or services to be performed in the United States and your qualifications for such work. If no appropriate labor organization exists, this requirement is excused.
Evidence Required:
- A written consultation from an appropriate labor organization
- 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
- An explanation of the event and itinerary
- Documentation of at least two of the following:
- Evidence of having participated to a significant extent in a prior season with a major United States sports league
- Evidence of having participated to a significant extent in international competition with a national team
- Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition
- A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how the team is internationally recognized
- A written statement from a member of the sports media or a recognized expert in the sport which details how the team is internationally recognized
- Evidence that you or your team is ranked, if the sport has international rankings
- Evidence that you or your team has received a significant honor or award in the sport
P-1BA Member of an Internationally Recognized Entertainment Group
The P-1B classification applies to those coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.
Eligibility Criteria
At least 75 percent of the members of the group must have had a substantial and sustained relationship with the group for at least one year.
The entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.
Note: Individual entertainers not performing as part of a group are not eligible for this visa classification.
Evidence Required:
- Written consultation from an appropriate labor organization
- Itinerary with the dates and locations of the performances
- A copy of the contract between the petitioner and the beneficiary or summary of terms of the oral agreement under which the beneficiary will be employed
- Evidence that the group has been established and performing regularly for at least one year
- Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group
- Evidence that the group is internationally recognized as outstanding in the discipline for a sustained and substantial period of time as demonstrated by evidence of the group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:
- The group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements
- The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published material
- The group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials
- The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications
- The group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field
- The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence
P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program
The P-3 classification applies to individuals coming to the US. temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.
Eligibility Criteria:
For a P-3 visa, the applicant must be coming to the United States either individually or as 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, the applicant must be coming to the United States to participate in a cultural event or events which will further the understanding or development of the particular art form. The program may be of a commercial or noncommercial nature.
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R1 Visa- Religious Workers
R-1 visa classification is reserved for foreign nationals who are coming to the United States temporarily as “religious workers,” to be employed as a minister or in another religious vocation or occupation. It is not available, however, to secular members of a religion. To qualify, the individual must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of the petition, and the U.S. entity filing the petition must be such a bona fide non-profit religious organization.
For purposes of the R-1 visa, the following definitions/categories apply:
- Ministers are defined as individuals who are duly authorized by the religious denomination to which they belong, and are fully trained according to the denomination’s standards to conduct religious worship and other duties usually performed by the clergy. The regulations do not define a uniform type of training for religious denominations. When signing the petition, the petitioner must attest that the beneficiary is qualified to perform the proposed duties of the religious occupation to be performed in the United States.
- Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of persons with a religious vocation include, but are not limited to, nuns, monks, and religious brothers and sisters. Persons with religious vocations may engage in any type of activity within their religious vocations, denomination, or its affiliate. For vocation-based R-1 applicants, the emphasis is therefore on what the applicant’s status is within the religious organization, rather than on what the applicant will do in the United States.
- Religious occupations are defined as occupations whose duties must primarily relate to a traditional religious function; be recognized as a religious occupation within the denomination; and be primarily related to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination. Religious occupations do not include primarily administrative or support positions such as janitors, maintenance workers, clerical employees, or fund-raisers or similar positions solely involved in soliciting donations. Limited administrative duties that are only incidental to religious functions are permissible. Similarly, religious study or training for religious work alone does not constitute a religious occupation, but a religious worker may pursue study or training incidental to R-1 status.
In general, religious workers must be compensated by the petitioning organization; however, compensation may include either salaried or non-salaried compensation, for example, room and board. The primary criterion is that the religious organization show how the religious worker will be supported in the United States such that the beneficiary will not have to resort to unauthorized employment in order to make a living. Self-support is only permitted for certain nonimmigrant missionaries, if missionary workers are traditionally uncompensated and if participation in such missionary work is an established element of religious development in the particular denomination.
R-1 status may be granted for an initial period of up to 30 months. This status can be extended for an additional 30-month period, for a maximum period of stay of 60 months (five years) in the United States in R-1 classification.
Spouses and unmarried children (under age 21) of R-1 religious workers are eligible for R-2 status to accompany the primary R-1 worker in the U.S.
Unique to R-1 petitions is a regulatory requirement that USCIS conduct a site visit in connection with any new R-1 visa petition that is filed. A successful site visit is required before an R-1 petition may be approved. The purpose of the site visit is to detect and deter fraud in the religious worker visa program, and therefore, during such site visits, USCIS will verify that the place of worship/congregation actually exists, and will ask questions of the petitioning organization related to its operations and its proposed employment of the R-1 religious worker.
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TN Visa: Canadian and Mexican Professionals (Under NAFTA/USMCA)
The North American Free Trade Agreement (NAFTA) is a trilateral between the United States, Canada and Mexico. In 2018, President Donald J. Trump renegotiated key trade terms of NAFTA and the name of the agreement was changed to the United States- Mexico-Canada Agreement or USMCA. The immigration provisions of NAFTA were not changed as a result of these negotiations.
NAFTA/ USMCA’s immigration provisions include the TN nonimmigrant classification, which is available only to citizens of Canada and Mexico. TN status/ visas are some of the quickest and most straightforward forms of employment authorization available to any foreign nationals.
Canadian TNs
Canadian citizens are visa-exempt and may therefore apply for admission to the U.S. in TN status directly at any Class A port of entry located at the northern or southern U.S. border, or at a Preclearance Office. The TN application must be lodged in connection with an application for admission to the United States. The applicant must therefore be making a physical entry to the U.S. in order file the application.
While pre-approval of an I-129 petition is not required, one may be approved in advance by filing with USCIS. An advance approval can help to ease the TN adjudication process at the port of entry and provide some level of assurance that the application will be approved; however, even a USCIS approval notice does not provide a guarantee of admission as all final admissions decisions are made by U.S. Customs & Border Protection at the port of entry.
In order to qualify for TN status at the border, the applicant must prove the following:
- He or she is a Canadian citizen (Landed Immigrants of Canada do not qualify)
- Must have a job offer from a U.S. company in a NAFTA profession, as laid out in Appendix 1603.d.1 of NAFTA and 8 C.F.R. §214.6. Job offer should be documented through a TN letter from the employer that includes a description of the proposed job duties as well as the arrangements for remuneration.
- Must meet the requirements for the profession as described in Appendix 1603.d.1 of NAFTA
- Must obtain a credentials evaluation for a degree issued outside of North America
There is no right to attorney representation at a port of entry. Many constitutional rights are suspended at international border crossings. However, CBP officers may decide, in their discretion and as a courtesy, to permit attorneys to accompany their clients to the border and even to be present during an inspection. Since 2017, the ports of entry along the Northern Border to the U.S. have ceased allowing attorney representation to Canadian citizens seeking admission in TN status, in most cases.
If the application is approved, the applicant must pay a $56.00 filing fee and will be issued a multiple-entry I-94 card in his passport which can be issued with a validity period of up to three years. Some I-94s are issued for a shorter period, such as when the TN letter provided by the employer asks for a shorter validity period. In addition, an I-94 cannot be issued for a period longer than the validity of the applicant’s passport. While most I-94s are now electronic, CBP still uses paper I-94s at all land border crossings. All I-94s can be retrieved online at www.cbp.gov/i94.
Applicants applying at a Preclearance Office in Canada must have an international flight booked for entry to the U.S. The inspection process at the airport is the same as at the land border, with the exception that a delay in process could cause someone to miss a flight. Also, the filing fee at the airport is only $50 because the $6 I-94 fee is included in the price of the airline ticket.
Mexican TNs
Citizens of Mexico are not visa-exempt and must apply for TN status directly at a U.S. Consulate in Mexico. A petition is not required but may be filed on behalf of a Mexican citizen. The same regulatory provisions apply to TN status for Mexican nationals as to Canadian nationals.
The following items must be presented at a visa interview at a U.S. Consulate in Mexico:
- Passport valid for travel to the United States
- Nonimmigrant Visa Application, Form DS-160 confirmation page
- Application fee payment receipt
- A letter of employment in the United States – must confirm upcoming employment in one of the professional occupations listed in Appendix 1603.d.1 of NAFTA. The letter should also include:
- A detailed description of anticipated business activities or job duties;
- Anticipated length of stay in the United States;
- Educational qualifications, licensure, and/or other appropriate credentials demonstrating professional status as required by NAFTA; and
- Arrangements for remuneration.
Dependent Family Members
The spouse and children (under age 21 and unmarried) of TN applicants may be accorded TD status. Those in TD status are not authorized to work in the U.S. but may attend school. Canadian TD applicants may apply for entry at the border at or any time after the principal is admitted. Nationals of any other country seeking TD status need to first obtain a visa at a U.S. Consulate outside of the United States.
