Relevant Employment Related Non-Immigrant Visas

The United States uses a Letter / Number combination to identify all classes of non-immigrant (temporary) visa classifications. The following is a partial list that covers the most common employment based visas that most international business clients are likely to encounter.

B-1Temporary Visitor for Business - Applicant must be the full-time employee of a foreign entity, coming in on the employer's business. [NOTE - Although this is a "business" visa, the foreign national is strictly prohibited from doing any "productive" work! This visa may be used to gather information, study, train, share information or engage in higher level "executive" activity.]

B-2Temporary Visitor for Pleasure - This is the most commonly used visa for entering the USA, it is generally intended for the traditional "tourist." [NOTE - No work is allowed, and attending school is specifically prohibited.]

E-1Treaty Trader - The E visas are considered by many to be the most useful and versatile visas for doing "work" in the USA. It is the visa of choice for all levels of employee: executives; managers; skilled and "essential" workers. It carries no time limit on how long you may keep the status, and each entry automatically authorizes you for a 2 year admission. [NOTE - This visa is only available to countries that have signed a treaty of trade with the USA. That list can be found at <http://foia.state.gov/masterdocs/09fam/0941051X1.pdf>; It is also only available to those persons who are citizens or nationals of that treaty country, working for a company that is at least 50% owned by those treaty nationals, and doing "substantial trade" with the USA.]

E-2Treaty Investor - This visa tracks the E-1 (above) both in benefits and restrictions. It is most commonly used where a business is being set up in the USA (as distinguished from cross border trade) and is the favorite of the owner / entrepreneur. This visa is my first choice of all other visas, when it applies.

F-1Academic Student - This visa is included, because U.S. employers are very likely to encounter a foreign national who has completed a course of study, and who is seeking employment using their one year of Optional Practical Training (OPT). This is the closest thing we have in our system to a carte blanche employment authorization. [NOTE - OPT is only valid for a maximum of one year, and unless another employment based visa has been granted, employment cannot be continued.]

H-1BTemporary "Specialty Occupation" Worker - Formerly called the "temporary professional" visa, this is the most commonly used non-immigrant employment visa for new hires. The general standard is that the job must "require" a specific bachelor's degree (or equivalent), and the employer must conform to substantial record keeping requirements. [NOTE - This visa carries substantial potential liabilities for technical violations. The worst mistake your client can make would be to allow the foreign national to hire the immigration attorney who prepares and files (under the "pains and penalties of perjury" - and all that that implies) the employer's petition for permission to employ the foreign national. The approval of the visa does NOT protect the employer. It is a certainty that the employee - hired attorney has not done all of the (exhaustive and detailed) work required to adequately prepare the underlying documentation necessary to protect the employer.]

H-2BTemporary Worker (unskilled) - This visa is often used by large seasonal employers, typically in the hospitality industry. Not only must the person be a temporary hire, but the job itself must be proven to be temporary. This is a costly visa for a short window of use, unless you have "volume" employees.

H-3 Temporary Trainee - As a result of prior abuse of this visa by certain large employers, Legacy INS has imposed substantial proof requirements. You will be required to prepare an entire training "program" showing - week by week - exactly what will be covered at each stage, including exhaustive evidence on who will be providing the training, and their qualifications to do so.

J-1Exchange Visitor - This complex visa has multiple programs, but is most often be used by large multinational corporations / schools / research facilities. The most common use is to allow short term "training" programs that could last up to 18 months. [NOTE - The biggest risk of using this visa is that it may impose a two (2) year Return Residency Requirement in the home country. This is especially true of foreign doctor's who come into the U.S. to do graduate study.]

L-1Intra-company Transferee - This visa is limited to Executives, "Key" Managers and persons of "Specialized Knowledge" of the company. Generally speaking employees must have been employed by the foreign entity for at least one year in the immediate past 3 years. It allows for maximum stays of between 5 and 7 years. It allows for "fast track" green card applications for (qualified) Executives and "Key" Managers. Large or high volume companies may also be eligible for a Blanket L-1, where the underlying petition is pre- approved and individuals apply directly to the embassy / consulate for expedited processing and entry. [NOTE - Recent abuses of this visa that caused proven job losses of no more than 25 individuals (in the entire country!) have caused Congress to "galvanize" into action to protect the U.S. labor force! Rather than simply enforce the existing law as written and punish those who violated it, Congress has held extensive hearings and is currently crafting a "solution" that could impose significant additional burdens on this visa. Stay tuned!!!

O-1Extraordinary Ability in Sciences, Arts, Education, Business or Athletics - The already high / confusing standards of this category has been largely misunderstood by Legacy INS, with the consequences that examiners often "make up" standards to be applied to applications. It is frequently used as a vehicle of last resort for foreign medical graduates who fail to secure one of the limited "Conrad Waivers" to allow them to remain and work in the United States and (after three years) waive the 2 Year Return Residency Requirement of the J-1 visa. This category is an option for the outstanding "superstar" with extensive documentation.

TNTemporary NAFTA - Available only for Canadians (TC) and Mexicans (TM), this category allows for only one year entry at a time. Advantages include relatively expedited processing (for Canadians, different rules impose additional requirements for Mexicans), and generally a "painless" processing. [NOTE - the one year limit can cause problems, and resolving "problems" if an application is wrongfully denied often means spending many days in a motel near the airport.]

WT/WBVisa Waiver for Tourism or Business - Available to nationals of (currently) only 27 countries, this visa can be a Trojan Horse. Individuals are allowed to enter (as the equivalent of B-1 Visitor for Business or B-2 Visitor) without having to go through the bother of pre-applying for a visa stamp in their passports. That "benefit" is counter-balanced by the fact that unlike the typical 180 days of admission granted to visa holders, the visa waiver allows for a maximum of only 90 days: NO extensions; NO change of status; and SUMMARY REMOVAL for any perceived violation. [NOTE - In spite of repeated orders to the contrary, many consular posts will "refuse" to issue visitor visas, thereby "forcing" applicants to enter on visa waiver.]