Nonimmigrant Work Visa

These nonimmigrant visas are available for Business Owners, Managers and Employees under several separate categories:

Professional Workers (Specialty Occupations)

The H-1B allows U.S. employers to employ foreign guest workers employed in specialty occupations. The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India, the Philippines and China) to obtain their green cards. Since the duration of the H-1B visa hasn’t changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments to continue to be in legal status while their green card application is in process.

Temporary Workers

temporary worker visaH-2B visas are for foreign nationals coming temporarily to the United States to perform temporary services or labor, other than agricultural services or labor, for which unemployed persons capable of performing such service or labor cannot be found in the United States.  “Temporary” refers to any job for which the employer need is temporary, regardless of whether the job is one that could be described as permanent or temporary.

Absent extraordinary circumstances, the period of the employer need must be for one year or less, and be either: a one-time occurrence; a seasonal need; a peak load need or an occasional or intermittent need.  A temporary labor certification must be obtained from the United States Department of Labor (DOL) before an H-2B visa petition can be approved.  Spouses and dependent children may obtain H-4 visas to reside and study in the United States, but may not seek gainful employment.

I Visas:
for Foreign Media, Press and Radio

Visa for MediaThe I visa category is for media representatives of foreign press, radio, film, or other foreign information media.  Although procedures for issuance of I visas depend on the privileges the foreign nationals home country extends to representatives of the United States media, generally applicants must demonstrate that they are representatives of the foreign media, including members of the press, radio, film or print industries, whose activities are essential to the foreign media function.  Examples: reporters, film crews, editors and persons in similar occupations, who are traveling to the U.S. to engage in their profession.

The applicant must be engaging in qualifying activities for a media organization having its home office in a foreign country.  To be eligible for an I visa, the activity must be essentially informational, and generally associated with the news gathering process, reporting on actual current events.

Spouses and/or children under the age of 21 who wish to accompany or join the principal I visa holder for the duration of his/her stay in the United States require I visas as well.  They may not work without obtaining an appropriate work visa, but may study in the U.S. without a student (F-1) visa.  Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but wish to visit for vacations only, may be eligible to apply for visitor (B-2) visas , or if qualified, travel without a visa under the Visa Waiver Program.

Intra Company Transferees and Managers

L-1 visas are available to employees of an international company with offices in both a home country and the United States, or which intend to open a new office in the United States while maintaining their home country interests. It is a non immigrant visa, and is valid for a relatively short amount of time — generally three years. The visa allows such foreign workers to relocate to the corporation’s U.S. office after having worked abroad for the company for at least one year prior to being granted L-1 status. The U.S. office must be a parent company, child company, or sister company to the foreign company.

Spouses of L-1 visa holders are allowed to work after obtaining work authorization, without restriction, in the U.S., and the L-1 visa may legally be used as a steppingstone to the Green Card under the doctrine of dual intent.

The L-1A classification is for managers or executives, while the L-1B classification is for employees with specialized knowledge of the company product and its application in international markets, or who have an advanced level of knowledge of its processes and procedures.

L-1A visa status may be granted for up to two (2) years, with a maximum of seven (7) years stay in the United States, while L-1B visa status may be granted for up to two (2) years, with a maximum of five (5) years stay in the United States.  In either case, where the employee is coming to work for a startup company (less than one year in business) the initial period stay will be for one year.
There are two types of L-1 procedures:

  • Regular L-1 visas, which must be applied for and approved for each individual by the U.S. Citizenship and Immigration Services (USCIS); and
  • Blanket L-1 visas which are available to employers who hire large numbers of Intracompany Transferee’s every year.

For a regular L-1 visa, the company must file a petition with the USCIS and each petition is evaluated on its own merits.
In the case of a blanket L-1 visa petition, it has already been determined by USCIS that the company qualifies for the issuance of an Intracompany Transferee visa, so the individual visa applicant need only file a copy of the approved blanket petition, along with documents supporting their personal qualifications, with the U.S. consulate or embassy having jurisdiction over their place of residence proving the applicant’s qualification.

O Visas:
for Aliens of Extraordinary Ability, Cultural Exchange Visitors

The O-1 classification is a visa that applies to aliens who have extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who are coming temporarily to the U.S. to continue work in the area of extraordinary ability. A consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed employment and the alien qualifications is required in support of an O-1 visa petition.

Actors VisaArtists and entertainers in connection with TV or motion pictures who wish to qualify for the visa must show a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered, in-so-far as the person is recognized as outstanding, notable, or leading in the motion picture or television field.  They also must be coming temporarily to the United States to continue work in the area of extraordinary achievement.

The O-2 visa is designated for essential support personnel that accompany and assist an O-1 visa holder in a specific athletic or artistic event or in the motion picture or television industry.  O-2 visas are not available for those who accompany or assist O-1 visa holders in education, science, or business.  The O-2 visa applicant must be an integral part of the O-1 actual performances or events and possess critical skills and experience with the O-1 principal that are not of a general nature, and which are not possessed by others.

In the case of a motion picture or television production, the O-2 applicant must have skills and experience with the O-1 principal which are critical and not of a general nature, based either on a preexisting and long standing working relationship, or because the continuing participation of the alien is essential to the successful completion of a production, a significant part of which is to take place both inside and outside the United States.

Spouses and children of the O-1 and O-2 visa holders may obtain an O-3 visa to enter and accompany the O visa principal.  The O-3 visa holder may attend school but if he or she wishes to work, he or she must obtain a work visa.

P Visas:
for Performing Artists and Athletes

The P classification applies to foreign-based athletes and entertainment groups:

The P-1 visa is designated for internationally recognized entertainers, circus artists, and athletes who are coming to the United States temporarily to tour or perform at a specific competition or event.  An athlete who wishes to remain in the U.S. for a longer period of time should apply for an O-1 visa.

The P-2 visa is designated for artists or entertainers individually or as part of a group entering the United States temporarily as a part of a government recognized reciprocal exchange program, and for their support personnel.  There should be two organizations involved in this exchange program: one in the U.S. and one abroad.

The P-3 visa is designated for artists or entertainers coming temporarily to perform, teach, or coach, individually or as part of a group, under a program that is culturally unique, and for their support personnel.

Spouses and children of a P-1, P-2 or P-3 visa holder may obtain a P-4 visa to enter the U.S.  The P-4 visa holder may attend school but in order to work, he or she must obtain a work visa.

Temporary Religious Workers

This visa category is for foreign nationals coming to the United States to carry on the vocation of minister or otherwise work in a religious vocation or occupation, for or at the request of a religious denomination having a bona fide nonprofit religious organization in the U.S.  The applicant must have been a member of the denomination for two years immediately preceding admission.

Religious workers include “ministers of religion” who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy such as administering the sacraments, or their equivalent.  The term does not apply to lay preachers.

A “religious vocation” means a calling to religious life, evidenced by the demonstration of a lifelong commitment, such as taking vows.  Examples include nuns, monks, and religious brothers and sisters.  A “religious occupation” means a habitual engagement in an activity which relates to a traditional religious function.  Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters.

It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations.  The activity of a lay-person who will be engaged in a religious occupation must relate to a traditional religious function: i.e., the activity must embody the tenets of the religion and have religious significance, relating primarily, if not exclusively, to matters of the spirit as they apply to the religion.

A non-immigrant religious worker’s spouse and unmarried children under 21 years of age may be granted derivative status. They may study but may not accept employment in the United States. Holders of R visas may remain in the U.S. for up to five years to pursue their calling.

Manhattan Immigration Attorneys at Schonfeld & Ushan in New York have years of experience in most types of visa applications. Call (212) 233-1433 or email Schonfeld & Ushan  to schedule a consultation.