TEMPORARY EMPLOYMENT VISAS
B-1 BUSINESS VISITOR VISA
Allows certain employees of foreign companies to travel to the U.S. for a brief period of time and for specific business purposes only. These include business consultations/meetings, contract negotiations, short-term training for the abroad employer, or specific scientific, educational, or professional conventions.
The B-1 visa criteria are very specific that the purpose of the trip must be for legitimate business purposes, and that the individual must only remain in the United States for a limited period of time to fulfill those business purposes. USCIS is very strict about misuse of these visas, so it is very important to consult an attorney about the nature and scope of your business visit to the U.S.
TREATY TRADER (E-1) AND TREATY INVESTOR (E-2) VISAS
These visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. The applicant must be coming to the United States to:
Engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country;
Develop and direct the operations of an enterprise in which one has invested a substantial amount of capital. To see a full list of treaty countries, please visit the Department of State’s website here.
To qualify for a Treaty Trader (E-1) Visa:
The applicant must be a citizen of a treaty country.
The trading firm for which the applicant plans to come to the United States must have the nationality of the treaty country, meaning persons with the treaty country’s nationality must own at least 50 percent of the enterprise.
The international trade must be substantial, meaning that there is a sizable and continuing volume of trade; more than 50 percent of the international trade involved must be between the United States and the treaty country; trade means the international exchange of goods, services, and technology.
Title of the trade items must pass from one party to the other; the applicant must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
To qualify for a Treaty Investor (E-2) Visa:
The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality;
The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise; the investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking.
A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment; it must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States; the applicant must have control of the funds, and the investment must be at risk in the commercial sense.
Loans secured with the assets of the investment enterprise are not allowed; the applicant must be coming to the United States to develop and direct the enterprise.
To qualify for an Essential Employee (E-2) Visa:
If the applicant is not the principal investor, he/she must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity that is necessary to the ongoing operations of the business.
Ordinary skilled and unskilled workers do not qualify.
H-1B SPECIALTY OCCUPATION VISA
This non-immigrant visa category allows U.S. companies to petition for qualified candidates from foreign countries to perform services temporarily in the United States.
The vast majority of H-1B visas go towards those in specialty occupations. There are statutory numerical limits, or “caps,” on the total number of individuals who may receive H-1B nonimmigrant classification during a fiscal year. This cap is always reached within the first weeks of the application period for a new fiscal year, so it is very important to strategize your company’s plan in advance. Once the H-1B cap is reached, USCIS may only accept petitions for H-1B workers who are exempt from the cap (such as those who are seeking to transfer from one petitioning company to another).
H-1B laws and regulations are complex and it is imperative to follow these rules to the letter. USCIS routinely audits firms to review compliance with the labor conditions placed on H-1B employers. Additionally, there have been an increasing amount of Requests for Evidence (RFE) from USCIS on H-1B petitions. This increased scrutiny places an even higher importance on retaining effective and experienced immigration counsel.
H-2B TEMPORARY NON-AGRICULTURAL WORKER VISA
The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary non-agricultural jobs. To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
·The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and,
·Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor.
There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year. Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.
L-1A INTRA-COMPANY TRANSFEREE EXECUTIVE OR MANAGER
The L-1A visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States for the purpose of establishing a presence in the country. In order for the executive or manager to qualify for an L-1A Visa, employment abroad for one continuous year within the three years immediately preceding admission to the United States is required, and one must continue employment in the U.S. under the same capacity as in the foreign country.
This visa category has received arguably the closest scrutiny from USCIS in recent years due to allegations of fraud rife within the program. GMLG’s attorneys are adept at navigating the difficult requirements to receive USCIS approval for L-1A visas.
L-1B INTRA-COMPANY TRANSFEREE SPECIALIZED KNOWLEDGE
The L-1B visa allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. In order for the employee to qualify for an L-1B Visa, the individual must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and must continue employment in the U.S. under the same capacity as in the foreign company.
O VISA FOR ALIENS OF EXTRAORDINARY ABILITY OR ACHIEVEMENT
The O visa allows aliens with extraordinary ability in certain fields or extraordinary achievement in a particular industry to temporarily work in the United States. In order to qualify for an O-1 Visa and temporarily come to the U.S., the alien must have extraordinary ability in one the following: Arts, Sciences, Education, Business, or Athletics; or they must have extraordinary achievement in one or both of the following industries: motion pictures or television.
P VISA FOR ATHLETES, ENTERTAINERS & ARTISTS
The P visa allows the applicant to enter the U.S. for the duration of a specific competition, event or performance. The standard for the P visa is lower than that for the O Visa. The P visa applicant is required to maintain a residence abroad which he/she should not intend to abandon.
Q VISA FOR CULTURAL EXCHANGE
The Q visa permits individuals to come to the U.S. to take part in an established international cultural exchange program. The program must be one that provides practical training, employment, and sharing of the participants' native culture, history, and traditions with the people of the United States.
R VISA FOR RELIGIOUS WORKERS
The R visa allows a foreign national to come to the United States temporarily to be employed at least part time (average of at least 20 hours per week) by a non-profit, tax-exempt religious organization in the United States to work as a Minister/Priest/Rabbi/Shaman, etc., or in a religious vocation or occupation.
This visa is for qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.