Non-immigrants are foreign nationals authorized to enter the United States and to stay for a specified temporary period to pursue certain activities, which includes visitors, students, temporary workers, business executives managers, investors, etc. The non-immigrant should possess an appropriate type of visa and comply with the legal requirements while staying in the U.S. For example, an individual must have employment authorization to “work” and similarly a student must have a valid student visa to be able to study at an educational program in the U.S.
Non-immigrant visas could be extended or changed to certain different non-immigrant visas subject to the governing rules related to the particular type of visa. There are several types of non-immigrant visas. Some of the most commonly used are the following:
H-1B Visa
The H1-B visa permits corporations to temporarily employ foreign nationals in specialty occupations. This visa may be initially granted for up to 3 years and could be subsequently extended for a period up to a total of 6 years. H-1B non-immigrants may simultaneously apply for permanent residence. Dependent spouses and children are able to obtain H-4 status. 65,000 H1-B visas are available annually. An additional 20,000 H-1B visas are available for individuals with advanced degrees. H-1B non-immigrants may change employers but H-1B visas need to be transferred to the new employer.
The H1-B visa process starts with the labor condition application (LCA) which is filed with the Department of Labor (DOL). In this application, the H-1B employer represents that:
1. It will pay higher than the prevailing wage or actual wages.
2. The non-immigrant will not adversely affect the working conditions of his co-workers
3. There is no strike or lockout at the place of employment and
4. The co-workers have been notified about the non-immigrant worker working with them at the same work site.
H1-B classification is appropriate for a foreign national who will perform services in a specialty occupation that requires theoretical and practical application of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation.
Therefore determination of eligibility for an H1B visa calls for a three-step analysis. First, it must be determined that the offered position is a professional or specialist job. Second, it must be proven that the foreign national is a professional or specialist qualified for the offered position based on education, experience, or both. Third, the wages and working conditions must satisfy the Department of Labor requirements.
H-1B Cap
First time in 1990 the new cap of 65,000 H-1B visas was set. The cap was subsequently raised and has been brought back to 65,000 annually. The H-1B Visa Reform Act of 2004 also created a “cap exemption” for up to 20,000 visas per year for foreign nationals with higher degrees.
Gap-Cap for F-1 students on OPT:
An F-1 student with OPT seeking a change in status to H-1B will be allowed to stay in the United States until the new H-1B quota takes effect on October 1st each year. In the past F-1 students were allowed to stay but not allowed to work during this Gap-Cap period. Now, USCIS regulation allows F-1 students on OPT to stay and to work during this period.
L-1 Intra-Company Transferee Visa:
The L-1 visa is available to the executive, managers, and specialized knowledge employees of multinational organizations. Executives and managers may be granted an L-1A visa for up to 7 years and specialized knowledge workers for up to 5 years with an L-1B visa. To become eligible, the organization must have offices in the United States and in at least one other country. The regulation makes special provisions for a foreign national coming to the U.S. to work for a new company in operation for less than one year.
To establish eligibility for L-1 Intra company Transferee Visa:
1. A “Qualifying relationship” between the U.S. entity and foreign entity must be established.
2. The beneficiary must have been employed abroad with the qualifying entity continuously for at least one year in the past 3 years in a managerial or executive capacity.
3. The L-1 transferee must be coming to the U.S. to work for a qualifying entity in the U.S.
4. The transferee must be a manager or executive or work in a position requiring specialized knowledge.
Blanket L-1 Visa:
Multinational Corporations frequently using L-1 Visas may be eligible for a blanket-L petition. To qualify for a blanket L-1 petition the petitioning company as well as others in the group must meet the following criteria:
1. The U.S.-based petitioner and all other entities in the group are engaged in commercial trade or services.
2. The petitioner has an office in the U. S. and has been engaged in business for one year or longer.
3. The U.S.-based petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and they must meet one of the following requirements:
a) The petitioner has obtained approvals for at least 10 L managers, executives, or specialized knowledge employees in the preceding 12 months; or
b) The group has a combined annual sales of $ 25 million or more; or
c) Have a workforce of at least 1000 employees.
Approved blanket L-1 petitions allow certain transferees to apply for L-1 Visas at the U. S. Consulates and do not need to wait for an approval of L-1 petition by USCIS.
O-1 Extraordinary Ability Visas:
The O-1 classification is available to people of extraordinary ability in sciences, education, business, athletics, arts, or in the motion picture or television industries for temporary work in the field of expertise. Supporting staff accompanying O-1 principal are eligible for O-2 and spouse and dependent children of O-1 and O-2 are eligible for O-3 status. This visa requires a U.S.-based employer sponsor and the eligibility is premised on non-academic achievements. An agent can file an O-1 petition and act as an employer to sponsor the beneficiary. The petition requires a summary of the employment agreement with the underlying terms and conditions of engagement.
The O-1 visa can be available for long periods due to there being no cap on the amount of extensions that can be approved for this visa. It is also a non-immigrant option for foreign nationals subject to a two-year home-country residence requirement on a J-1 Visa. It could be a last resort for foreign medical graduates who were not able to secure a J-1 waiver due to the limitation of the number of waivers each State is allowed. The O-1 Visa could allow them to remain and work in the United States.
As the eligibility for an O-1 visa is based on non-academic achievements, it might work to the advantage of a foreign national, who does not qualify for H-1B due to one or several factors such as lack of academic qualification, experience, or the assignment does not qualify as a specialty occupation or if the offered salary is less than the prevailing wage or due to unavailability of an H-1B Visa.
P-Visas:
The P-Visa is available to outstanding athletes, entertainment groups, entertainers and artists in exchange programs, and unique cultural performers.
The P-1 Visa is available to an athlete or group; an entertainer or group who has earned international recognition as an athlete or entertainer. The P-2 Visa is available for an individual artist, entertainer, or group who will perform under a “reciprocal exchange program.” The P-3 Visa is available for an individual artist, entertainer, or group coming to the U.S. to perform, teach, or coach in a program that is culturally unique. It includes entertainers from Nepal, India, Pakistan, Bangladesh, Mexico, and other such countries. The P-4 Visa is available to the spouse and children of P-1, P-2, and P-3 Visa holders.
E-1 and E-2 Treaty Trader & Treaty Investor:
The United States has signed reciprocal treaties with 82 countries. Foreign nationals from such treaty countries are allowed to engage in business activities as a treaty trader and treaty investor or as an employee of a qualifying entity. The qualifying entity must be a treaty trader or treaty investor.
To establish eligibility, a treaty must exist between the United States and the country of the foreign national. The majority of the enterprise must be owned by nationals of that treaty country and the enterprise must be engaged in trade with the United States. An E-1 visa is available for a treaty trader and an E-2 for a treaty investor. Click here to view the current list of E-1/E-2 treaty countries.
TN Visa for Canadian and Mexican Professionals:
The TN Visa is available for Canadian and Mexican Citizens who come to the United States to perform professional assignments. The North American Free Trade Agreement (NAFTA) provides the list of occupations and applicable requirements. Canadian nationals can apply for TN visas at certain ports of entry. Mexican nationals have to apply for a TN visa at the U.S. Consulate. TN visas may be granted for up to 3 years and TN visa holders may request an extension of their TN visa with USCIS or again apply for a TN visa at the port of entry. The spouse and children are able to obtain TD status.
R-1 Visa to Religious Workers:
The R-1 visa is available for ministers and for those working for religious occupations and vocations. To be eligible individuals must have been a member of the denomination and working as a qualifying religious worker for 2 years. The individual should be coming solely to work for a qualifying religious organization of the same denomination.