Navigating the Nonimmigrant Visa Maze: A Primer on Visa Categories

June 2003

The United States now has more than thirty nonimmigrant visa categories identified by letters from A to V, many with multiple subcategories. This article will not endeavor to discuss all of those categories,but will focus on those most commonly encountered by attorneys, and divide them into those allowing employment, and those generally prohibiting employment.

 

I. NONIMMIGRANT EMPLOYMENT VISAS

A. TREATY TRADER AND TREATY INVESTOR VISAS (E VISAS)

1. The Principal Investor

Many foreign nationals seek to enter and remain in the United States through self-employment in a business enterprise that they establish or purchase. The mechanism for this is an "E" visa, which allows long-term nonimmigrant status for the entire time period the enterprise continues to operate. The Immigration and Nationality Act 101(a)(15)(E) provides for admission as a nonimmigrant of:

an alien entitled to enter the U.S. under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him:

(i) solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national; or

(ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.

Nonimmigrants including spouses, children and employees, who are admitted under clause (i) of that provision are classified as E-1 treaty traders; those admitted under clause (ii) are E-2 treaty investors.

The restrictions involving trade with the "home" country under clause (i), make the more flexible treaty investor a popular choice and often better vehicle for long-term nonimmigrant employment in the United States.

Countries Eligible for Issuance of Treaty Trader (E-1) and Treaty Investor (E-2) Visas:

ARGENTINA AUSTRALIA AUSTRIA BELGIUM BOLIVIA BOSNIA-HERZEGOVINA CANADA CHINA(TAIWAN) COLOMBIA COSTA RICA ESTONIA ETHIOPIA FINLAND FRANCE GERMANY HONDURAS IRAN IRELAND ITALY JAPAN JORDAN KOREA LATVIA LIBERIA LUXEMBOURG MACEDONIA MEXICO NETHERLANDS NORWAY OMAN PAKISTAN PARAGUAY PHILIPPINES SLOVINIA SPAIN SURINAME SWEDEN SWITZERLAND THAILAND TOGO TURKEY UNITED KINGDOM YUGOSLAVIA

Countries Eligible for Issuance of Treaty Trader (E-1) Visas Only:

BRUNEI DENMARK GREECE ISRAEL

Countries Eligible for Issuance of Treaty Investor (E-2) Visas Only:

ALBANIA ARMENIA AZERBAIJAN BAHRAIN BANGLADESH BULGARIA CAMEROON CZECH REPUBLIC ECUADOR EGYPT GEORGIA GRENADA JAMAICA KAZAKHSTAN KYRGYZSTAN MOLDOVA MONGOLIA MOROCCO PANAMA POLAND ROMANIA SENEGAL SLOVAK REPUBLIC SRI LANKA TRINIDAD & TOBAGO TUNISIA UKRAINE

Applications for a Treaty Investor status should include:

a) The applicant's passport demonstrating that he or she is a citizen of a qualifying country. The passport should be valid for six months beyond the intended stay.

b) Evidence of the existence of the investment enterprise, such as Articles of Incorporation and Bylaws, or Partnership Agreement, Joint Venture agreement, business trust documents, or other documents showing the existence and proper registration of the business.

c) Evidence that the enterprise is licensed to do business in the locality where it will conduct business; for example, local, municipal, and/or state business licenses.

d) Documentation verifying that the applicant has the capability to develop and direct the enterprise.

e) Documents demonstrating the nature of the business and its financial condition including:

(i) If a new enterprise, a comprehensive business plan including market surveys, photographs of the premises or drawings of the planned facility, leases or real estate purchase agreements for the business premises, escrow agreements, and bank statements.

(ii) If a purchase of an existing business, a buy-sell agreement and comprehensive financial statement, business tax returns for the past few years. a lease or lease assumption agreement for the business premises, inventory records, employment records such as Forms 941 or W-3 reports (the employer's consolidated report of employee earnings), and bank statements.

(f) Evidence of other personal assets of the investor. Deeds to property; proof of ownership of other businesses or investments such as shares of stock; statements of bank or other depository accounts; or a personal financial statement prepared by a qualified accountant.

Aside from the obvious requirement of nationality, the decision regarding treaty investor status depends on what the Department of State refers to as "substantiality" and "marginality." The questions which must be answered to succeed in obtaining an E visa are: Has the applicant invested enough capital in the business so that it has a good chance of succeeding [substantiality]? And, is this a genuine investment enterprise, or will the business exist merely to provide a living income for the applicant [marginality]. The first question must be answered in the affirmative; the second in the negative.

2. Treaty Investor Employees

Not only the principal foreign investor, but also employees of that investor, and employees of an investment enterprise that holds the nationality of a treaty country, may come to the U.S. in E-2 status.

An alien seeking an E-2 visa as an employee of an E-2 visa holder must establish that the employer is either a foreign person having the nationality of the treaty country or is an organization at least 50% owned by a person or persons having the nationality of the treaty country. If the employer is a corporation or other business organization, the employee must have the same nationality as those who control his employer. For purposes of E-2 status, a company's nationality depends on the company's ownership, not on its place of incorporation or the location of business activities.

Only employees of treaty investors whose duties are executive or supervisory, or who have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise, may qualify for E-2 employee status.

B. H-1B1 Visas

Perhaps the most familiar nonimmigrant employment visa is the "H-1B1" or temporary professional visa. Professionals may be employed on a temporary basis, for up to six years, provided an American employer has petitioned for the foreign professional, and the position is a "specialty occupation". INA 101(a)(15(H). A job is a "specialty occupation" if it meets any one of the following criteria:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; or

2. The degree requirement is common to the industry in parallel positions; or

3. The employer normally requires a degree or its equivalent for the position; or

4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate degree or higher.

8 CFR sec. 214.2(h)(4)(ii) and (iii)(A).

The process of obtaining H-1B1 status is complex. Before filing a Petition for a Nonimmigrant Worker with the Immigration and Naturalization Service, a prospective employer must file a Labor Condition Application with the United States Department of Labor. The Labor Condition Application certifies that the wage, working conditions, and benefits offered to the temporary worker are comparable to that paid to others with similar experience. The employer must maintain detailed records on how the actual wage offered to the physician has been computed, and separate records on how the prevailing wage has been determined. Information concerning the Labor Condition Application including the salary offered must also be posted on the business premises, and be available to the public. Interested parties may comment. Initially, the Department of Labor reviews the Labor Condition Application only for completeness and obvious inaccuracies, and lacking such, will issue a certification within seven days. These applications can now be filed via the internet, and responses are often received instantaneously. If interested parties comment or complain, the Labor Condition Application will be considered in detail. The sponsoring employer may be subject to fines, and prohibited from filing future immigration petitions if, for example, the wages are determined to be substandard or there was misrepresentation in the filing.

With a certified Labor Condition Application, the sponsor files a Petition for a Nonimmigrant Worker with the Immigration Service, including a complete position description, and evidence of the temporary worker's qualifications for the position. Petitions are generally approved for a three-year period, and may be extended for a total of six years. Pursuant to recent legislation, further extensions may be obtained if the H beneficiary is also the beneficiary of an immigrant petition that has been pending for over one year.

C. L-1 VISAS

The "L-1" or Intra Company Transferee visa allows multinational businesses to transfer key personnel to the United States on a temporary basis. Under Immigration and Nationality Act, 101(L), this visa is available for a person:

who, within three years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him.

1. Prior Continuous Employment

To receive an L visa, the applicant must show he or she has been employed full-time by the enterprise overseas for one of the past three years. Business owners, shareholders, and partners may obtain L visas, but they must show the entity overseas will continue to exist, and their intent is to come to the U.S. temporarily.

2. Relationship between foreign and U.S. business entity

The company or business entity in the U.S. must be a "branch of the same employer or a parent, affiliate, or subsidiary thereof". 8 C.F.R. 214.2(L)(1)(ii)(A).

3. Managerial, Executive, Specialized Knowledge positions

The position held outside the U.S., as well as the one in the U.S. must be managerial, executive, or involving specialized knowledge. INA 214(C)(2).

a) Managers supervise and control supervisory, professional or managerial employees, or manage an essential function of the business. If the manager does not supervise high-level employees, it must be shown that he or she functions at a senior level in the organization, or with respect to the activity managed.

b) Executives direct the management of an organization or a major function of that organization.

c) Persons with specialized knowledge are those with knowledge of the company's product, and its application in international markets, or have an advanced level of knowledge of the company's processes and procedures.

4. Time allowed in the U.S.

Petitions for new businesses, those in operation less than one year, may only be approved for one year. Managers and Executives of established businesses may have petitions approved initially for 3 years, with extensions up to a total of 7 years. Specialized knowledge employees of established businesses may have petitions approved for 3 years, with extensions up to a total of 5 years.

D. O-1 Visas

The Immigration of 1990 also created a nonimmigrant visa, "O-1", for "aliens of extraordinary ability." Like H visas, O-1 visas require sponsorship through a job offer by a petitioning employer. Unlike H visas, however, these visas are reserved for the "best and brightest" and require a demonstration that the beneficiary is among the few who have risen to the very top of his or her field of endeavor.

In order to support an application for a nonimmigrant visa through a petition as an O-1, alien of extraordinary ability, one must prove that the beneficiary has achieved international or national acclaim, and that his or her achievements have been recognized in the field of expertise. Three of the following types of evidence must be presented:

1. documentation of the receipt of nationally or internationally-recognized prizes or awards for excellence in the field;

2. documentation of membership in associations in the field which require outstanding achievements of their members, as judged by recognized experts;

3. published material in professional publications or major media about the alien and the alien's work;

4. evidence of participation as the judge of the work of others, either individually or on a panel;

5. evidence of an original scientific, scholarly, or business-related contribution of major significance in the field;

6. evidence of the authorship of scholarly articles in professional or major trade publications or other major media;

7. evidence of performance in a leading or critical role for organizations or establishments that have a distinguished reputation; or

8. evidence that you have commanded a significantly high salary or other remuneration in relation to others in the field.

The regulations also permit the submission of comparable evidence.

In addition to the above evidence, the petition must include a specific offer of employment, describing in detail the nature of the job and the primary responsibilities. Finally, an "advisory opinion" from an appropriate entity, such as a peer group confirming the "extraordinary ability" of the beneficiary containing a detailed description of his or her achievements and an explanation why the individual qualifies as an alien of extraordinary ability. Generally, O-1 petitions are accompanied by letters from recognized experts in the field who are capable of commenting on the beneficiary's work.

E. TN Visas

Canadian and Mexican professional have another means of coming to the United States on a temporary basis. Under the North American Free Trade Agreement, professionals in a variety of fields may work in the United States. INA 214(e)(2). For Canadians, the process of obtaining TN status is streamlined. Documentation including proof of citizenship, a detailed letter from the United States employer describing the position offered, and evidence of credentials may be presented to immigration authorities directly at the United States - Canada border. For Mexicans, a process similar to that for the H-1B1 visa must be completed, and a maximum of 5,500 TN visas may be issued to Mexicans each year. TN status is granted in increments of one year, with no overall time limit.

This list of professions is very specific, and the precise educational or licensing requirements are set forth in the regulations. 8 C.F.R. 214.6(c). Professions include: Accountants, architects, computer systems analysts, disaster relief claims adjusters, economists, engineers, foresters, graphic designers, hotel managers, industrial and interior designers, land surveyors, lawyers, librarians, management consultants, scientists in a variety of fields, scientific technicians and technologists, technical publications writers, urban planners, veterinarians, and college and university professors. In addition many persons in medical fields such as nurses, physical and occupational therapists, psychologists, dietitians and dentists may come to the U.S. on TN visas. Physicians are limited to research and teaching; they may not use this visa status for patient care in the U.S. The list of occupations is periodically reviewed, amended, and agreed upon by the three participating nations.

As noted at the beginning of this article, there are numerous nonimmigrant employment categories in addition to the ones discussed here, but these are the most commonly encountered. Space and time do not allow further delving into the "I" or press visa for representatives of foreign media, the "P" or performer visa, the "R" or religious worker visa, or other special categories for diplomats or representatives of international organizations (e.g., "A", "G", and "NATO" visas).

II. "NONWORK" VISAS: VISITORS, STUDENTS, AND TRAINEES

The alphabet soup of visas lettered from A to V are most often sorted into those allowing employment, and those that do not. As with everything in immigration law, there are innumerable exceptions to the rule, some of which are discussed below. The most common categories of admission to the United States are the millions who come as visitors for pleasure "B-2s", and business visitors, "B-1s," followed by students who attend colleges in "F-1" or "J-1" status, or vocational schools in "M" status. This section will discuss those categories, and will also discuss nonimmigrant trainees acquiring skills that may be applied when they return home [H-3 or J-1 visa holders]. The notion of "returning home" is the key to these nonimmigrant status, and in fact applies to all of the employment nonimmigrant visas discussed above except the H and L. The Immigration and Nationality Act 214(b) includes a presumption that all applicants for nonimmigrant visas are actually intending immigrants, and each applicant must overcome this presumption by showing significant ties to his or home country which would compel them to return. Applicants for nonimmigrant visas should be prepared to document ownership of property, business activities, and general financial stability in the home country.

A. B-1s and B-2s

Visitors for business and pleasure comprise these categories, and millions of foreign nationals enter the U.S. each year as "Bs." Business visitors must not be paid in the U.S.; visitors for pleasure, i.e. tourists, must not be engaged in employment in the U.S. 8 C.F.R. 214.1(d). Business visitors may attend meetings or explore business opportunities while in the U.S., provided the activity is in furtherance of an overseas company's objectives, and provided no compensation is paid in the U.S.

B. Students

1. F visa holders

Hundreds of thousands of students enter the U.S. each year to attend college, graduate school, or vocational school. Students are admitted to attend a particular approved educational institution, and that institution must provide documentation of the student's enrollment on Form I-20ID. 8 C.F.R. 214.2 (f)(1). The spouse and minor children may accompany the student and are given the visa designation of "F-2". 8 C.F.R. 214.2 (f)(3).

Once admitted to the United States, the student must attend the college/university listed on the Form I-20 ID, and must pursue a "full course" of study at that institution. 8 C.F.R. 214.2 (f)(5)-(6). Transfers to other institutions are permitted, provided the student notifies the school he or she is attending, and obtains a new I-20ID from the school to which he or she is transferring. 8 C.F.R. 214.2 (f)(8). Unlike most other visa categories, the Immigration Service has ceded a great deal of its responsibility to monitor students to "Designated School Officials" at educational institutions. DSOs monitor the progress of students, coordinate transfers where desired, and oversee "practical training" and other employment of students.

Students may be employed in specific circumstances. They may hold part-time (up to 20 hours per week) jobs on campus, such as in the library or at the campus bookstore. 8 C.F.R. 214.2 (f)(9). In special circumstances the 20 hour limit may be raised, and this occurred recently by action on the Commissioner's part due to the recent Asian economic crisis. Further, on-the-job training in furtherance of a student's academic purposes may sometimes be pursued. If training is an integral part of the academic course of study, for example student teaching for someone seeking a Bachelors or Masters in teaching, it is called "curricular practical training." "Curricular practical training" also encompasses required work study hours or internships. 8 C.F.R. 214.2(f)(10)(i). "Optional practical training" rounds out the employment possibilities. Students may be authorized for employment for a maximum of 12 months after graduation. 8 C.F.R. 214.2(f)(10)(ii). The DSO must certify that the proposed practical training is directly related to the student's major area of study, and suitable for the student's education level. Unlike curricular practical training, the student must obtain a document from INS verifying the authorization for employment. Optional practical training, originally conceived as a period for the student to use his or her academic education in a work environment before returning home, offers the student other options. Oftentimes the student does not have specific future plans, and the period of training allows him or her to decide whether to return home immediately, or to work for one year and then return home, or perhaps to stay a little longer and convert to another visa status that allows employment for a longer period.

Spouses and dependent children of students may accompany the student to the United States, but may not obtain employment authorization. The student must demonstrate sufficient funds to support the entire family during the period of studies.

2. M Visa holders

Foreign students at vocational or "nonacademic" institutions receive M visas. Community and junior colleges are considered "nonacademic" institutions. Language training programs do not qualify to sponsor students. The M rules are similar, but more restrictive than those for F students, reflecting an expectation of a shorter stay by these students. M students may not transfer to another school except during the first six months of study, and they may not change their program objective even at the same institution. 8 C.F.R. 214.2(m)(11)(ii) and (iv). Practical training may be authorized only after completion of the program, and is granted for a period of one month for every four months of full-time study, up to a maximum of six months. 8 C.F.R. 214.2(m)(14)(iii).

As with F students, spouses and dependent children of students may accompany the student to the United States, upon demonstration of sufficient funds to support the entire family during the period of studies.

3. Exchange Visitors: J students

The exchange visitor program was established after World War II with the specific purpose of developing and promoting mutual understanding between the people of the United States and other countries of the world through educational and cultural exchange activities. The Department of State rather than the INS regulates J students. To further the goal of educational exchange, many J programs incorporate a requirement that the visitor return to his or her country for two years before being allowed to convert to certain other nonimmigrant visas, or to obtain U.S. permanent residence. Exchange Visitor students may be funded privately, by the U.S. government, by the student's home government, or by an international organization. Generally, students will be subject to the two year foreign residence requirement if funded by a government or international organization. They may also be subject to the home residence requirement if they come to the U.S. for study or training in a field for which their country has declared a need. This is referred to as having an obligation due to the "skills list."

J students may come to the U.S. to pursue a full or prescribed course of study leading to a degree, or to engage in academic training, or English language training. J students may study for up to 24 months as a "non-degree" student. 22 C.F.R. 62.23. The authorizing entry document for all exchange visitors is an IAP-66, issued by the sponsoring organization (an educational institution in this case) and the category (student) of the J visa holder.

Spouses and dependent children of J students may accompany them, and the dependents may obtain employment authorization, provided the employment is not needed to support the family. "Practical training" is available after completion of a program of studies, with an overall time limit of eighteen months. The ability of spouses to work, and the eighteen months of practical training often makes this visa the preferred one for students. The J visa is not desirable, however, if accompanied by a requirement to return to the home country for two years prior to converting to other working non-immigrant visas, or to permanent residence.

C.Trainees

In addition to obtaining training in a field after obtaining a degree, foreign nationals may enter the U.S. expressly for the purpose or receiving training, without prior education in the U.S. The guidelines are similar whether the trainee comes pursuant to individual approval by the INS for an H-3 visa, or as a J Exchange Visitor through a training program approved by the United States Information Agency. The key requirement in both the INS and USIA regulations is that the training enhance the skills of the participant to pursue his or her career outside of the U.S. The trainee is not supposed to engage in productive work except as incidental and necessary to the training, and the trainee must not be placed in a position in the sponsoring organization that would ordinarily be filled by a U.S. worker.

Some of the most common users of trainee visas are firms in the hospitality industry which bring employees into the U.S. to learn first hand American preferences in service, dining, etc., and then take that knowledge back to an affiliated company overseas. The trainee visa category has few limits, however, and has been used by all segments of the U.S. economy: i.e., manufacturing companies have trained overseas employees on particular products or techniques; and "high tech" companies have trained employees on particular computer programs and services to be exported, to provide a few examples.

 

1. H-3 trainees

Sponsoring companies or other organizations petition for individuals to qualify as trainees on H-3 visas by filing a specific training plan for the individual with the Immigration and Naturalization Service. The petitioner must demonstrate that: 1) the training is not available in the trainee's home country; 2) the trainee will not displace an employee of the sponsor; 3) the trainee will not engage in productive employment except incidentally and as necessary to the training; and 4) the training will benefit the foreign national's career in his or her home country. 8 C.F.R.  214.2(h)(7)(ii)(A).

The individual training plan must be quite specific and must: 1) describe the type of training and the supervision to be given; 2) set forth the proportion of time devoted to productive employment; 3) show the number of hours in classroom training vs. on-the-job training; 4) describe the career abroad for which the training will prepare the foreign national; and 5) indicate why it is necessary to conduct the training in the U.S. 8 C.F.R.  214.2(h)(7)(ii)(B).

2. J trainees

The Department of State rules for trainees are much more complicated initially for a sponsoring organization, and then simpler for the individual J visa holder. The USIA approves sponsorship programs after extensive documentation and review of the entire organization, its training objectives, its ability to carry out those objectives, and its planned method of selection of trainees. 22 C.F.R.  62.22. Once the training program is approved; the program itself selects the individual trainees for sponsorship. Training programs may be designated in the fields of: arts and culture; information media and communications; education and social sciences; management, business and commerce; health related occupations; aviation; sciences and engineering; construction; agriculture and forestry; and public administration and law. 22 C.F.R. 62.22. One of the most successful and longstanding exchange training programs is the ABA's ILEX, an international legal exchange.

As noted above, to further the goals of mutual education and understanding among nations, many J trainee programs incorporate a requirement that the visitor return to his or her country for two years before being allowed to convert to certain other nonimmigrant visas, or to obtain U.S. permanent residence. It is essential that the sponsor and trainee understand at the outset whether this requirement applies.

That concludes a brief walk through the temporary visa maze. With categories from A to V, there is essentially a visa for everyone with a legitimate purpose to come temporarily to the United States!

Palma R. Yanni, Esquire

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