• B-1 AND B-2 VISITOR VISAS
• E-1 TREATY TRADER AND E-2 TREATY INVESTOR VISA
• E-3 VISAS FOR AUSTRALIANS
• H-1B VISA
• H-2A AGRICULTURAL VISAS
• H-2B TEMPORARY VISAS
• H-3 TRAINEES
• J-1 EDUCATIONAL AND CULTURAL EXCHANGE VISA
• L-1 MULTINATIONAL COMPANY TRANSFER VISAS
• O-1 VISA FOR EXTRAORDINARY ABILITY
• P VISA FOR ATHLETES AND ENTERTAINERS
• Q-1 INTERNATIONAL CULTURAL EXCHANGE VISA
• R VISAS FOR RELIGIOUS MINISTERS AND WORKERS
• TN VISAS

B-1 AND B-2 VISITOR VISAS

The most common nonimmigrant visa is the B visa. There are two types of B visas: B-1 visas for business visitors, and B-2 visas for visitors for pleasure.

How can I qualify for the B-1 business visitor category?
The B-1 business visitor category is available to persons who can demonstrate that they 1) have no intention of abandoning their residence abroad and 2) they are visiting the U.S. temporarily for business. Entry is, theoretically, granted for up to a year, but most B-1 admissions are approved for just the period necessary to conduct business and are normally no longer than 3 months.

What limitations are associated with the B-1 business visitor category?
Business visitors are quite limited in the activities in which they are permitted to engage. B-1 visa holders must not be engaging in productive employment in the United States (U.S.) either for a U.S. employer or on an independent basis. Any work done in the U.S. must be performed on behalf of a foreign employer and paid for by the foreign employer. The work should also be related to international commerce or trade. The U.S. consular officer reviewing the case will consider several factors when deciding whether to issue a visa including: 1) whether a U.S. worker could be hired to perform the work; 2) whether the work product is predominantly created in the U.S.; and 3) whether the work is controlled mainly by a U.S. company. If the answer to any of these questions is "yes" then the B-1 visa is likely to be denied. An exception may be made in the “B-1 in lieu of H-1B” scenario where a worker would qualify for H-1B status except that the employer is not located in the U.S. But note that many consulates will not consider B-1 in lieu of H-1B filings.

How can I qualify for the B-2 pleasure visitor category?
Of the more than 20 million nonimmigrants admitted annually to the U.S., more than three fourths come as tourists. The appropriate visa category for a tourist is the B-2 visa (a B-2 visa actually covers tourists, visits to relatives or friends, visits for health reasons, participation in conferences, participation in incidental or short courses of study and participation in amateur arts and entertainment events). Prospective students can also obtain a B-2 visa, but they often will be denied the change to student status in the U.S. unless they announced their intention to do so to the Customs and Border Protection (CBP) inspector at the border and/or informed the consular officer at the time of the B-2 application.

The process for obtaining the B-2 visa can be quite simple or very difficult depending on the national origin of the applicant, the age and marital status of the applicant, and the applicant's ties to the U.S. and his/her home country.

What limitations are associated with the B-2 pleasure visitor category?
Tourists are normally given a six-month visa which can be extended in some circumstances for an additional six months. Unlike some other nonimmigrant visas, application is made at a U.S. consulate and no United States Citizenship and Immigration Service (USCIS) approval is necessary. Also, the applicant's spouse and children must independently qualify for the B-2.

In order to qualify for a tourist visa, an individual must meet a few broad requirements necessary to show nonimmigrant intent:

• The applicant is coming to the U.S. for a specific period of time;
• The applicant will not be engaging in work and will engage solely in legitimate activities relating to pleasure; and
• The applicant will maintain a foreign residence that he or she has no intention of abandoning during the period of his or her stay in the U.S.

For a tourist to show nonimmigrant intent and demonstrate compliance with the above tests, the key issues are financial arrangements for the trip, specificity of trip plans, ties to the applicant’s home country and ties to the U.S. 

Generally speaking, an applicant’s chances for getting a visa will be improved if the planned trip is short, the itinerary is clearly listed, the applicant can easily prove he or she has the money to pay for the trip, and the applicant has a job at home and can show that the time away has been approved by the employer. Retirees will have a better chance if they can show strong family and economic ties to the home country and finances to support the trip. Of course, in all cases the home country makes a big difference. The lower the visa overstay rate for nationals of a particular country, the better the chances overall that the application will be approved.

How do I apply for a B-1 or B-2 Visa?
The application for a B-1 or B-2 visa is made at a U.S. consulate. Each consulate has its own procedures for applying for visas and applicants should always closely read the instructions posted at the web site for the consulate. Links to most U.S. consulates abroad can be found at www.travel.state.gov. An applicant will normally apply at the closest consular post in their home country. Some consular posts in other countries also accept applications from third country nationals. Most of the time, the application must be made in person, though some consulates allow the application to be made by mail, a travel agent, or drop box. Under new State Department guidelines, almost all applicants must now be interviewed in person. This change means that it can sometimes take several weeks to get an appointment at a busy consulate.

How do I change my status from a B visa?
It is sometimes possible to change from a B-1 or B-2 visa to another visa once in the U.S. Readers are cautioned, however, that USCIS could deny a change of status request if they believe the person entered with the intention of switching to another visa. This is particularly true for changes to student visas and when someone applies for a change very soon after entering the U.S. Change requests made within 30 days are particularly suspect unless a good explanation for the change of heart can be provided or the intention to apply for a change was disclosed in advance to a consular officer or USCIS inspector.

Do I qualify for the Visa Waiver Pilot Program?
Nationals of some countries are allowed to participate in the Visa Waiver Program (VWP) which allows visits for up to 90 days without having to obtain the B-2 visa.  All Canadian citizens are also exempt from getting a visa under a different law.

While being able to travel without a visa is convenient for many, it is important to be aware of a few key restrictions on people entering under the VWPP.  First, unlike a normal B-2 visas under which a visitor will be authorized to stay for six months, VWPP entrants can only stay for 90 days.  Second, it is not possible to apply for an extension of stay or a change of status to another non-immigrant or immigrant classification.  Finally, a VWPP entrant can normally not apply for a new visa at a U.S. consulate in Mexico or Canada and reenter the U.S.

E-1 TREATY TRADER AND E-2 TREATY INVESTOR VISA

The purpose of the E-1 Treaty Trader visa is to provide nonimmigrant status for an individual who is coming to the U.S. to develop and direct an enterprise which will carry on substantial trade with the home country of the foreign national applicant. 

The purpose of the E-2 Treaty Investor visa is to provide nonimmigrant status for an individual who is coming to the U.S. to develop and direct the operations of a business in the U.S. in which the applicant, or another individual with the same nationality as the applicant, has invested a substantial amount. 

These visas originate from bilateral treaties of commerce and navigation between the U.S. and the foreign country.  In order to qualify for E-1 or E-2 status, the U.S. must have a treaty with the home country of the foreign national.

Unlike other business categories, this visa does not require that the investor or trader maintain an operation outside of the U.S.  The visa is good indefinitely (i.e. for as long as the applicant is maintaining his or her investments or trade) and may be renewed, generally, in two year increments.  In addition, this visa can be granted directly by the foreign consulate without the pre-approval of USCIS.  As such, it can often be obtained much more quickly than other nonimmigrant visas.

How does the trader or investor demonstrate eligibility for the visa?

• E-1 Treaty Traders must submit documentation to demonstrate that the purpose of the U.S. enterprise is to engage principally in trade between the U.S. and the home country of the foreign national. 
• E-2 Treaty Investors must submit documentation to demonstrate that the foreign national or an individual with the same nationality as the foreign national has invested or is actively in the process of investing a substantial amount into a U.S. enterprise. 

Employment authorization for E-1 and E-2 spouses:
The spouse of an E-1 or E-2 visa holder can file for and obtain independent employment authorization from USCIS.  The spouse must file a separate application for employment authorization, but this employment authorization is independent of the principal spouse and entitles the E derivative spouse to employment authorization with any employer.

E-3 VISAS FOR AUSTRALIANS

The E-3 visa is for nationals of the Commonwealth of Australia, who intend on entering the U.S. on a temporary basis to perform services in a "specialty occupation."  The visa is a nonimmigrant visa that combines elements of both the H-1B visa and the E treaty investor visa.  The advantage of E-3 status is that it takes Australians out of the H-1B cap (which has a long queue and has been reached quickly in recent years). 

What is a “specialty occupation?”
A "specialty occupation" is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. 

How does one obtain an E-3 visa?
The sponsoring employer must file a labor condition application with the Department of Labor (DOL) to demonstrate and attest that the employer will pay the higher of the prevailing wage or actual wage paid to other U.S. employees; that the employer is not interfering with or using the foreign national to defeat strikes or lock outs; that the employer will maintaining a public access file; and that the job has been publicly posted at the job site for the requisite period of time.

Is there a cap on the number of E-3 visas available?
The E-3 visa is not subject to the cap that exists for H-1B visas.  The E-3 visa has a separate allotment of visas available not to exceed 10,500 per fiscal year. The spouse and children of the E-3 are allowed to accompany or follow to join the principal, and such spouses and children will not count against the 10,500 cap.

How long can you stay on an E-3 visa?
E-3 periods of stay are limited to two years, but can be renewed indefinitely in two year increments.

Employment authorization for spouses of E-3 workers:
The spouse of an E-3 visa holder can file for and obtain independent employment authorization from USCIS.  The spouse must file a separate application for employment authorization, but this employment authorization is independent of the principal spouse and entitles the E derivative spouse to employment authorization with any employer. 

Can you convert from H-1B to E-3 status?
There may be many reasons to convert from H-1B to E-3 status, including numerical limitations, filing fees and spousal work authorization.  The statute and regulations do not prohibit a change of status from H-1B to E-3 status.

What about nonimmigrant or immigrant intent?
The E-3 visa does not require you to maintain a foreign residence or to demonstrate that you are coming for a limited period of time.  However, applicants must be able to attest that they intend to depart when their status terminates. 

H-1B VISA

The H-1B is reserved for individuals seeking to enter to the U.S. temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. 

What is a “specialty occupation?”
A "specialty occupation" is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.  Typical positions include law, accounting, engineering, architecture, mathematics, physical sciences, business specialties, theology and the arts.  The fact that an individual possesses a bachelor’s degree or the equivalent does not mean that the job necessarily requires the same. 

In cases where the specialty nature of the position is not self-evident, many types of evidence may be used to prove that the job is, in fact, a specialty occupation.  Trade journals and publications may be used, affidavits from professionals in the field may be submitted and evidence of the employer’s own past hiring practices can be helpful. 

How does one demonstrate qualification to work in a specialty occupation?
The easiest way to demonstrate that the individual has a bachelor’s degree or the equivalent is by demonstrating that the individual beneficiary has a diploma.  However, the diploma must be in a field of study that is relevant to the position sought.  If this is not the case, then transcripts and possibly a course catalog should also be submitted. 

If the beneficiary did not attend school in the U.S., the degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a U.S. bachelor’s degree. 

The other way that an applicant can demonstrate that he or she is qualified to work in a specialty occupation is through work experience or a combination of education and experience.  Three years of progressive work experience is equal to one year in college. 
  
The H-1B numerical limitation:
One of the most challenging issues with regard to the H-1B visa is that there is a numerical limitation to the number of H-1B visas that may be issued in every fiscal year.  There is currently a limit of 65,000 visas available every fiscal year beginning on October 1st.  There are an additional 20,000 visas set aside every fiscal year to individuals who possess a U.S. Masters degree or higher.  In addition, there are some jobs in the non-profit sector, government and education that are exempt from the numerical limitation.  Certain physicians who are under the CONRAD State 30 program or receiving a federal government agency waiver are also exempt from the cap.  The cap does not apply to applicants who are only seeking an amendment, extension or transfer of their current H-1B visa.

Employers must carefully time and plan for the filing of H-1B applications well in advance of the beginning of the fiscal year in order to avoid being prevented from obtaining H-1B workers.  The employer may apply as early as 180 days before the fiscal year begins.  In recent history, the H-1B cap was reached on the first day of eligibility to file, or within a couple of days thereafter. 

Why seek an H-1B? 
The main advantage of the H-1B visa is that, unlike other nonimmigrant visas, it is a “dual intent” visa.  This means that it is irrelevant whether the H-1B holder intends to remain in the U.S. temporarily, or to pursue permanent residence.  The H-1B holder can simultaneously be filing for lawful permanent residence without affecting the H-1B visa.
 
Another critical advantage to the H-1B category is that the employer has the ability to sponsor anyone for an H-1B visa without having to demonstrate that there is a shortage of qualified U.S. workers.  Unlike the permanent labor certification process, the employer does not need to show that there are no willing, qualified and able U.S. Citizen or Lawful Permanent Residents who can do the job.  The employer must file a labor condition application with the DOL to attest that the employer will pay the higher of the prevailing wage or actual wage paid to other U.S. employees, that the employer is not interfering with or using the foreign national to defeat strikes or lock outs, that the employer will maintaining a public access file, and that the job has been publicly posted at the job site for the requisite period of time. 

What is the prevailing wage? 
The prevailing wage is determined by the DOL through the State Workforce Agency.  The prevailing wage is the wage that is paid to similarly employed workers in the same geographic area where the beneficiary will be employed.  The employer must attest to the DOL that the employer will pay the higher of the actual wage the employer pays to other actual workers or 95% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed.  The prevailing wage can be determined through a private wage survey or through a state workforce agency. 

Once the wage information has been obtained, the employer submits Form ETA 9035 Labor Condition Application (LCA) to the DOL.  The DOL will review the information on the LCA and then certify the position.  The certified LCA petition is submitted to USCIS as part of the H-1B petition package. 

What are the employer obligations on the labor condition application? 
The LCA is designed to ensure that foreign national workers are not being exploited by employers and to ensure that U.S. workers wages are not being deflated by foreign workers.  To attempt to do this, the LCA requires the employer to attest that:

• The employer will pay the higher of the prevailing wage or the actual wage paid to other employees in the same position;
• The employment of H-1B workers will not adversely effect the working conditions of U.S. workers;
• That there is no strike, lockout or other labor dispute;
• That, in the case of unionized jobs, the bargaining representative has been notified of the hiring of an H-1B worker;
• That, in the case of non-union jobs, the notice of hiring of an H-1B worker has been posted in a conspicuous place; and
• That the H-1B worker has been provided a copy of the LCA. 

The employer must also maintain a public access file that may be viewed by anyone.  This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed. 

How long can an alien be in H-1B status?
The H-1B visa is granted for a maximum of six years.  After this time, the H-1B worker must remain outside the U.S. for one full year before another H-1B petition can be approved.  Certain individuals may remains beyond six years and extend the H-1B for one year increments if: 

• 365 days or more have passed since the filing of any application for labor certification; or
• 365 days or more have passed since the filing of an I-140 immigrant visa petition.

For whom can an H-1B non-immigrant work? 
H-1B visas are employer and location specific.  The petitioning U.S. employer may place the H-1B worker on the worksite of another employer or client, but the employer would then have to follow the procedures for re-posting of the position and obtaining a new prevailing wage at the location.  H-1B workers may work part-time on an H-1B and may work for more than one U.S. employer, but must have a separate approved H-1B for each employer.

How does an H-1B non-immigrant change or add an employer?
Each time a worker moves to a new employer, a new H-1B approval is required.  However, it is not necessary to leave and get a new visa stamp.  USCIS and the State Department take the position that as long as the visa remains unexpired the applicant remains in H-1B classification and may enter on that H-1B visa with an employer letter and approved petition from the new H-1B employer. 

The H-1B portability provisions make it an attractive option of foreign national workers.  Under these provisions, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker with USCIS.  The employer does not need to wait for the petition to be approved before beginning work.

H-2A AGRICULTURAL VISAS

The H-2A agricultural visa is a temporary visa reserved for individuals who are coming to perform seasonal agricultural labor or services. 
 
How does an employer obtain workers on H-2A visas?
The employer must show that there are no able, willing, and qualified U.S. Citizen or Lawful Permanent Resident workers available at the time and place needed, and the employer must show that the hiring of the foreign national will not adversely deflate the wages or working conditions of similarly employed U.S. workers.

Who may file for an H-2A visa? 
H-2A visa applications may be filed by an agricultural company or employer who expects a shortage of U.S. workers needed to perform temporary or seasonal agricultural labor or services or by an authorized agent filing on behalf of an agricultural employer.
  
What are the steps necessary to obtain H-2A workers? 
At least 45 days before the date of need, the employer must submit an application to the Department of Labor (DOL) and the State Workforce Agency for the state in which employment is sought.  Once the DOL receives the petition the employer begins a recruitment process.  Employers must interview and make an offer of employment to any qualified U.S. Citizen or Lawful Permanent Resident worker and may only obtain H-2A visas for those jobs that remain unfilled after the recruitment process.  In addition, the employer must hire any U.S. Citizen or Lawful Permanent Resident worker who applies for the job during the first half of the contract period.

Following the recruitment period, the DOL will certify that the employer has engaged in a test of the labor market and will subtract the number of U.S. workers successfully referred from the total number of workers requested by employers to calculate and certify the remaining job openings. 

Once certification is granted by the State Workforce Agency, the application is forwarded to the DOL national processing center.  At that point, it is not necessary for the employer to name the workers that the employer seeks.  As the employer finds actual foreign national candidates, those names should be forwarded to the DOL.  Following approval by the DOL, candidates seek the H-2A visa at a consulate abroad.
  
How long are the H-2A visas valid?
H-2A visas are valid for a one year maximum.  Extensions of up to one year, however, are possible in some circumstances.  The maximum total time in H-2A status cannot exceed three years.  After the worker has spent three years in the U.S. under the H-2A status, the worker must leave for six months before resuming H-2A employment.      

How do employers calculate workers’ earnings? 
H-2A workers must be offered a wage that is equal to that of U.S. workers.  This is calculated by using the highest of any of the following:  (1) The prevailing industrial wage in the relevant labor market; (2) The state or federal minimum wage; or (3) the “adverse effect wage rate” (“AEWR”).

For workers earning money by the piece, an employer must pay any difference between worker earnings and the adverse effect wage rate.  Additionally the employer must provide the worker with an earnings statement listing total earnings, hours of work offered versus actually worked, and whether the worker is paid hourly or by the piece.

What benefits are employers required to provide the workers?
In addition to paying the wage described above, H-2A workers must be provided certain benefits at the employer’s expense.  These include:

• Transportation to and from the workers’ temporary home to the workplace;
• Transportation home or to their next workplace at the end of the contract period;
• Housing to all non-commuting workers.  This housing must be inspected by the DOL and meet minimum federal standards for temporary labor camps;
• Either three meals a day or facilities in which the workers may prepare their own food;
• Any tools and supplies necessary to perform the work; and
• Workers compensation insurance if such is required by state law, and if not required by state law, the employer must provide alternate equivalent insurance.

H-2B TEMPORARY VISAS

The H-2B temporary visa is designed for workers who are entering the U.S. temporarily to fill jobs that are seasonal, one-time occurrence, peakload or intermittent jobs.  The job must be for less than one year and there must be no qualified, willing or able U.S. Citizen or Lawful Permanent Resident workers that can do the job.

When should an employer file for an H-2B visa?
The employer should file for H-2B status at least 60 days, but not more than 120 days before the date of need. 

What is the process for obtaining an H-2B visa?
The employer begins the process through the State Workforce Agency.  The State Workforce Agency will dictate the wage that must be paid and will supervise the recruitment process to find qualified and willing U.S. citizen workers. Employers must interview and make an offer of employment to any qualified U.S. Citizen or Lawful Permanent Resident worker and may only obtain H-2B visas for those jobs that remain unfilled after the recruitment process. 

Following the recruitment period, the DOL will certify that the employer has engaged in a test of the labor market and will subtract the number of U.S. workers successfully referred from the total number of workers requested by employers to calculate and certify the remaining job openings. 

Once certification is granted by the State Workforce Agency, the application is forwarded to the DOL national processing center.  At that point, it is not necessary for the employer to name the workers that the employer seeks.  As the employer finds actual foreign national candidates, those names should be forwarded to the DOL.  The DOL may then certify or deny the positions.

The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS.  USCIS may approve the petitions notwithstanding the fact that the DOL has not certified the jobs.  After the petition is approved by USCIS, the foreign employee must apply for a visa at his or her respective U.S. Consulate. 

How long is an H-2B visa valid?
H-2B visas are granted in increments of up to one year depending on the anticipated length of the employers need.  Extensions of H-2B status are very difficult to obtain and most often denied since the basis of the H-2B visa is the employer’s “temporary” need.

Is the H-2B visa only for unskilled workers?
No.  Either skilled or unskilled workers may be employed on an H-2B visa. The visa can be used for entertainers and athletes who do not meet the requirements of the H-1B, O or P visa categories. The H-2B visa is also very useful for the resort, tourism and hospitality industry.  

Is there a numerical limitation on the grant of H-2B visas?
Yes.  Up to 66,000 H-2Bs are granted each year.  This number is divided between the first and second halves of the year.  The first 33,000 H-2B visas are reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half.  Spouses and children of H-2B workers are not subject to the cap and may enter the U.S. in H-4 status. 

The numerical limitation is a challenge for employers and employers must be proactive in seeking H-2B visas well in advance of need so as to avoid being prohibited from obtaining workers because of the numerical limitation. 

H-3 TRAINEES

The H-3 visa is reserved for those individuals coming to the U.S. to receive training that is unavailable in his/her home country.  The visa is a temporary visa and may not be available to those who are pursuing an application for permanent residence. 

What type of training must I have to be eligible for an H-3?
The regulations allow for training in “any field of endeavor.”  The only field of training that is explicitly excluded under the regulations is graduate medical training.  Nurses and medical students who are on school vacation may be eligible for the H-3 under certain circumstances. 

What are the qualifications and limitations on the H-3 visa?
To qualify for the H-3 trainee visa, the applicant must demonstrate that the training is not available in the applicant’s home country.  The applicant must also show that the work to be done as part of the training is not part of the normal operation of business which would ordinarily be filled by a U.S. worker and that it does not constitute employment. 
  
An applicant seeking an H-3 visa should submit a detailed and structured training curriculum with formal training materials, books, a syllabus and planned activities.  The training cannot be provided for purposes of eventual employment with the petitioner in the U.S.  Rather, the purpose of the training must be to enable the alien to gain skills that can be taken back to further a career in the home country. 

What about spouses and children?
Qualifying family members (spouses and unmarried children under 21) accompanying the H-3 trainee are given the H-4 classification.  Such spouses and children are not authorized to work in H-4 status.

J-1 EDUCATIONAL AND CULTURAL EXCHANGE VISA

The J-1 visa is given to those who will be entering the U.S. to participate in an approved educational, training or cultural program.  The J-1 visa is available to those who want to come to the U.S. to teach, instruct, lecture, study, observe, conduct research, consult, demonstrate special skills, or receive training.  Typical jobs that are appropriate for J-1 classification include college and university students, secondary school students, short-term scholars, trainees, teachers, professors, researchers, specialists, physicians, international and government visitors, camp counselors, au pairs and special education exchange visitors.  The J-1 program requires that each applicant be sponsored by an organization designated by the State Department to sponsor J-1 exchange visitors. 
  
What are the limitations and requirements of the J-1 program?
University Students:  The J-1 student visa category is for those students who are pursuing a full-time course of study at an accredited college or university, or who are receiving English language training at an accredited educational institution.  J-1 students may be employed in an area related to the academic course of study as long as the school officer asserts that the employment is related.  Alternatively, J-1 students may be employed in part time on-campus employment (no more than 20 hours a week), or if the employment is part of a scholarship or fellowship.  This employment authorization is valid until the course of study is over, or 12 months, whichever is less.  Following the completion of studies, J-1 students may obtain an additional period of up to 18 months of practical training and post-doctoral students can obtain up to 36 months of post graduate practical training.

Secondary School Students:  Foreign students can attend secondary schools in the U.S. for a minimum of one and up to two semesters on a J-1 visa.  The program sponsor must find a school willing to host the student and a host family with whom the student will stay.  Such students are not authorized to work.

Short-Term Scholars:  Professors, scholars and researchers can obtain a J-1 visa to come to the U.S. to lecture, observe, consult or participate in workshops, seminars, and conferences.  The maximum period of entry for short-term scholars is six months, and no extensions are authorized. 

Trainees:  Trainees can obtain J-1 visas to come to the U.S. to train in skilled worker positions.  Typical positions include: arts and culture, media, communications, education, social sciences, library science, counseling, management, business, finance, health-related occupations, aviation, science, engineering, architecture, mathematics, industrial occupations, construction, agriculture, forestry, fishing, government, public administration, and law.

Teachers:  Teachers can obtain J-1 visas to teach full-time in a primary or secondary school.  To be eligible for a J-1 teachers visa the applicant must have three years of teaching experience, be qualified to teach primary or secondary school in his/her home country, be licensed in the state or have the qualifications necessary under state law to teach, and be a person of good moral character.
 
Professors and Researchers:  Professors who are coming to the U.S. to teach, lecture, observe or consult at post-secondary educational institutions can obtain a J-1 visa.  Research scholars may also obtain J-1 visas to conduct research, observe or consult at research institutions, educational institutions and similar organizations.  J-1 professors and research scholars may enter for up to three-year periods, and the program sponsor may approve a six-month extension.  After this extension, the person’s stay can be extended another three years, with the approval of the State Department.

Specialists:  Specialists are experts in a field of specialized knowledge or skill.  Specialists may obtain a J-1 visa to observe, consult or demonstrate special skills.  The category does not include short-term scholars, professors, researchers, or foreign medical graduates.  The maximum authorized stay in the U.S. is one year.

Foreign Physicians:  Foreign medical schools graduates may enter the U.S. to pursue graduate medical training or education.  Under most circumstances, the foreign medical graduate is sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).  Other programs can sponsor foreign medical graduates, but only if there will be minimal patient contact.  The foreign medical graduate may remain in the U.S. for the duration of the program up to seven years.  Individuals who enter in this category are subject to the two year foreign residency requirement and must return home for two years.

International and Government Visitors:  Government agencies may sponsor J-1 visa applicants who are coming to the U.S. for consultation, observation, training or demonstration of special skills.  The maximum period of stay for international visitors is 12 months, and for government visitors it is 18 months.

Camp Counselors:  Individuals who are at least 18 years old may obtain a J-1 visa to come to the U.S. to work as a youth worker, student, or teacher.  This category is limited to a four-month stay.

Au Pairs:  Individuals between the ages of 18 to 26 may come to the U.S. to provide childcare services to a U.S. host family.  The au pair must be proficient in English, and must have graduated from high school.  The au pair undergoes a background screening including a background investigation, criminal check, physical and psychological exams.  The host family must pay the au pair at least the minimum wage, and may not require the au pair to provide more than 45 hours of childcare a week.  The au pair must be provided a private bedroom. 

Special Education Exchange Visitors:  This category is limited to fifty individuals per year and permits an individual to enter the U.S. for up to 18 months to obtain practical training and experience in the education of children with physical, mental or emotional disabilities.

What is the two-year foreign residency requirement? 
Many individuals who enter in J-1 status may be subject to a two-year foreign residency requirement.  Although there are some ways to waive this requirement, individuals who do not have a waiver are not eligible for permanent residence or for an H or L non-immigrant visa until he or she has returned to his/her home country for the requisite two year period.  This two-year period must be spent in the individual’s home country, or the country in which they last permanently resided before coming to the U.S.  Generally, an individual is subject to the foreign residency requirement if: (1) The individual’s program in the U.S. was financed by the U.S. government or the government of the country of his or her last residence; (2) If at the time of admission, the J-1 visa holder was coming to the U.S. to train in skills that are in short supply in the home country; or (3) The individual came to the U.S. to receive graduate medical education or training.

L-1 MULTINATIONAL COMPANY TRANSFER VISAS

L-1 intracompany transfer visas are for individuals who are coming to the U.S. to work for a company in the U.S. that has a legal relationship to a company abroad. The L-1 category offers a number of advantages over other visa categories.  First, there is no annual limit on the number issued.  Second, it is a dual intent visa which means that one may pursue permanent residency without affecting the ability to enter on or extend the L-1 visa.  Third, for L-1A managers and executives there is an easier path to lawful permanent residency.

What are the requirements of the L-1 intracompany transfer visa?
To qualify for L-1 status, the applicant must have been continuously employed abroad for one out of the three previous years for a foreign company that has a legal relationship to a company in the U.S.

In addition, the foreign company and the U.S. company must have a “qualifying relationship.”  The foreign company can be a parent, affiliate, subsidiary or branch of the U.S. company.  The employer may be a company or other any other legal entity including a for profit, non-profit, religious, or charitable organization.   Both the U.S. and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.

The applicant must be coming to the U.S. as a manager, executive or specialized knowledge employee. "Specialized knowledge" means that the applicant has a special knowledge of the company's products, specialized skills, or particular knowledge about the application of the product in world markets.  Specialized knowledge can also include an advanced or proprietary knowledge of the company's processes or procedures.

An L-1 visa applicant must intend to depart the U.S. when his or her stay is over.  Despite this requirement, however, the L-1 visa is a dual-intent visa.  This means that the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend the L visa.

What if the L-1 individual is coming to open a new office?
If the L-1 applicant is coming to open a new office, the examiner will require information about the new office including proof that office space has been obtained, that the applicant is qualified to open a new office and that the foreign company will remain in existence during the full period of the applicant's transfer to the U.S. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.

How long can an individual hold L-1 status?
Executives and managers may stay in L-1A status for up to seven years.  Specialized knowledge employees may stay in L-1B status for up to five years.  Persons coming to open up a new office in the U.S. will initially be granted a one-year stay in the U.S.

What if the company has a large number of applicants?
There are special procedures that make it easier for companies with large numbers of multinational employees to obtain L-1 visas for their employees. Companies that qualify can receive a “blanket approval” for all of their L-1 employees rather than having to apply individually for each employee. To qualify for a blanket petition, the company must show:

• That the U.S. and foreign offices are engaged in commercial trade or services;
• That the employer's U.S. office has been in business for at least a year;
• That the employer has at least three domestic or foreign branches, subsidiaries, or affiliates; and
• That the employer has:
• Had at least ten L-1 visas approved in the last year; or
• The company had U.S. sales of at least a million dollars; or
• The U.S. work force numbers over 1,000 workers.

A key difference between blanket L-1 employees and regular L-1 employees is that the employee need only work for six months outside the U.S. for the company rather than a year.

Can spouses of L-1 applicants work?
L-2s spouses can obtain independent employment authorization pursuant to their L-2 status. 

O-1 VISA FOR EXTRAORDINARY ABILITY

The O-1 visa is available to those individuals who have “extraordinary ability in the sciences, arts, education, business or athletics.” O-1 applicants must demonstrate extraordinary ability by “sustained national or international acclaim.”

The O-1 category is interpreted very broadly.  The individual entering the U.S. must be coming to work in their field of ability, but the position itself does not necessarily need to require the services of a person of extraordinary ability.
 
The O-1 visa for science, education, business or athletics:  
To obtain an O-1 visa to work in the sciences, education, business or athletics, applicants must demonstrate that they possess a level of expertise in the field that demonstrates that he or she is among a very small group of individuals who have risen to the top of the field of endeavor.  This can be demonstrated by either receiving a major internationally recognized award such as a Nobel Prize, or by providing documentation in three of the following categories:  

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
• Membership in associations which require outstanding achievements of their members;
• Published material about the individual or his or her work;
• Participation as a judge of the work of others in the same or similar fields;
• Evidence of original contributions of significance in the field;
• Authorship of scholarly articles or review of scholarly articles written by others in the field;
• Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation; or
• Evidence that the individual has or will command a high salary.

 
The O-1 visa based on extraordinary ability in the field of art:  
To obtain an O-1 visa in the arts, the individual must show that he or she has attained “distinction.”  Distinction is defined as “a high level of achievement in the field of arts evidence by a degree of skill and recognition substantially above that ordinarily encountered.” Distinction has also been defined as prominence in the field of endeavor. The applicant can demonstrate distinction by being the nominee or recipient of an important national or international prize such as an Academy Award, Emmy, or Grammy, or by submitting documentation in at least three of the following categories:

• Evidence that the individual has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity released, publications contracts, or endorsements;
• Evidence that the individual has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
• Evidence that the individual has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
• Evidence that the individual has a record or major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
• Evidence that the individual has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the filed in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the individual’s achievements; or
• Evidence that the individual has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidence by contracts or other reliable evidence.  

The O-1 visa based on extraordinary achievement in television or motion pictures:
The same criteria are used to determine extraordinary achievement as are used in determining distinction in the arts. However, the evidence is weighed differently and the applicant does not have to meet as high a standard.

An O-1 artist in motion pictures and television must demonstrate a record of “extraordinary achievement.”

P VISA FOR ATHLETES AND ENTERTAINERS

The P visa is reserved for those individuals who are coming to the U.S. to perform in athletics or entertainment, but who do not meet the stringent requirements of the O-1 extraordinary ability visa.

The P-1 for Athletes:
For team sports, the athletic team must have achieved international recognition in the particular sport and must petition for the individual athlete.  For individual sports, the individual must show that he or she is internationally recognized. 

The regulations define “international recognition” as a “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.”  In addition to the athlete or team’s qualifications, the event or events in which the athlete is coming to the U.S. to participate must have a distinguished reputation and must require the participation of athletes or teams of international recognition. 

The P-1 for Entertainers: 
The P-1 visa is generally for individuals who are part of an entertainment group.  Generally, an individual can only obtain a P-1 visa if he/she is coming to the U.S. to join a foreign entertainment group.  The group must be internationally recognized as outstanding in the area, and have a sustained period of achievement.  Also, the individual members must have a substantial relationship to the group, generally meaning at least one year.  This requirement may be waived in exigent circumstances, and is not imposed on circus personnel, so long as the circus is of national recognition.  The group itself must have been together for at least one year, and at least three-fourths of the members must have been in the group for at least a year. 

How is the petition for a P-1 visa filed?  
A P-1 petition may be filed by a U.S. employer or organization, a foreign employer, or by a U.S. agent.  The petition must include any written contract between the alien and the petitioner, and/or a description of the event and an itinerary; and a consultation from a labor organization.
 
When the application is filed on behalf of an athlete or team, at least two of the following types of evidence need to be presented:  

• Participation to a significant extent in a prior season with a major U.S. sports league;
• Participation on a national team at international events;
• Participation to a significant extent in a prior season with a U.S. collegiate team;
• A written statement from an official in the governing body of the sport outlining how the athlete or team is internationally recognized;
• A written statement from a member of the sports media or other recognized expert outlining how the athlete or team is internationally recognized;
• Evidence that the individual is highly ranked if the sport uses a ranking system; or
• Evidence that the individual or team has received a significant award for performance.

When the application is being filed on behalf of an entertainment group, the petition must include details each individual in the group and his or her membership in the group.  The petition must demonstrate the group’s sustained international recognition, either by nomination or receipt of awards for outstanding achievement in the field, or by submitting three of the following types of evidence:

• The group has and will continue to perform a starring role in productions or events with a distinguished reputation, evidenced by reviews, advertisements, press releases, contracts, or endorsements;
• The group has international recognition, evidenced by reviews in papers, trade journals, etc.;
• The group has and will continue to perform a starring role in productions or events with a distinguished reputation, evidenced by articles in newspapers, trade journals, etc.;
• The group has had commercial success;
• The group has gained significant recognition for achievements from leaders in the field; or
• The group commands a high salary compared to others similarly situated.

The P-3 visa for culturally unique artists and entertainers:
P-3 visas are granted to artists and entertainers who come to the U.S. to participate in a “program that is culturally unique.”  The statute does not make clear whether the performance that will be given must be culturally unique, or whether the performance must also be given in a setting that is culturally unique.  While USCIS initially took the position that the program must be culturally unique, it has since relaxed the standards to allow issuance of P-3 visas so long as the performance that will be given is culturally unique.  P-3 essential support personnel are also given P-3 visas.  

Q-1 INTERNATIONAL CULTURAL EXCHANGE VISA

The Q-1 nonimmigrant visa is designed for foreign nationals who are coming to the U.S. to participate in an international cultural exchange program.  Under the Q-1 visa, the foreign national can engage in practical training and employment which is related to sharing the history, culture and traditions of their home country. 

The exchange program must meet the following requirements:  

• It must take place in a public area such as a school, museum, business, or similar location so that the public can be exposed to aspects of a foreign culture;
• The program must include a cultural component as an essential part of the cultural visitor’s employment or training; and
• The program cannot provide for employment or training independent of the cultural component. 

The program employer must designate a management level employee to administer the program and act as a liaison to USCIS. 

The employer must be engaged in the active conduct of business in the U.S., and must agree to pay the foreign national the same wage as similarly employed U.S. workers and that the employer has the ability to pay the wage.

The foreign national who will receive Q-1 status must meet the following requirements:

• Be at least 18 years old;
• Be qualified to perform the service of receive the type of training listed in the application; and
• Be able to communicate with the U.S. public about the cultural aspects of their home country. 

Also, applicants who have previously been granted Q-1 status must remain outside the U.S. for one year before again being granted Q-1 status.

The Q-1 program designation is approved either for the length of the program, or 15 months, whichever is shorter.  The person is also given 30 days after the expiration of the visa in which to make travel plans for their departure from the U.S.

R VISAS FOR RELIGIOUS MINISTERS AND WORKERS

Religious worker visas allow foreign ministers and professional and other religious workers to enter the U.S. temporarily. To qualify for an R visa, the applicant must be:

• A minister;
• A person working in a professional capacity in a religious occupation or vocation; or
• A person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application; and
• The individual must be coming to work for a bona fide tax exempt religious organization.

How is affiliated “religion” defined? 
A religious denomination is defined as a religious group that has some form of organized statement of faith, common belief system and similar ecclesiastical governing structure.  The affiliated groups should have a common set of religious guidelines, perform their religious ceremonies in similar ways, use the same set of ministerial materials such as hymnbooks and worship guides and have congregations.

Does anyone who works for a denomination qualify?
A religious occupation is an activity relating to “traditional religious functions.”  This would include religious counselors, cantors, liturgical ministers and workers, religious hospital and health care workers, missionaries, religious translators and broadcasters.  It would not include individuals who work for the denomination in a non-religious capacity.

It would also include anyone who is in a religious vocation, defined as someone called to religious life and service.  This must be shown through demonstrated commitment to the denomination, the taking of vows and other types of life commitments.  This would include nuns, monks, brothers, and deacons.

How do I apply?
The R-1 visa can be applied for directly at the consulate abroad without prior USCIS approval.  Alternatively, an individual already in the U.S. can apply for a change of status to R-1. 
  
How long can I have R status? 
The maximum stay in R-1 status is 5 years.  A person can obtain R-1 status again after remaining outside the U.S. for one year before making another application.

What visa status would the spouse and children of an R-1 nonimmigrant receive? 
Spouses and children of R-1 nonimmigrants and classified as R-2. They are not permitted to work in R-2 status. 

TN VISAS

The TN visa is granted under the North American Free Trade Agreement (NAFTA) between the U.S., Canada and Mexico.  The TN visa is reserved specifically for nationals of Canada and Mexico. 

TN visas provide for the admission of those who will be engaged in “activities at a professional level” in the U.S.  “Activities at a professional level” are defined at those that require at least a bachelor’s degree or credentials and experience demonstrating that the person is a professional.  Self-employment is not permissible on a TN visa, but the TN visa holder can work for a company in which they have an ownership interest, even a controlling interest.

While the TN is in many ways similar to the H-1B visa, it has both advantages and disadvantages.  The TN is more useful than the H-1B for the following reasons:

• TN visas are not subject to an annual cap;
• TN visas can be renewed indefinitely with no time limitation (although establishing non-immigrant intent becomes more and more tricky over time);
• TN visas cover a broader range of job descriptions than typical H-1B visas;
• The TN visa avoids stringent prevailing wage requirements; and
• Canadians may obtain a TN visa at preflight inspection or directly at the border without having to wait for USCIS processing times.

The TN is less useful than the H-1B for the following reasons:

• The TN is a non-immigrant intent visa.  This means that an individual entering on a TN must, at all times, demonstrate that he or she has the intent to return back to Canada or Mexico.   This creates a problem the longer a person remains in TN status, and a TN can be voided by an application for permanent residence.  An H-1B, on the other hand, is a dual intent visa.  That is, where a person on an H-1B visa may pursue permanent residency without having their visa revoked because they now have immigrant intent, a person on a TN cannot pursue permanent residency without risking their TN status; and
• Experience cannot be used as a substitute for the degree requirement if the regulations require a degree for the particular category

Both the NAFTA treaty itself and federal regulations specify which professions qualify for TN status. 

Canadian citizens can apply for the TN visa at a port of entry or pre-flight inspection at a Canadian airport.  If approved, the Canadian will be given an I-94 valid for multiple entries over one year.  USCIS has announced a proposed rule which would extend the validity period of a TN visa from one to three years.  See:  Proposed TN rule.

Mexican citizens may apply for the TN directly at a U.S. consulate in Mexico and do not need prior approval from USCIS.  Mexicans may not apply for a TN at pre-flight inspection.

Spouses and children of TN visa holders are given TD visas.  Work is not authorized for TD visa holders, but TD visa holders may attend school.

Disclaimer: The information contained here is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk, and individual eligibility should be verified by consulting with an attorney in our office.  If you would like to make an appointment with an immigration attorney regarding your immigration matter, contact Joseph Law Firm, P.C.