Non Immigrant Visa Petition
H-1B visa
H-1B is a nonimmigrant visa category used by employers to gain authorization for temporary employment of professional workers. The position offered must be a specialty occupation which can be proved by satisfying one of the following:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree
Labor Condition Application (LCA)
U.S. employer must obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions. The application requires the employer to attest that it will comply with the following requirements:
• The employer will pay the alien worker the wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the alien worker will be working.
• The employer will provide working conditions that will not adversely affect other similarly employed workers.
• At the time of the labor condition application, there is no strike or lockout at the employer’s place of business.
• Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Period of Stay
An alien can be in H-1B status for a maximum of 6 years. There are some exceptions under which H-1B can be extended beyond the 6 year limit.
H-1B Cap
The H-1B visa has an annual cap of 65,000 each fiscal year, of which 6,800 are set aside for Chile and Singapore. In addition to the regular cap, 20,000 are set aside each fiscal year for those who have received a U.S. Master’s degree or higher. H-1B workers who are sponsored by or employed at an institution of higher education or its affiliate or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
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L-1 visa
Intracompany Transferees (L-1) nonimmigrant visa category is designated for international companies to bring foreign employees to the United States. To be eligible for an L-1 visa, the following requirements need to be met:
• The employee must be employed continuously abroad for 1 of the past 3 years by parent, branch, and affiliate or subsidiary of U.S. company preceding application for admission;
• There must be qualifying relationship between the foreign company and the U.S. company (e.g. parent, branch, affiliate or subsidiary);
• The employee to be transferred must have been working in an executive, managerial, or specialized knowledge capacity with the foreign company and will work in one of these capacities with the U.S. company;
• The employee must be qualified for the position by virtue of prior education and experience.
“Executive capacity” means responsibilities within an organization including: (1) directing the management of the organization or a component or function within the organization; (2) establishing the goals and policies of the organization or a component or function within the organization; (3) exercising wide latitude in discretionary decision making; and (4) receiving only general supervision or direction from higher level executives, board of directors or stockholders.
“Managerial capacity” means responsibilities within an organization including: (1) managing the organization or a department, subdivision, function or component within the organization; (2) supervising and controlling the work of other supervisory, professional or managerial employees or managing an essential function within the organization or a department or subdivision of the organization if the individual does not have direct supervisory duties; (3) having the authority to hire and fire or recommend personnel actions or functioning at a senior level if the individual does not have direct supervisory duties; and (4) exercise discretion over the day-to-day operations of the organization or the functions of a department or subdivision within the organization.
“Specialized capacity” is defined to include a person who has special knowledge of the company product, service, research, equipment, techniques, management or other interests and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. Characteristics of employee with specialized knowledge include: 1) possession of knowledge that is valuable to the employer’s competitiveness in the market place; 2) unique qualification to contribute to the U.S. employer’s knowledge of foreign operating conditions; 3) having been utilized as a key employee abroad and been given significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position; and 4) possession of knowledge that can be gained only through extensive prior experience with that employer.
New Office Situation:
A new office is defined as “an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year.” To qualify for L-1 in a “new office” situation, the following evidence must be submitted: 1) sufficient physical premises for the office have been secured (usually by providing a lease); 2) the beneficiary meets the one-year continuous employment requirement; and 3) the intended U.S. operation within one year will support an executive or managerial position.
Filing Procedure
The petition is filed on Form I-129 with supporting documentation with the CIS Service Center having jurisdiction over the work site. The petition is approved for 3 years. In a “new office” situation, the petition is approved for one year with extensions upon presentation of evidence that the business is active and operating. The total period of stay for L-1 executives and managers is 7 years and that for specialized knowledge personnel is 5 years. Once the petition is approved, the approved petition is sent to a U.S. consulate where the alien can obtain an L-1 visa to enter the United States. If the alien is already in the United States in a different nonimmigrant category, his or her status will be changed to L-1.
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TN visa
The TN visa category is part of the North American Free Trade Agreement (NAFTA) and enables Canadian and Mexican citizens to enter the United States to engage in professional business activities on a temporary basis. There is no limit on the number of workers granted TN status each year.
The TN visa category requires that the applicant:
• Is a citizen of Canada or Mexico. Landed immigrants or permanent residents do not qualify.
• Enters the U.S. on a temporary basis.
• Possesses the minimum qualifications of one of the professions specified in Appendix 1603.D.1 of the NAFTA treaty. The Appendix also stipulates the minimum qualifications for entry into the U.S. in each occupation. The most common minimum requirement is a Baccalaureate degree and licensure, if required for the profession.
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O visa
The O-1 nonimmigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.
• O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
• O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
• O-2: individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience that are essential to the successful performance of the O-1 and whose duties cannot be readily performed by a U.S. worker.
• O-3: individuals who are the spouses or children of O-1s and O-2s
To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentages who have risen to the very top of the field of endeavor.
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
Evidentiary Criteria for O-1A
Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
• Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
• Original scientific, scholarly, or business-related contributions of major significance in the field
• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
• Participation on a panel, or individually, as a judge of the work of others in the same field or in a field of specialization allied to the field for which classification is sought
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.
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K-1 visa
If you petition for a fiancé(e) visa, you must show that:
• You (the petitioner) are a U.S. citizen.
• You intend to marry within 90 days of your fiancé(e) entering the United States.
• You and your fiancé(e) are both free to marry and any previous marriages must have been legally ter-minated by divorce, death, or annulment.
• You met each other, in person, at least once within 2 years of filing your petition. There are two excep-tions that require a waiver:
- If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.
- If you prove that the requirement to meet would result in extreme hardship to you.
Application Process
File Form I-129F, Petition for Alien Fiancé(e).
After the Fiancé(e) Visa is Issued
Once issued, the fiancé(e) visa (or K-1 nonimmigrant visa) allows your fiancé(e) to enter the United States for 90 days so that your marriage ceremony can take place. Once you marry, your spouse may ap-ply for permanent residence and remain in the United States while USCIS processes the application.
Children of Fiancé(e)s
If your fiancé(e) has a child (under 21 and unmarried), a K-2 nonimmigrant visa may be available to him or her. Be sure to include the names of your fiancé(e)’s children on your Form I-129F petition.
Permission to Work
After admission, your fiancé(e) may immediately apply for permission to work by filing a Form I-765, Application for Employment Authorization.
What happens if you do not marry within 90 days?
Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) should leave the United States at the end of the 90 days if you do not marry. If your fiancé(e) does not depart, he or she will be in violation of U.S. immigration law. This may result in removal and can affect future eligibility for U.S. immigration benefits.
To be eligible for a K-3 nonimmigrant visa, an individual must:
• Be married to a U.S. citizen
• Have a U.S. citizen spouse file Form I-130, Petition for Alien Relative
A child may be eligible for a K-4 visa if:
• He or she is unmarried, under 21, and the son or daughter of a qualified K-3 nonimmigrant visa applicant
Benefits and Limitations of K-3/K-4 Nonimmigrant Visa
• Seeking to be admitted to the United States on a K-3 nonimmigrant visa can shorten the waiting period for non-citizen spouses to enter the United States.
• Once admitted to the United States, K-3 nonimmigrants may apply to adjust status to a permanent resi-dent at any time. Upon admission to the United States, K-4 nonimmigrants may file an application for adjustment of status concurrently with or at any time after a Form I-130 has been filed by the U.S. citizen petitioner.
• Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization. They can obtain evidence of eligibility to work legally in the United States by filing Form I-765, Application for Employment Authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonim-migrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.
The limitations of the K-3/K-4 nonimmigrant visa include:
• The Department of Homeland Security only admits K-3 or K-4 nonimmigrant visa holders for a 2-year period. K-3 or K-4 nonimmigrant visa holders may apply to USCIS for an extension of status in 2-year increments as long as the marriage-based I-130 visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.
F1/F2
If you would like to study as a full-time student in the United States, you will need a student visa. There are two non-immigrant visa categories for persons wishing to study in the United States. These visas are commonly known as the F and M visas.
You may enter in the F-1 or M-1 visa category provided you meet the following criteria:
• You must be enrolled in an "academic" educational program, a language-training program, or a vocational program
• Your school must be approved by USCIS
• You must be enrolled as a full-time student at the institution
• You must be proficient in English or be enrolled in courses leading to English proficiency
• You must have sufficient funds available for self-support during the entire proposed course of study
• You must maintain a residence abroad which you have no intention of giving up
F-1 Student Visa
The F-1 Visa (Academic Student) allows you to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the U.S. government to accept international students.
F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions. There are various programs available for F-1 students to seek off-campus employment after the first academic year, including:
• Curricular Practical Training (CPT)
• Optional Practical Training (OPT) (pre-completion or post-completion)
• Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)
E1/E2
If you are a national of a country with which the United States has a commercial treaty and will enter the United States to solely engage in trade of a substantial nature principally between the United States and your country of nationality, you may be eligible for E-1. The trade involved must be in existence (successfully negotiated contracts binding on all parties) and be an international exchange of items of trade between the United States and a treaty country.
Eligibility Criteria
In order to be eligible for an E-1 classification, you must demonstrate that:
• You are a national of a country with which the United States has the requisite treaty or agreement
• The trading firm for which you are coming to the United States must have the nationality of the treaty country (At least 50 per cent of the ownership of the company must have the nationality of the treaty country)
• The trade is of a substantial nature (i.e. an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country)
• The trade you will conduct is principally trade between the United States and the treaty country of which you are a national (Trade is deemed to be principally between the United States and treaty country when over 50 per cent of the volume of international trade conducted is between the United States and treaty country of your nationality)
• You will be employed in an executive or supervisory capacity, or possess special qualifications that make your services essential to the successful and efficient operation of the enterprise, if you are not the principal trader
The E-2 classification is authorized if you are a national of a country with which the United States has a commercial treaty and you are coming to the United States solely to direct and develop the operations of an enterprise in which you have invested, or are actively involved in the process of investing, a substantial amount of capital. The investment involved must place lawfully acquired, owned and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
Eligibility Criteria
In order to be eligible for E-2 classification, you must demonstrate the following:
• You are a national of a country with whom the U.S. has the requisite treaty or agreement
• You (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise. You must demonstrate that you control the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means
• You have invested in or are actively in the process of investing in the enterprise
• The investment is substantial, i.e. sufficient to ensure your financial commitment to the successful operation of the enterprise and big enough to support the likelihood that you will successfully direct and develop the enterprise
• The investment enterprise is not a marginal enterprise
• You will be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise, if you are not the principal investor.
B1/B2
There are two types of nonimmigrant visas available for people who want to visit the United States.
• Visitor for business (B-1)
• Visitor for pleasure (B-2)
The B-1 visa is for individuals who wish to visit the United States temporarily for business purposes, (e.g. attending conferences) or for medical treatment, or to accompany a family member who requires medical treatment.
The B-2 visa is for individuals who wish to visit the United States temporarily as tourists or to visit family or friends.
If you are planning to visit the United States, you should be prepared to demonstrate the following:
• Your visit will be temporary
• You will depart at the end of your authorized stay or any extension granted by USCIS
• You are in possession of a valid passport
• You maintain a foreign residence that you have no intention of abandoning
• You are able to support yourself financially while in the United States
• You are admissible to the United States or have obtained a waiver for any ground of inadmissibility.
P-1 (Athletes/Entertainers)
P-1A Internationally Recognized Athlete
The P-1 classification applies to you if you are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
Individual Athletes Eligibility Criteria
You must be coming to the United States to participate in individual event, competition or performance in which you are internationally recognized with a high level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned or well known in more than one country.
Athletic Teams Eligibility Criteria
You must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which your team is participating must be distinguished and require the participation of athletic teams of international recognition.
P-1B Member of an Internationally Recognized Entertainment Group
The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.
Eligibility Criteria
At least 75 percent of the members of your group must have had a substantial relationship with the group for at least one year. This one year requirement does not apply to circus performers and essential circus personnel.
Your entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.
Note: Individual entertainers not performing as part of a group are not eligible for this visa classification.
R-1 (Religious Workers)
If you are a minister, person working in a professional capacity for a religious organization, or doing other work for a religious organization you may be able to enter the United States temporarily as an R-1 religious worker. Examples of religious occupations include liturgical workers, cantors, and religious broadcasters.
Eligibility Criteria
You must be able to establish that you are a member in a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of the visa petition.
You may not self-petition. Every petition for a nonimmigrant religious worker classification must be initiated by a prospective or existing employer through the filing of a Form I-129, Petition for Nonimmigrant Worker. You will not be able to obtain an R-1 visa at a U.S. Embassy or Consulate abroad or at a port-of-entry without prior approval of Form I-129 by U.S. Citizenship and Immigration Services (USCIS). There are certain general requirements which must be proven by the petitioning organization as well as by you the beneficiary of the petition.
Period of Stay
As an R-1 nonimmigrant, you may be admitted for a period of up to 5 years. This time period may be extended, but generally cannot go beyond a total of 5 years.
Family of R-1 Visa Holders
Your spouse and unmarried children under the age of 21 may be eligible for R-2 classification. Your dependents may not be employed under the R-2 classification.