September 8, 2016

Non immigrant Visas

● Who is Eligible?

The H-1B visa is available to foreign professionals for employment in specialty occupations that require at least a bachelor’s degree; or the equivalent in work experience. Specialty occupations include professionals such as architects, computer specialists, accountants, engineers, financial analysts, doctors, educators and more. The visa requires a job offer in the United States for a position that requires at least a Bachelor’s degree and/or equivalent work experience.

One current issue with the H-1B visa program is that there is an annual cap on H-1B visas of 65,000, which are granted to foreign professionals possessing bachelor’s degrees. There is an additional 20,000 H-1B visas available for professionals with advanced degrees from U.S. colleges. Every year, the H-1B visa quota opens up on April 1st and cases need to be filed on that date. USCIS then conducts a random lottery to select cases that move forward for processing. The cases that are not accepted as part of the annual quota, are generally returned by June and the applicants need to find an alternative way of remaining in the U.S.

There are petitions that are exempt from the quota, including those by certain universities, governmental research institutions, non-profit entities, or for physicians that have received J waivers.

●  What Are the Documentation Requirements?

Prior to filing the H-1B petition, the employer must first file a Labor Condition Application with the U.S. Department of Labor, certifying that the wage and working conditions are comparable U.S. professionals in the same occupation.

For the petition itself, documentation that the job qualifies as a “specialty occupation” is required, including that the professional has a bachelor’s degree or equivalent and show that this is required in the industry. A copy of the foreign national’s degree is required, as is other evidence of specialized training, work experience, or education.

●  What is the Duration of the Visa?

H-1B visas to work and live in the United States are initially granted for a period of up to three years. Subsequently, the visa may be extended for up to another three years. In certain situations, such as a pending permanent residency application, the visa may be extended beyond this maximum six-year duration. The visa is employer-specific and an applicant will need to file for a new H-1B visa before changing to a new employer.

USCIS begins accepting H-1B applications on April 1st annually, and approved applicants may begin employment in the United States on October 1st of that year.

●  What about Dependents?

The spouse and minor children (under the age of 21) of the H-1B visa holder are eligible to receive an H-4 dependent visa for the same duration as the principal. However, this status does not grant employment authorization. Should a dependent wish to work in the U.S. as well, a separate H-1B, or other status authorizing employment, will be required.
● Who is Eligible?

The R-1 non immigrant visa is available to foreign national ministers, clergy, and other workers of recognized religion who are coming to the United States on a temporary basis to be employed in a religious occupation by a non-profit religious organization.

● What Are the Documentation Requirements?

R-1 applicants must be religious workers who are authorized to conduct religious worship and perform religious duties. This includes demonstrating that the foreign national is a member of a religious denomination that has bona fide religious organizations in the U.S. and that the foreign national has been a member of the religious organization for at least two years prior to the application. The religious denomination must be exempt from taxation, or qualify for tax-exempt status.

● What is the Duration of the Visa?

R-1 visas are initially granted for a period of up to 30 months. Thereafter, an extension may be granted for up to a period of an additional 30 months, such that the total stay in the United States may not exceed five years.

● What about Dependents?

The spouse and minor children (under the age of 21) of the R-1 applicant are entitled to dependent status through an R-2 visa for the same duration as the principal. During their stay in the U.S., the dependents may study, but are not eligible to work in the U.S. Evidence of financial support while in the U.S. will be required.
● Who is Eligible?

The J-1 nonimmigrant visa is available to exchange visitors coming to the United States to study or train as part of a cultural exchange training or internship program. The program must be approved by the U.S. Department of State. Common J-1 recipients include students, short-term scholars, researchers, business or industrial trainees, visiting professors, au pairs, or government specialists.

Read More about J-1 Visa

● What Are the Documentation Requirements?

J-1 applicants applying for an intern program must be enrolled in post-secondary education outside the U.S., or must have graduated from such an institution no more than 12 months prior to the start of the U.S. exchange program.

J-1 applicants applying for a training program must have a degree from a foreign post-secondary institution, and at least one year of prior related work experience outside the U.S.; or a total of at least five years of such experience. As with other nonimmigrant visas, J-1 applicants must indicate their residence and strong ties abroad to demonstrate that they do not intend to immigrate to the U.S.

● What is the Duration of the Visa?

J-1 visas are initially granted for varying periods of time, ranging from a few months to 18 months, depending on the category of J-1 granted.

● What about Dependents?

The spouse and minor children (under the age of 21) of the J-1 applicant are entitled to dependent status through a J-2 visa for the same duration as the principal.
● Who is Eligible?

The H-3 visa is available to persons coming temporarily to the United States for the purpose of receiving training from a U.S. employer in a situation where the training is not available in the applicant’s home country. This visa is a good option for foreign nationals without a degree or formal studies who have an opportunity to partake in a U.S. training program. There is no annual cap on the number of general H-3 visas granted.

● What Are the Documentation Requirements?

The H-3 applicant must demonstrate that the training to be received in the U.S. is not available in the foreign national’s country but is necessary to the applicant’s occupation. The applicant must provide a detailed description of the structured training program, how the training will benefit the applicant, and why the employer is willing to incur the cost of training the applicant.

● What is the Duration of the Visa?

H-3 visas are initially granted for a period of up to two years.

●  What about Dependents?

The spouse and minor children (under the age of 21) of the H-3 applicant are entitled to dependent status through an H-4 visa for the same duration as the principal. However, this does not grant employment authorization, which would need to be applied for separately.
● Who is Eligible?

The E-3 nonimmigrant visa is available to Australian professionals seeking to enter the United States to perform services in a specialty occupation. This is a special visa granted to nationals of Australia who come to work in the U.S. in professional positions that require a degree.

● What Are the Documentation Requirements?

E-3 visa applicants must be Australian nationals and demonstrate that their entry into the United States is for the purpose of performing a “specialty occupation” that requires at least a bachelor’s degree and specialized knowledge in a professional field. E-3 applicants must also show their non-immigrant intent and strong social, financial and general ties to Australia.

There is an annual cap on the number of E-3 visas granted of 10,500. However, because this category of nonimmigrant visas is narrowly limited to Australians, this cap is generally never reached.

● What is the Duration of the Visa?

E-3 visas are initially granted for a period of two years. They may be extended for additional two-year periods. Subject to only a few exceptions, the extensions may be made an indefinite number of times.

● What about Dependents?

The spouse and minor children (under the age of 21) of the E-3 visa holder are also entitled to the same E-3 status. The spouse of an E-3 visa holder will be eligible to apply for work authorization after entering the U.S.
● Who is Eligible?

The North American Free Trade Agreement (NAFTA) creates nonimmigrant work visas for Canadian or Mexican professionals to work in the United States. The foreign national’s professions must be part of a TN visa list of professional occupations designated by NAFTA. “Professional” occupations require the applicant to have a bachelor’s degree and the appropriate license, or, in some instances, at least five years of experience in the field.

Read More about professions Visa

● What Are the Documentation Requirements?

To work in the United States, Canadian or Mexican professionals must be citizens of their respective country, with an occupation on NAFTA’s designated list of professional occupations. Additionally, the applicant must demonstrate business activity at a “professional” level through documentation such as licenses, job offers, diplomas, or membership in professional organizations. The documentation should address the nature of the business activity to be performed, the purpose of entry, the anticipated length of temporary stay, the satisfaction of appropriate credentials, and the remuneration to be received.

● What is the Duration of the Visa?

TN visas are initially granted for a period of up to three years and may be extended an indefinite number of times, so long as non-immigrant intent is shown and formalities complied with.

● What about Dependents?

The spouse and minor children (under the age of 21) of the TN visa holder are eligible to obtain derivative status through a TD visa. However, dependents do not have to be citizens of Mexico or Canada as does the TN holder. TD status does not grant employment authorization, which would need to be applied for separately.
● Who is Eligible?

The O-1 visa is available to people who have shown extraordinary ability in the fields of science, art, business, athletics, or education, and who are coming to the United States temporarily to perform services in their field of extraordinary ability. According to the USCIS, a foreign national has “extraordinary ability” if the individual has a level of expertise that places him or her within the small percentage of persons at the very top of that field. O-1 applicants in the motion picture or television field must also have a record of distinction or prominence.

●  What Are the Documentation Requirements?

An employer or agent may submit the O-1 visa petition on behalf of the extraordinary individual. The petition must demonstrate the foreign national’s extraordinary ability and sustained national and international acclaim within his or her field. This may be accomplished by presenting evidence of receipt of a major, internationally recognized award like a Nobel Peace Prize, or by demonstrating that the applicant satisfies at least three of the following criteria:

   ● Receipt of nationally or internationally recognized awards of excellence in the applicant’s field;
Membership in an organization in the applicant’s field that requires outstanding achievement as determined by recognized international experts;
  ●  Commands a high salary;
  ●  Published material in major professional or trade publications about the applicant and his or her work in the field;
  ●  Has judged or reviewed the work of peers in the field;
  ●  Made significant original scientific or scholarly research contributions in the field; or
  ●  Authored scholarly articles in professional journals or other major media in the field.

● What is the Duration of the Visa?

O-1 visas are initially granted for the period necessary to accomplish the work, up to a three-year term. The visa may be indefinitely extended for periods of one year at a time.

● What about Dependents?

The spouse and minor children (under the age of 21) of the O-1 visa holder are eligible to obtain derivative status by way of an O-3 visa for the same period as the principal. This status does not grant employment authorization, which will need to be applied for separately.

Support personnel necessary to the work of an O-1 applicant in the athletic or entertainment performance fields may be eligible for status through O-2 nonimmigrant visas.
● Who is Eligible?

The E-2 visa is an investor visa, available to foreign individuals, small or large companies, or foreign personnel of Treaty Foreign National (TFN) owned companies. The individual needs to be from a treaty country

Read More about E-2 Visa

and seek to invest a substantial amount of funds in the United States with the prospect developing or directing the investment enterprise. The investment must involve an operating, commercial business.

● What Are the Documentation Requirements?

To qualify as an E-2 investor, the applicant must direct and develop operations of an entity in which he or she has or is investing a substantial amount of capital. The investor must hold an executive or managerial role in the entity or possess skills essential to the entity’s operations. As to what constitutes “substantial” capital, there is no specific amount, but it is typically significant in proportion to the total investment value and the nature of the business. What kind of investment would be typically required for similar businesses, is something that would be considered.

●  What is the Duration of the Visa?

E-2 visas are initially granted for a period of up to five-years. They can be reissued an indefinite number of times by a U.S. Consulate or Embassy for a time equal to that originally issued, as long as the investor maintains his or her eligibility and treaty status.

●  What about Dependents?

The spouse and minor children (under the age of 21) of the investor are eligible to obtain derivative E visa status. Spouses of E-2 investors are eligible to apply for work authorization once they are in the U.S.
● Who is Eligible?

The L-1 visa is available to managers, executives, or other employees with specialized skills or knowledge who are being transferred from a foreign-based company to its U.S. based branch, subsidiary, parent, or affiliate company. Intra-company transferees coming to the United States on a temporary basis to perform services in a managerial or executive capacity may petition for an L-1A visa, and those to perform services based on their specialized knowledge may apply for the L-1B visa.

● What Are the Documentation Requirements?

An L-1 visa petition requires that the applicant have been employed by the foreign company on a full-time basis for at least one continuous year within the three years prior to the applicant’s first entry into the U.S. For that minimum one-year employment, the applicant must have worked in the capacity as a manager of important business functions; or as an executive overseeing other company employees, departments or functions. The applicant can show specialized knowledge of the company’s services, products, and methods to qualify for the L-1B visa.

The petitioning employer in the U.S. must demonstrate that it is a branch, subsidiary, parent, or affiliate of the foreign company. The foreign company from which the applicant is transferring must remain in existence throughout the duration of the applicant’s stay in the United States.

●  What is the Duration of the Visa?

L-1 visas are initially granted for a period ranging between one and three years. Generally, for a company that is just starting up, the duration granted will be one year, but for a company that has been doing business in the United States for a year or longer, the duration granted will be three years. For a manager or executive, L-1 visas may be extended in three-year increments for up to a maximum of seven years, and for an employee with specialized knowledge, for up to five years.

●  What about Dependents?

The spouse and minor children (under the age of 21) of the L-1 visa holder are eligible to accompany the transferee on an L-2 visa for the same duration as the principal. L-2 spouses are eligible for work authorization after they have entered the U.S. and make an application.
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