Ross, Silverman & Levy: Boston Attorneys, Immigration & Nationality Law, United States Immigration

Nonimmigrant visas allow foreign nationals to live and/or work in the U.S. on a temporary basis. The following are descriptions of the most relevant nonimmigrant visas, with the advantages and disadvantages of each.

The H-1B visa is available to individuals working in "specialty occupations," meaning occupations which are generally professional in nature and require a minimum of a bachelor's degree. The applicant's degree must be related to the job offered. The procedure for filing an H-1B petition requires the employer to first obtain a determination of the prevailing wage for the occupation. The actual wage for the position must be at least 100% of the prevailing wage. The H-1B petition is filed at the relevant Service Centers of the U.S. Citizenship and Immigration Services (USCIS). If the individual attended a college or university outside of the United States, it is necessary to get an educational evaluation to show the equivalency to a degree from the United States. H-1B status can initially be requested for up to 3 years, and further extensions can be granted for a total period in H-1B status of 6 years. After 6 years, the applicant must physically reside outside the U.S. for a period of one year before returning to the U.S. on a new H-1B visa. Spouses and minor children can accompany H-1B applicants as H-4 dependents, but H-4 visa holders cannot work. An H-1B nonimmigrant may only work for the employer who filed the petition on his or her behalf.

Foreign nationals can obtain an O-1 visa if they can show that they possess extraordinary ability in their area of expertise. Workers of extraordinary ability may include those who can show that they have extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated by sustained national or international acclaim. "Extraordinary ability" in the context of scientists & educators is defined as "a level of expertise indicating that the person is one of the small percentage who have risen to the very top of their field of endeavor." The foreign national must be coming to the U.S. to continue working in their specific area of extraordinary ability. To be successful, it is necessary to either have received a major, internationally recognized award (e.g.: a Nobel Prize) or to provide alternative evidence that satisfy at least 3 of 8 criteria set forth in the regulations (e.g.: receipt of nationally or internationally recognized prizes or awards of excellence, membership in associations in the field that require outstanding achievements, published material about the alien, evidence that the alien is a judge of the work of others in the field, authorship of scholarly articles, etc.). The evidence will nearly always include letters from experts and colleagues in the academic field attesting to the extraordinary ability of the foreign national. Spouses and minor children can accompany O-1 applicants as O-2 dependents, but are not permitted to work. An O-1 visa petition (Form I-129) must be signed by the employer & filed with the Vermont Service Center. The petition may be approved for an initial period of three years, and can be extended for additional periods of one year.

L VISAS (Intracompany Transferees)

The L-1 visa is available to intracompany transferees who, within three years of the time of his or her application for admission into the U.S., has been employed continuously for one year by a firm, corporation or other legal entity or affiliate or subsidiary thereof and intends to work in the U.S. with the same employer or its subsidiary or affiliate in a capacity that is either managerial or executive (L-1A) or involves specialized knowledge (L-1B). Companies with licensing or franchise agreements do not qualify. The organization must continue to have an ongoing business entity in at least one other country during the entire time that the foreign national is in the U.S. The one year of employment musthave been on a full time basis, and the foreign national need not have worked in the same position as the one he or she intends to fill upon entering the U.S. Under certain circumstances, it is possible for employers to apply for a "Blanket" L-1 visa, through which foreign entities can avoid filing individual petitions with USCIS. In order to qualify for a blanket L-1 visa, a foreign national need only be employed with the foreign affiliate for 6 months within the previous three years. Upon attaining a blanket L-1, pre-qualified managers, executives and specialized knowledge professionals can go directly to the U.S. consul to seek approval of an L-1 visa.

Whenever possible, it is advisable for a foreign national to enter on an L-1A rather than an L-1B. First, with limited exceptions, foreign nationals who enter the U.S. on an L-1A visa are permitted to remain in the U.S. for a maximum of seven (7) years while persons admitted on L-1B visas are limited to a maximum stay of five (5) years. Second, there is an immigrant visa category specifically designated for executives and managers of multinational organizations which allow for a "fast track" green card process that is significantly quicker than the labor certification process.

A J-1 visa can be used as a vehicle to provide work authorization for foreign nationals in a variety of circumstances. The Boston University ISSO Office is responsible for issuance of Forms IAP-66, which are used by foreign nationals to either change status to J-1 or obtain a J-1 visa at their local U.S. Consulate. Spouses and minor children can accompany J-1 applicants as J-2 dependents. (Note: J-2 spouses can apply for employment authorization).

J-1 visas are available to individuals who will be teaching, lecturing, observing, consulting or conducting research at post-secondary accredited educational institutions. Professors and research scholars can remain in the U.S. on a J-1 for an initial period of up to three years. The program sponsor or the USIA may authorize a six-month extension beyond the initial three-year period. The foreign national is granted an additional 30 day grace period within which to depart. If direct financing is received from a U.S. or foreign government, the sponsor may request advance permission from the USIA to permit a stay of more than three, but less than six, years. J-1 visa holders may not hold tenured positions. Professors and research scholars may participate in occasional lectures and short-term consultations off-site.

J-1 visas are also available to accommodate graduates of foreign medical schools pursuing graduate medical education or training at U.S. accredited schools of medicine or scientific institutions, both clinical and non-clinical. Individuals entering on J-1 visas to pursue a residency or other clinical training must enter the U.S. under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG). Clinical trainees are limited to the time normally required to complete the program of training necessary for specialty board certification, up to a maximum of seven years, plus 30 days within which to depart. Extensions are possible where it can be demonstrated that the country to which the foreign national will return has an exceptional need for the trainee to remain to receive additional training.

Created by NAFTA, the TN visa is an alternative to the H-1B visa for certain Canadian and Mexican professionals (i.e.: individuals with bachelor's or licenciatura degrees or higher). For Canadian citizens in particular, the process is preferable to the H-1B visa as it involves a very streamlined application accomplished at ports of entry. The procedure for Mexican citizens is far more onerous, more closely approximating the procedure for an H-1B visa. Unlike the H-1B visa, there is no cap and no time limitation on TN visas. However, there is also no dual intent. TN visas are only available for 63 listed professionals.

Immigrant and Non-immigrant Visas