Nonimmigrant Work Visas

Most individuals and companies utilizing the services of RS in a nonimmigrant context are seeking nonimmigrant employment visas, such as those listed below. These visas and documents provide foreign nationals with the necessary authorization to work and earn income in the United States. The attorneys and staff at RS work closely with our clients, both individuals and employers, to assist in obtaining all types of employment visas.

H-1B Visas:

The H-1B visa is available to individuals working in "specialty occupations," i.e. occupations which are professional in nature and require a minimum of a Bachelor's degree in a specific field of study related to the job offered. An H-1B nonimmigrant may only work for the employer who filed the petition on his or her behalf, and may only work in the position and location(s) specified on the H-1B petition. Spouses and minor children can accompany H-1B applicants as H-4 dependents.

• Granted in up to three-year increments, for a total of six years. Additional extensions may be granted at certain stages of the permanent residence process.
• Allows for dual intent, meaning that an H-1B nonimmigrant may enter the U.S. with the intention of applying for permanent residence (i.e. with immigrant intent).
• H-1B employees must be paid at least the prevailing wage.
• In addition to the standard filing fee for the petition, there is a $1500 Employer Training Fee ($750 for employers with no more than 25 full-time employees). Some employers, such as universities and teaching hospitals, are exempt from this additional filing fee.
• There is also a $500 Fraud Detection and Prevention Fee required for all initial H-1B visa petitions for each company.
• H-4 dependents cannot work.
• There are a limited number of H-1B visas allocated for each fiscal year (beginning every October 1). Once the cap is reached, new petitions for the next fiscal year cannot be filed until the following April 1, and the beneficiary cannot begin working until the following October 1.
• Exceptions: Certain petitions are exempt from the H-1B cap, including:
• Petitions for individuals currently working in H-1B status for employers who are subject to the cap; and
• Petitions filed by certain types of employers, such as universities and teaching hospitals.

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L-1 Visas:

The L-1 visa is available to an intra-company transferee who, within three years of the time of his or her application for admission into the U.S., has been employed continuously on a full-time basis for at least one year by a foreign 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. An L-1 nonimmigrant may only work for the employer who filed the petition on his or her behalf. Spouses and minor children can accompany L-1 applicants as L-2 dependents.

• Maximum seven years of authorization for managers and executives and five years for specialized knowledge employees.
• Dual Intent.
• No prevailing wage requirement, annual cap, or Employer Training Fee.
• In addition to the standard filing fee for this petition, there is a $500 Fraud Detection and Prevention Fee required for all initial L-1 visa petitions for each employee.
• L-2 spouses are eligible to work after obtaining an employment authorization document (EAD, described below).
• For managers and executives, the L-1 category can become the basis for a relatively fast-track permanent residence application process.

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Blanket L-1:

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 CIS (the Blanket petition itself, however, is filed with CIS). Upon the company obtaining approval of a Blanket L-1 petition, qualifying managers, executives, and specialized knowledge professionals can apply directly at a U.S. Consulate abroad for an L-1 visa, without the need to first file a petition with a CIS Service Center. At the Consulate, the individual will be expected to present documentation demonstrating his/her qualifications for the category.

• In general, same requirements and standards as a regular L-1 visa, except Blanket
  L-1B visas are only available for specialized knowledge professionals who have at least a Bachelor's degree.
• Employee must be transferred from and to an office or entity covered by the original Blanket L approval notice.
• Offsite employment and employment at "job shops" is prohibited, with limited exceptions.

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TN Visas:

The TN visa is available to certain Canadian and Mexican professionals. For Canadian citizens, the process involves a very streamlined application accomplished at a port of entry. Upon presenting him/herself before an officer at a border post, the Canadian national will receive an immediate adjudication of his/her application for TN status. The procedure for Mexican citizens requires the applicant to apply for a visa at a U.S. Consulate. To qualify for a TN visa, an individual must have pre-arranged employment with a U.S. employer; self-employment is prohibited. It is possible for an individual to possess a TN visa with more than one entity at a time, as long as he or she presents evidence of the required relationship with each employer. Spouses and minor children can accompany TN applicants as TD dependents.

• The TN visa is valid for up to three years, and is renewable indefinitely.
• No dual intent.
• No annual cap, prevailing wage requirement, or "extra" filing fees such as the H-1B Fraud or Employer Training Fees.
• No prior CIS approval is required.
• TD dependents cannot work.
• TN visas are only available for 63 listed categories of professionals and only to individuals who possess the necessary credentials.
• Most positions require that individuals possess either a Bachelor's or licenciatura degree or higher.

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J-1 Visas:

The Exchange Visitor Program is carried out under the provisions of U.S. law to increase mutual understanding between the people of the United States and the people of other countries through educational and cultural exchanges. Among other purposes, a J-1 visa can be used as a vehicle to provide work authorization for foreign nationals in a variety of circumstances. For instance, J-1 visas are available to individuals who are visiting the U.S. for on-the-job training by companies with established training programs. The employer must apply to the U.S. Department of State (DOS) to set up a program to sponsor individuals or bring the trainee under umbrella programs which sponsor J-1 exchange visitors. Spouses and minor children can accompany J-1 applicants as J-2 dependents.

• J-1 training visas are limited to an 18-month time period and are generally available only to individuals outside the U.S. Other types of J-1 visas can be issued for different periods (longer or shorter).
• No dual intent.
• No prevailing wage requirement, annual cap, or filing fee (although there is a fee to the sponsoring Agency).
• Spouses of J-1 visa holders are eligible to work after obtaining an employment authorization document (EAD, described below).
• Other types of J-1 visas are available to individuals who will be teaching, lecturing, observing, consulting, or conducting research at post-secondary accredited educational institutions, and also to individuals who are graduates of foreign medical schools coming to the U.S. to pursue graduate medical education or training at U.S. accredited schools of medicine or scientific institutions.
• Two-Year Foreign Residency Requirement: Certain J-1 exchange visitors must return to their home country or country of last residence for two years before changing their status to H-1B or L-1 or applying for permanent residence, unless granted a waiver.

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O-1 Visas:

Foreign nationals can obtain an O-1 visa if they can show that they possess extraordinary ability in their area of expertise, as demonstrated by sustained national or international acclaim. The extraordinary ability may be in a variety of fields, as long as it can be categorized within the sciences, arts, education, business or athletics. "Extraordinary ability" in the context of scientists and 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 his/her specific area of extraordinary ability. An O-1 nonimmigrant may only work for the employer (or, in the case of artists or athletes through the agent or agency) who filed the petition on his or her behalf. Spouses and minor children can accompany O-1 beneficiaries as O-3 dependents.

• The petition may be approved for an initial period of three years, and can be extended indefinitely in one-year increments.
• Limited dual intent.
• No annual cap, prevailing wage requirement, Fraud or Employer Training Fees, and no definitive time limitation.
• O-3 dependents cannot work.
• Foreign nationals who are subject to the J-1's 2-year foreign residency requirement can obtain an O-1 visa.
• The preparation for an O-1 visa requires a substantial amount of work and time, and the standards that must be met to qualify for an O-1 visa are high.

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F-1 Practical Training:

There are two types of F-1 Practical Training: Curricular (CPT) and Optional (OPT). CPT is available to students engaging in employment which is an integral or important part of their   F-1 curriculum, such as alternate work/study, internships, cooperative education, or other practicums offered by sponsoring employers through agreements with schools. OPT is available to F-1 students who have enrolled for at least nine consecutive months. The employment must be related to the student's major area of study and is limited to a total period of one year (part-time OPT is deducted at one-half the full-time rate). OPT can be engaged in while school is in session, during vacation, or after completion of a course of study (i.e. subsequent to graduation). Spouses and minor children can accompany F-1 applicants as F-2 dependents.

In April 2008, the Department of Homeland Security extended the OPT period from 12 to 29 months for certain qualified F-1 nonimmigrant students, namely students with a degree in designated science, technology, engineering, or mathematics (known as STEM) fields who are employed by businesses enrolled in the E-Verify program. The same rule also initiated what is known as "cap-gap relief" for F-1 students on OPT which expires before October 1 who have pending or approved H-1B petitions requesting Change of Status. Such individuals will have their OPT automatically extended through October 1 to prevent a gap in work authorization, unless the H-1B petition is revoked, withdrawn, or denied (at which point the OPT extension immediately terminates).

• OPT is only valid for one year (unless the student is authorized for part-time employment, a STEM extension is granted, or the individual becomes eligible for cap-gap relief). Applicant must obtain another type of visa to remain in the U.S. and continue working beyond the OPT expiration date.
• No dual intent.
• No prevailing wage requirement and no fees for the employer (the employee must pay a filing fee to CIS).
• F-2 dependent status remains valid for the period of the OPT, but F-2 dependents cannot work.

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E-1 Visas for Treaty Traders and E-2 Visas for Treaty Investors:

The E-1 and E-2 visa categories are available to nationals of those countries that have qualifying treaties with the United States and who are entering the U.S. to invest in a business (E-2) or to set up a qualifying trading operation (E-1). E-1 and E-2 visas may also be issued to employees of large multinational companies.

• Visa issued for five years; extensions available indefinitely as long as the trade or investment continues to qualify.
• Limited dual intent.
• Approximately 50 countries have qualifying agreements with the United States.

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E-3 Visas:

The E-3 visa classification allows for the admission of temporary, professional workers who are nationals of Australia and are entering the U.S. to perform services in a specialty occupation. The U.S. employer must demonstrate that the position being offered is a specialty occupation requiring, at minimum, a Bachelor's degree in a particular field of study, and the Australian national must demonstrate that he or she possesses the appropriate degree. Spouses and minor children can accompany E-3 applicants as E-3D dependents.

• Provides temporary U.S. employment (in up to two-year increments, renewable indefinitely).
• Limited dual intent.
• Prevailing wage and LCA posting requirement.
• No Fraud or Employer Training Fees.
• Spouses of E-3 visa holders are eligible to work after obtaining an employment authorization document (EAD, described below).
• Applicants may apply directly at a U.S. Consulate; no prior CIS approval is required.
• There are only 10,500 E-3 visas available annually.

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H-1B1 Chile/Singapore:

Similar to the H-1B and E-3 classifications, the H-1B1 visa classification allows for the admission of temporary, professional workers who are nationals of Chile or Singapore and are entering the U.S. to perform services in a specialty occupation. The U.S. employer must demonstrate that the position being offered is a specialty occupation requiring, at minimum, a Bachelor's degree in a particular field of study, and the Chilean/Singaporean national must demonstrate that he or she possesses the appropriate degree. Spouses and minor children can accompany H-1B1 applicants as H-4 dependents.

• Provides temporary U.S. employment (in one-year increments, renewable indefinitely).
• No dual intent.
• Prevailing wage and LCA posting requirement.
• No Fraud or Employer Training Fees if applying abroad (NOTE: If applying through CIS in the U.S., Employer Training Fee applies).
• Applicants may apply directly at a U.S. Consulate; no prior CIS approval is required.
• There are only 6,800 H-1B1 visas available annually (1,400 for Chilean professionals and 5,400 for Singaporean professionals).

The Employment Authorization Document:

The Employment Authorization Document (EAD) provides a foreign national with authorization to work and earn income in the United States for a specific period of time. The document may be issued to a foreign national who files an application based on a particular nonimmigrant status or in conjunction with certain applications for immigration benefits. Examples include: applicants with pending permanent residence (I-485) applications, asylum applicants, F-1 students on optional practical training, L-2, E-3, and J-2 dependents, and individuals with Temporary Protected Status.

• Most cards are valid for one or two years and can be renewed indefinitely as long as the underlying eligibility remains valid.
• No prevailing wage requirement.
• Minimal fees.
• Individual can work for any employer in any position (with the exception of F-1 students on OPT, as noted above).

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