What Type of Visa is Needed?
Immigrant Visas vs. Non-Immigrant Visas
Non-immigrant Visas: Granted to persons who enter the United States for a limited period of time, and usually for a limited purpose that does not include the intent to become a permanent resident. Non-immigrant Visas are relatively easy to obtain. There is no numerical limitation on non-immigrant Visas with the exception of a recently imposed cap of 66,000 H-2B Visas per year. H-2B Visas are issued for seasonal, temporary non-immigrant workers. Most employers are familiar with non-immigrant Visas, and the INS uses a lettering system from “A” to “TN” to differentiate between the various non-immigrant Visas.
Immigrant Visas: Granted to persons who enter the United States with the intent of becoming permanent residents. The government’s presumption regarding all Visas is that aliens who desire to enter the country are doing so with the intent of becoming permanent residents. Aliens who do not wish to become permanent residents must demonstrate their intent in order to obtain a non-immigrant Visa.
Temporary Visitors – B Visas
B-1 Visa: Covers visitors who enter the country for business purposes. B-1 Visa holders are commonly sales personnel, employed by a foreign company, who enter the United States to market goods and services to American businesses.
B-2 Visa: For visitors who enter the country for pleasure or recreation, such as tourists. B Visas are generally valid for one year and are renewable in six-month increments. Neither B-1 nor B-2 Visa holders may accept employment in the United States.
Treaty Traders and Investors – E Visas
E-1 Visa: For treaty traders and their spouses and children. These non-immigrant Visa holders are entitled to enter the United States to conduct business under treaties of commerce existing between the United States and the alien’s country.
E-2 Visa: For treaty investors and their spouses and children. These non-immigrants may engage only in business activities consistent with the specific treaty involved.
Certain managers, executives or employees who possess essential skills and who work for an organization, individual investor/trader, or company may also be admitted as E-1 and E-2 Visa holders, with their families. They must be entering the United States either to engage in substantial trade in goods or services (E-1) including trade in services or trade in technology, or to develop an enterprise involving substantial amounts of capital. E-1 and E-2 Visa holders are permitted employment authorization consistent with the purposes for which they were admitted. Both E-1 and E-2 Visas are valid for one year and are renewable indefinitely, as long as the alien continues in the same capacity for which the Visa was granted.
Academic Students – F Visas
F-1 Visa: For the academic student who enters the United States temporarily solely to pursue a full course of study at an established academic high school, college, university, seminary, conservatory, or language school.
Two types of on-campus employment of no more than 20 hours per week are permissible for F-1 Visas without specific INS approval:
- Employment that will not displace a U.S. resident, or
- Pursuant to the terms of scholarship, fellowship, etc.
F-1’s also can work in curricular practical training off campus, as long as the work is a requirement. Schools provide work authorization documents.
After completion of requirements for graduation, F-1’s can work in curricular practical training for a total period of 12 months, which must be completed within 14 months following completion of study.
F-2 Visa: For the spouse and children of the student. Both Visas are normally granted for the duration of status as a student or for the time necessary to complete the course of study.
Temporary Workers – H Visas
H class non-immigrant Visas are designed principally to help employers meet an immediate and temporary need for labor.
H-1 Visa: Holders must be temporary workers, but the employment position they are filling need not be temporary. Aliens entering the United States temporarily to perform services as registered nurses are classified as H-1A non-immigrants. The H-1B classification was redefined in 1990 to include aliens working in “specialty occupations.” To qualify as a member of a specialty occupation, the alien’s job must require theoretical and practical application of a highly specialized body of knowledge. In addition, an alien seeking an H-1B non-immigrant Visa must either:
- Obtain a state license to practice in the occupation, if such a license is required;
- Have attained a bachelor’s or higher degree in the specific specialty; or
- Have attained experience in the specialty equivalent to the completion of the bachelor’s degree.
H-1 Visas also require that a Labor Condition Attestation is filed with the Secretary of Labor by the proposed employer.
H-2 Visa: H-2A non-immigrant Visa classification is for temporary agricultural workers. H-2B covers non-immigrants for non-agricultural employment. In either case, there are two conditions connected with the H-2 Visa: 1) the alien holding this Visa must be entering the country temporarily, and 2) the position of employment also must be temporary. H-2 Visa applications require Labor Certification by the U.S. Department of Labor.
H-3 Visa: Covers trainees coming to the United States for up to two years to receive training not available in their own country.
H-4 Visa: Issued to the spouse and children of H-1, H-2 and H-3 Visa holders.
Intra-Company Transferees – L Visas
Visas are intended to help multi-national corporations facilitate employee transfers. This Visa allows companies to transfer employees temporarily to the United States in order to aid or initiate business operations in the United States. To obtain an L Visa the employer is required to submit a petition for an I-129L to the INS district office where the employment position exists. The alien must have been employed for at least one year by the firm outside the United States, and must be employed in a managerial or executive capacity, or have specialized knowledge of the company’s product or procedures in international business markets.
The alien who qualifies receives an L-1 Visa that is valid during the period petitioned for, up to a maximum of five years. Employers may file a blanket petition for intended employees rather than filing individual petitions. The L Visa is renewable. The spouse and children of L Visa holders may be granted L-2 Visas.
The North American Free Trade Agreement (NAFTA) broadened the scope of activities that Canadian and Mexican B-1 and B-2 visitors may engage in under their Visas.
A new NAFTA classification — TN Visas — has been established to allow qualifying Canadian or Mexican professionals of U.S. corporations to work for their employer in the United States. TN Visa holders also may work for U.S. corporations on behalf of a Canadian or Mexican employer.