The type of visa that one needs in order to work in the United States typically requires analyzing the position that the worker will fill and the qualifications of the worker. Below are the most common work visa categories and the general criteria for such visas.
Specialty Workers (H-1B)
The H-1B categories apply to foreign nationals coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. The H-1B category applies to a foreign national coming temporarily to perform services in a specialty occupation that requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education. This typically means that the occupation must require at least a United States bachelor’s degree or higher as a minimum requirement.
The first step to hiring most H-1B workers from outside the United States is for the employer to file a labor condition application (“LCA”) with the Department of Labor (“DOL”). Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner). A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a new H1-B petition for the worker. Multiple employers require multiple H-1B petitions. The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment. Unlike some visa categories, H-1B foreign specialty workers are not required to maintain a foreign residence and may seek permanent residence in the United States. Dependents (spouses and unmarried children under twenty-one (21) years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification. Each petition may only include one worker.
Registered Nurses (H-1Cs)
The H-1C category applies to a foreign national coming temporarily to perform services as a registered nurse in a health professional shortage area as determined by the United States DOL. Unfortunately, only 500 nurses can be granted H-1C status in a fiscal year nationally and therefore, it is not a widely used visa. There are also numerical limitations for each state based on the state’s population. The cap for states with populations in excess of 9 million is 50 per fiscal year. The cap on states with populations of 9 million or less is 25 per fiscal year.
Very Temporary Foreign Labor (H-2B)
United States employers may petition for skilled or unskilled foreign workers to meet temporary or seasonal needs in positions for which qualified United States workers are not available. There is currently an annual cap of 66,000 visas for H-2B, non-agricultural workers.
The first step to hiring an H-2 worker from outside the United States is for the employer to apply for a temporary labor certification with the DOL. These certificates are designed to ensure that the admission of foreign nationals to work in this country on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of United States workers. Dependents (spouses and unmarried children under twenty-one (21) years of age) of H-2 workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification. After DOL issues the certification, the employer can then file a petition with the Immigration Service. Under certain circumstances, an employer may include multiple workers on the same petition.
Foreign National Trainees (H-3)
The H-3 classification applies to foreign nationals coming temporarily to the United States to participate in a training program. There are general H-3s, and those coming for special education training. There is currently no annual cap on H-3 admissions to the United States.
Intracompany Transferees (L-1)
The L-1 category applies to foreign nationals who work for a company with a parent, subsidiary, branch, or affiliate in the United States. These workers come to the United States as intracompany transferees who are coming temporarily to perform services either in a managerial or executive capacity (L-1A) or which entail specialized knowledge (L-1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad. The employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one (1) continuous year out of the last three (3) year period to qualify. There is currently no annual cap on L-1 visas.
Foreign Nationals with Extraordinary Ability (Os)
The O category is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist’s or athlete’s support staff (O-2), and the O-1′s spouse and/or child(ren) (O-3). To qualify, the foreign national must be coming to the United States to work in his or her area of extraordinary ability or achievement. There is currently no annual cap on O visas.
Athletes, Entertainment Groups, Artists (Ps)
P-1 Athlete – The P-1 classification applies to a foreign national coming to the United States 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.
P-1 Entertainment Group – The P-1 classification also applies to a foreign national coming 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. This person also must have had a sustained and substantial relationship with the group (ordinarily for at least one (1) year) and/or provide functions integral to the group’s performance.
P-2 Artistic Exchange – The P-2 classification applies to a foreign national coming temporarily to perform as an artist or entertainer individually, or as part of a group, who will perform under a reciprocal exchange program between an organization in the United States and an organization in another country.
P-3 Culturally Unique Artists – The P-3 classification applies to foreign nationals coming temporarily to perform, teach, or coach as artists or entertainers, individually, or as part of a group, under a program that is culturally unique.
International Cultural Exchange Program Participants (Q-1s)
The Q-1 classification applies to participants in an international cultural exchange program approved by the Attorney General for the purpose of providing practical training, employment, and to share the history, culture, and traditions of the foreign national’s home country.
Employing Canadian and Mexican Professionals Under NAFTA (TNs)
The TN classification applies to a Canadian or Mexican citizen seeking admission as a “professional” temporarily under the North American Free Trade Agreement (“NAFTA”). TN employment must be in a profession listed in Appendix 1603.0.1 to NAFTA and the TN employee must possess the credentials required.
Our office has helped many different employers and employees with immigration matters. Contact us with any questions you may have about choosing the right visa.