H-1B Visas are for persons in a specialty occupation, that requires at least a bachelor's degree. The applicant employee does not need to maintain a foreign residence and may have "dual intent," meaning that he or she may also intend to remain in the U.S. permanently. The petitioning employer is required to obtain a certification from the Department of Labor that it has filed a Labor Condition Application.
H-1B CAP. There is a limit to the number of H-1B visas available each year. The H-1B visa year starts on October 1 and the earliest date to apply each year is April 1. It is advisable to plan to file an H-1b petition as quickly as possible in the H-1b visa year as once the H-1b visa cap is reached no more H-1b visas will be issued until the following H-1b visa year commencing October 1.
H-1B LENGTH OF STAY:
Initial stay for H-1B professional is three years; extension of stay in increments of up to 3 years. Total stay limited to 6 years. This may be extended for longer periods for persons who have Labor Certification or immigrant petitions pending or are waiting for a permanent visa number.
“An H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
To qualify as a specialty occupation, the position must meet one of the following criteria:
H-3 Visas are for temporary workers invited by an individual
or organization for purposes of receiving instruction and training other than to
receive graduate medical education or training. The training program must be one
"that is not designed primarily to provide productive employment." An
H-3 visa may be issued for periods up to three years.
J-1 Visas are for exchange visitors who are bona fide trainees and have no intention of abandoning their foreign residence. Participation in an exchange program may be for purposes such as teaching, studying, observing, conducting research, consulting, and receiving training. The applicant must have sufficient funds and fluency in English. The J-1 trainee visa is available for interns who are still in College as well as recent graduates for periods up to 12 months. The J-1 practical training visa program is generally available for periods up to 18 months.
J-1 Waivers
Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence for two years upon completion of their training in the U.S. Waivers to this 2-year residency requirement may be granted.
J-1 visas are available for teaching, studying, business or professional training, research or special skills. J-1 programs are either funded by a government program, non-government organization private sponsor, or an educational fellowship or company. Length of period is up to 18 months. It may be 36 months for post-doctoral training less any period previously used for academic training. There is also a 30-day grace period.
J-1 is available to enhance skills in a specialty or non-specialty program or to improve knowledge of US technologies in a specified commercial field. J-1 training cannot be used as an employment substitute or just to gain experience. It must be structured on-the-job training program.
Applications are made to a designated organization approved by the Department of State.
J-1 status is available for teaching, consulting or serving at a post-secondary accredited institution. Researcher can include corporate research institutes, museums and libraries. There is an unapproved proposal to extend the period for professors or researchers to a 5-year period. The present maximum is 3 years with possible 6-month extension.
J-1 is also available to experts in a specialized field who can consult or observe or demonstrate special skills. The period of stay is limited to one year.
Used by the Department of State for People to People cultural exchange programs.
J-1 status is used for special programs for graduates of foreign medical schools. J-1 visas are also available for camp counselors and au pairs.
Certain J-1 visitors are required to return to their home country before changing status to H or L temporary worker categories, and also before adjusting status to permanent resident without having to return home for this period. The restriction applies to J-1 and J-2, and to certain government funded programs, which are a "skills list". The two years need not be continuous. The 2-year requirement may be waived, but only for exceptional hardship to a US citizen or permanent resident spouse or child, or for fear of possible persecussion. Waivers may also be granted by obtaining a "no objection" letter from the home country government or by recommendation from a Federal government agency or state agency for certain J-1 physicians.
* Extracted from BCIS website: http://uscis.gov/graphics/services/visas.htm#L
An alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee and the organization, which seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions.
Executive Capacity:
Managerial Capacity:
Stay:
Initial Stay is up to 3 years when coming to existing office; coming to new office-up to 1 year; extension of stay in increments of up to 2 years. Total stay limited to 7 years.
Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
Stay:
Initial stay is up to 3 years when coming to existing office; coming to new office-up to 1 year; extension of stay, one increment of up to 2 years. Total stay limited to 5 years.
The spouse and unmarried minor children of the beneficiary are entitled to L nonimmigrant classification, subject to the same period of admission and limits as the beneficiary, if the spouse and unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither the spouse nor any child may accept employment unless he or she has been granted employment authorization.
H-3 Visas are for temporary workers invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one "that is not designed primarily to provide productive employment." An H-3 visa may be issued for periods up to three years.
J-1 Visas are for exchange visitors who are bona fide trainees and have no intention of abandoning their foreign residence. Participation in an exchange program may be for purposes such as teaching, studying, observing, conducting research, consulting, and receiving training. The applicant must have sufficient funds and fluency in English. The J-1 trainee visa is available for interns who are still in College as well as recent graduates for periods up to 12 months. The J-1 practical training visa program is generally available for periods up to 18 months.
Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence for two years upon completion of their training in the U.S. Waivers to this 2-year residency requirement may be granted.
O-1 Visas are for persons with " extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim."
An O-1A visa is available for persons who have demonstrated: "extraordinary ability in the sciences, arts, education business or athletics which has been demonstrated by sustained national or international acclaim".
An O-1 B visa is for motion picture or TV production who have demonstrated -- "record of extraordinary achievement" -- "through extensive documentation".
O-2 visa are available for persons accompanying and assisting an O-1 athlete or artist for specific events or performances. It is necessary to show that they are an essential part of the event and have critical skills not generally available and which cannot be performed by other individuals. An O-2 must generally show a longstanding work relationship has taken or will take place in and outside the US.
O-1 need not show proof of foreign residence while an O-2 must show a foreign residence, which they have no intent of abandoning
There are different standards for each category of endeavor.
These require "a level of expertise indicating the person is one of the small percentage who have risen to the very top of the field of endeavor". This is proved by receipt of a major internationally recognized prize ( e.g. A Nobel Prize) or a minimum of 3 of the following:
This means "Distinction" -- "a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered" --.
An artist needs to show he or she is "prominent" and not necessarily "top" of his or her field. Distinction in the arts by nomination of a significant international award (e.g. Academy Award or Grammy) or by proof a minimum of any of the following:
This requires proof of extraordinary achievement, which means "a very high level of accomplishment in the motion picture or TV industry, evidenced by a degree of skill and recognition substantially above that ordinarily encountered". The criteria are the same for the arts, but the Government will require a higher standard when evaluating evidence in order to show extraordinary achievement.
Motion Picture/TV
These must have a written advisory opinion from a Union and a management group describing achievements in the particular field.
All other O-1s must obtain consultation from the appropriate Union if there is one from the field. Optional non-union expert opinions may be used. O-2 must also have Union and management opinion as to the expertise and necessity for the position.
The initial term of admission for O visa is three years. This may be extended for one-year annual increments. The major advantage of O-1 visa is that it can be extended without maximum time limit (unlike L and H categories), without need for new consultation, provided the basis for extension can be justified.
P-1 Visas are for:
P-2 Visas are available to artists or entertainers who will be performing under a reciprocal exchange program, which is between a U.S.-based and foreign-based organization. P-2 applicants do not need to make any showing of outstanding or extraordinary ability or even that they have any particular level of experience.
P-3 Visas applies to artists or entertainers to perform, teach or coach individually or as part of a group, under a program that is culturally unique.
Essential support personnel may be included in these applications.
Q Visas are for a person "who has a residence in a foreign country which he or she has no intention of abandoning, and who is coming temporarily to the United States to take part in an international cultural exchange program approved by the Attorney General" "for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien's nationality."
R Visas are for religious workers "who, for at least the two (2) years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States," who "must be coming to the United States for one of the following purposes: solely to carry on the vocation of a minister of the religious denomination; to work for the religious organization at the request of the organization in a professional capacity; or to work for the organization, or a bona fide organization which is affiliated with the religious denomination, at the request of the organization in a religious vocation or occupation.
Permanent Religious Visas - I-360 are available for certain religious workers who have been continuously employed full time for qualified religious organizations.
Treaty National Visas are available for Canadian and Mexican nationals in accordance with the
North America Free Trade Agreement (NAFTA). A TN is similar to H-1B category but there is no
specific maximum time limit on total period of admission. TN visas are available for one year
at a time for professionals with a minimum of a Bachelor’s degree of foreign equivalent. Unlike
the H-1 category experience generally cannot be used to obtain equivalence to bachelor’s
degree. An important exception is the management consultant category where five years
experience in management consulting or a related field. NAFTA sets forth the requirements for
designated professionals. Licenses must be obtained when required to practice the
profession.
Self-Employment is not permissible. There is no dual intent doctrine so that TN must show that they are not intending immigrant even though there is no time limit on the number of years for renewal.
On January 1 2004 the Department of Homeland Security published an interim rule which eliminated the need for Mexican TN professionals to file a visa petition, with an appropriate labor condition. The annual quota limiting the number of TN visas for Mexican Nationals was also eliminated.