Nonimmigrant visas allow aliens to stay in the U.S. temporarily for a particular purpose as defined by each type of nonimmigrant visa. The type of nonimmigrant visa required for entry to the U.S. depends on a variety of factors, such as the purpose of the trip, the alien’s employment history, the alien’s nationality and the intended duration of the trip, among others. Dunbar Harder provides expert evaluations to determine the best nonimmigrant visa options for each company or individual.

The B-1/B-2 visa category is available to a foreign national wishing to apply for admission to the United States as a temporary visitor for business (B-1) or as a visitor for pleasure (B-2). A visitor visa usually is issued as a combination B-1/B-2 visa. A foreign national may seek to enter the United States as a B-1 or B-2 visitor only on a temporary basis. To qualify as a visitor an alien must intend to depart the United States and return to a residence abroad at the conclusion of the visit. Nonimmigrant alien visitors, whether admitted for business or for pleasure, may not engage in employment in the United States.

B-2 Visitor

Foreign nationals seeking to enter the United States as a visitor for pleasure in B-2 status may engage in activities including, but not limited to, tourism, family or social visits, attending social or cultural events or receiving medical care.

B-1 Visitor

Foreign nationals seeking to enter the United States to engage in legitimate business activities on behalf of an employer abroad other than providing skilled or unskilled labor may be admitted in B-1 business visitor status. Authorized activities include, for example, negotiating contracts, consulting with business associates, litigating, participating in conventions, conferences or seminars, undertaking independent research or performing functions resulting from membership on the Board of Directors of a U.S. corporation. A foreign national coming to the United States pursuant to a contract to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States, or to train U.S. workers to perform such services, may qualify for B-1 visa classification.

In certain cases, a foreign national who would qualify for an H-1B visa as a specialty worker or an H-3 visa as a trainee may qualify for a B-1 visa. In order to qualify for a visitor visa with a “B-1 in lieu of an H-1” endorsement, the individual must remain employed by a company outside the U.S. and coming to perform services on behalf of the foreign (i.e., non-U.S.) company.

To qualify for a B-1 business visitor visa, a foreign national must remain on the payroll of an employer outside the U.S. Business visitors may not receive a salary or other remuneration from a U.S. source other than reimbursement for expenses incidental to a temporary stay.

Application and Admission Procedures

An alien may apply for a B visa directly at a U.S. Consulate abroad. The period of validity of a visitor visa is determined by the nationality of the visa applicant and the purpose of the visit to the United States. Upon seeking admission to the United States in B-1 or B-2 status, a U.S. Customs and Border Protection (CBP) officer will exercise discretion to determine the length of time to admit the visitor in B status. A nonimmigrant alien with a visitor visa usually is admitted to the United States in B status for six months. An individual with a visitor visa may be admitted to the United States, however, for up to one year in B status in limited circumstances.

Individuals admitted to the United States with a B visa may file an application with U. S. Citizenship and Immigration Services (USCIS) to extend visitor status in increments of six months.

Visa Waiver Program (VWP)

Citizens of certain countries are eligible to apply for admission to the United States as visitors without a visa under the Visa Waiver Program (VWP). In order to qualify for admission to the U.S. under the VWP, a nonimmigrant alien must be planning a visit of no longer than 90 days, be in possession of a valid passport issued by a designated country, waive any right to administrative or judicial review of an immigration officer’s determination of his admissibility and be in possession of a return trip ticket to any foreign location other than Canada or Mexico.

All visitors under the VWP must present a machine-readable passport at the port of entry. An alien visitor without a visa may be admitted to the U.S. for up to 90 days. A foreign national admitted as a visitor without a visa may not change or extend immigration status within the U.S. Similarly, an alien visitor without a visa is not eligible to file an application to adjust immigration status from temporary visitor to a permanent resident alien except as the immediate relative of a U.S. citizen.

Electronic System for Travel Authorization (ESTA)

Prior to boarding an aircraft or vessel for travel to the United States under the VWP, an intending visitor must obtain prior authorization under the CBP Electronic System for Travel Authorization (ESTA). Applicants must submit ESTA applications electronically at https://esta.cbp.dhs.gov. The ESTA authorization is valid for two years. If there are any material changes to the information reported on the ESTA application, the individual must file a new ESTA application. For example, if a visitor obtains a new passport or there is a change to the name, gender or country of citizenship, a new ESTA authorization is required. In addition, an intending visitor must apply for a new ESTA travel authorization if any of the answers to the individual’s visa waiver eligibility questions change.

The United States maintains in force a variety of bilateral treaties, executive agreements and domestic legislation that allow nationals of certain countries to obtain visas to conduct trade or investment activity in the United States. The E-1 treaty trader visa category may be available for a treaty country national who establishes qualifying trade between the United States and his country of nationality. Key employees of a qualifying treaty trader enterprise also may qualify for E-1 treaty trader classification in order to engage in employment in the United States.

Required Nationality

To qualify for treaty trader classification, both the individual alien seeking an E-1 visa and the employing company in the U.S. must have the nationality of the treaty country. The nationality of an enterprise established in the United States is determined by the nationality of the ultimate owners of the entity. To qualify as a treaty trader enterprise, at least 50% of the owners of an entity must be nationals of the treaty country. The alien owners must be maintaining treaty trader status in the United States or, if not in the United Sates, must be classifiable as treaty traders. Treaty country nationals who have U.S. resident alien status cannot be counted as nationals of a treaty country for E visa purposes.

Qualifying Trade

To qualify for treaty trader classification, an alien must be engaged in business activities that constitute trade as that term is defined by regulations governing the E-1 visa category. The trade must involve an exchange that is international in scope. It must involve qualifying commodities, including goods, monies, or services. The exchange must be traceable or identifiable as it flows between the United States and the treaty country. A company that engages solely in U.S. domestic trade does not qualify for E-1 visa classification. Trading activities within the United States are permitted, however, provided at least 50% of the company’s activities involve trade between the United States and the treaty country.

The qualifying trade activity must already be in existence at the time an alien applies for an E-1 visa. Existing trade may be documented by completion of binding contracts that call for the immediate exchange of qualifying items of trade. Trade includes both goods, such as machinery or foodstuffs, and services, such as management consulting, insurance, tourism, etc.

Substantial Trade Required

An E-1 visa applicant must demonstrate that his trading activity is substantial. Both the volume of trade and the monetary value of the transactions involved may be evaluated to determine whether the trade is substantial. Trade activity involving several transactions over time generally are favored over a few transactions even if they are of high monetary value. Consequently, a business engaged in many transactions, although each is relatively small in value, may be able to demonstrate substantial trade for E-1 visa purposes.

Treaty traders may bring key employees into the United States using the E-1 visa category. Key employees may qualify for E-1 visas if the employer is a treaty country national or, if in the United States, is maintaining treaty visa status. In order to qualify for an E-1 visa, a key employee must have the same nationality as the treaty trader employer. An employee need not have been previously employed by the treaty company outside the United States to qualify for an E visa.

The position to be filled by an E-1 employee must principally require management skills or entail supervisory responsibility for a portion of the firm’s operation. Positions that involve primarily routine work with supervision of only lower-level employees may not be considered executive or supervisory in nature. Employees with certain skills, essential to the efficient operation of the treaty enterprise, also may qualify for an E-1 visa as a treaty trader.

Temporary Presence Required

An applicant for an E-1 visa must establish that he intends to comply with the terms of the nonimmigrant treaty visa status. He must satisfy the U.S. consular officer of his intention to depart the United States at some point in the future. There is no requirement, however, that an E-1 visa applicant demonstrate that he is coming to the United States for a specific, defined period of time. An E-1 visa is not limited to a maximum period of stay in E-1 status in the United States. An alien in E-1 treaty trader status may remain in the United States indefinitely, provided that he maintains qualifying commercial activity and continues to renew his E status.

Procedures

Generally, an alien seeking treaty trader classification must file an application for an E-1 visa at a U.S. consulate outside the United States. There is no requirement to file a petition with U.S. Citizenship and Immigration Services (USCIS) before applying for an E-1 visa at a U.S. consulate. An alien seeking treaty trader classification who is already in the United States with a different visa classification, however, may file an application to change to E-1 status with USCIS.

Period of Admission

Depending on the nationality of the alien trader, an E-1 visa may be issued for a period of up to five years. Each time a treaty trader with an E-1 visa is admitted to the United States, however, he will be admitted for a period of two years.

Dependent Family Members

The spouse and children under the age of 21 of an alien granted an E-1 visa are eligible for E-1 dependent visas. Although the visas of dependent family members have the same E-1 designation as the principal alien, children are not authorized to engage in employment in the U.S. A spouse admitted in E-1 status is authorized to engage in employment and may apply to USCIS for an Employment Authorization Document to demonstrate employment eligibility.

The United States maintains in force a variety of bilateral treaties, executive agreements and domestic legislation that allow nationals of certain countries to obtain visas to conduct trade or investment activity in the United States. The E-2 treaty investor visa category may be available for a treaty country national who establishes a qualifying investment in the United States. Key employees of a qualifying treaty investment enterprise also may qualify for E-2 treaty investor classification in order to engage in employment in the United States.

Required Nationality

To qualify for treaty investor classification, both the individual alien seeking an E-2 visa and the employing company in the U.S. must have the nationality of the treaty country. The nationality of an enterprise established in the United States is determined by the nationality of the ultimate owners of the entity. To qualify as a treaty investment enterprise, at least 50% of the owners of an entity must be nationals of the treaty country. The alien owners must be maintaining treaty investor status in the United States or, if not in the United Sates, must be classifiable as treaty investors. Treaty country nationals who have U.S. resident alien status cannot be counted as nationals of a treaty country for E visa purposes.

Substantial Investment of Funds Placed at Risk

Eligibility for treaty investor visa classification requires demonstrating that an alien has invested substantial funds in a real, operating commercial enterprise that has not been established solely for the alien investor to earn a living. The alien investor also must show that he is in possession and control of the funds to be invested, and that he is in a position to develop and direct the enterprise.

Alternatively, an alien investor may demonstrate that he is actively in the process of making a substantial investment in such an enterprise. An applicant in the process of investing may show that he has invested the necessary funds to enable the start-up of actual business operations. Mere intent to invest or possession of uncommitted funds in a bank account will not be sufficient to qualify an applicant for an E-2 visa. An applicant that is purchasing an existing business may show that he has a contract committing him to purchase the business that is conditioned upon the issuance of a visa. For example, funds to be used in the purchase of the business may be held in escrow to be transferred to the seller only if the visa is issued.

Borrowed funds may qualify as investment capital only if they are “at risk.” Under governing guidelines, capital assets are considered to be at risk in a commercial sense if they may be lost if the business fails. Borrowed funds secured by the assets of the enterprise are not counted toward the investment for E-2 visa purposes. A loan secured by the alien’s personal assets, however, may be considered “at risk” and counted toward the investment total since the individual’s funds are subject to loss in the event the business fails.

A qualifying investment for E-2 visa purposes must be “substantial.” Governing regulations and policy guidance do not specify a minimum dollar amount that must be invested to satisfy this requirement. When applying for an E-2 visa, the cost of a business does not, by itself, determine qualification for E-2 status. An investment may be substantial if the amount invested is large in proportion to the total amount needed to establish the particular business and make it operational.

Marginality is Not Permitted

An alien investor must be able to demonstrate that the investment entity is not a “marginal” enterprise. A business is a marginal enterprise if it employs only the alien investor or has only enough cash flow to provide the applicant and his family with a living. A marginal enterprise will not support a successful E-2 visa application, even if the investment is substantial as that term is described above.

An applicant may demonstrate that an investment is not marginal
in various ways. Evidence of other sources of income may be used to prove the investment is speculative in nature and not solely for the purpose of earning a living. Secondly, where income derived from the business significantly exceeds what is necessary to support the applicant and his family, the business is not marginal. Finally, a business that tends to expand job opportunities or will otherwise have a significant positive impact on the local economy is not considered to be marginal.

Control of the Investment

An investor must be able to control and direct the operation of the investment enterprise. Ownership of at least 50% of the business will generally satisfy the control requirement. If an investor does not have 50% ownership of the company, corporate bylaws or other management agreements may give him authority to otherwise direct and control the investment. At least 50% of the owners, however, must be nationals of the same treaty country as the alien seeking E-2 classification.

Key Employees

Alien treaty investors may seek to qualify key employees for E-2 visa classification. The employees must have the same nationality as the employer. An employee need not have been previously employed by the treaty company outside the United States to qualify for an E visa.

The position to be filled by an E-2 employee must principally require management skills or entail supervisory responsibility for the firm’s operations. Positions that involve primarily routine work with supervision of only lower-level employees may not be considered executive or supervisory in nature for purposes of the E-2 visa category. Employees with certain skills that are essential to the efficient operation of the treaty enterprise also may be eligible to qualify for an E-2 visa.

Temporary Presence Permitted

An applicant for an E-2 visa must establish that he intends to depart the United States upon termination of treaty visa status. He must satisfy the U.S. consular officer that he intends to comply with the terms of his nonimmigrant visa classification. There is no requirement, however, that an E-2 visa applicant demonstrate that he is coming to the United States for a specific, defined period of time. An alien in E-2 treaty investor status may remain in the United States indefinitely, provided he maintains qualifying commercial activity and continues to renew his temporary E status.

Procedures

Generally, an alien seeking treaty investor classification must file an application for an E-2 visa at a U.S. consulate outside the United States. There is no requirement to file a petition with U.S. Citizenship and Immigration Services (USCIS) before applying for an E-2 visa at a U.S. consulate. An alien seeking treaty investor classification who is already in the United States with a different visa classification, however, may file an application to change to E-2 status with USCIS.

Period of Admission

Depending on the nationality of the alien investor, an E-2 visa may be issued for a period of up to five years. Each time a treaty investor with an E-2 visa is admitted to the United States, however, he will be admitted for a period of two years.

Dependent Family Members

The spouse and children under the age of 21 of an alien granted an E-2 visa are eligible for E-2 dependent visas. Although the visas of dependent family members have the same E-2 designation as the principal alien, children are not authorized to engage in employment in the U.S. A spouse admitted in E-2 status is authorized to engage in employment and may apply to USCIS for an Employment Authorization Document to demonstrate employment eligibility.

A professional-level worker from Australia may be eligible for an E-3 visa to enter the United States to perform services in a specialty occupation. As a general rule, a specialty occupation is one that normally requires, as a minimum qualification, the attainment of a bachelor’s degree or the equivalent in a specific specialty. A worker who does not have a formal education or holds a lesser degree may establish E-3 visa eligibility by demonstrating that he has education, training and/or experience that provide a level of knowledge equivalent to that received in a baccalaureate or higher degree program. If a university degree or the equivalent is not commonly required for an occupation, an employer may demonstrate that the particular duties of a job offered are so complex or unique that they can only be performed by an individual with such credentials.

To qualify for an E-3 visa, an applicant must demonstrate an intention to depart the United States upon termination of E-3 status.

An applicant for an E-3 visa must have an offer of employment in the U.S. Unlike the E-1 or E-2 visa categories, there is no requirement that the intended employer in the United States hold Australian nationality.

E-3 Visa Quota

There is an annual quota of 10,500 E-3 visas. Since the E-3 visa category was established in 2005, however, the annual quota has never been reached and E-3 visas have remained available throughout the fiscal year.

Procedures

An employer must pursue E-3 classification on behalf of an Australian specialty worker. There are two procedural options. An E-3 applicant may apply directly a U.S. Consulate abroad for an E-3 visa. There is no need to first file a petition with the U.S. Citizenship and Immigration Service (USCIS). An alien seeking Australian specialty worker classification who is already in the United States in a different visa classification, however, may file an application to change status to E-3 status with the USCIS.

Before submitting an E-3 visa application or filing a petition for E-3 classification, the petitioner must obtain a certification from the U.S. Department of Labor (DOL) that it has filed a Labor Condition Application (LCA) covering the occupational specialty in which the alien will be employed. The LCA requires an employer to make certain representations to the DOL affirming, among other things, that the employment of the alien will not adversely affect the wages and working conditions of U.S. workers.

Period of Admission

An E-3 visa may be issued with a two year period of validity. E-3 status may be extended in further two year increments. There is no fixed limit on the number of years an individual may spend continuously in E-3 status.

Dependent Family Members

The spouse and dependent children under the age of 21 of an E-3 worker are eligible to apply for E-3D dependent visas. Such dependents derive eligibility for E-3D classification from the E-3 worker. There is no need to file a separate petition for E-3D classification. A spouse, admitted to the United States in E-3D status, may apply for employment authorization by filing an application with USCIS. Children in E-3D status are not authorized to engage in employment while in E-3D status.

The H-1B specialty worker visa category may be utilized by U.S. employers to bring professional-level foreign workers to the United States to perform services in a specialty occupation. A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge in a specific field. Specialty occupations normally require at least a baccalaureate degree, or equivalent knowledge, to perform the duties normally associated with the job. If a university degree or the equivalent is not commonly required for an occupation, the employer may demonstrate that the particular duties of the job offered to the alien worker are so complex or unique that they can only be performed by an individual with such credentials.

In order to be eligible for H-1B classification, an alien worker normally must hold a bachelor’s degree or higher in the specialty occupation. A worker who does not have a formal education or holds a lesser degree may establish eligibility for H-1B classification by demonstrating he has an unrestricted license to practice in the specialty occupation, or has education, training and/or experience that provide a level of knowledge equivalent to that normally received in a baccalaureate or higher degree program.

Employer/Employee Relationship Required

A foreign worker must be coming to the United States to work for a U.S. employer in order to be the beneficiary of an H-1B petition. Accordingly, there must be an employer-employee relationship between the U.S. petitioner and the alien employee as demonstrated by authority to hire, fire, supervise and control the work of the alien employee. Where an H-1B worker will be assigned to perform services on the premises of another company, the petitioner must demonstrate that it maintains sufficient control over the alien employee.

H-1B Annual Quota

There is an annual quota of approximately 65,000 H-1B visas permitted by law. An additional 20,000 H-1B visas are available for alien workers with an advanced degree from a U.S. university. Each year the demand for H-1B visas exceeds the supply available under the quota. Accordingly, H-1B visas are often unavailable for the majority of the year. Visas are allocated under the H-1B quota based on the U.S. federal government’s fiscal year that begins October 1. Under H-1B regulations, an employer may file a petition seeking H-1B classification for a foreign worker up to six months before the start of the employment. Consequently, employer may file an H-1B petition on April 1 in order to capture a visa under the next fiscal year H-1B quota.

Procedures

A U.S. employer seeking H-1B classification for a prospective alien specialty worker must file a petition with U.S. Citizenship and Immigration Services (USCIS). Before filing a petition for H-1B visa classification with USCIS, a petitioner must obtain a certification from the U.S. Department of Labor (DOL) that it has filed a Labor Condition Application (LCA) covering the occupational specialty in which the alien will be employed. The LCA requires an employer to make certain representations to the DOL affirming, among other things, that the employment of the alien will not adversely affect the wages and working conditions of U.S. workers.

Once USCIS approves the H-1B visa petition, the alien worker beneficiary and any dependent family members may apply for H-1B or H-4 visas at a U.S. Consulate abroad.

Period of Admission

An H-1B nonimmigrant alien may be admitted to the United States for an initial period of up to three years plus ten days before and after the validity dates of the H-1B petition. A petitioner may request an extension of H-1B status of the foreign worker in the United States for an additional period of three years by filing another H-1B petition with USCIS. Generally, an alien’s total period of stay in H-1B status may not exceed six continuous years. When certain steps have been taken towards attaining U.S. lawful permanent residence status, however, an alien worker may extend H-1B status beyond the six year limit. In addition, any time spent outside the U.S. during the validity of an H-1B petition, such as holidays or business travel, may be recaptured and added to the total continuous period of H-1B status.

Dependent Family Members

The spouse and children under the age of 21 of an alien beneficiary of an H-1B petition may be eligible for H-4 visas. Dependent family members derive H-4 eligibility from their relationship with the H-1B alien. Therefore, it is not necessary to file a separate petition for them with USCIS. Dependent family members maintaining H-4 status are not eligible to apply for or obtain employment authorization in the United States.

A U.S. company can bring a foreign worker to the United States to receive training using the H-3 trainee visa category. The training provided to an H-3 trainee may be in a wide range of activities, including agriculture, commerce, communications, finance, transportation, the professions, etc. The H-3 visa category may not be used, however, for graduate medical education or training primarily provided by an academic or vocational institution. While physicians are excluded from H-3 visa eligibility, medical students attending medical school abroad, and nurses requiring a brief period of training in the United States that is unavailable in the individual’s native country, may qualify for H-3 classification.

In order to obtain H-3 classification for an alien, a U.S. petitioner must be offering training that is not available to the alien in his home country. A qualifying training program should cover specific material, have a fixed schedule, clearly articulated objectives and a means of evaluation. Training provided must be designed to benefit the alien in pursuing a career outside the United States. An employer may not use the H-3 visa category to recruit and train aliens for the ultimate staffing of domestic operations in the United States. Consequently, an H-3 trainee may only be used in a supernumerary capacity rather than in a position normally filled by U.S. workers performing routine or essential duties of business operations.

Procedures

An employer wishing to obtain H-3 classification for an alien must file a petition with the U.S. Citizenship and Immigration Services (USCIS). A single petition may include multiple trainee beneficiaries. Following approval of the petition by USCIS, the alien trainee may apply for an H-3 visa at a U.S. Consulate abroad.

Period of Admission

An alien may be admitted to the United States in H-3 trainee status for the duration of the approved training program, not to exceed 2 years. Generally, extensions of H-3 status, or a change of status or readmission in H or L status may not be granted after the alien has completed 2 years in H-3 status unless the former H-3 trainee has resided outside of the United States and was physically present outside of the United States for at least 6 months.

Dependent Family Members

The spouse and children under the age of 21 of an alien accorded an H-3 visa are eligible to apply for H-4 visas. Dependent family members derive their eligibility for H-4 classification from their relationship with the H-3 alien. Filing a separate petition for family members is not necessary before they apply for H-4 visas. Dependent family members are not eligible to engage in employment in the United States while in H-4 status.

The J-1 trainee visa classification is available to individuals to enter the United States to participate in trainee programs. The Department of State (DOS) is authorized to designate sponsors of exchange visitor programs to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States. Exchange visitor programs cover a variety of pursuits and occupations.

Both individuals and reputable organizations that are citizens of the United States may apply to the DOS for designation as an exchange visitor sponsor. A business entity organized under the laws of the United States, a state, the District of Columbia or a territory or possession of the United States, the majority of whose owners are U.S. citizens, or a corporation that has its shares or voting interests publicly traded on a U.S. stock exchange, may be considered a citizen of the United States for exchange visitor sponsorship purposes.

There are a variety of commercially operated exchange visitor sponsorship programs providing practical training to business professionals, technicians and skilled workers. These provide a J-1 visa option to entities that do not qualify as Exchange Visitor Sponsors due to foreign ownership or wish to avoid the many duties associated with program sponsorship.

Trainees may be brought to the United States under a J-1 exchange visitor program to enhance their skills and to improve their knowledge of American techniques, methodologies or expertise within the individual’s field of endeavor. Sponsors may provide training under the J-1 trainee classification in specifically designated occupational categories including, but not limited to, the sciences, engineering, management, business, education, communications and industrial occupations. The sponsor must provide a detailed training plan with a defined objective for the trainee, ensuring continuous supervision and periodic evaluation of the trainee. A program may include classroom instruction, seminars, rotation through several departments, on-the-job training, and attendance at conferences.

To be eligible for J-1 trainee visa classification, the alien must have a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience outside of the United States in the occupational field. Alternatively, the alien may have five years of work experience outside of the United States in the occupational field.

Use of the exchange visitor program to fill routine staff requirements is strictly prohibited. A trainee may gain potential experience through hands-on employment, however, as a component of a bona fide training program.

The exchange visitor sponsor is authorized to select prospective exchange visitors for program participation. An exchange visitor program must have no fewer than five exchange visitors per calendar year. The period of training for each exchange visitor must be no less than three weeks.

Procedures

Any individual or entity meeting the eligibility requirements may apply to the DOS for designation as a program sponsor. The application must provide a detailed description of the proposed exchange program and demonstrate the applicant’s ability to comply with the DOS requirements. The application must be accompanied by evidence of the legal status of a corporation, partnership or other legal entity and include evidence of financial responsibility and certification that the individuals to be designated as Responsible Officers are citizens of the United States.

Upon approval of the application for exchange visitor program sponsorship, the DOS will authorize the sponsor to issue the documentation needed to bring exchange visitors to the United States. The designation as an exchange visitor sponsor is valid for a renewable period of up to five years. The exchange visitor sponsor issues documentation needed to obtain a J-1 visa directly to exchange visitor aliens.

Period of Admission

The alien applies for the J-1 visa directly at a U.S. Consulate abroad. Upon issuance of the visa by the U.S. Consulate, the exchange visitor may be admitted to the United States in J-1 status. Upon admission to the United States, an exchange visitor is authorized to remain for the duration of the designated program plus a grace period of thirty days in which the alien is to depart the United States. Generally, training programs are limited to 18 months.

Two Year Foreign Residence Requirement

Many exchange visitors are subject to a requirement that they return to their home country for a period of two years upon completion of the J-1 program. An alien may be subject to the two-year home country physical presence requirement if his program was financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the government of the alien’s country of nationality or last legal permanent residence. An individual who is a national or resident of a country that the DOS has designated as clearly requiring the services of persons engaged in the individual’s field of specialized knowledge or skill may also be subject to the two-year home country physical presence requirement. Finally, an alien who participated in graduate medical education or training in the United States while in J-1 status is subject to the two-year home country physical presence requirement. An exchange visitor, who is subject to the two-year home country physical presence requirement but has not fulfilled the requirement, may not change his status or obtain a visa to enter the United States as an L-1 intracompany transferee, an H-1B specialty worker or a lawful permanent resident until the requirement is satisfied.

An exchange visitor subject to the two-year home country physical presence requirement may request a waiver of that requirement. Waivers may be sought for a variety of reasons, including persecution of the alien should he return to his country of residence abroad, exceptional hardship to the U.S. citizen or lawful permanent resident spouse or child of the exchange visitor, and the absence of an objection by the exchange visitor’s home country government, among others.

Dependent Family Members

The spouse and children under the age of 21 of an alien accorded J-1 visa may receive J-2 visas. Dependent family members derive their J-2 visa eligibility from their relationship with the J-1 alien. Dependent family members maintaining J-2 status may be eligible to apply for employment authorization in the United States. However, a J-2 alien may not obtain employment authorization for the purpose of supporting the principal J-1 trainee.

The L-1 intracompany transferee visa category allows a company to transfer a foreign worker from a company abroad to a related entity inside the United States.

Qualifying Entities

In order to qualify as an L-1 petitioner, a business inside the U.S. must be related by common ownership and management control to a company abroad. A company inside the U.S. that is the parent, subsidiary, affiliate, or branch of the alien worker’s employer abroad may petition for L-1 classification for the worker.

A parent is a firm, corporation, or other legal entity that has subsidiaries. A subsidiary is a firm that a parent owns, directly or indirectly, and over which the parent exercises managerial control. Generally, majority ownership demonstrates managerial control. Where a parent owns less than 50% of an entity, however, a qualifying relationship must be established by demonstrating managerial control of the minority-owned entity.

An affiliate is one of two subsidiaries, both of which are owned and controlled by the same parent or individual. Alternatively, where the same group of individuals owns a legal entity abroad and a separate legal entity in the United States, the companies may be affiliates for immigration purposes. Each of the shareholders must own approximately the same proportion of each entity for them to have a qualifying relationship for L-1 visa purposes.

A branch is an operating division or office of the same business organization in a separate physical location.

Qualifying Employment

To qualify as an intracompany transferee, an alien worker must be able to demonstrate employment outside the U.S. by a qualifying organization for at least one year during the three-years preceding the desired date of employment in the United States. Periods of time spent in the United States in lawful status, such as a business visitor, do not count toward the twelve months of qualifying employment.

The foreign worker must have been employed abroad as a manager, executive or in a capacity that requires specialized knowledge. In addition, the worker must be coming to the United States to work in one of these capacities. A foreign worker who will be employed in the United States as a manager or executive may be eligible for an L-1A visa. A foreign worker who will be employed in a capacity that requires specialized knowledge may qualify for an L-1B visa.

For purposes of L-1 classification, a manager is an individual who is primarily responsible for the management of an organization or a specific subdivision or function within it. For L-1 purposes, a manager supervises and controls the work of other supervisory, professional or managerial employees. Managerial duties also include the authority to hire and fire (or to recommend similar personnel actions) and the exercise of discretion over operations or functions. Managers who do not supervise the work of other employees may still qualify for L-1 classification. It is necessary to demonstrate that such workers are responsible for directing an important function for the petitioning employer.

An executive for L-1 purposes directs the management of an organization or a major component or function of it. Executives establish goals and policies, exercise wide latitude in discretionary decision-making, and receive only general supervision from higher level executives, the Board of Directors or the stockholders of the company.

Workers employed in a capacity requiring specialized knowledge for purposes of the L-1 classification, are those who have particular knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests. Knowledge of the application of an organization’s products or services in the international marketplace may also qualify as specialized knowledge. An individual with an advanced level of knowledge or expertise in the organization’s processes and procedures may be qualified for specialized knowledge classification.

A company that has been doing business in the United States for less than one year is considered to be a “new office” under L-1 regulations. A company that is a new office may petition to transfer a foreign worker to the United States. Such companies, however, must satisfy a higher evidentiary burden to demonstrate eligibility as a qualifying entity. Additional documentation is required to demonstrate that the new company has secured sufficient office space to house planned operations and has the financial ability to commence doing business and remunerate the foreign worker in the United States.

Procedures

Obtaining an L-1 visa for an intracompany transferee requires two separate steps. First, a company desiring to transfer a foreign worker to the United States must file a petition with U.S. Citizenship and Immigration Services (USCIS). The petition must be accompanied by evidence establishing that both the petitioning employer and the foreign worker satisfy the requirements for intracompany transferee classification. Upon approval of an L-1 petition by USCIS, the alien employee and any accompanying dependent family members may apply for L visas at a U.S. Consulate outside the United States.

Blanket L Procedures

Certain groups of qualifying entities may qualify for blanket L classification. A petitioner that has been doing business in the United States for one year or more and has three or more foreign and domestic branches, subsidiaries or affiliates may be eligible for blanket L classification. Qualified entities inside the U.S. must be able to demonstrate that they satisfy one of three possible conditions. These include demonstrating that, collectively, they have obtained approval of at least ten L-1 petitions during the previous twelve months, or the U.S. entities have combined annual sales of at least $25,000,000.00, or have a U.S. workforce of at least 1,000 employees.

Blanket L beneficiaries, like individual L beneficiaries, are required to have worked abroad for a related entity for a period of at least one year. To qualify for intracompany transferee classification under a blanket L petition, a foreign worker also must be a manager, executive or professional-level specialized knowledge worker. A specialized knowledge professional worker must hold a bachelor’s degree or the foreign equivalent.

Upon receiving approval of a blanket L petition, a company will no longer need to file individual petitions with USCIS seeking L-1 classification for each new intracompany transferee. Instead, each intracompany transferee may apply directly to a U.S. consulate abroad to obtain an L visa.

Period of Admission

An initial L petition may be approved for an initial period of up to three years. An L-1 petition filed for a beneficiary coming to the United States to be employed in a new office, however, may be approved only for an initial period of up to one year. After an L petition is approved by USCIS, the beneficiary may apply for an L-1 visa at a U.S. consulate. After receiving an L visa, the alien worker and accompanying family members may apply for admission to the U.S.

An intracompany transferee and any dependent family members should be admitted to the U.S. through the L petition expiration date. The L petitioner may file a petition to extend the alien’s L status in the United States. An extension of stay may be authorized in increments of up to two years. Managers and executives may remain in the United States in L-1 status for a maximum of seven continuous years. Specialized knowledge workers may be employed in the United States in L-1 status for a maximum of five continuous years. An intracompany transferee whose employment in the United States is intermittent or consists of an aggregate of six months or less each year is not subject to the limitations on L-1 periods of stay.

Dependent Family Members

The spouse and children under the age of 21 of an alien approved for L-1 classification derive eligibility for L-2 classification. Since dependent family members derive L-2 eligibility from their relationship with the L-1 alien worker, filing a separate L-2 petition is unnecessary. Dependents may apply for L-2 visas concurrently with the worker’s application for an L-1 visa. Similarly, dependents can simultaneously apply for an extension of status within the U.S. if a petitioner files a petition to extend the status of an L-1 worker. A spouse maintaining L-2 status in the United States may obtain employment authorization by filing an application and receiving approval from USCIS.

Certain aliens who have extraordinary ability in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry, may be eligible for an O-1 visa. The discussion below is limited to a review of the requirements and procedures needed to qualify as an alien of extraordinary ability in business or the sciences.

Regulations governing the O-1 visa category define extraordinary ability as a level of expertise that places an individual in the very small percentage of persons who have risen to the very top of a given field of endeavor. A U.S. company seeking to classify an alien as an O-1 nonimmigrant alien must file a petition with U.S. Citizenship and Immigration Services (USCIS) demonstrating, inter alia, that the alien will come to the United States to perform services in his area of extraordinary ability.

The alien must be able to demonstrate sustained national or international acclaim and recognition for his achievements in his field of expertise. Evidence of such recognition may include either receipt of a major, internationally recognized award, such as a Nobel Prize, or at least three other forms of documentation tending to establish the alien’s acclaim and recognition. Such documentation may include the following: receipt of nationally or internationally recognized prizes for excellence; membership in associations that require outstanding achievements of members; published material about the alien’s work; the alien’s participation on a panel, individually or as a judge of the work of others; evidence of the alien’s original scientific, scholarly or business-related contributions of a major significance in the field; the alien’s authorship of scholarly articles; and evidence that the alien has been employed in a critical or essential capacity, or has commanded a high salary. If these criteria do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s extraordinary ability.

Procedures

An employer wishing to avail itself of the services of an alien of extraordinary ability must file a petition requesting O-1 classification for the individual with USCIS. Following approval of the petition, the alien worker may apply for the O-1 visa at a U.S. Consulate abroad.

Period of Admission

An O-1 petition may be valid for up to three years. A petitioner may request an extension of an O-1 alien’s stay in increments of up to one year. There is no maximum limit on the time an alien may continuously spend in the U.S. in O-1 status.

Dependent Family Members

The spouse and dependent children under the age of 21 of an O-1 worker may be eligible for O-3 dependent classification. Dependents derive eligibility for O-3 classification based on their relationship to the O-1 alien. It is not necessary to file a separate petition for O-3 classification for dependents. Dependent spouses and children in O-3 status are not authorized to engage in employment while in O-3 status.

The North American Free Trade Agreement (NAFTA) provides the basis for the TN professional visa category for Canadian and Mexican workers to enter the United States to engage in certain business activities at a professional level. The NAFTA treaty provisions have been adopted by U.S. regulations creating the TN nonimmigrant worker category. Qualified professional-level workers may apply for TN classification to perform services in certain occupational categories. Unlike the H-1B professional worker visa category, not all occupations that require a university-level education are included in the TN list. In order to qualify for TN classification an individual must demonstrate attainment of the professional credentials listed in the regulations. In most cases, individuals must have at least a bachelor’s degree. Some TN occupations, however, require only an associate’s degree or work experience. An individual seeking TN classification must demonstrate that he is seeking to enter the United States only temporarily and does not intend to reside permanently in the United States.

Period of Admission

An individual may be admitted to the United States as a TN professional in increments of up to three years. There is no maximum limit on the number of times that TN status can be extended. An individual working in the United States in TN status for several years, however, may experience difficulty demonstrating that his presence in the United States is temporary.

Procedures

The procedures available to obtain TN professional classification is significantly different for Canadian and Mexican citizens.

A citizen of Canada may file an application for TN classification concurrently with an application for admission to the United States. The application for TN classification is presented directly to a U.S. Customs and Border Protection (CBP) officer at a United States port of entry, at a U.S. airport handling international traffic or at a United States pre-flight inspection station in Canada. No prior petition or other prior approval is required. Current immigration policy, however, permits filing a petition for TN classification with U.S. Citizenship and Immigration Services (USCIS). Using this procedure may be desirable in order to obtain a determination of eligibility for TN classification in advance of the alien’s arrival at a port of entry.

A Canadian professional worker must present proof of Canadian citizenship, evidence of an offer of employment in the United States in a qualifying occupation and a copy of a diploma, degree, certificate or other demonstration of professional achievement. An offer of employment in the U.S. should be documented by a letter from the prospective U.S. employer. The letter should confirm the period and terms of employment in the United States.

Unlike their Canadian professional counterparts, citizens of Mexico are required to file an application for a TN visa at a U.S. consulate prior to applying for admission to the United States in TN status. Employers of Mexican TN professional workers are not required to file a petition with the USCIS on behalf of the beneficiary. Documentation needed to support an application for a TN visa application filed by a citizen of Mexico includes proof of Mexican citizenship, evidence of an offer of employment in the United States in a qualifying occupation and a copy of a diploma, degree, certificate or other demonstration of professional achievement. A TN visa may be issued to a citizen of Mexico with a validity period of one year. A Mexican TN worker may be admitted to the U.S. in TN status, however, for up to three years if the job offer in the U.S. will be for at least that duration.

Dependent Family Members

The spouse and dependent children under the age of 21 of a TN professional are eligible to apply for TD dependent classification. Canadian dependents are not required to obtain a visa prior to applying for admission to the U.S. in TD status. Mexican dependents must obtain a TD visa by filing an application at a U.S. consulate prior to applying for admission to the U.S. in TD status. Dependents of a TN worker admitted to the United States in TD status are not eligible for employment authorization while in TD status.