Non-Immigrant Business Visas

Non-immigrant visas are visas granted to an alien for a temporary period of stay.  There are many different types of nonimmigrant visas, but summarized below are the most common, with the highlights, and some advantages and disadvantages of each.  This summary addresses the most common situations observed.  Individuals and companies should consult immigration counsel to deal with each particular case.

 L-1: The L nonimmigrant classification was created in April, 1970, to permit international companies to temporarily transfer qualified employees to the United States for the purpose of improving management effectiveness and enhancing international trade. The L visa allows overseas companies to transfer executives, managers or  employees possessing specialized knowledge, into the United States to be employed at an existing related business entity or to establish a new  operation.  The L visa holder, or “Intracompany Transferee”, is a foreign national, who, within three years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for one year by a firm, corporation, or other legal entity or parent, branch affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate or a subsidiary thereof, in a capacity that is managerial, executive or involves specialized knowledge, and the spouse and minor children of any such alien if accompanying him.

The L visa is issued for a three-year period subject to being extended up to seven years for executives or managers and five years for individuals possessing specialized knowledge. Read more about this visa.

 H1B: Temporary worker visa for professionals in specialty occupations (i.e. people that have a four year degree in an occupation that requires a four degree – there must be some logical connection between the person’s degree and the position, e.g. art history degree does not qualify a person to be a cardiac surgeon).

• Employer must pay the prevailing wage for the position
• The employment must comply with U.S. Dept. of Labor (DOL) regulations
• The employer indicates willingness to comply by filing and posting a Labor Condition Application (“LCA”)
• The employer keeps documentation of the wage and other working conditions in the Public Access File (“PAF”)

The H1B status may be granted in 3-year increments and may be extended for another 3-years, for a total of 6-years in H1B status.  (In some limited circumstances, the H1B status may be extended beyond the 6-years total.)

H1B visas are employer specific, so when employment ends with the current H1B employer, the employee is generally considered out of status.  At this point in time, there is no grace period following termination or layoff.

Since October 2000, H1B workers can “transfer” to a new H1B employer if: (1) the alien was lawfully admitted to the U.S. and is in a lawful status; (2) has not been employed without authorization; (3) the new H1B petition is non-frivolous.  This process is known as “H1B portability.”  The H1B worker may begin work for the new employer prior to approval of the petition by the INS, but not until the employer has proof that the petition was properly filed.  This proof generally consists of a receipt notice issued by INS confirming payment of the required fees.  The employment with the new petitioner is authorized while the petition is pending.  If the INS ultimately denies the petition, the H1B employee’s authorization to work for that employer ceases, and at that moment, may return to the prior employer if the H1B status remains valid or leave the United States.  This provision is helpful when an alien is in the U.S. and wants to begin work for a new employer but cannot wait the 90-120 days for final approval of the petition.  The employer should be very careful to avoid placing the new H1B employee on the payroll until a receipt has been issued; as such an action could result in sanctions on the company for employing an alien without authorization and could subject the employee to future immigration problems.  .

Premium processing service: a service in which, in exchange for an additional $1000 fee (in addition to other filing fees related to each particular visa category), the INS will make a decision on an application within 15 days of its receipt by the INS.  A “decision” may consist of either an approval, a denial or a Request for Evidence.  Generally, this provision is helpful when a future H1B employee is outside the country and the company cannot wait the 90-120 days for normal processing.  Recently, our experience has been that the INS completes these cases within approximately one week of filing.

An advantage to this visa is that it allows for “dual intent”, which means that the alien is allowed to intend to remain in the U.S. indefinitely.  This means that the alien can be applying for a “green card” or lawful permanent resident status (See “Immigrant Visas”) while in H1B status.

 TN Status: Temporary work visa available to citizens of Mexico and Canada under the North American Free Trade Agreement (NAFTA).  It is valid for one year at a time and may be renewed indefinitely.  Canadians can apply at the border for an application fee of $50 and enter the same day, although there is always some risk that the application may be denied and the applicant turned away.  For Mexicans, the application process is similar to that of an H1B petition, as it must be filed with an INS Service Center and takes approximately 90 to process.  This visa category is limited to certain occupations and certain educational or training prerequisites.  This visa category, like the F, B and many other categories, requires a “nonimmigrant intent”, which means that the alien must always intend to return to his or her home country.  This visa is a nice option for Canadian employees with clean cases who want to enter the U.S. and begin work quickly, but if the company wants to keep the employee indefinitely, an H1B petition should be filed to allow the employee to apply for lawful permanent resident status (see below).

E-1 or E-2 Treaty Trader/Investors status:  This subject is covered in a separate article.

 F-1 status: Granted for study in the U.S. at an approved university.  A student is issued an I-20 indicating the program of study.  After completion of the program, students are generally granted one year of Optional Practical Training (O.P.T.) to work for any employer in their field of study.  Many students use this year to obtain a position with a company and then change status to H1B.

 B-1/B-2 status: Includes visitors for business (B-1) and pleasure (B-2). As a general rule, visits to the U.S. on a B-2 visa involve tourist activities and visiting family, while B-1 business visas are granted for activities such as sales calls, visits with clients, annual meetings and conferences. B-1 business visitors are generally granted the period of time necessary to conduct their business. It is important to note that visits on a B-1 visa must be temporary, cannot involve productive employment, and any payment must be paid from a source abroad.  B-2 visitors are routinely given a period of entry of 6 months, although this expectation may be subject to change in the future due to immigration restrictions that have arisen subsequent to September 11.

Visa Waiver Program: People from many European countries and other countries with relatively high standards of living (with whom the U.S. has reciprocal agreements) can enter the U.S. without a visa for a period of 90 days.  They generally cannot change to another visa category, but rather must return to their country and process their visa abroad.  Many people from Europe, Japan, Israel, etc. use this visa to enter the U.S. to interview for jobs and then return to their homes while awaiting processing of another visa (e.g. H1B visa).

 

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