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EMPLOYMENT-BASED CATEGORIES

Please note that the below descriptions are intended for informational purposes only and in no way outline every possible category that can be pursued in the United States. We advise that those interested in further (case specific) information

contact us for further details.

Temporary Authorizations

H Classification

General Information
The H category covers people coming to the United States to work temporarily. There are a number of H categories, which depend on what sort of work you will be doing in the United States. They are as follows:

  • H-1B – including, Specialty Occupations, Department of Defense workers, and fashion models.

  • H-1C - Nurses going to work for up to three years in health professional shortage areas

  • H-2A - Temporary agricultural worker

  • H-2B - Temporary worker: skilled and unskilled

  • H-3 - Trainee

  • H-4 - Spouse or child of H-1, H-2, H-3

H-1B Generally

The H-1B category is a nonimmigrant classification used by someone who will be employed temporarily in a specialty occupation, in certain research and employment positions with the Department of Defense, or as a fashion model of distinguished merit and ability.

 

Length of U.S. Stay

Under current law, you can be in H-1B status for a maximum period of six years. After reaching the maximum authorized period of stay, you must remain outside the United States for one year before another H-1B petition can be filed for you. Please note that certain people working on Department of Defense projects may remain in H-1B status for 10 years.

What is a Specialty Occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, have been deemed to be specialty occupations.
 

Applying for H-1B Status

H-1B status requires sponsorship by a U.S. employer. The employer must file a Labor Condition Application (“LCA”) with the Department of Labor attesting to several conditions, including payment of the prevailing wage to the foreign national, as well as extending similar working conditions as U.S. workers receive. The employer must then file the certified LCA with an I-129 petition plus accompanying fee. Based on the USCIS petition approval, the foreign national (if outside the U.S.) is then required to apply for the H-1B visa which will permit him/her to then seek admission to the United States.

Who Can You Work For?
When you are in H-1B status, you may only work for the petitioning U.S. employer and only in the activities described in the petition. You may also work for more than one U.S. employer while you are in H-1B status, but you must have a petition approved by each employer and have your H classification designated as concurrent employment.

 

What if my Circumstances Change?
Personal changes: As long as you continue to provide the services originally petitioned for by a U.S. employer, most changes will not mean that you are out of status. You may change employers without affecting status, but the new employer must file a new petition for you before you begin working for the new employer.

Employer changes: If the employer you work for merges, is sold, or is acquired, as a general rule this will not affect your status as long as there is no material change in your current employment and the subsequent employer agrees to accept all the conditions of your prior H employment. Please consult an attorney in these circumstances.

Do I have to be working at all Times?
Aside from personal leaves, you are required to be continually employed with the U.S. employer. As such, as long as the employer/employee relationship exists, an H-1B individual maintains their status.

Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents, however, may not be employed under the H-4 classification.

Can I Travel Outside The U.S.?
You must obtain an H-1B visa in order to travel.

This is a Temporary Status. Can I get an H-1B and Still Intend to Immigrate Permanently to the U.S.?
Yes. An H-1B individual can be the beneficiary of an immigrant (permanent) petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting their H-1B status.

Specific H-1B Classifications

Employed in Specialty Occupations

The H-1B classification applies to an individual coming temporarily to perform services in a specialty occupation, which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education – at least a bachelor level. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts have been deemed to be specialty occupations.

Employed in DOD Research and Development Projects
This classification applies to an individual coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

Employed as a Fashion Model
The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.

H-2 Temporary Workers
U.S. employers may also petition for skilled or unskilled individual workers to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. Note that the employer’s need for such services must be temporary.

H-3 Individual Trainees
The H-3 category applies to individuals (beneficiaries) coming temporarily to the U.S. to participate in a training program.

 

L-1 Classification

General Information
This category pertains to individuals who work for a company with a parent, subsidiary, branch, or an affiliate in the U.S. Foreign nationals being transferred from the company abroad may be classified as:

  • Managers/Executives (L-1A); or

  • Specialized Knowledge Individuals (L-1B)

Length of Stay
A foreign national in L-1A status may stay in the U.S. for a period not to exceed 7 years. A foreign national in L-1B status may stay in the U.S. up to a total of 5 years.

Extending an Individual’s L-1 Status
A U.S. employer may apply for an extension of a foreign national’s L-1 (A/B) status by using Form I-129, including the L Supplement, and supporting documentation.

Specific L-1 Requirements
To qualify for L-1 (A/B) status, you must be working for a parent, branch, subsidiary or affiliate of the same employer that employed you as a professional outside the United States. You 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 continuous year out of the last three-years.

Bringing Your Dependents
Dependents (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L-2 status. L-2 spouses are also eligible for employment authorization.

Applying For L Status
Petition Document Requirements
A  U.S. employer must file the I-129 petition. Note that foreign employer must have a legal business in the U.S.


The petition must be filed with:

  • Evidence of the qualifying relationship between the U.S. and the foreign employer, which establishes common ownership and control. Evidence includes items such as an annual report, copies of articles of incorporation, financial statements, or stock certificates;

  • A letter from your foreign employer detailing your dates of employment, job duties, qualifications and salary and demonstrating that you worked for the employer outside of the United States for at least one continuous year within the three-year period before the filing of the petition. This employment must be in an executive or managerial capacity or in a position involving specialized knowledge; and

  • A detailed description of the proposed job duties with the U.S. employer. This includes items such as job qualifications and evidence that the proposed employment is in an executive or managerial capacity, or in a position involving specialized knowledge.

If you are coming to the U.S. as a manager or executive (L-1A) to open or to be employed in a new office, then your petition should also be filed along with evidence which establishes:

  1. Premises have been secured in the United States are sufficient to house the new office;

  2. The beneficiary has, or upon establishment will have, the qualifying relationship to the foreign employer and the qualifying position; and

  3. The intended U.S. operation will be able to support the executive or managerial position within one year of the approval of the petition. This must be supported by information regarding:

  •  the proposed nature of the U.S. office (size and scope, organizational structure, and financial goals);

  • financial information about the foreign entity (the size of the U.S. investment and the financial ability to remunerate the beneficiary and to commence doing business in the U.S.); and

  • the organizational structure of the foreign entity.

E Classification

General Information
This category applies to people coming from countries which have treaties of friendship, commerce and navigation, or a bilateral investment treaty with the United States, or which are members of a multinational treaty organization of which the United States is a signatory, such as the North American Free Trade Agreement (“NAFTA”).

There are two categories in the E classification: E-1 (treaty trader - someone coming to the United States to carry on trade) and E-2 (treaty investor - someone investing a substantial amount of capital in a bona fide commercial enterprise in the United States).

Length of U.S. Stay
The issuance of an E visa is country specific. Normally nationals of certain countries may be issued an E visa for up to five years. The foreign national’s presence, however, is limited to two-years at one time but can be extended thereafter as long as he/she continues to express nonimmigrant (temporary) intent.


E Visa Specifics

E-1 (treaty trader)

Nature of Stay

A treaty trader is a person who comes to the United States solely to carry on trade of a substantial nature, which is international in scope, either on the foreign national's behalf or as an employee of a foreign person or organization engaged in trade principally between the United States and the treaty country of which the individual is a national.

E-2 (treaty investor)

Nature of Stay

A treaty investor is a person who has invested or is actively in the process of investing a substantial amount of capital in a bona fide commercial enterprise in the United States.

Employees of E-1/E-2 Principals
Also eligible for E visas are employees of a treaty investor or treaty traders. An employee of a treaty trader may be classified as an E-1, and an employee of a treaty investor may be classified as an E-2, if the employee is coming to the United States to engage in duties of an executive or supervisory capacity.

Note that the employee must have the same nationality as the principal employer. In addition, the employee must intend to depart the United States upon the expiration or termination of E-1 or E-2 status.

Spouses and Children of E-1/E-2 Nonimmigrant
The spouse and child of a treaty trader or treaty investor accompanying, or following to join the principal alien, if otherwise admissible, may receive the same classification as the principal alien. E spouses are eligible to work in the United States upon authorization.

Applying For an E Visa
The prospective foreign national may apply for either type of E Visa at the U.S Consulate in the country of residence.


The necessary documents are as follows:

  • Nonimmigrant Visa application (Form DS-156);

  • Form DS-157 if applicable;

  • E supplement questionnaire;

  • Supporting letter from the treaty enterprise, individual investor or trader;

  • Documentation supporting the elements of qualification for E visa;

  • Passport and passport sized photos of the applicant and each family member that will be accompanying;

  • The required application and visa fee.

Employing Canadian and Mexican Professionals under NAFTA  

TN Classification  

General Information
This category permits Canadian and Mexican professionals to come to the United States in order to undertake temporary employment in profession specific positions as outlined in the North American Free Trade Agreement (“NAFTA”).


TN Specifics
TN employment must be in a profession listed in Schedule 2 of the NAFTA and the TN employee must possess the credentials required.

TN for Canadian or Mexican Citizens
Petition Document Requirements
This classification does not require a petition for employment if the individual is a Canadian citizen and is outside of the U.S. Canadian citizens who are present outside the United States need not obtain TN-1 consular visas, and may apply directly at a Class A U.S. port of entry. They must provide:

  • A statement from the employer with a full description of the nature of the duties the beneficiary will be performing, the anticipated length of stay, and the arrangements for the payment of wages;

  • Evidence that the beneficiary meets the education and/or alternative credentials for the activity;

  • Evidence that all licensure requirements, where applicable to the activity, have been satisfied; and

  • Evidence of Canadian or Mexican citizenship.

Note: Mexican Citizens require a visa.


Dependents
Dependents (spouses and unmarried children under 21 years of age) of TN professionals are entitled to TD status with the same restrictions as the principal. Dependents may be students in the U.S., but may not be employed under the TD status.

TEMPORARY (NON) EMPLOYMENT-BASED CATEGORIES  

B Classification  

General Information
The B classification covers individuals coming to the United States for limited amounts of time. There are two types of B categories, which depend on the nature of the individual’s stay in the United States. The B-1 category covers individuals making short visits to the United States for certain kinds of business activities. The B-2 category covers those visiting the United States for personal activities including touring, visiting friends and relatives, as well as obtaining health services.


How Long Can I Stay?

The duration of stay in the United States for the B-1 (business visitors) and B-2 (visitors for pleasure) is typically six months. Longer periods may be granted on either of these visas, but only in unusual circumstances.

Extensions of Stay

In some cases, visitors may find that they need to remain in the United States for a longer period than their status allows. Generally these extensions are for no more than six months at a time.

B Classification Specifics

B-1 Category: Business Visitor.

Nature of the visit:
A business visitor means someone coming to the United States to transact some business in the country.


What is not allowed?

Under the B-1 category the visitor is not allowed to work in the United States. This includes salaried workers, as well as those who work on a service for hire basis such as independent contractors and freelance workers.

 

B-2 Category: Visitors For Pleasure.

Nature of the Visit:
In this category, the visitor may want to visit the United States to see friends or relatives, tour, attend conferences or conventions not related to business. This category also includes those coming to the United States to receive medical attention.

What is not allowed?

The visitor for pleasure may not engage in gainful employment or pursue academic studies.

Applying For B-1/B-2 Visa

  • Both the B-1 and B-2 visas are applied for at a United States Consulate/Embassy abroad. (Note: Canadians are exempted from this rule.)

Documentation:

Use form DS-156;

  • The visitor may need to also supply form DS-157 (if you are a male between the ages 16-45) that provides supplemental information;

  • For the B-1 visa, the visitor requires a letter from the visitor’s employer outlining the visitor’s detailed reasons for entering the United States and assurance of the prospective visitors continued employment outside the United States;

  • The prospective visitor should also have the following documentation for presentation at the consulate;

  • Passport;

  • Photographs (according to photograph requirements);

  • Application and visa fees (including a fee for a machine readable visa).

Entering the United States at a U.S. Port Of Entry
Having a visa does not guarantee entry into the United States. The Immigration authorities at the border/airport have the authority to deny admission, as well as determine the period of time, which the bearer of a visitor visa is authorized to remain in the United States.

At the port where you enter the United States, an Immigration official must authorize the traveler's admission to the U.S. At that time you will be issued a Form I-94, Record of Arrival-Departure, on which the length of stay permitted to the visa holder is listed. If you wish to stay beyond the time indicated on the Form I-94, you should apply for an extension with the USCIS, formerly INS. The decision to grant or deny a request for extension of stay is made solely by the USCIS.

F Classification  

General Information
This classification applies to foreign nationals who come the United States to pursue a full course of academic studies at an established academic high school, college, university, seminary, conservatory or language school. There are three F categories: the F-1 covering the full-time student, the F-2 coving the student’s spouses and children, and F-3 covering commuter students.

 

Length of U.S. Stay for F-2 covering
The F-1 status is usually issued for the length of academic studies plus sixty (60) days. Those F-1 students pursuing Optional Practical Training (“OPT”) also have the additional OPT time added on top of their academic studies, plus sixty (60) days.

How to Apply

In order to be eligible for an F-1 visa, a foreign national must apply to, and be accepted in, a full course of study at a school approved by the United States Attorney General.

The school to which you are accepted will complete an I-20 Certificate of Eligibility for Nonimmigrant Student Status and sends it to the student. The Form I-20 will serve as the basis for applying for a student visa at a U. S. Consulate/Embassy abroad.

The following documentation is necessary for the application:

  • Form DS-156;

  • Form DS-157 (if applicable);

  • Form DS-158 (a supplemental form required for all students);

  • Supporting document regarding the student’s means of support while in school and their temporary intent.

  • Applicant’s passport.

  • Two photographs of the applicant done to the required standard.

  • Any necessary application and visa fees.

PERMANENT EMPLOYMENT-BASED CATEGORIES  

Among the various routes for permanent residency through U.S. employer sponsorship, foreign nationals can pursue the following options:

1. Employment-Based (EB-1) Priority Workers

  • Extraordinary ability

  • Outstanding professors and researchers

  • L-1A managers and executives

2. Employment-Based (EB-2) Advanced Degree Workers

  • Professionals with advanced degrees

  • PERM Labor Certification

  • PERM Special Handling for tenure-track academic faculty

  • National Interest Waivers

3. Employment-Based (EB-3) Skilled or Professional Workers

4. Employment-Based (EB-5) Investors

  • Investing $1,000,000 (or $500,000 in an underserved area)

  • Employing at least 10 full-time U.S. workers.

FAMILY-BASED CATEGORIES
There are also a number of family-based (both temporary and permanent) options for foreign nationals who have relatives (spouses, children, parents or siblings) in the United States. Please contact our attorneys for more details.

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