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
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
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
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
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 (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
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
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
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
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
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
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
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
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:
Premises have been secured in the United States are
sufficient to house the new office;
The beneficiary has, or upon establishment will have,
the qualifying relationship to the foreign employer and
the qualifying position; and
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
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.
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
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
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
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
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 employment must be in a profession listed in Schedule
2 of the NAFTA and the TN employee must possess the
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 (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
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
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
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
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
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;
Photographs (according to photograph requirements);
Application and visa fees (including a fee for a machine
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
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
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
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
Form DS-157 (if applicable);
Form DS-158 (a supplemental form required for all
Supporting document regarding the student’s means of
support while in school and their temporary intent.
Two photographs of the applicant done to the required
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
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
4. Employment-Based (EB-5) Investors
Investing $1,000,000 (or $500,000 in an underserved
Employing at least 10 full-time U.S. workers.
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.