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Choosing
the Right Work Visa
No chart or checklist can tell you definitively what kind of
visa is most appropriate for a particular individual. In fact,
a single individual may be eligible for multiple kinds of working
visas. For example: a Canadian citizen with a degree in chemical
engineering, working for a multinational corporation with operations
in the U.S. and Canada, might qualify for three or four different
visa categories.
This chart is not designed to replace a consultation with one
of our partners or associate attorneys. However, it will allow
you to assess whether or not you or your employee is eligible
for a given visa category--important information you will find
valuable in consultation with any attorney. We have also included
a complete list of all non-immigrant visa categories, including
those where employment is restricted or not permitted, for your
reference. (To see the complete list, click
here.)
One final note about working visas and permanent residency:
entering the U.S. on a temporary work visa in no way disqualifies
you or your employee from subsequently obtaining permanent residency
(a green card). Since for most individuals the process to a
green card is lengthy and complex, most employers first prefer
to obtain working visas for their foreign national hires. For
more information about permanent residency, including an explanation
of the labor certification process and a list of kinds of employees
exempt from that process, click
here.
Has the individual ever worked for your company overseas?
L-1A, L-1B,
L-Blanket, L-2
Does the individual have a college or university degree,
and will he or she be performing services that require that
degree?
H-1B, H-2B
Does the individual possess Australian citizenship?
E-3
Does the individual possess citizenship from either Singapore of Chile?
H-1b1
Is the company ultimately at least 50 percent foreign-owned?
E-1 and E-2
Is the individual a Canadian or Mexican citizen?
TN
Is the individual a foreign student who has graduated, or
will be graduating, from an American college or university?
F-1
Is the individual coming to the United States to be trained?
H-3 and J-1
Is the individual pre-eminent or renowned in his or her field
of endeavour?
O
Is the individual married or engaged to be married to a U.S.
citizen?
Permanent Residency
E-1
Treaty Trader: Individuals engaged in substantial trade between
the US and their home country; qualified employees, their spouses
and minor children. A treaty must exist between their home country
and the United States and the individual must be a citizen of
that country.
E-2
Treaty Investor: Individuals who have made a substantial investment
in an active commercial or entrepreneurial enterprise; qualified
employees, their spouses and minor children. A treaty must exist
between their home country and the United States and the individual
must be a citizen of that country.
F-1
Full-time Academic Students attending approved schools. May
be employed in the United States in the following circumstances:
Optional Practical Training--full-time employment permitted,
must be recommended by school and approved by Immigration authorities.
Curriculum Practical Training--must be authorized by school
and deemed "integral to curriculum." Severe Economic Hardship--Students
who have fallen into economic distress. Must be authorized by
Immigration authorities.
H-1B
Professional workers within designated Specialty Occupations.
Occupations must require theoretical and practical application
of a body of highly specialized knowledge in fields of human
endeavor including but not limited to: architecture, engineering,
mathematics, physical sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts.
The position must require a degree in a specific field. Sometimes
a combination of education and experience may be considered
equivalent to a degree. For example, three years of progressive
professional experience may be evaluated to be the equivalent
of completion of one year of university studies. There is no
requirement to prove a lack of U.S. workers for the position.
H-1B's are available for a period totaling 6 years and in certain
circumstances can be extended indefinitely. Fashion Models are
also considered H-1B professional workers and are subject to
their own set of requirements. A degree is not required.
H-2B
Skilled or unskilled workers performing temporary services or
labor. This category requires a showing of unavailability of
U.S. workers. A labor certification application is required
to be filed with and approved by the Department of Labor. The
job must cease to exist after the H-2B period of employment
has ended.
H-3
Trainees. May be paid, but no productive employment is permitted.
A detailed outline of the training program must be submitted.
Maximum period of stay is 2 years. Training must be unavailable
in home country.
J-1
Individuals coming to the United States to participate in approved
cultural and education exchange programs including: college
and university students; secondary school students; short-term
scholars; trainees; teachers; professors and research scholars;
specialists; physicians; international and government visitors;
camp counselors; summer work/travel students; au pairs and special
education exchange visitors. This category may trigger the 2-year
foreign residency requirement, which forces the J-1 visa holder
to return to his or her country of nationality or last residence
for at least 2 years before returning to the U.S. as an immigrant
or temporary worker.
L-1A
Intracompany transferees working in executive and managerial
positions. Must have been working abroad for a period of 12
months within the proceeding 3 years in a managerial, executive
or specialized knowledge capacity.
L-1B
Intracompany transferees working in positions requiring specialized
knowledge of the company's products and applications in world
markets and/or an advanced or proprietary knowledge of the company's
processes or procedures. Must have been working abroad for a
period of 12 months within the proceeding 3 years in a specialized
knowledge, managerial or executive capacity.
L-1 Blanket
Must have been working abroad for a period of 12 months within
the proceeding 3 years in a managerial, executive or professional
specialized knowledge capacity. In order to qualify for a blanket
petition a company must have either a U.S. workforce of at least
1,000; a U.S. annual income of at least $25 million; or have
had 10 L-1 petitions approved within the preceeding 12 months.
L-2
Spouses and children of L-1A & L-1B intracompany transferees.
Spouses may apply for employment authorization.
O-1
Individuals of Extraordinary Ability in the fields of the arts,
sciences, business, music, and athletics, including but not
limited to photographers, models, stylists, musicians, scientists,
engineers, fine artists and writers. O-1 visa holders may work
in the United States on a freelance basis under the representation
of an agent or management company, or they may work directly
for a particular company. Individuals must exhibit a demonstrated
record of success and recognition in their field of endeavor,
in the form of published material, publicity, awards, letters
of recommendation confirming their acclaim, and/or any other
kind of documentation relevant to their particular profession.
There is no educational requirement for the O-1 visa since the
individual is judged strictly on their talent and accomplishments
in the field. O-1 visas are available for an initial period
of a maximum of three years and can be extended indefinitely
for a year at a time.
TN
North American Free Trade Act (NAFTA) professionals (Canadian
and Mexican Citizens) as listed under 8 CFR 214.6(d) Appendix
1603.D.1 Limited to a period of stay of one year increments.
Must have intention to return to home country. Canadians may
apply at ports of entry. Mexicans are required to file TN petitions
with the Nebraska Service Center.
E-3
Specialty Occupation for Australian Nationals-- The new E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation. Note however, that the spouse and children need not be Australian citizens. Like, E-1 and E-2 spouses, spouses of E-3s are entitled to work authorization in the U.S. and must apply on form I-765 to receive a valid work authorization card from USCIS.
H-1b1
Free trade visa for citizens of Chile and Singapore
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