Business/Employment Nonimmigrant Visa Classifications

E-1 Treaty Trader, E-2 Treaty Investor E-3 Australian Specialty Occupation Workers

The E visa category is available to citizens of countries which have a treaty of friendship, commerce and navigation (FCN), bilateral investment treaty (BIT’s) or free trade agreement (e.g. NAFTA), coming to carry on substantial trade principally between the United States and the treaty country, or, to develop and direct the operations of an enterprise in which the foreign national has invested, or is in the process of investing a substantial amount of capital.

The E-1 Trader must be a national of a treaty country representing a trading firm of the nationality of the treaty country and must be coming to conduct “substantial” trade between the treaty country and the United States. The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade regardless of the size of individual transactions. The term “trade” includes the international exchange of goods, services, and technology, and requires the exchange of title from one party to the other. The trade must be “principally” between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the trader’s nationality. Lastly, the treaty trader must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

The E-2 Investor, be it a real or corporate person, must be a national of a treaty country making a “substantial” investment in the United States. The investment must be made up of the investor’s unsecured personal business capital, or capital secured by personal or business assets. However, borrowed funds secured with the assets of the investment enterprise will not qualify. To be considered substantial, the investment capital must be sufficient to ensure the successful operation of the enterprise. Therefore, the percentage of the required investment in proportion to the total capital needed to operate the business will be higher for a low-cost business enterprise than for a high-cost enterprise.

The investor must have possession and control (i.e. own at least 50%) of the investment, which must be placed at risk in an operating commercial enterprise. Speculative or idle investment will not qualify, nor will uncommitted funds in a bank account or similar security. Additionally, the investment cannot be “marginal” in-so-far as it merely generates income sufficient to provide a living to the investor and his/her family. Instead, the investment must generate significantly more than marginal income, or it must have a significant economic impact in the United States.

The investor must be coming to the U.S. to develop and direct the enterprise. Key employees who are nationals of the treaty country may be eligible for E status if employed in a supervisory, executive, or highly specialized skill capacity.

The E-3 is a new visa for Australian nationals to work in specialty occupations in the U.S. The eligibility criteria for E-3 visa applicants are essentially the same as that of H-1B Professional Workers discussed below.

E visas are generally issued for a period of two (2) to (5) years depending on the volume of trade or the size of the investment. E visa status is renewable as long as the principal continues to maintain their status with the qualifying organization.

Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Spouses may obtain employment authorization from United States Citizenship and Immigration Services (USCIS) after admission to the United States. Dependent children are not authorized to work in the United States but may but may study in the U.S. without a student (F-1) visa.

H-1B Professional Workers

H-1B visas are for foreign nationals coming temporarily to work in a specialty occupation for a United States employer. The term “specialty occupation” is an occupation which requires the theoretical and practical application of a body of specialized knowledge, as well as the attainment of a baccalaureate or higher degree (or its equivalent) in a specific specialty as the minimum entry requirement for the position. If the job requires licensure or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the visa may be granted. Positions recognized to be specialty occupations include, but are not limited to: Accountants, Acupuncturists, Chiropractors, Computer Programmers, Dietitians, Electronic Specialists, Fashion Designers, Journalists, Librarians, Medical Technologists, Pharmacists, Social Workers and Vocational Counselors.

An H-1B visa may be granted initially for up to three years and renewed for a maximum validity of six years. Extensions beyond the sixth year may be possible under certain circumstances. Spouses and dependent children may obtain H-4 visas to reside and study in the United States, but not for gainful employment.

With implementation of the United States-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement on January 1, 2004, Chilean and Singaporean nationals became eligible for the treaty-established visa known as the H-1B1 Free Trade Agreement (FTA) Professional Visa. The eligibility criteria for H-1B1 visa applicants are similar to that of H-1B Professional Workers but with certain limitations. For instance, the applicant cannot be self-employed or an independent contractor. Furthermore, the period of employment in the United States must be temporary and the applicant cannot have the intent of seeking immigrant classification. This means that H1B1 beneficiaries may not pursue permanent residence in the United States while in H1B1 status. This requirement makes the H-1B1 different from the traditional H-1B visa, as applicants for traditional H-1B visas do not have to demonstrate that they intend to return to their home country when their temporary job is finished. However, Chileans are still eligible to apply for traditional H-1B visas. H1B1 visas are only valid in one-year increments and extensions and renewals are allowed. However, change or adjustment of status to another nonimmigrant category or to legal permanent residency is not permitted.

H-2B Temporary Workers

H-2B visas are for foreign nationals coming temporarily to the United States to perform temporary services or labor, other than agricultural services or labor, for which unemployed persons capable of performing such service or labor cannot be found in the United States. “Temporary” refers to any job for which the employer’s need is temporary, regardless of whether the job is one that could be described as permanent or temporary. Absent extraordinary circumstances, the period of the employer’s need must be for one year or less, and be either: a one-time occurrence; a seasonal need; a peak load need or an occasional or intermittent need. A temporary labor certification must be obtained from the United States Department of Labor (DOL) before an H-2B visa petition can be approved. Spouses and dependent children may obtain H 4 visas to reside and study in the United States, but may not seek gainful employment.

I Visa For Foreign Media, Press And Radio

Available to foreign nationals desiring to enter the United States temporarily as representatives of the foreign media who are traveling to the United States to engage in their profession. Although procedures for issuance of I visas depend on the privileges the foreign nationals’ home country extends to representatives of the United States media, generally applicants must demonstrate that they are “representatives of the foreign media”, including members of the press, radio, film or print industries, whose activities are essential to the foreign media function. Examples are: reporters, film crews, editors and persons in similar occupations, who are traveling to the U.S. to engage in their profession. The applicant must be engaging in qualifying activities for a media organization having its home office in a foreign country. To be eligible for an I visa, the activity must be essentially informational, and generally associated with the news gathering process, reporting on actual current events.

Spouses and/or children under the age of 21 who wish to accompany or join the principal I visa holder for the duration of his/her stay in the United States require I visas as well. They may not work without obtaining an appropriate work visa, but may study in the U.S. without a student (F-1) visa. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but wish to visit for vacations only, may be eligible to apply for visitor (B-2) visas , or if qualified, travel without a visa under the Visa Waiver Program.

L-1A/L-1B Intracompany Transferees

The L visa category is for employees of international companies who have worked abroad for at least one year during the three years immediately preceding the filing of the visa petition, and are coming to work for a branch, affiliate or subsidiary of the same firm or organization that operates in the United States. The L-1A classification is for managers or executives, while the L-1B classification is for employees with specialized knowledge of the company’s product and its application in international markets, or who have an advanced level of knowledge of its processes and procedures.

L-1A visa status may be granted for up to three (3) years, with a maximum of seven (7) years stay in the United States, while L-1B visa status may be granted for up to two (2) years, with a maximum of five (5) years stay in the United States. In either case, where the employee is coming to work for a startup company (less than one year in business) the initial period stay will be for one year.

Spouses and unmarried children under 21 years of age may be issued L-2 visas in order to accompany the principal alien. Spouses may obtain employment authorization after admission to the United States. Dependent children are not authorized to work in the United States but may but may study in the U.S. without a student (F-1) visa.

O Visas For Aliens Of Extraordinary Ability, Cultural Exchange Visitors

This classification is utilized by foreign nationals of extraordinary ability who have received major prizes or awards or other recognition for outstanding achievements in the sciences, arts, education, business or athletics; and persons participating in cultural exchange programs to come to the United States temporarily to perform services in their areas of expertise. The O-1 visa is appropriate for artists, athletes, entertainers, high-end chefs, and business people, whose extraordinary ability has been demonstrated by sustained national or international acclaim. A consultation with an appropriate peer group, labor and/or management organization regarding the nature of the proposed employment and the alien’s qualifications is required in support of an O-1 visa petition.

Artists and entertainers in connection with TV or motion pictures who wish to qualify for the visa must show a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered, in-so-far as the person is recognized as outstanding, notable, or leading in the motion picture or television field. They also must be coming temporarily to the United States to continue work in the area of extraordinary achievement.

The O-2 visa is designated for essential support personnel that accompany and assist an O-1 visa holder in a specific athletic or artistic event or in the motion picture or television industry. O-2 visas are not available for those who accompany or assist O-1 visa holders in education, science, or business. The O-2 visa applicant must be an integral part of the O-1’s actual performances or events and possess critical skills and experience with the O-1 principal that are not of a general nature, and which are not possessed by others. In the case of a motion picture or television production, the O-2 applicant must have skills and experience with the O-1 principal which are critical and not of a general nature, based either on a preexisting and long standing working relationship, or because the continuing participation of the alien is essential to the successful completion of a production a significant part of which is to take place both inside and outside the United States.

Spouses and children of the O-1 and O-2 visa holders may obtain an O-3 visa to enter and accompany the O visa principal. The O-3 visa holder may attend school but if he or she wishes to work, he or she must obtain a work visa.

P Visas For Performing Artists And Athletes

The P-1 visa is designated for internationally recognized entertainers, circus artists, and athletes who are coming to the United States temporarily to tour or perform at a specific competition or event. An athlete who wishes to remain in the U.S. for a longer period of time should apply for an O-1 visa.

The P-2 visa is designated for artists or entertainers individually or as part of a group entering the United States temporarily as a part of a government recognized reciprocal exchange program, and for their support personnel. There should be two organizations involved in this exchange program: one in the U.S. and one abroad.

The P-3 visa is designated for artists or entertainers coming temporarily to perform, teach, or coach, individually or as part of a group, under a program that is culturally unique, and for their support personnel.

Spouses and children of a P-1, P-2 or P-3 visa holder may obtain a P-4 visa to enter the U.S. The P-4 visa holder may attend school but in order to work, he or she must obtain a work visa.

R-1 Temporary Religious Workers

This visa category is for foreign nationals coming to the United States to carry on the vocation of minister or otherwise work in a religious vocation or occupation, for or at the request of a religious denomination having a bona fide nonprofit religious organization in the U.S. The applicant must have been a member of the denomination for two years immediately preceding admission.

Religious workers include “ministers of religion” who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy such as administering the sacraments, or their equivalent. The term does not apply to lay preachers. A “religious vocation” means a calling to religious life, evidenced by the demonstration of a lifelong commitment, such as taking vows. Examples include nuns, monks, and religious brothers and sisters. A “religious occupation” means a habitual engagement in an activity which relates to a traditional religious function. Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations. The activity of a lay-person who will be engaged in a religious occupation must relate to a traditional religious function: i.e., the activity must embody the tenets of the religion and have religious significance, relating primarily, if not exclusively, to matters of the spirit as they apply to the religion.

A nonimmigrant religious worker’s spouse and unmarried children under 21 years of age may be granted derivative status. They may study but may not accept employment in the United States. Holders of R visas may remain in the U.S. for up to five years to pursue their calling.

TN (NAFTA) Workers

Available to qualified workers from Canada and Mexico entering the United States to work in a professional field designated under the North American Free Trade Agreement (NAFTA). A TN worker must intend to remain in the United States temporarily and is admitted for a period of one year. However, as long as the worker maintains the intention to remain in the U.S temporarily, TN status may be extended indefinitely.

As of January 1, 2004, the procedures for Mexicans workers were simplified by removing the prior visa petition and labor condition application requirements. Additionally, Mexican workers are no longer subject to numerical limitations. However, unlike Canadian citizens, Mexican citizens still must obtain a visa before requesting admission to the United States.

Spouses and children of TN visa holders may obtain a TD visa to enter and remain in the US. The TD visa holder may attend school but in order to work, he or she must first obtain a work visa. Dependents do not have to be citizens of Mexico or Canada.

Canadian citizen spouses and children do not need visas, but if they are not Canadian citizens, they must first obtain a TD nonimmigrant visa from a U.S. embassy or consulate before requesting admission to the United States. Spouses and children of Mexican citizens, like the principal, must apply for TD nonimmigrant visas at a U.S. embassy or consulate.