Visa Classifications

The B-1 visa is designed to allow any individual to enter the U.S. temporarily to carry on limited activities for the benefit of his or her foreign employer. While in the U.S., the individual must continue to be paid by the foreign employer and the business activity must be associated with international trade or commerce. Under this classification, the individual cannot perform local employment that would displace a U.S. worker.

The B-1 visa classification is often used by sales personnel to enter the U.S. to solicit sales for foreign-made products. The sales person, however, is not allowed to sell products that are made by a U.S. subsidiary of the foreign employer. Under the NAFTA-based regulations, Canadian and Mexican citizens can also enter the U.S. to install, repair and maintain commercial or industrial equipment or machinery, including computer software, purchased from an entity located outside the U.S. For purposes of this regulation, the equipment or software must be manufactured outside the U.S. Non-Canadian and Mexican citizens can enter the U.S. as business visitors to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the U.S. or to train U.S. workers to perform such service as long as the contract of sale specifies that the seller perform such services or training and as long as the visit to the U.S. takes place within the first year after the purchase.

The B-1 classification is also often used by executives or managers of foreign companies to enter the U.S. to do certain preliminary work necessary to start up business in the U.S. Such activities would include meeting with lawyers and accountants, opening bank accounts and entering into contracts and leases on behalf of the U.S. company. The executive or manager, however, cannot be actively involved in the management of the U.S. business without obtaining an appropriate work-authorized immigration status.

Generally, a business visitor must apply for a B-1 visa at a U.S. Consulate or, if a citizen of a country participating in the Visa Waiver Program (VWP), enter the U.S. for not more than 90 days without a visa. Canadian citizens, however, can apply for entry directly at a port-of-entry.

The L-1 visa classification is available to individuals who have been employed by a foreign company outside the U.S. for at least one year during the preceding three-year period as an executive or manager (L-1A status), or person with specialized knowledge (L-1B status), and who seek to enter the U.S. temporarily to render services to a U.S. affiliate of the foreign company in one of these capacities. In cases where a multinational company has applied for and received approval for a Blanket L-1, the required one year of employment abroad is reduced to six months.

To qualify as an executive or manager, the employee’s duties must primarily involve directing the work of other managerial, supervisory or professional employees, or directing a key department or function of the company’s business. First-line supervisors will not qualify unless the individuals they supervise are professional employees. A specialized-knowledge employee is one who has in-depth knowledge of the company’s product, service, research or equipment, or an advanced level of knowledge of the processes and procedures of the company.

To be eligible for this classification, the foreign and U.S. operations must be affiliated. Any proposed ownership arrangement must be carefully examined to ensure that it satisfies the affiliation rules for immigration purposes. The company must also continue to do business in the U.S. and in at least one other country for the duration of the employee’s stay in the U.S.

United States Citizenship and Immigration Services has special rules regarding “new office” situations. A new office is defined as an office in the U.S. that has been doing business for less than one year. To transfer an executive or manager under the L-1 classification to the U.S. to open a new office, the employer must initially show that the new office will support an executive or managerial position within one year and that the company has secured sufficient physical space in the U.S. to house its new office. The employer must submit information regarding the proposed number of the U.S. employees and the positions they will hold, as well as provide evidence of the size of the anticipated investment in the U.S. in terms of plant, equipment, inventory, staff salaries, etc.

L-1 status is issued for a three-year period (limited to one year initially in new office situations) with the possibility of obtaining up to four additional years of extension. L-1A executives and managers can obtain a maximum of seven years; L-1B specialized-knowledge employees can obtain a maximum of five years. The spouse and children of an L-1 employee are admitted in L-2 status. Spouses of L-1 status holders can apply for employment authorization through a regional office of the Immigration Service once they have entered the U.S. in L-2 status. Employment authorization is granted for the period of admission of the L-1 spouse, not to exceed two years and can be renewed as long as the L-2 spouse maintains valid status.

The H-1B visa category is designed to bring individuals to the U.S. to work in “specialty occupations.” A specialty occupation is an occupation that involves the application of highly-specialized knowledge and, as a minimum entry-level criterion, requires the attainment of a baccalaureate degree or its equivalent in the specific specialty.

The H-1B category is subject to a “labor attestation” requirement. This requires the U.S. employer to attest to the U.S. Department of Labor that certain employment conditions have been satisfied before hiring a foreign worker for a temporary period under the H-1B category. The H-1B category is also subject to an annual quota of visas.

The H-1B visa is issued for a three-year period, with the possibility of three additional years of extension, up to a maximum of six years. In a limited context, however, H-1B status can be extended beyond six years.

The North American Free Trade Agreement contains provisions allowing certain Canadian and Mexican professionals to enter the U.S. under a TN visa to work for a U.S. employer.  The TN visa is valid for one year with the ability to obtain one-year extensions.  To be eligible under this category, a person must demonstrate that he or she is a member of one of the professional occupations listed on a schedule in the Free Trade Agreement.  Included in the list of professionals are accountants, engineers, scientists, physicians, architects, journalists, veterinarians, horticulturists, computer systems analysts, management consultants and economists.  Generally, if an individual’s occupation does not appear on the list, or the individual does not have the specific degree or experience required, TN status would not be available.  A Canadian citizen can apply for TN status at most U.S. ports-of-entry.  The TN procedure for Mexican professionals is more complicated.

Spouses and children of holders of H-1B or TN visas are admitted in H-4 or TD status, respectively.  They cannot work in the U.S. unless they can independently obtain working visas.

Nationals of certain countries having treaties of commerce with the U.S. are eligible to apply for entry as treaty traders or treaty investors under the E visa category.

The treaty trader (E-1) category is designed for companies or individuals who engage in a substantial amount of international trade (more than 50 %) between the treaty country and the U.S..  The treaty investor (E-2) visa is designed for companies or individuals who invest, or are actively in the process of investing, substantial funds in a U.S. business.  To obtain either treaty trader or treaty investor status, the U.S. business must have the “nationality” of the treaty country, meaning that at least 50 % of the business must be owned by citizens of that country.  Furthermore, each employee seeking to enter the U.S. in E-1 or E-2 status must be a citizen of the treaty country.

A treaty trader applicant must show that he or she as the trader or his or her employer as the trader engage in a substantial amount of international trade between the treaty country and the U.S.  Though neither the Immigration Act nor the underlying regulations define “substantial” or set a minimum dollar amount, the adjudicating officer will look at (a) the volume of trade, (b) the number of transactions, and (c) the continued course of trade to determine substantiality.

A treaty investor applicant must show that he or she has made a substantial investment in the U.S. business that qualifies for treaty investor status.  There is no minimum dollar amount used to determine whether an investment is substantial.  The amount of qualifying funds invested will be compared to the value or cost of the U.S. business to determine whether the investment is substantial.  In applying this proportionality test, the adjudicating officer will require the investment to be a higher percentage if the value of the business is relatively low, and a lower percentage if the value is relatively high.  The qualifying investment is measured by the amount that the investor has “at risk” in the U.S. business.  Indebtedness, such as mortgage debt or commercial loans secured by assets of the U.S. business, does not count toward measuring the amount of the investment “at risk.”

The U.S. business invested in must demonstrate the present or future capacity to generate a positive economic impact beyond providing a minimal living for the investor and his or her family.  Factors considered in this determination include the number of jobs created by the investment and the extent to which the income generated by the investment exceeds an amount that would be considered sufficient to support the investor and his or her family.  The investor must also demonstrate that he or she has the control necessary to develop and direct the U.S. business.

As mentioned above, the treaty trader and treaty investor classifications can be utilized to bring certain employees to the U.S., with the caveat that employees must have the same nationality as the treaty country and must be executive or supervisory employees or essential (highly skilled) employees.

Treaty trader and treaty investor applications are generally filed at a U.S. consulate abroad.  A treaty trader or treaty investor visa is generally valid for five years, and can be extended in five-year increments through a U.S. consular office.

The spouse and children of a treaty trader or treaty investor are admitted in E-1 or E-2 status, respectively.  Spouses of E-1 or E-2 traders and investors can apply for employment authorization through the Immigration Service.

The O-1 classification is available to individuals who are of extraordinary ability in the sciences, arts, education, business, or athletics, or who have a “demonstrated record of achievement” in the motion picture or television industry.  In essence, the O-1 is designed for persons who have risen to the top of their field and who desire to come to the U.S. to continue working in their area of extraordinary ability.  Persons in the sciences, education, business, or athletics must be of the small percentage who have risen “to the very top of the field of endeavor.”  Persons in the arts are those who have achieved a level of distinction such that they would be described as “renowned, leading, or well-known in the field of arts.”  Persons in the motion picture or television industry must prove that they have a high level of accomplishment and are “recognized as outstanding, notable or leading.” 

Evidentiary criteria for persons in the sciences, education, business or athletics consist of documentation including the receipt of major prizes or awards.  Short of this type of evidence, O-1 cases can be documented by any three of the following types of evidence:  (a) lesser known nationally or internationally recognized awards or prizes, (b) published material about the person in major trade publications, (c) participation as the judge of the work of others in the field, (d) original contributions of major significance to their field, (e) authorship of scholarly books or articles in professional or major trade publications or other major media, (f) performance of a critical or essential role for organizations that have a distinguished reputation, and (g) receipt of a high salary or other significant remuneration, in relation to others in the field.

Evidentiary criteria for persons in the arts or the motion picture or television industry consist of documentation including the nomination for or receipt of major national or international awards or prizes.  Short of this type of evidence, O-1 cases can be documented by any three of the following types of evidence: (a) performance as a lead or star in productions or events with a distinguished reputation, (b) achievement of national or international recognition via reviews or other published materials, (c) a record of commercial or critically acclaimed successes, (d) testimonials from experts indicating that the person has received significant recognition for achievements in the field, and (e) receipt of a high salary or other significant remuneration, in relation to others in the field.

United States Citizenship and Immigration Services regulations also permit O-1 cases to be documented by any other comparable evidence that establishes eligibility, most commonly letters of reference from distinguished members of the person’s profession which attest to the person’s national or international reputation in the particular field. 

Further documentation required for classification in O-1 status includes a written advisory opinion from a peer group in the field of expertise.

O-1 status is granted in increments of up to three years and can be extended as long as the need for the person’s services continues.

Employment-based Immigration

With certain exceptions, there are three steps involved in becoming a permanent resident under employment-based immigration procedures. The first step is referred to as labor certification. Under the labor certification process, a U.S. employer must undertake an extensive recruitment effort to locate a U.S. worker to fill the position being offered or to establish that there is no U.S. worker qualified and available for the position.

After labor certification is received, or if the employer believes that the worker is exempt from labor certification under one of the exceptions, the employer files an employment-based petition with United States Citizenship and Immigration Services. The third and final step involves the filing of the applications for permanent residence by the worker and his or her spouse and any children under the age of 21. Before undertaking this step, however, there must be visas available in the category in which one is applying. If visas are not available because of backlogs, the worker is on the “waiting list” and must wait until a visa is available. The waiting period can vary significantly, depending on one’s classification.

Once a visa number is available, the foreign worker can apply for the visa at a U.S. Consulate (known as “visa processing”).  If he or she is already working in the U.S. under a temporary visa, the application can be filed with United States Citizenship and Immigration Services (known as “adjustment of status”).  Visa processing begins after the employment-based petition has been approved by the Immigration Service.  By contrast, adjustment of status may be commenced concurrently with the filing of the employment-based petition.

Exemptions from Labor Certification

There are certain employment-based immigration classifications that are exempt from labor certification, including classifications for intracompany managers or executives, persons of extraordinary ability and outstanding researchers and professors. Persons with (a) advanced degrees or (b) who are of exceptional ability, and whose work in the U.S. benefits the country’s national interest are also exempt from labor certification.

United States Citizenship and Immigration Services regulations provide for an exemption from labor certification for multinational managers and executives who are being transferred to the U.S. to assume a managerial or executive position for a company affiliated with their foreign employer.  Those multinational executives and managers who, at the time of filing the petition for permanent residence, have not been employed in the U.S. under a temporary work status such as the L-1, must have worked abroad for their foreign employer for at least one of the three years preceding the filing of the petition. Those multinational managers and executives already in the U.S. in L-1 status must have worked abroad as managers or executives for at least one of the three years preceding their entry to the U.S. in L-1 status. To be eligible for this classification, the foreign and U.S. entities must be properly affiliated and both entities must continue to do business throughout the permanent residence process.

Individuals who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics and outstanding professors and researchers are also exempt from labor certification. United States Citizenship and Immigration Services regulations define extraordinary ability as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” In order to document extraordinary ability, a petition submitted on behalf of an alien would have to be accompanied by evidence that he has “sustained national or international acclaim” and that his achievements have been recognized in his field of expertise.

To qualify as an outstanding professor or researcher, an employer must establish that the individual is recognized internationally as outstanding in the academic or research field specified. The employer offering a permanent research position must also demonstrate that it employs at least three persons full-time in research positions and has achieved documented accomplishments in an academic field.

Members of the professions who (a) have an advanced degree or equivalent, or (b) persons with exceptional ability in the sciences or business, whose work is considered to be in the "national interest" of the U.S. are also exempt from labor certification. The standard of review for eligibility for this waiver involves a broad, three-part test as follows:

1. It must be shown that the foreign worker seeks employment in an "area of substantial intrinsic merit";
   
   
2. It must be shown that the proposed benefit of such employment is "national" in scope; and
   
   
3. The petitioning employer must establish that the foreign worker will serve the national interest of the U.S. to a substantially greater degree than would an available U.S. worker who has the same minimum education and experience qualifications.

Spouses and children (those under the age of 21) derive permanent residency status through the “principal alien”. Once they have obtained permanent resident status, they automatically have the ability to work in the U.S.

K-1 Fiancé Visa

The K-1 fiancé visa is designed for fiancés of U.S. citizens to be able to enter the U.S. for the purposes of getting married and then applying to adjust their status to permanent residence. The process of obtaining the K-1 visa consists of two steps: filing the fiancé petition with United States Citizenship and Immigration Services and, upon approval, applying for the K-1 visa through a U.S. consular office in the country of residence of the fiancé. Once the fiancé visa has been issued by the U.S. consulate, the fiancé must travel to the U.S. within six months and, within 90 days of entry to the U.S., marry and file to adjust status to permanent residence.

Once a fiancé enters the U.S. in K-1 status, he/she cannot leave the U.S. until he/she marries, applies for adjustment of status and obtains permission to travel (advance parole). Fiancés can also apply for employment authorization as part of their adjustment of status application.

Processing times for fiancé petitions vary, depending on the Immigration Service Center adjudicating the case and the consular office processing the visa application.

K-3 Visa for Spouses of U.S. Citizens

Frequently, U.S. citizens reside and marry abroad and then wish to relocate to the U.S. with their foreign spouse and children.  Traditionally, foreign spouses of U.S. citizens had to wait until they had obtained permanent residence before being able to move to the U.S.  Given the sometimes lengthy processing involved, this could mean waiting months.  Recently, the Immigration and Nationality Act was amended to include a new K-3 status for spouses of U.S. citizens residing abroad, but wishing to enter the U.S. prior to the completion of permanent residence processing.

The process of obtaining a K-3 visa involves filing a relative petition with United States Citizenship and Immigration Services.  Once a filing receipt has been issued for the relative petition, a K-3 petition can then be filed with Citizenship and Immigration at its Missouri processing center.  After the K-3 petition has been approved, the foreign spouse and any children under the age of 21 can then apply for K-3 visas at the U.S. consular office having jurisdiction over their place of residence abroad.

The K-3 visa is issued for a two-year period and is valid for multiple entries.  Once the foreign spouse has entered the U.S., he/she can then apply for employment authorization through United States Citizenship and Immigration Services at its Missouri processing center.  The foreign spouse can also pursue permanent residence via either adjustment of status or consular processing.

Permanent Residence via Family Sponsorship

The Immigration and Nationality Act permits U.S. citizens and permanent residents to sponsor close relatives for permanent residence. U.S. citizens can sponsor spouses, minor children (under 21), parents, unmarried sons or daughters (over 21), married sons or daughters and brothers or sisters. Permanent residents can sponsor spouses and children and unmarried sons or daughters. Total processing time to obtain permanent residence under one of the family-based categories varies widely depending on whether the petitioner is a U.S. citizen or permanent resident and depending on the relationship between the petitioner and the alien relative. Spouses, children (under 21) and parents of U.S. citizens are considered “immediate relatives”, and there is no backlog in this family-based visa category. However, in certain family-based categories, the demand for green cards is greater than the supply available. As a result of this supply and demand problem, some family-based categories are oversubscribed, thereby creating backlogs in the category and lengthening the time it takes to ultimately obtain permanent residence.

The family-based permanent residence process consists of a petition and completion of either the adjustment of status process through United States Citizenship and Immigration Services or visa processing through a U.S. consular office abroad. The choice as to whether adjustment of status or visa processing would be used depends on the facts of the particular situation.

DIVERSITY IMMIGRANTS
During each fiscal year, United States Citizenship and Immigration Services calculates which countries have low levels of immigration to the U.S. As a result of those calculations, nationals of the countries determined to have low levels of immigration to the U.S. are eligible to participate in the Diversity Visa Lottery. The application for the lottery is simple and needs no attorney assistance. The lottery is usually held in October. United States Citizenship and Immigration Services sends results only to those who win. Please visit our news bulletin for further details regarding application times and requirements.

CITIZENSHIP
A person generally may acquire U.S. citizenship in three ways: (1) the person is born in the U.S.; (2) the person is born outside the U.S. to at least one U.S. citizen parent (who at the time of the person’s birth satisfies certain rules concerning prior residency in the U.S.); or (3) the person applies for U.S. citizenship under the naturalization process (based on actual residence and physical presence in the U.S.). For children under the age of 18 with at least one U.S. citizen parent, special rules apply for acquiring U.S. citizenship.