U.S. immigration laws are highly complex and involve a number of U.S. government departments. In recent years immigration has become a high profile national security issue, only adding to its complexity. Below is a list of the primary departments involved:
Department of State (DOS) – issue non-immigrant visas (work, school, visit, etc.) and immigrant visas (green cards) U.S. Citizenship and Immigration Services (USCIS) – responsible for adjudicating and issuing immigration benefits for non-immigrants and immigrants.
U.S. Customs and Border Protection (CBP) – responsible for entry inspection/adjudication and patrol of northern and southern borders. U.S. Immigration and Customs Enforcement (ICE) – responsible for detention and removal of undocumented workers, overstays, or status violators.
Department of Labor (DOL) – responsible for confirming prevailing wage rates used in H-1B petitions and for adjudicating Labor Certification applications for H-2B/H-2A and PERM programs.
There is a legal distinction between a VISA and STATUS, as a Visa is added to a visitor’s passport permitting her to travel to the U.S. and seek admission. When she arrives at the border and is admitted by a CBP officer, she will receive her Status, and this Status will be indicated on an I-94 card provided by the officer (or in certain cases simply by a stamp in the passport). Some nationalities are Visa-exempt and others are Visa-waived for certain types of travel.
Below we highlight the common visa types people use to come to the U.S. When we mention the length of time permissible, this is based on how long the Status can be held in the U.S., but be sure to always check your I-94 to ensure you are given the proper amount of time you are eligible for.
Temporary Business Visitor (B-1 Visa): Business people who are entering the U.S. for a limited time (typically 90 days or less, but up to 1 year in unusual situations) must prove to consular and border officials that they are entering the U.S. temporarily on behalf of an established foreign company. For visa issuance, the traveler will need a letter from the foreign or U.S. company explaining the reasons for the visitor’s stay, length of travel, confirming continuing employment with the foreign company, and affirming that the visitor’s trip will be paid for by the foreign employer. The B-1 visa holder cannot engage in salaried employment in the U.S. nor can the B-1 visa holder engage in work as a freelancer or independent contractor. As an exception to the need for a visa, the Visa Waiver Program permits visitors from many countries who have qualifying passports to stay in the U.S. for up to 90 days without obtaining a U.S. entry visa and Canadian nationals are visa exempt.
Specialty Occupation Worker (H-1B Visa): U.S.-based companies may apply for this visa on behalf of foreign nationals in most professional occupations, including engineers, computer scientists, financial analysts and others with a Bachelor’s degree or its equivalent in work experience. The maximum length of stay in the U.S. is six years, although the stay of an H-1B worker may be extended beyond the sixth year if they have commenced an employment-based green card more than 365 days prior to the end of the sixth H-1B year. The H-1B is location and employer specific, and H-1B portability permits workers to change employers immediately upon filing a non-frivolous petition in certain circumstances. For more details please see our H-1 memo.
Intra-Company Transferee (L-1 Visa): This visa is for executives, managers (L-1A) or employees with “specialized knowledge” (L-1B) who have worked for at least one year out of the past three years for an overseas parent, subsidiary or affiliate of a U.S. company. The maximum stay in the U.S. is five years for L-1B and seven years for L-1A visa holders. L-1A visa holders may be eligible to apply for permanent residence as a priority worker, in the “Multinational Manager” category, giving them an expedited route to U.S. permanent residence. For more details please see our L-1 memo.
NAFTA Professional Worker (TN Visa): This visa is for Canadian or Mexican citizens whose occupations appear in Appendix 1603.D.1 of the North American Free Trade Agreement. Category examples include Computer Systems Analyst, Engineer, Economist, Accountant, Management Consultant, Nurse and many types of Scientists. The employer must provide salary information and a detailed job description, along with the employee’s credentials as specified in NAFTA. A foreign national can work in the U.S. for up to three years with unlimited annual renewals provided that he or she maintains ties to his or her home country (note Mexican nationals are only entitled to a one year visa). Canadian citizens may file the application at a Port of Entry into the United States and obtain an immediate decision on the application whereas Mexican citizens apply at the consulate. For more details please see our TN memo.
Person of “Extraordinary Ability” (O-1 Visa): To qualify for this visa, the applicant must demonstrate that he or she is one of the small percentage of individuals at the very top of his or her field, who has sustained national or international acclaim as shown by evidence fulfilling the regulatory guidance. Examples of the criteria for evaluation are: receipt of a major internationally recognized award, membership in an organization that requires outstanding achievement, original scientific or scholarly work of major significance in his field, etc. This visa allows a foreign national to work in the U.S. for up to three years, and is renewable in annual increments thereafter. The O-1 visa is typically the most difficult work visa to obtain. Many O-1 visa holders are also eligible to apply for U.S. permanent residence as a priority worker under the Immigrant first preference Extraordinary Ability category.
Exchange Visitors (J-1 Visa): Foreign nationals who have been accepted as participants in a broad range of work and/or study programs approved by the United States Information Agency (USIA) are eligible to apply for a J-1 Exchange Visitor visa and receive work authorization in the U.S. If applying as a business or industrial trainee, the applicant can receive a period of admission up to 18 months in length, interns are eligible for up to 12 months of J-1 status. Foreign nationals receive practical training that must be directly related to their occupation or academic curriculum and a training plan must be developed to outline the J-1 visa holder’s anticipated training (which in certain cases can be extended). Some J-1 visa holders may be required to return to their home country for two years at the completion of their J-1 program before they can return to the U.S., change to some other status or seek permanent residence. Waivers of this requirement may be available in some circumstances.
Treaty Trader/Treaty Investor/Australian Specialty Visa (E-1/E-2/E-3): Foreign nationals from a variety of countries are approved by Treaty to either operate entities in the U.S. that facilitate international trade (E-1), or to invest in a new or existing business that will generate opportunities for U.S. workers (E-2). These visa categories require that the applicant (investor, specialized worker or exec/manager) be from the same country as the investor(s) and that a Treaty permitting the requisite E status be in existence. Applicants in this category are eligible for visas that are valid for up to five years, and each individual admission is valid for no more than two years. E-3 status is closely aligned to the H-1B category but is only available to Australian citizens. E-3 status requires an approved LCA and proof of work in a specialty occupation, as well as a qualifying educational background. Applicants can get a maximum of two years for an E-3 and there are only 10,000 E-3 visas available each year. No quotas exist for E-1 or E-2 applications. For more details please see our E-3 memo.
Student in Optional Practical Training (F-1 Visa): A student qualified to pursue a full course of study at an established college, university, seminary, conservatory or language-training program enters the U.S. with an I-20 form issued by the institution. Students who complete the study requirements in their program may be eligible for up to one year of Optional Practical Training (OPT) (an additional 17 months is available depending on program of study and type of employer – this group is referred to as STEM extensions). OPT must be approved by the school before the student applies to USCIS for work authorization, evidenced by an Employment Authorization card. Prior to graduation F-1s may be eligible for Curricular Practical Training, or pre-completion OPT provided the school approves of the requested employment.