Temporary Statuses in the United States


Visitors
Visa Waiver Program
Employment
Students
Trainees

EMPLOYMENT
 

If you want to work in the U.S. temporarily, under immigration law, you need a specific visa, based on the type of work you will be doing.  Most temporary worker categories require the approval of a petition by DHS, U.S. Citizenship and Immigration Services (USCIS) before you can apply for your visa.  Important Note: Prospective employers should file the petition(s) as soon as possible (but not more than 6 months before the proposed employment will begin) to provide adequate time for petition and subsequent visa processing.


Classifications

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States.  There are annual numerical limits on some classifications, which are shown in parentheses.

E-1 classification is for treaty traders who are nationals of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and a treaty country.  Ordinary skilled or unskilled workers do not qualify.  The applicant 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 trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country and the international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade, among other requirements.

E-2 classification is for treaty investors who are nationals of a country with which the United States maintains a treaty of commerce and navigation and who are coming to the U.S. to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.  If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.  Among other requirements, the investment must be substantial and the investment must be a real operating enterprise.  Speculative or idle investment does not qualify.  Uncommitted funds in a bank account or similar security are not considered an investment.

E-3 classification is reserved for Australian citizens who are coming to work in the U.S. in a specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge and requiring completion of a specific course of higher education.

H-1B and H-1B1 classification applies to persons in a specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. 

There are a limited number of people each fiscal year who may apply for H-1B status.  Currently, 65,000 new H-1B petitions may be granted each year by the USCIS (“the H-1B Cap”).  Of these numbers, there are H-1Bs set aside for citizens of Chile and Singapore. (H-1B1 classification). In addition, 20,000 are set aside for persons who have earned a Masters degree from a United States institution of higher education.  The USCIS accepts these petitions six months in advance of the beginning of their new fiscal year (October 1).  Therefore, the first date on which a new H-1B petition may be filed with the USCIS each year is April 1.  The demand for H-1B statuses continues to depend on the economy. In years past, all "regular" H-1B numbers have been exhausted on the first day petitions were accepted by USCIS (April 1) with the 20,000 U.S. Masters degree H-1Bs exhausted shortly thereafter. During 2009 and 2010, H-1B numbers have been available for a longer time frame, for at least seven months after April 1. While numbers have usually remained available for citizens of Chile and Singapore, any employees or potential employees who do not hold H-1B status and will need to secure such status should be identified at latest by March 1 of each year to ensure H-1B petitions may be submitted on their behalf to USCIS to attempt to secure H-1B status.  General requirements for an H-1B petition include:

  • The offered position must be “professional” and must require at least a Bachelors degree or the equivalent; and
  • The applicant must hold a Bachelors degree or the equivalent a relevant area. In certain cases, persons with less than a Bachelors degree, or a Bachelors degree in an unrelated area may be able to secure an equivalent to a Bachelors degree based on experience or a combination of education and experience.    

Persons who already hold H-1B status with another employer are not subject to the H-1B Cap.  Additionally, persons who have been in the United States in H-1B status within the past six years may also be eligible for H-1B status and not subject to the H-1B Cap.  A new H-1B petition must be filed by the Company before persons in H-1B status with another employer may begin working. 

Persons in H-1B status are limited to a total of six years in the United States in any combination of H and L statuses.  There are some exceptions to this time limit in certain cases where green card processing has been initiated.

H-2A classification applies to temporary or seasonal agricultural workers;

H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);

H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50);

L classification applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one full year (365 days), and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;

Individual L Petition-through this process, a petition for L status is submitted with the U.S. Citizenship and Immigration Services (“USCIS”) for a particular applicant.  After the petition is approved, the applicant uses the approval notice to apply for a U.S. visa with a U.S. Consulate abroad.  Expedited processing may be requested for an additional fee and the USCIS will decide expedited cases within 15 calendar days.  Criteria which must be met include:

  • Employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. for at least365 days.  If there has been any interruption in employment, the applicant may not qualify.
  • Must be employed in an executive or managerial position, or in a position requiring special knowledge and expertise regarding the Company’s products/services/processes and/or procedures.


Blanket L Petition-Certain employers transferring a large number of employees in L status to the United States are eligible to apply for a Blanket L Petition.  The approved petition allows persons to apply for an L visa directly with a U.S. Consulate abroad if they meet certain criteria:

  • Employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. for at least 365 concurrent days.  If there has been any interruption in employment, the applicant may not
  • qualify.
  • Applicants must hold a four-year college or university degree.  Some countries will issue Bachelors degrees after less than four years of study and these degrees will generally not allow an applicant to use the Blanket L Petition.
  • Must be employed in an executive or managerial position, or in a position requiring special knowledge and expertise regarding the Company’s products/services/processes and/or procedures.

Persons in L status are limited to a total of five or seven years in the United States in any combination of L and/or H statuses, depending on whether they are in specialized knowledge (five years) or executive/managerial capacities (seven years).

O-1 classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;

O-2 classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;

P-1 classification applies to individual or team athletes, or members of an entertainment group that are internationally recognized (25,000);

P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program;

P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and

Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country.

TN Classification applies to persons who are citizens of Canada and Mexico only if they are coming to the United States to be employed in particular professional positions, defined within the North American Free Trade Agreement, (“NAFTA”). 

In order to qualify for TN status, you must show:

  • The applicant is a citizen of a member country (United States, Mexico and Canada); 
  • The occupation the applicant will be engaged in is listed in NAFTA; 
  • The applicant will need to show original or certified copies of degree(s) to show they are qualified to work in the occupation as specified under NAFTA; 
  • The applicant has pre-arranged employment or a contractual agreement with an entity located within the country to which the applicant is seeking temporary entry; and
  • The applicant meets existing immigration requirements for temporary entry.    

Canadian citizens may apply for TN status at the Port of Entry to the United States.  Mexican citizens will first need to secure a TN Visa in their passports from a US Consulate outside the United States.  Persons who qualify for TN status must maintain an intention not to immigrate permanently to the United States.  In addition, while the employment must be “temporary” in nature to qualify for TN status, there are no limits to the length of time a person may spend in the United States in TN status.

 

Additional Important Information

Petitions

In order to be considered as a nonimmigrant under many of the above classifications the applicant's prospective employer or agent must file a Petition for a Nonimmigrant Worker/Form I-129 with the United States Citizenship and Immigration Services in the Department of Homeland Security (“USCIS”).  Important Note: It is very important for prospective employers to file the petition as soon as possible (but not more than 6 months before the proposed employment will begin) to provide adequate time for petition and subsequent visa processing. Should you need petition processing faster, Premium Processing Service may be available from the USCIS for an additional fee.  Once approved, the employer or agent is sent a Notice of Approval/Form I-797.  It should be noted that the approval of a petition does not guarantee visa issuance to an applicant found to be ineligible under provisions of the Immigration and Nationality Act.

Applying for a Visa

Applicants for temporary work visas should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence.  Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.  As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79.  Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate.  The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged.  Learn more by contacting the Embassy Consular Section with jurisdiction over your permanent residence.

Visa Ineligibility / Waiver

The nonimmigrant visa application Form DS-160 list classes of persons who are ineligible under U.S. law to receive visas.  In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a temporary worker, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.

Other Documentation

With the exception of persons applying for H-1 and L-1 visas, applicants may also need to show proof of binding ties to a residence outside the United States which they have no intention of abandoning.  It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

Entering the United States

A visa allows a foreign citizen coming from abroad, to travel to the United States port-of entry and request permission to enter the U.S.  Applicants should be aware that a visa does not guarantee entry into the United States.  The Department of Homeland Security, U.S. Customs and Border Protection (“CBP”) officials have authority to permit or deny admission to the United States.  If you are allowed to enter the U.S., the CBP official will determine the length of your visit on the Arrival-Departure Record (Form I-94).  Since Form I-94 documents your authorized stay in the U.S., it’s very important to keep in your passport.  Upon arrival (at an international airport, seaport or land border crossing), you will be enrolled in the [»] US-VISIT entry-exit program.  In addition, some travelers will also need to register their entry into and their departure from the U.S. with the National Security Exit Entry Registration System (“NSEERS”), also referred to as Special Registration program. 

Staying Beyond Your Authorized Stay in the U.S. and Being Out of Status

You should carefully consider the dates of your authorized stay and make sure you are following the procedures under U.S. immigration laws.  It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record/Form I-94.  Failure to depart the U.S. will cause you to be out-of-status.

Staying beyond the period of time authorized by the Department of Homeland Security (“DHS”) and being out-of-status in the United States is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S. 

Staying unlawfully in the United States beyond the date Customs and Border Protection (“CBP”) officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g).  Under this provision of immigration law, if you overstay beyond the ending date of your I-94 card (your authorized stay in the U.S.) your visa will be automatically voided.  In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.

Family Members

With the exception of "Q-1 Cultural Exchange Visitors," the spouse and unmarried, minor children of an applicant under any of the above classifications may also be classified as nonimmigrants in order to accompany or join the principal applicant.  A person who has received a visa as the spouse or child of a temporary worker (a petition-based NIV), may not accept employment in the United States.  The principal applicant must be able to show that he or she will be able to support his or her family in the United States.  However, there is an exception to this requirement for the spouses of persons admitted to the United States in L-1 and E statuses. The spouses can apply to the USCIS for an appropriate employment authorization document and may use it to work while such document remains valid.

Time Limits

All of the above classifications have fixed time limits in which the alien may perform services in the United States.  In some cases these time limits may be extended through the filing of a petition with USCIS in order to permit the completion of the services.  Thereafter, the alien may be required to remain abroad for a fixed period of time before being readmitted as a temporary worker under any classification.  USCIS will notify the petitioner on Form I-797 whenever a visa petition, an extension of a visa petition, or an extension of stay is approved under any of the above classifications.  The beneficiary may use a copy of Form I-797 to apply for a new or revalidated visa during the validity period of the petition.