Temporary Employment Visas - Overview

temporary employment visaThere are a variety of temporary employment visas available to individuals seeking to come to the United States to work. These work visas can be temporary or permanent in nature. At The Law Offices of Grinberg & Segal, PLLC, we strive to provide comprehensive legal services to those wishing to obtain temporary work visas. The following is a brief description of the types of temporary work visas our law firm can assist you in obtaining:

B-1 Visas: Temporary Business Visitor Visas

While not technically an employment visa, the B-1 visa temporarily permits visitors from foreign countries to come to the United States for variety of legitimate business and economic activities. Although the B-1 visa is available to business visitors, it is important to remember that this visa does not authorize employment in the United States. Business visitors may attend meetings, conventions, conferences, short-term training, or negotiations on behalf of a foreign employer. A B-1 visa may also be used by a foreign national ho needs to travel to the United States to settle an estate. However,performing productive work in the United States is strictly prohibited, and receiving payment from a United States entity is also generally prohibited.

The B-1 visa is granted for an initial period of one to six months depending upon the purpose of the trip. However, the B-1 visa can be extended for up to six months.Generally, the maximum amount of time a foreign national is permitted in B-1 status on any one trip is one year.

H-1B Visas: Professionals in Specialty Occupations

The H-1B visa allows professionals to come to the United States temporarily to work in a field that requires a specialization or a special skill. In order to be granted an H-1B visa, the foreign national must have the at least the equivalent of a United States Bachelor's degree in afield related to the intended employment, and the position that the foreign national is applying for must require at least a Bachelor's degree or its equivalent. The sponsoring United States employer must be willing to pay the foreign national the prevailing wage, provide proper notice to its work force, not be involved in a strike or lockout, and file a petition on behalf of the foreign national with the Bureau of U.S. Citizenship &Immigration Services.

Specialty occupations can be found in a wide variety of fields, including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law,theology, and the arts may be considered to be specialty occupations. “A specialty occupation” is an occupation that requires a Bachelor's degree in a specific field as a minimum requirement for entry into that occupation. A foreign national can hold the equivalent of a United States Bachelor's degree in a related field through education in the United States or overseas, or through a combination of education and experience. However, foreign degrees must be evaluated by a professional evaluation service before the H-1B petition can be filed with the Bureau U.S. Citizenship & Immigration Services.

The H-1B status is granted for an initial period of up to three years. This status can be extended for another three years. The maximum amount of time a foreign national can remain in the United States in H-1B status is six years.Once the foreign national meets the six year cap, he or she must remain physically outside the United States for one whole year before he or she can return to the United States in either H-1B or L-1 status. However, in limited circumstances, the H-1B status can be extended beyond six year cap. It is important to remember that the H-1B visa allows the foreign national to work for the petitioning employer only. A foreign national can only change employers after a new employer has obtained an approved H-1B petition from the Bureau of U.S. Citizenship& Immigration Services.

An H-1B worker's spouse and unmarried dependent children under 21 years of age may accompany the H-1B worker to the United States. These spouses and children are granted H-4 classification, which allows them to attend school. Those individuals with H-4 status are not authorized to work unless they change status to some non immigrant classification that permits employment.

​H-2A Visas: Seasonal Agricultural Workers

The H-2A visa permits a foreign national to enter the United States to work in agriculture. A foreign national cannot self-petition for an H-2A. The United States employer can be self-employed, a partnership, corporation, or agricultural association. The law also allows for an agent to apply on behalf of the United States employer.

Like an H-1B, the H-2A worker's spouse and unmarried dependent children under 21 years of age may accompany the H-2B worker to the United States. These spouses and children are granted H-4 classification, which allows them to attend school. Those individuals with H-4status are not authorized to work unless they are independently eligible for a work visa.

H-2B Visas: Seasonal Non-Agricultural Workers

The H-2B visa permits business owners to hire foreign workers to perform seasonal, peak-load,intermittent, or one-time only work that is non-agricultural. These visas are for foreign non-professionals Business owners and employers must demonstrate that there are no unemployed United States workers willing or able to do the job. The foreign national must be sponsored by a United States employer. This employer must be willing to pay the foreign national the prevailing wage.

Like an H-2A, the H-2B worker's spouse and unmarried dependent children under 21 years of age may accompany the H-2B worker to the United States. These spouses and children are granted H-4 classification, which allows them to attend school. Those individuals with H-4status are not authorized to work unless they are independently eligible for a work visa.

H-3 Visas for Traning and Education

The H-3 nonimmigrant visa category allows foreign nationals coming temporarily to the United States as either a: (1) Trainee to receive training in any field of endeavor, other than graduate medical education or training, that is not available in the foreign national's home country; (2) Special Education Exchange Visitor to participate in a special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

Trainees

An H-3 “trainee” must be invited by an individual or organization for the purpose of receiving training, in any field including but not limited to:

  • Commerce;
  • Communications;
  • Finance;
  • Government;
  • Transportation;
  • Agriculture;
  • Other professions.

Important:

This classification is not intended for U.S. employment. It is designed to provide a foreign national with job-related training for work that will ultimately be performed outside the United States.

In order to obtain h-3 classification, a u.s. employer or organization must demonstrate that:

  • the proposed training is not available in the foreign national's own country;
  • the foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
  • the foreign national will not engage in productive employment unless such employment is incidental and necessary to the training;
  • the training will benefit the beneficiary in pursuing a career outside the United States.

Each h-3 petition for a trainee must include a statement that:

  • Describes the type of training and supervision to be given, and the structure of the training program;
  • Sets the proportion of time that will be devoted to productive employment;
  • Shows the number of hours that will be spent, respectively, in classroom instruction and in on -the-job training;
  • Describes the career abroad for which the training will prepare the foreign national;
  • Indicates the reasons why such training cannot be obtained in the foreign national's country and why it is necessary for the foreign national to be trained in the United States; and Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the employer/organization for providing the training.

A training program may not be approved which:

  • Deals in generalities with no fixed schedule, objectives or means of evaluation;
  • Is incompatible with the nature of the petitioner's business or enterprise;
  • Is on behalf of a foreign national who already possess substantial training and expertise in the proposed field of training;
  • Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
  • Will result in productive employment beyond that which is incidental and necessary to the training;
  • Is designed to recruit and train foreign nationals for the ultimate staffing of domestic operations in the United States;
  • Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified;
  • Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student;
  • Special Education Exchange Visitor;
  • There is a numerical limit (or “cap”) on the number of H-3 special education exchange visitors. No more than 50 may be approved in a fiscal year.

Special education exchange visitor

A petition requesting an H-3 “special education exchange visitor” must be filed by a facility which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the special education exchange visitor program. It should include a description of:

  • The training the foreign national will receive;
  • The facility's professional staff;
  • The foreign national's participation in the training program.

In addition, the petition must show that the special education exchange visitor is:

Nearing the completion of a baccalaureate or higher degree program in special education; or
Has already earned a baccalaureate or higher degree in special education; or
Has extensive prior training and experience teaching children with physical, mental or emotional disabilities.
Note: Any custodial care of children must be incidental to the foreign national's training.

Application process

In order to obtain H-3 classification, the U.S. employer or organization must file a Form I-129, Petition for Nonimmigrant Worker. The petition must be filed with the information provided above.

Period of stay

If the petition is approved, the trainee may be allowed to remain in the United States for up to 2 years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the United States for up to 18 months.

Family of h-3 visa holders

Trainees' spouses and children who are under the age of 21 may accompany them to the United States as H-4 nonimmigrants. However, H-4 nonimmigrants are not permitted to work in the United States.

L Visas: Intra-Company Transfers

The L visa allows foreign-based executives, managers, and employees with a specialized skill to be transferred temporarily to a division, branch, affiliate,subsidiary, or parent of an international company in the United States. This visa is also available to owners and/or employees of smaller businesses but,the transferring company must continue to do business overseas during the entire period of the foreign national's stay in the United States with L-1 status.In order to demonstrate eligibility, the company and the foreign national must satisfy the following criteria must be established:

  • The foreign national must be employed at the overseas company as a manager, executive, or employee with a specialized knowledge;
  • The foreign national must have been employed at the overseas company for at least one of the previous three years before the L visa application is filed with the Bureau of U.S. Immigration & Citizenship Services;
  • The petitioning United States company must be affiliated with the overseas company, as a division, branch, subsidiary, affiliate or joint venture partner;
  • The overseas company must continue to do business overseas for the duration of the foreign national's L visa status;
  • The foreign national employee must be coming to the United States company to work as a manager, executive, or specialized knowledge employee.

The L visa is very popular for many reasons. The L visa allows foreign nationals to legally live and work in the United States as well as travel in and out of the United States as long as the L visa valid. This visa also grants the foreign national's spouse and children under the age of 21 L-2 visa status, which allows them to remain in the United States for the duration of L-1 visa holder's status. A spouse in L-2 status may apply for work authorization. Children in L-2 status are allowed to attend school, but are currently not eligible for employment authorization.

O Visas: Persons of Extraordinary Ability

The O visa is issued to foreign artists, athletes, entertainers, scientists, educators, and business people of extraordinary ability who wish to come to the United States to work temporarily in their specific field of achievement. To be considered a person of extraordinary ability, the foreign national should be recognized nationally or internationally for his or her achievements. The O-1A visa is issued to scientists, business people, educators, or athletes while the O-1B visa is issued to visual, performing, and literary artists, such as musicians, writers, singers, actors, artists, directors, photographers etc. The O-2 visa is available for individuals who will assist an O-1, using critical skills or experience not of a general nature.

The O-1 visa status can be initially granted for a period of up to three years.This period varies depending upon the length of the employment event that requires the foreign national's services. The O-1 visa status can be extended, but extensions are typically granted in one-year increments only.

This visa also grants the foreign national's spouse and children under the age of 21 to join the O-1 foreign national in the United States under O-3 visa status. Those with O-3 visa status may not work in the United States, but are allowed to attend school in the United States during the duration of their status.

P Visas: Professional Artists, Athletes, and Entertainers

The P-1 visa allows artists, circus entertainers, athletes, and entertainers who wish to temporarily perform or compete either solo or on a team in the United States at a specific event. Exceptional athletes may apply for this visa in order to compete in the United States in an individual event, competition,or performance in which the athlete is internationally recognized with a high level of achievement. An athlete may also receive a P visa as part of a team coming to the United States to participate in team events in which the team must have achieved significant international recognition in the sport.

In addition, entertainment groups with an outstanding and sustained international reputation can be granted P-1 classification as a group. Unfortunately,individual entertainers within these cannot apply for P-1 visas to perform separate from the group. It is the reputation of the group as a whole and not individual achievement of its members or the acclaim of a particular production that is essential.

The P-2 visa allows artists and entertainers who are coming to the United States to participate in a reciprocal exchange program between an organization in the United States and an organization in another country. This visa allows a foreign national either individually or as part of a group. The P-3 visa allows artists and entertainers, whether individually or as part of a group, who wish to perform, develop,interpret, share, coach, represent, or teach their unique talents in a cultural program.

R Visas: Religious Workers

The R visa allows foreign religious workers who wish to come to the United States temporarily to work in a professional capacity for a religious organization or do other work for a religious organization. A person is considered a religious worker if he or she who continually engages in an activity that is related to a traditional religious function, such as ministers, rabbis, imams, priests, nuns, monks,cantors, liturgical workers, brothers, religious translators, missionaries,catechists, workers in religious hospitals, and religious broadcasters.

The spouse and/or unmarried children under 21 years of age of the foreign religious worker may be granted derivative status to enter the United States. However, they are not authorized to work while in the United States, but may attend school.

TN Visas

TN visas are available to skilled workers from Canada and Mexico under the North American Free Trade Agreement (NAFTA). The TN visa allows Canadian and Mexican citizens to temporarily enter the United States to work in a NAFTA-approved occupation. Canadian or Mexican nationals often seek TN visas to bypass caps on H1-B visas and other difficulties associated with obtaining an H1-B visa.

The TN visa can be granted for a period of one year and can be renewed annually if the Canadian or Mexican citizen can demonstrate the proposed stay continues to be of a temporary nature.

To be eligible for a TN visa, the Canadian or Mexican citizen must establish the following:

  • The profession is on the NAFTA list
  • The foreign national possesses the necessary education or training for that profession
  • The proposed position must be classified as a professional position
  • The foreign national must work for a United States employer.

The spouse and/or unmarried children under the age of 21 of the TN visa holder maybe granted derivative status to enter the United States and are eligible to remain in the United States for the duration of the TN visa holder's stay.