Work Visas

There is a variety of employment visas available to individuals seeking to come to the United States to work. These 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 U.S. work visas.

O1 Visa Category and Evidentiary Requirements

The O1 visa category is for “individuals with extraordinary ability or achievement.” The O1A category is for aliens who demonstrate a record of extraordinary ability in the arts, sciences, education, business, or athletics. The O1B category is for aliens with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. The related O2 visa category exists for certain aliens who are coming to accompany and assist an O1 artist or athlete for a specific event or for specific events. In this article, we will provide a comprehensive overview of petitioning in the O1 visa category.

Temporary Employment Visas - Overview

There are a variety of employment visas available to individuals seeking to come to the United States to work. These 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 employment visas. The following is a brief description of the types of employment visas our firm can assist you in obtaining.

Change of Nonimmigrant Status

Most categories of nonimmigrants in lawful status are eligible to change from one nonimmigrant classification to another. For a change of status application to be approved, the alien must meet the requirements for the status that he or she is seeking to change to. Additionally, in order to petition for a change of status, the nonimmigrant must be maintaining a valid nonimmigrant status. However, the United States Citizenship and Immigration Services (USCIS) has the nunc pro tunc discretion to approve a change of status that was filed late or filed after the nonimmigrant failed to maintain his or her previously accorded status. In this article, we will examine the statutes, regulations, and agency guidance regarding change of nonimmigrant status. If you are interested in learning about a specific nonimmigrant category, please search our website to find the information that you are looking for.

Introduction to H1B Visas

The H1B visa is a type of nonimmigrant visa that allows the visa holder to work in a statutorily defined “specialty occupation” in the United States for three years, with extensions possible in most cases. In order to apply, the nonimmigrant applicant’s employer must submit an H1B petition to the United States Citizenship and Immigration Services (USCIS).

Valid Employer-Employee Relationships for H1B Petitions

On January 8, 2010, United States Citizenship and Immigration Services (USCIS) released an important memorandum by the Associate Director Donald Neufeld titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”. While the Memo was written to advise USCIS officers on how to determine whether a prospective employer-employee relationship is valid for H1B purposes, it is also instructive for understanding what USCIS officers will look for in evaluating employer-employee issues pertaining to H1B Visas. We will use the Memo, along with other resources, to explore what constitutes an acceptable employer-employee relationship for H1B purposes.

Filing Amended H-1B Petition

On April 9, 2015, USCIS' Administrative Appeal Office issued a decision that required employers of H1B employees from that point forward to file amended H1B petitions when the H1B employee's worksite location is changed such that a new Labor Condition Application for Nonimmigrant Workers (LCA) is required. The employer of an H1B employee is required to file an amended LCA when an H1B employee is moved from the place of employment listed on his or her H1B petition to a worksite location outside of the metropolitan statistical area or “area of intended employment” listed on the H1B petition.

H-4 Dependent Spouses of H-1B Nonimmigrants May be Eligible to Work Authorization

On May 26, 2015, The United States Citizenship and Immigration Services (USCIS) will be extending employment eligibility for certain nonimmigrants in valid H-4 status. H-4 Visas are issued to dependent spouses of H-1B Nonimmigrants. This extension will allow eligible dependent spouses in valid H-4 status to receive employment authorization. This change comes as part of President Obama's immigration-based executive actions that were proposed back in November of 2014.

H1B Degree Equivalency

The H1B visa category is a nonimmigrant visa for employing foreign professionals in specialty occupations. By definition, a specialty occupation position requires either the attainment of a baccalaureate degree or higher or the equivalent of such a degree through experience. In this article, we will examine degree equivalencies in the H1B context.

Termination of H1B Employment

In order to stay in status, an H1B employee must continue working for his or her H1B employer while in the United States. Generally, an H1B employee must be in status in order to change, extend, or adjust status. This brings up several complicated situations in the case in which the H1B employer terminates the H1B employee’s employment. In this article, we will examine the issues surrounding the termination of an H1B employee while the H1B visa remains valid from the perspective of the H1B employee and the perspective of the H1B employer.

H1B Fashion Models of Distinguished Merit and Ability

The H1B visa category is open to fashion models of “distinguished merit and ability.” Although the documentary requirements for petitions for H1B fashion models are distinct from other H1B petitions, H1B fashion models are subject to the same rules as H1B specialty occupation workers regarding the period of stay and extensions of stay. In this article, we will review the statutes and regulations regarding H1B fashion models as well as when the O1 visa category may be a superior option to the H1B category.

H1B Status for DOD Cooperative Research and Development Workers (H1B2)

H1B status is authorized for a very limited number of aliens entering to render services relating to a Department of Defense (DOD) cooperative research and development or coproduction project. This category is referred to by United States Citizenship and Immigration Services (USCIS) internally as H1B2 [AFM 31.3(a)(3)]. Only 100 H1B2 DOD project aliens may be in the United States on H1B status at any time. H1B2 applicants must meet the same specialty occupation education and experience requirements that H1B specialty occupation applicants must meet. However, there are certain unique rules regarding H1B2 status, most notably that the maximum period of stay is 10 years instead of 6. In this article, we will examine the rules for H1B2 classification and status.

USCIS Adopted Decision Clarifies Requirements for Qualifying as "Physician of National or International Renown" for H1B Purposes

On January 4, 2017, the United States Citizenship and Immigration Services (USCIS) made the Administrative Appeals Office (AAO) decision in the Matter of T-O-S-U-, Adopted Decision 2017-01 (AAO Jan 4, 2017), an adopted decision of the USCIS. In the Matter of T-O-S-U-, the AAO held that a “physician of national or international renown” – for the purpose of regulations in 8 C.F.R. 214.2(h)(4)(viii)(C) – “is a doctor of medicine or osteopathy who is the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States.” Being classified as a “physician of national or international renown” allows an alien who is the beneficiary of an H1B petition to be exempt from the normally applicable medical licensing examination requirement. In this article, we will examine the facts of the Matter of T-O-S-U-, the AAO’s analysis and decision, and what the USCIS adopting the Matter of T-O-S-U- means for “physician of national or international renown” determinations going forward.

H1B Petitions and Temporary Licensure

In general, if an H1B petition is for an alien to practice an occupation in a state for which a license is required, the alien must have the requisite license in order for the petition to be approved. However, there are limited circumstances in which an H1B petition can be approved for an alien who does not yet possess the license. This article will discuss the rules for when a petition can be approved for an alien with a temporary license.

New Regulations for H1B Petitioners Where Beneficiary Lacks Requisite License (Effective Jan. 17, 2017)

The DHS amended 8 C.F.R. 214.2(h)(4)(v)(C), a regulation that details when H1B status may be granted to an individual who is unable to obtain a required professional license. The final rule explains that the amendments are meant to bring the DHS regulations in line with what was already DHS policy, while expanding on existing policy in certain cases. In this article, we will examine the amended provisions regarding H1B licensing exemptions and what they mean going forward.

H1B Licensure for Health Care Occupation Workers

On May 20, 2009, the Chief of Service Center Operations at the United States Citizenship and Immigration Services (USCIS) – Barbara Q. Velarde – issued a Policy Memorandum titled “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (“Velarde Memo”). The Memorandum deals with H1B licensure issues for petitions filed on behalf of beneficiaries seeking employment in a healthcare specialty occupation. In this article, we will examine the Velarde Memo and what it means for H1B petitions for employment in a health care specialty occupation.

USCIS Issues New Memo on H1B Petitions for Computer-Related Occupations

On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) released a Policy Memorandum titled “Recission of the December 22, 2000 ‘Guidance memo on H1B computer related positions.’” As the title suggests, the new memorandum supersedes and rescinds the December 22, 2000 memorandum issued by Terry Way to employees of the Nebraska Service Center. The new memo makes clear that an H1B petitioner for a computer programmer position has the burden of establishing that the petition being offered is a “specialty occupation” petition in accord with the H1B regulations. Furthermore, it offers guidance regarding the fact that not all positions for computer programmers meet this standard.

DOJ Cautions H1B Employers Against Discriminating Against U.S. Workers

On April 3, 2017, the Department of Justice (DOJ) issued a news release titled “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers” As the title of the news release suggests, the DOJ “cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers.” In this article, we will examine the DOJ's news release.

H2A Visa Exemption Removed for Certain Caribbean Agricultural Workers

On February 4, 2016, the Department of State (DOS), in conjunction with the Department of Homeland Security (DHS) published an interim final rule in the Federal Register [81 FR 5906, 2/4/16] which will require a passport and visa for certain nationals from the Caribbean who are entering the United States in H2A status. This rule will take effect on February 19, 2016. It will affect British, French, and Netherlands nationals and nationals of Antigua, Barbados, Grenada, Trinidad and Tobago, who have their residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area or in Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago who are seeking to enter the United States in H2A status or as derivatives of a principal H2A agricultural worker.

Updated List of H2A and H2B Eligible Countries For FY-2017

On October 26, 2016, the United States Citizenship and Immigration Services (USCIS) updated its list of countries eligible to participate in the H2A and H2B visa programs for the next fiscal year. The list saw one addition to the list of countries in St. Vincent and the Grenadines, whose nationals are eligible to participate in the H2A and H2B visa programs in FY-2017.

H2B Visas

Employers in the U.S. who wish to bring over foreigners as temporary workers can do so by taking advantage of the H-2B program. This program allows the employers to petition for individuals overseas and have them lawfully working in the U.S. for a given period of time. With the H-2B program, employers or agents in the United States can bring workers from overseas to fill temporary, nonagricultural positions. However, the employer or agent needs to meet certain eligibility requirements and file a petition for nonimmigrant worker (I-129 form) on behalf of the potential worker.

Changes to the H2B Program for FY 2016

On December 18, 2015, President Barack Obama signed the 2016 Consolidated Appropriations Act (Public Law 114-113) into law. It contains provisions affecting the H2B non-agricultural visa program. The Department of Labor Office of Foreign Labor Certification (OFLC) released an “Emergency Guidance” on December 29, 2015, to quickly create policies for implementing the changes to the H2B statutes. This article will discuss the changes to the H2B program and how the OFLC has indicated that the changes will be implemented.

Overview of H3 Visas for Trainees

The H3 nonimmigrant visa category is for aliens who are coming to the United States to participate in a training program. The H3 visa is not available for any program that is designed primarily to provide productive employment. The H3 visa is not available for graduate medical training. In this article, we will look at the eligibility requirements for H3 trainee status, the application process, and the rules while on H3 trainee status.

H3 Visa: Special Education Exchange Visitor Program

Section 223 of the Immigration Act of 1990 (IMMACT90) created a special education exchange visitor program that allows for up to 50 special education teachers to be granted H3 visas to receive special training and experience in the United States each year. Although this program is processed under the H3 category, the rules and regulations regarding the program are generally distinct from the rest of the H3 category.

Overview of Requirements for L1 and L2 Visas

The L1 nonimmigrant visa category is for intracompany transferees. A qualifying organization (for L1 purposes) may petition to transfer an employee from overseas to a parent, branch, subsidiary, or affiliate in the United States. There are two categories for beneficiaries. L1A visas are for persons who will work in a managerial or executive capacity and L1B visas are for those who will work in a capacity that involves “specialized” knowledge. In addition, certain relatives of L1 visa beneficiaries may be eligible for derivative L2 visas. This article will provide an overview of general requirements for L1 and L2 petitions.

L Blanket Petitions

Certain qualifying petitioners are eligible to file an L1 visa blanket petition, wherein the petitioner may apply for blanket approval of many L1A and L1B visa beneficiaries. These articles will explain the eligibility requirements for L blanket petitions and the L blanket petition procedure.

L1A Visa Overview

This article will provide an overview of the requirements for eligibility for an L1A Intracompany Transferee Executive or Manager Visa, and explain what the petitioning entity and the L1A beneficiary must do in order for the beneficiary to remain in L1A status.

Determining When L1A Beneficiary Will Manage an "Essential Function"

On April 14, 2016, the United States Citizenship and Immigration Services (USCIS) designated as an adopted decision the Administrative Appeals Office’s decision in the Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). The Matter of Z-A-, Inc., deals with determining when the beneficiary of an L1A petition will “primarily manage an essential function” of the petitioning employer. The decision sets forth that the USCIS must weigh all of the relevant factors in the case, including, if applicable, evidence of the beneficiary’s role within the wider qualifying international organization. Specifically, the adoption of the decision establishes that in certain cases, the USCIS may be required to consider evidence presented by a petitioner of personnel employed by a related entity within the qualifying organization who perform day-to-day non-managerial tasks for the petitioning entity. In this article, we will review the facts of the underlying case and the broader effect of the new policy guidance on similar determinations in the L1A adjudications context.

L1B Visa Overview

This article will provide an overview of the requirements for eligibility for an L1B Intracompany Transferee Specialized Knowledge Visa. The article will discuss eligibility requirements specific to the L1B (L-1B) visa, situations that may arise when an L1B beneficiary is working offsite from the petitioning employer, and rules for maintenance of and/or change or adjustment from L1B status.

Citizens of Canada Seeking L1 Status in Conjunction With Application for Admission

The North American Free Trade Agreement (NAFTA) allows for a citizen of Canada to present a completed L1 visa petition to Customs and Border Protection (CBP) in lieu of having the petition filed in advance with a United States Citizenship and Immigration Services (USCIS) Service Center. This allows the petition to be adjudicated in conjunction with an application for admission. A Canadian citizen who is admitted in L1 status through this procedure will be admitted without having to obtain an L1 visa.

Ports of Entry Designated for Optimized L1/TN Processing for First-Time Canadian Applicants

Customs and Border Protection (CBP) designated fourteen ports of entry for optimized processing of first-time Canadian applicants for admission in the TN or L1 nonimmigrant categories. Although a first-time Canadian applicant for TN or L1 status may use any port of entry, the designated ports of entry for optimized processing will be able to process the application expeditiously.

TN Status for NAFTA Professionals (Citizens of Canada and Mexico)

The North American Free Trade Agreement (NAFTA) created the special TN nonimmigrant category for certain professionals from Canada and Mexico seeking to work in the United States. Canadian citizens are generally eligible to be admitted on TN status without a visa, whereas Mexican citizens must obtain a TN visa to be admitted in TN status. The spouse and child(ren) of a TN nonimmigrant are eligible for TD status as derivatives. This article will look at the relevant statutes, regulations, and agency guidance to explain the rules for qualifying for and maintaining TN and TD status.

E1, E2, and E3 Visas - Overview

The United States has signed Treaties of Commerce and Navigation with a host of foreign countries. Please refer to the List of Treaty Countries for more information on which countries have treaties with the United States. Aliens who are from a treaty country and who meet the requirements set forth in statutes and regulations are eligible for E-category visas. The E1 visa is available for treaty traders and the E2 category is available for treaty investors. The E3 category is available to Australian specialty occupation workers and has similar requirements to the H1B category.

Matter of Ognibene: E Visas and Dual Nationality

Immigration adjudicators have dealt with the question of whether an alien who is a dual national may use both nationalities for immigration purposes. Significant administrative precedent has interpreted the immigration laws as only allowing an alien to use the nationality that he or she entered the United States under for immigration purposes. In this article, we will explore this issue with regard to E2 treaty investor visas.

E1 Treaty Trader or E2 Treaty Investor Visa Programs

Treaty Countries List of countries participating in the Treaty Trader (E1) or Treaty Investor (E2) visa programs.Treaty Country Visa / Classification Effective DateTreaty Country Visa / Classification Effective Date Treaty Country Visa / Classification Effective Date Albania E2 January 4, 1998 France E1E2 December 21, 1960 Norway E1 E2 January 18, 1928 Argentina E1 October 20, 1994 Georgia E2 August 17, 1997 Oman E1 E2 June 11, 1960 Armenia E2 March 29, 1996 Germany E1 E2 July 14, 1956 Pakistan E1 E2 February 12, 1961 Australia E1 E2 December 16, 1991 December 27

DOS Expects E2 Treaty Investor Visas to be Available for Israeli Nationals in Late 2017

On June 8, 2012, then-President Barack Obama signed legislation that had been passed by Congress in 2011 providing for the designation of Israel as a foreign state under section 101(a)(15)(E) of the Immigration and Nationality Act (INA). The DOS explained that “Israel is in the process of making certain regulatory changes that we expect will provide a basis for the Department of State to make a determination that Israel meets the similarity of status requirement.” The DOS predicted that E2 visas will be available for nationals of Israel by the fourth quarter of 2017.

Diplomatic Visa (A-1, A-2, A-3)

Ambassadors, Diplomats, Public Ministers and other Diplomatic Personnel can apply for an A-visa if they are traveling to the United States on behalf of their government with an intended official purpose. The purpose for which the applicant is traveling should be government-natured. A-1 and A-2 status remains valid as long as their position is recognized by the Secretary of State.

The Premium Processing Service for Certain Form I-129 Petitions

The United States Citizenship and Immigration Services (USCIS) allows certain petitioners who have filed a Form I-129, Petition for a Nonimmigrant Worker, to request speedy processing of the Form I-129 through the Premium Processing Service. In order to request premium processing, the petitioner must have filed a Form I-129 in a category that allows for premium processing, and must file a Form I-907, Request for Premium Processing Service, along with a fee. This article will explain the rules and benefits of the Premium Processing Service for nonimmigrant work visa petitions.

New Edition of Form I-9 (11/14/16 edition)

On November 14, 2016, the United States Citizenship and Immigration Services announced that it released the new edition of the Form I-9, Employment Eligibility Verification. The new edition of the Form I-9 is dated 11/14/16. Starting on January 22, 2017, all employers will be required to use the new edition of the Form I-9 dated 11/14/16. However, until that date, employers may continue to use the version of the Form I-9 dated 03/08/13.

I Visa for Foreign Media Representatives

The Immigration and Nationality Act (INA) authorizes the I nonimmigrant visa category for representatives of the foreign information media coming to work as foreign media representatives in the United States. In this article, we will examine the relevant statutes regarding the I-visa category, the rules for demonstrating eligibility for an I-visa with the Department of State (DOS), and the rules for maintaining and extending I status.

P1A Visa for Internationally Recognized Athletes (and Sports Teams)

The P1A visa category is for internationally recognized athletes. The P1A category is available to individual athletes and to international teams (a team requires at least two members) coming to compete in events in the United States. In this article, we will discuss the rules and regulations surrounding the P1A category for internationally recognized athletes.

P1B Visa for Members of Internationally Recognized Entertainment Groups

The P visa category is a nonimmigrant work visa category for: internationally recognized athletes (P1A); members of an internationally recognized entertainment group (P1B); individual performers or part of a group entering to perform under a reciprocal exchange program (P2); or an artist or entertainer coming to be part of a culturally unique program (P3). The spouse and unmarried minor children of principal P visa holders are eligible for P4 visas. This article will discuss the rules and regulations regarding the P1B category for a member of an internationally recognized entertainment group.

P2 Visa for Artists or Entertainers in a Reciprocal Exchange Program

The P2 visa is for artists and entertainers coming to the United States as part of a reciprocal exchange program either individually or as part of a group. In this article, we will discuss the rules and regulations surrounding the P2 category for artists or entertainers, either individually or as part of a group, seeking to enter under a reciprocal exchange program.

Q1 Cultural Exchange Visitors

The Q1 visa is a temporary nonimmigrant work visa for international cultural exchange visitors. In addition to being an employment-oriented program, Q1 nonimmigrants must communicate about their cultural attributes as part of the qualifying exchange program. In this article we will examine the requirements for Q1 status, the rules for being on Q1 status, and options for the spouse or minor child(ren) of a Q1 nonimmigrant to gain nonimmigrant status in the United States.

When a Language Immersion School Program May Qualify as an International Cultural Exchange Program (Q1)

On October 24, 2016, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM-602-0138) designating a decision of the Administrative Appeals Office (AAO) as an adopted decision. I explains that where a language immersion school program meets the regulatory requirements, it may be eligible for designation as an international cultural exchange program, allowing it to petition to classify teachers as Q1 international cultural exchange visitors. In this article, we will examine the facts and procedural history of the Matter of R-C-C-S-D-, the AAO’s analysis and decision, and the effect that designating this as an adopted decision will have on the Q1 international cultural exchange program going forward.

USCIS Adopts Decision Holding that Employment-Based Visa Petition Cannot be Approved Based on an Illegal or Invalid Employment Agreement

On April 12, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum 602-0143, designating the Administrative Appeals Office (AAO) decision in the Matter of I-Corp., Adopted Decision 2017-02 (AAO Apr. 12, 2017) as an “Adopted Decision” of the USCIS. In the Matter of I-Corp, the AAO clarified the fact that the USCIS cannot approve a visa petition that is based on an illegal, or otherwise invalid, employment agreement. The decision made clear that in order to prevent conflicts with the Fair Labor Standards Act, the USCIS is required to ensure that a beneficiary will not be paid a wage that is less than the minimum wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.