H-1B "SPECIALTY OCCUPATION" NONIMMIGRANT VISA
The H-1B nonimmigrant visa category applies to foreign workers coming temporarily to the U.S. to perform services in a "Specialty Occupation". A specialty occupation requires the theoretical and practical application of a body of specialized knowledge AND a bachelor's degree or the equivalent in the specific specialty (e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care etc.) The person being sponsored must meet this standard. To hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. Thus, there are two requirements:
Under the provisions of the immigration law, the need for a person in a specialty occupation can be shown by one of the following:
An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), usually for three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. The law was recently amended and now certain foreign workers with labor certification applications or immigrant visa petitions pending for extended periods may stay in H-1B status beyond the six-year limitation, in one-year increments.
Employer's Responsibilities as required by the Department of Labor:
An employer who wishes to hire a foreign worker in H-1B status is required to file a Labor Condition Application ("LCA") with the U.S. Department of Labor (DOL). Once the LCA is certified (approved), the employer then submits the H-1B petition to the US Citizenship and Immigration Services (USCIS). Please note that an approval of the LCA by the DOL is a preliminary step and does not guarantee an H-1B approval and visa issuance. An employer seeking to hire an H-1B worker must take the following actions prior to filing the H-1B petition:
Under the DOL regulations, by completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B nonimmigrant; these attestations are specifically identified and incorporated by reference in the LCA and are listed as follows:
Filing the LCA: As of July 1, 2009, DOL employers can submit the LCA electronically using the new iCert portal. By filing the LCA with DOL, the employer is attesting to the following:
1. That for the entire period of authorized employment (typically, three years), the company will pay all H-1B worker(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
The Required Wage Rate Determination: The U.S. employer must pay the H-1B professional "the required wage rate" and provide the professional with comparable working conditions and an equivalent benefits package applicable to U.S. workers. The required wage rate is the higher of the "actual wage rate" and the "prevailing wage rate." The "actual wage rate" is the wage rate, which the U.S. Company pays to its other employees who are similarly qualified to the H-1B worker and who are employed in the same occupation at the same work site. The "prevailing wage rate" is a measure of the mean income for a particular specialty occupation in a specific Metropolitan Statistical Area, which is determined by a survey.
We routinely obtain prevailing wage determinations through the OES wage data, which is recognized by the DOL as acceptable and meets the DOL guidelines. A wage survey from an alternative source can be used if it meets the criteria as required under DOL regulations.
2. That for the entire period of authorized employment, the employment of the H-1B foreign worker will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer's establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.
Public Access File: As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Some of that documentation must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation. LCA materials should be kept separately from other employment records. Documentation, which must be made available for public inspection, should be kept in its own file and separately from other documentation required for LCA purposes as well as from the personnel information regarding the specific H-1B worker. This documentation must be retained for one year beyond the end of the period of employment specified on the LCA. We will send you information on how to prepare a "Public Access File" required to be maintained by the employer.
BASIC OUTLINE OF THE H-1B PROCESS
Once the LCA has been certified, we will complete and file the H-1B petition with the USCIS. After the LCA is approved by the DOL, the next step is to submit the H-1B petition to the US Citizenship and Immigration Services ("USCIS", formerly known as the INS)along with the approved LCA, and a letter from the employer in support of the petition, which describes the operations of the company, the job opening, and the prospective employee's background. The H-1B petition, along with the filing fee, certified LCA, and supporting documentation, is filed with the USCIS Regional Service Center, which has jurisdiction over the proposed work location.
CHANGE OF EMPLOYER AND H-1B PORTABILITY:
Ability to start work upon filing the new H-1B petition: Previously, an H-1B beneficiary could not work for the new employer until the new H-1B petition filed on his or her behalf was approved. Under the new law passed on October 17, 2000, a person who is presently working with another employer in H-1B status is now allowed to accept new employment and start working for the new employer after filing the new H-1B petition as long as the person satisfies the following criteria:
Once the new H-1B petition for "change of employer" has been filed with USCIS, the beneficiary can start working for the new employer upon receipt of the USCIS Receipt Notice. However, if the H-1B petition is denied, the person can no longer work for the petitioning employer.
Approval of H-1B Petition
The time that it takes for the USCIS to adjudicate the H-1B petition varies considerably, and also depends upon which service center the H-1B petition has been submitted. It may take anywhere from approximately several weeks to several months to receive an answer from the USCIS. Presently, the processing time for H-1B petitions is about 90-120 days. If "premium processing" is requested, USCIS will process the H-1B petition within 15 calendar days.
H-1B Visa: Once the H-1B petition is approved, the USCIS sends an Approval Notice of Action if it approves the H-1B petition. The foreign worker who is outside of the U.S. must apply for the H-1B visa stamp at a U.S. consulate in his/her home country and then enter the U.S. to be employed in H-1B status. If the H-1B worker is already present in the U.S. in valid status, then the person may begin work immediately after receiving the approval notice. If the foreign worker is already in the U.S. in valid status when receiving the approval notice, s/he will need to go to a U.S. consulate to obtain a visa stamp to re-enter the U.S., next time s/he travels outside the U.S.
If an H-1B employee is "benched" due to the employer's business reasons (such as lack of available work), then s/he must still be paid for the full hours specified on the H-1B petition and LCA. If an employee is absent based on issues not work related, such as personal or health reasons, then the above provision does not apply.
H-4 STATUS FOR DEPENDANTS
Dependants (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to apply for H-4 nonimmigrant status. This application can be filed concurrently with the H-1B petition for the foreign worker, or after the H-1B petition for the principal has been approved. Please note that dependants in H-4 status may not be employed under the H-4 classification.
The L-1 Intracompany Transferee nonimmigrant category applies to foreign nationals who work for a foreign company which has a parent, subsidiary, branch, or affiliate in the U.S. The L-1 nonimmigrant status is an employer specific nonimmigrant status available to a foreign national employed abroad who seeks an intracompany transfer to work in the U.S. for a qualifying affiliate U.S. employer.
A foreign worker may temporarily come to the United States as an intracompany transferee to perform services either in a managerial or executive capacity (L-1A); or as a specialized knowledge professional (L-1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the foreign worker abroad. In order to qualify for the L-1 classification, the employee must have been employed abroad by the foreign company (which is an affiliate or subsidiary or branch of the U.S. entity) on a full-time basis for at least one continuous year out of the last three years.
There is currently no annual cap on L-1 visas.
Proof of Employment Abroad With a Qualifying Company
The prospective employee must have been employed abroad with an affiliate, parent, branch, or subsidiary of the petitioning U.S. company for a continuous period of one year within the three years prior to filing the petition or entry into the U.S. This period of employment abroad must have been in either executive/managerial or specialized knowledge capacity.
Doing Business in the United States
Documentation must be submitted to show that the company filing the L-1 petition is doing sufficient business in the United States to support the employment of the L-1 foreign national. Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. While the business must be viable, there is no requirement that it be engaged in international trade.
Length of Stay
L-1 status is generally approved for an initial period of three years. However, if the U.S. employer is a new or start-up company, L-1 status is originally granted for only one year. L-1A (manager/executive) status can be extended up to a statutory limit of seven years; L-1B (specialized knowledge) status is limited to a total of five years.
L-1A Executive or Manager : The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
Executive capacity generally refers to the employee's ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee's ability to manage an essential function of the organization at a high level, without direct supervision of others.
L-1B Specialized Knowledge Professional: If the petition is one for L-1B status, the prospective employment in the U.S. must involve the use of specialized knowledge. The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.
Under immigration regulations, specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the organization's processes and procedures. Such knowledge is beyond the ordinary and not commonplace within the industry or the petitioning organization. In other words, the employee must be more than simply skilled or familiar with the employer's interests. The employee having specialized knowledge must also be a professional.
L-1 Visa Reform Act of 2004
The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an unaffiliated employer. In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that
L-1A for New or Start-Up Office : Foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office must be able to show that:
L-1B for New or Start-Up Office : For foreign employers who are seeking to send an employee with specialized knowledge to the United States in order to be employed in a qualifying new office, it must also be shown that
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. Among the types of professionals who are eligible to seek admission as TN nonimmigrant workers are accountants, engineers, lawyers, pharmacists, scientists, and teachers.
Under NAFTA, a person may be eligible for TN nonimmigrant status, if:
Eligibility Criteria for Canadian Citizens
If the person is a Canadian citizen, then s/he is not required to apply for a visa with a U.S. consulate or file a petition with U.S. Citizenship and Immigration Services (USCIS). The Canadian national can request admission as a TN nonimmigrant at a U.S. port of entry, and s/he must provide the following documentation:
If the person is found to be eligible upon inspection by a U.S. Customs and Border Protection (CBP) Officer, then s/he will be admitted as a TN nonimmigrant and will be issued a Form I-94, Arrival/ Departure Record, as evidence of admission in TN status.
Eligibility Criteria for Mexican Citizens
If the person is a Mexican citizen, then s/he is not required to file a petition with USCIS. However, the person does need to obtain a visa to enter the United States as a TN nonimmigrant. S/he should apply for a TN visa directly at a U.S. embassy or consulate in Mexico, and must provide the following documentation:
Application Process for Mexican Citizens
Generally, the Mexican national can apply for a TN nonimmigrant visa at a U.S. embassy or consulate with jurisdiction over his/her place of permanent residence. The U.S. Department of State (DOS) establishes visa application processing and issuance fees. For more information on visa application processing and issuance fees, see the www.travel.state.gov
Once the person is issued a TN visa stamp, s/he may apply for admission at a United States port-of-entry. If the person is found to be eligible upon inspection by a U.S. Customs and Border Protection (CBP) Officer, then s/he will be admitted as a TN nonimmigrant and will be issued a Form I-94, Arrival/ Departure Record, as evidence of admission in TN status.
Initial Period of Stay: A TN status is usually issued for up to 3 years. If the foreign national wishes to stay beyond the time indicated on Form I-94, s/he may seek an extension of stay. If the person is in the United States, the U.S. employer may file Form I-129, Petition for Nonimmigrant Worker, with USCIS. If the person is a Canadian national, s/he may apply at a port of entry using the same application and documentation procedures required at the time of his/her initial entry.
TD Status for Family of TN Visa Holders: Any accompanying or following to join spouse and children (under the age of 21) if a TN foreign national may be eligible for TD nonimmigrant status. TD dependent spouses and children cannot work while in the United States, but they are permitted to study.
The O-1 nonimmigrant visa category is for foreign nationals who have extraordinary ability in science, art, education, business, or athletics or who have demonstrated extraordinary achievement in the motion picture or television industry. To be eligible for an O-1, the foreign national must be one has achieved sustained national international acclaim and recognition in his or her area of expertise and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry); O-1B: individuals with an extraordinary ability in the arts, or extraordinary achievement in motion picture or television industry; O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2's assistance must be an "integral part" of the O-1A's activity. For an O-1B, the O-2's assistance must be "essential" to the completion of the O-1B's production. The O-2 worker must have critical skills and experience with the O-1 foreign national that cannot be readily performed by a U.S. worker and those skills and experience must be essential to the successful performance of the O-1; and O-3: individuals who are the dependent spouse or children of an O-1 or O-2 visa holder.
An O-1 petition can be approved initially for a period of up to 3 years. The O-1 status can be extended up to one year at a time. There is no limit to the number of extensions as long as the employer can prove the need for continued employment of the O-1 foreign national.
The following documentation must be filed with an O-1 visa petition:
The U.S. Citizenship and Immigration Services (USCIS) regulations provide that the individual seeking an O-1 visa must submit evidence that s/he has received a major, internationally-recognized award, such as a Nobel Prize; or at least three of the following as evidence of his/her extraordinary ability:
Merely providing a minimum of three of the above mentioned evidence is not enough. USCIS will look closely at what kind of evidence is submitted to establish that the foreign national possesses extraordinary ability in his/her field. Such extraordinary ability must be extensively documented and should include substantial evidence of awards won and media recognition received by the foreign national to show that s/he is a renowned expert and/or has made major contributions in that particular field of expertise. Documents submitted as evidence for an O-1 petition can be in the form of:
The P Visa categories, P-1, P-2 and P-3, are available for foreign nationals who come to the United States to perform in athletics or entertainment. This category covers foreign athletes who compete individually or as part of a team at an internationally recognized level, or artists who perform with or, are an integral and essential part of the performance of, an entertainment group that has received international recognition as "outstanding" for a "sustained and substantial period of time."
P-1, P-2 and P-3 visas for Entertainers:
A culturally unique program is one which the:
Thus, there are two major requirements: it must be established that the artist has achieved excellence in his/her field; and that the artist's trip is for the sole purpose ofpromoting and facilitating the art form.
The petition must be filed with documentation to substantiate that it is indeed a "culturally unique program and the documents must establish that:
The P-1 visa petition must be filed by the sponsoring organization or employer in the U.S. along with the following documents:
If there is more than one geographic area in which the artist/s will perform, the petitioner must submit an itinerary giving details of each of the performances or the tour details. If the P-1 visa petition is being filed by the agent of the group, the Petitioner must submit both the itinerary and the contract.
P VISA CATEGORY FOR ATHLETES
P-1A Visa for Internationally Recognized Athlete: The P-1A classification is available to a foreign national who is coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
Individual Athlete: The foreign athlete must be coming to the United States to participate in individual event, competition or performance in which you are internationally recognized with a high level of achievement; evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned or well known in more than one country.
Athletic Team: The foreign team must be coming to the United States to participate in team events and must have achieved significant international recognition in the sport. The event in which the team is participating must be distinguished and require the participation of athletic teams of international recognition.
A Form I-129 Petition for P-1 classification must be filed by a U.S. employer along with along with the following documentation:
P-4 Visa Status for Family of P-1A Visa Holders: The spouse and unmarried children (under the age of 21) of the P-1 visa holder may obtain P-4 status. P-4 dependents cannot engage in employment in the United States, but may attend school or college.
Essential Support Personnel: Essential Support Personnel who are an integral part of the performance of a P-1 athlete (team) and who perform support services which cannot be readily performed by a U.S. worker, are eligible for P-1 classification. Such support personnel may include coaches, scouts, trainers and other team officials and referees.
The U.S. employer must file a separate Form I-129 for P-1 classification for support personnel. The petition must include the following documents:
If you would like to study as a full-time student in the United States, you will need a student visa. The F-1 Visa (Academic Student) allows an international student to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study to obtain a degree, diploma, or certificate and the school you attend must be authorized by the U.S. government to accept international students.
To be eligible for the F-1 student visa category, you must meet the following criteria:
Form I-20: All F-1 student applicants must have a SEVIS Form I-20 issued by an educational institution approved by USCIS. If you are accepted for admission, the school will provide you with a SEVIS Form I-20 A-B (Certificate of Eligibility for Nonimmigrant F-1 Student Status – for Academic and Language Students). Form I-20 contains important information including details about your course of study, duration of your courses, and the cost of your tuition, room, and board while you are in school. You will need the Form I-20 to apply for an F-1 visa at a U.S. consulate abroad.
Employment in F-1 status:
F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions. There are various programs available for F-1 students to seek off-campus employment, after the first academic year. For F-1 students, any off-campus employment must be related to their area of study and must be authorized prior to starting any work by the DSO and USCIS. F-1 students may engage in three types of off-campus employment, after one year of study. These three types of employment are:
B-1/B-2 NONIMMIGRANT VISAS
Visit the US
Generally, a citizen of a foreign country who wishes to visit the United States must first obtain a nonimmigrant visa for temporary visit. The "visitor" visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), for pleasure, tourism or medical treatment (B-2), or combination of both (B-1/B-2) purposes. There are two types of nonimmigrant visas available for foreign visitors who wish to come to the United States for a temporary visit:
The B-1 visa is for individuals who wish to visit the United States temporarily for business purposes, (e.g. conferences) or for medical treatment, or to accompany a family member who is requires medical treatment. The B-2 visa is for individuals who wish to visit the United States temporarily or to visit family or friends.
The B-1 or B-2 visa allows a foreign citizen, to travel to the United States port-of entry and request permission of the U.S. immigration inspector to enter the U.S. Travelers from certain countries who are eligible under the Visa Waiver Program may not need a B-1/B-2 visa to visit the U.S.
In order to obtain a B-1 (business) or B-2 (pleasure) visitor visa to visit the United States, the foreign national must be able to demonstrate the following:
Section 214 (b) of the Immigration and Nationality Act states that:
"Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status……"
This means that every person who applies for a business or visitor nonimmigrant visa is "presumed" to have the intention to immigrate to the U.S. and not return to his or her home country, unless s/he can prove to the consular officer that s/he does not have any such immigrant intent and will return back to his or her country after the duration of his or her temporary visit to the US. Such nonimmigrant intent is established by submitting evidence of "strong ties" to the person's home country and may include the following various kinds of evidence.
B-1 Business Visa
The B-1 visa is for visitors who wish to visit the U.S. for participating in business activities of a commercial or professional nature in the United States, including, but not limited to:
B-2 Visitor Visa
The B-2 visa is for individuals who wish to visit the United States temporarily or to visit family or friends or for pleasure, tourism, or medical treatment. A B-2 visa is available for a foreign citizen who wishes to travel to the United States for recreational purposes, including tourism, amusement, visits with friends or relatives, rest, medical treatment, activities of a fraternal, social, or service nature, and participation by amateurs, who will receive no remuneration, in musical, sports and similar events or contests.
Applying For A B1/B2 Visa:
The person who wishes to apply for a B-1 or B-2 visitor visa must apply at a U.S. consulate in his or her home country. No petition needs to be filed with USCIS and no prior approval by USCIS is required. Generally, a visa applicant can obtain an information packet at the particular U.S. embassy or consulate where s/he would be applying, which specifies the various types of documentation required to apply for a B-1/B-2 nonimmigrant visa (may vary from one consulate to another).
Admission into the United States:
The issuance of a B-1/B-2 visa does not automatically guarantee admission into the United States. Even a person who does obtain a B-1/B-2 visitor visa will actually be granted a period of entry or authorized stay in the U.S. only as necessary to conduct his or her business in the United States. A B-1/B-2 visa holder who travels to the United States will be inspected by a Customs and Border Patrol (CBP) official at the Port of Entry, who may deny the foreign national admission into the United States or may grant admission for a limited period of time. If a B-1/B-2 visitor is admitted into the United States, the CBP official will issue a stamped Form I-94, Arrival-Departure Card at the Port of Entry. The I-94 card will be evidence of the person's authorized stay in the U.S.
If the B-1/B-2 visitor wishes to stay beyond the time indicated on the Form I-94, s/he may apply for an extension by filing Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS. If a foreign national is in the United States in another valid nonimmigrant status, s/he may be eligible to change to B-1 status.
Personal or Domestic Employees: Under immigration law, visitor visas are limited to the following circumstances, for personal or domestic employee purposes of travel to the U.S. A visitor (B-1) visa may be available for a personal or domestic employee who accompanies or follow to join:
Visa Waiver Program
The Visa Waiver Program (VWP) enables nationals of certain participating countries to travel to the United States for tourism or business (B visitor visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security's US-VISIT program.
Currently, 36 countries participate in the Visa Waiver Program. For more information about the Visa Waiver Program, please see www.travel.state.gov
Foreign Media: It is important to note that representatives of the foreign press, radio, film, journalists or other information media, engaging in that vocation while in the U.S., must obtain a nonimmigrant Media (I) visa and cannot travel to the U.S. using a B-1 or B-2 visitor visa, nor can they travel to the U.S. on the visa waiver program. Persons planning to travel to the U.S. for a different purpose such as students, temporary workers, crewmen, journalists, etc., must apply for a different visa in the appropriate category.
R-1 TEMPORARY NONIMMIGRANT RELIGIOUS WORKERS
An R-1 nonimmigrant visa category is available for a foreign national who is coming to the United States temporarily to be employed temporarily by a non-profit religious organization in the United States (or an organization which is affiliated with the religious denomination in the United States) to work as a minister or in a religious vocation or occupation.
To qualify, the foreign national must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of the petition.
An R-1 visa can no longer be issued at a U.S. Embassy or Consulate abroad without prior approval of Form I-129 petition for R-1 visa by the U.S. Citizenship and Immigration Services (USCIS). An R-1 religious worker visa petition must be filed by a U.S. employer (non-profit religious organization) and USCIS must approve the petition before the foreign national can apply for an R-1 visa stamp at a U.S. consulate abroad. If the foreign national is visa-exempt (e.g. Canadian), he or she must present the original Form I-797, Approval Notice of the R-1 visa petition at the port of entry.
There are certain requirements which must be satisfied by the petitioning organization (employer) as well as by the beneficiary (religious worker). These requirements are listed as follows:
Supporting Documents Required for the Religious Organization (Petitioner):
If the religious worker will be self-supporting, the petitioner must submit documents that establish the religious worker will hold a position that is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination. The petitioner must also provide evidence to show:
In addition to the above, the petitioner must provide:
Supporting Documents Required for the Religious Worker (Beneficiary):
Proof of membership: The religious worker must prove that s/he is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of R-1 visa petition on his or her behalf. If the religious worker will be working as a minister, s/he must provide the following as evidence:
In addition to the above, the petitioner must provide:
Fact Sheet: USCIS Publishes Final Rule for Religious Worker Visa Classifications
On November 21, 2008, the U.S. Department of Homeland Security (DHS) released new rules which made significant revisions to the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations. The purpose of these new rules and regulations is to fulfill the Congressional mandate to eliminate or reduce fraud in the religious worker program.
One of the major changes is that now all employers are required to submit a formal petition for temporary religious workers. Every petition for a nonimmigrant religious worker (R-1) classification must be initiated by a U.S. employer by filing of a Form I-129 with USCIS. The beneficiary (the religious worker) will no longer be able to obtain an R-1 visa at a U.S. Consulate abroad or at a port-of-entry without prior approval of the R-1 visa petition by USCIS. This requirement now allows USCIS to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States.
Other changes under these new rules include increased inspections, evaluations, verifications, and compliance reviews of religious organizations by USCIS. USCIS now verifies the worker's qualifications, the nature of the job offered, and the legitimacy of the organization before approving the R-1 visa petition. USCIS now routinely conducts onsite inspections of organizations seeking to employ religious workers. These inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification.