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Nonimmigrant Visa

H-1B Visa

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:

  • The employer must demonstrate a need for someone in a specialty occupation as the minimum capability to perform the job; and
  • The foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

Under the provisions of the immigration law, the need for a person in a specialty occupation can be shown by one of the following:

  • A bachelor's or higher degree is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires the degree for the position; or
  • The nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

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:

  • The employer must first file a LCA with the DOL specifying the region where the H-1B employee will work.
  • The employer must attest to certain wage and working conditions.
  • The employer must give notice of the LCA to the relevant collective bargaining unit, if the job is unionized, or otherwise post a notice in a conspicuous location to enable other employees to see it.
  • The employer must pay certain costs and expenses on behalf of an H-1B employee.
  • The employer must also keep certain records.

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 actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question; or
  • The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position.

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:

  • The person is presently in H-1B status,
  • The person has been lawfully admitted into the U.S.;
  • The employer has filed a non-frivolous H-1B or other non-immigrant petition for new employment, which is currently pending with the USCIS; and
  • The person has never been employed without authorization in the U.S. before the filing of the H-1B petition.

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.

BENCHING RULE

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.

L-1 VISA

L-1 Nonimmigrant Visa for Intracompany Transferees

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

  • The employee will not be principally controlled or supervised by the unaffiliated employer; and
  • The work being provided by the employee is not considered to be labor for hire for the unaffiliated employer.

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:

  • Sufficient physical premises to house the new office have been secured
  • The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
  • The intended U.S. office will support an executive or managerial position within one year of the approval of the petition

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

  • Sufficient physical premises to house the new office have been secured; and
  • The employer has the financial ability to remunerate the employee and begin doing business in the United States.
  • L-2 Visa for Dependents:
  • The dependent spouse or children who are under 21 years of age of an L-1 intracompany transferee may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. Spouses of L-1 workers may seek authorization to work in the United States and can apply for an employment authorization document.

TN Visa

TN Classification for Professionals under NAFTA

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:

  • S/he is a citizen of Canada or Mexico;
  • The person's profession qualifies under the regulations and is on the NAFTA list;
  • The prospective position in the United States requires someone in that professional capacity;
  • The foreign national has a full-time or part-time job with a U.S. employer (but not self-employment)
  • The person has the qualifications and meets the specific criteria required for the professional position

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:

  • Proof of Canadian citizenship.
  • Letter from the Canadian national's prospective U.S. employer detailing items such as the professional capacity in which s/he will work in the United States, the purpose of his or her employment and length of stay in the United States, and detailed information about the person's educational qualifications and/or professional experience.
  • Evidence of eligibility for the profession, such as educational credentials, copies of degrees, licensure (if any required).
  • Educational credentials evaluation (if the person has a foreign degree).

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:

  • Proof of Mexican citizenship.
  • Letter from the Mexican national's prospective U.S. employer detailing items such as the professional capacity in which s/he will work in the United States, the purpose of his or her employment and length of stay in the United States, and detailed information about the person's educational qualifications and/or professional experience.
  • Evidence of eligibility for the profession, such as educational credentials, copies of degrees, licensure (if any required).
  • Educational credentials evaluation (if the person has a foreign degree).

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.

O-1 Visa for Extraordinary Ability

O-1 NONIMMIGRANT VISA FOR EXTRAORDINARY ABILITY

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.

THE O-1 NONIMMIGRANT VISA CATEGORY IS CLASSIFIED AS:

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.

Key features:

  • The O-1 visa applicant must submit substantial supporting evidence of his/her extraordinary ability.
  • Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above the ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
  • Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage of people who have risen to the very top of the field of endeavor.
  • To qualify for an O-1 visa in the motion picture or television industry, the foreign national must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
  • There must be an offer of employment from a U.S. employer and the employer must file the O-1 petition; a person seeking an O-1 visa cannot "self-petition".
  • Employment under the O-1 category is "employer specific", i.e. the O-1 nonimmigrant worker can only work for the specific employer who sponsored the O-1 and for the employment specified in the O-1 petition.
  • O-1 Visa for J-1 visa holders: A foreign national who is currently in the U.S. in J-1 visa status and is subject to INA Section 212 (e) "Two Year Foreign Residency Requirement" may still be eligible for the O-1 classification (but would need to apply for the O-1 visa abroad and re-enter the U.S. in O-1 status).

PERIOD OF STAY IN THE U.S.

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.

REQUIRED DOCUMENTATION:

The following documentation must be filed with an O-1 visa petition:

  • Formal job offer letter from the U.S. employer which specifies the dates for which work authorization is being requested.
  • The foreign national must provide documentation as evidence of his or her extraordinary ability in the field of science, art, education, business, or athletics.

EVIDENCE TO SHOW EXTRAORDINARY ABILITY

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:

  • Receipt of nationally or internationally recognized awards or prizes for excellence the field of endeavor.
  • Membership in associations in the field of extraordinary ability, which require outstanding achievement for membership, as judged by national or international experts.
  • Published material in professional or major trade publications, newspapers or other major media about the individual and his/her work in the field for which classification is sought; or citations in professional publications, written by others about the individual's work in the field.
  • Participation on a panel or as a judge of the work of others in the same or an allied field.
  • Original scientific, scholarly or business contributions of major significance to the field.
  • Authorship of scholarly articles in the field in professional journals or major media in the field for which classification is sought
  • Previous employment in a critical or essential capacity for organizations and/or establishments that have a distinguished reputation.
  • Evidence of high salary or other significantly high remuneration for services in relation to others in the field, as proven by contracts or other evidence.

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:

  • Affidavits, contracts, awards, or other documentation reflecting the nature of the foreign national's achievements certified by an officer or responsible person employed where the work was performed.
  • Affidavits written by present and/or former employers or recognized experts attesting to the reputation and extraordinary ability of the foreign national.

P VISA CATEGORY FOR ARTISTS/ENTERTAINERS

P-1 Visa for Athletes and Entertainers

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:

  • P-1 Entertainment Group: The P-1 classification applies to an alien coming temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. An individual artist, to be eligible for a P-1 visa, must be part of an entertainment group. Individuals cannot usually obtain a P-1 visa – the only exception is for people who are coming to the US to join a foreign entertainment group. The group must be internationally recognized as outstanding in the area, and have a sustained period of achievement. Also, the individual member must have had a sustained and substantial relationship with the group (ordinarily for at least one year) and/or provide functions integral to the group's performance. The group must have been together for at least one year, and at least three-fourths of the members must have been in the group for at least a year.
  • P-2 Artistic Exchange : The P-2 classification applies to an alien coming temporarily to perform as an artist or entertainer individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.
  • P-3 Culturally Unique Artists: This category is most commonly used visa category for artists/entertainers coming to perform for various shows in the U.S.) The P-3 classification applies to aliens coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, in a commercial or noncommercial program that is culturally unique.

A culturally unique program is one which the:

  • Artist or entertainer (or group) has achieved excellence in developing, interpreting, representing, coaching or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance; and
  • The artist or entertainer (or group) is coming to the U.S. to promote and facilitate that art form.

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 person or group has been involved in a culturally unique program for a substantial period.
  • The person or group has achieved national or international recognition or acclaim.
  • The person's or the group's skills are authentic and excellent as attested through letters, expert opinions or testimonials.
  • The majority of the performances will be culturally unique events.

Document Requirements

The P-1 visa petition must be filed by the sponsoring organization or employer in the U.S. along with the following documents:

  • A written consultation from an appropriate labor organization;
  • Affidavits, testimonials or letters from recognized experts attesting to the authenticity of the alien's or group's skills in performing, presenting, coaching or teaching the unique and traditional art forms and giving the credentials of the expert including the basis of his or her knowledge of the alien's or group's skills.
    • Documentation that all of the performances or presentations will be culturally unique events, and;
    • Documentation that the performance of the alien or group is culturally unique as evidenced by reviews in newspapers, journals or other published materials.

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-4 Visa for Dependents: Spouses and/or children under the age of 21 who wish to accompany or join the principal P visa holder in the United States for the duration of his/her stay require derivative P-4 visas.

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.

Eligibility Criteria:

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.

Documents Required

A Form I-129 Petition for P-1 classification must be filed by a U.S. employer along with along with the following documentation:

  • A consultation from an appropriate labor organization. The consultation must describe the work or services to be performed in the United States and the athlete's qualifications for such work. If no appropriate labor organization exists, this requirement is excused.
  • A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport.
  • An explanation of the event and itinerary
  • Documentation of at least two of the following:
    • Evidence of having participated to a significant extent in a prior season with a major United States sports league
    • Evidence of having participated to a significant extent in international competition with a national team
    • Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition
    • A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how the foreign athlete or the foreign team is internationally recognized
    • A written statement from a member of the sports media or a recognized expert in the sport which details how the foreign athlete or the foreign team is internationally recognized
    • Evidence that foreign athlete or the foreign team is ranked, if the sport has international rankings
    • Evidence that foreign athlete or the foreign team has received a significant honor or award in the sport

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:

  • A consultation from an from an appropriate labor organization with expertise in the area of the support person's skill
  • A statement describing the support person's prior and current essentially, critical skills and experience with the P-1 athlete (team)
  • A copy of a written contract between the employer and the support person or a summary of the terms of the oral agreement under which the support person will be employed

F-1 Student Visa

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.

Eligibility Requirements:

To be eligible for the F-1 student visa category, you must meet the following criteria:

  • You must be enrolled in an "academic" educational program (not a vocational program).
  • You must be enrolled in a "full course of study" certified as such by the school (not a part time course).
  • Your school must be approved by USCIS.
  • The academic institution which you apply to should have a Designated School Official (DSO) or the school's international program office to help with immigration issues, which can give you information about whether they accept foreign national students, whether the program where you are seeking admission is considered "academic" and compliance with SEVIS regulations.
  • You must be proficient in English (usually demonstrated by passing of an English proficiency examination such as the TOEFL) or be enrolled in courses leading to English proficiency.
  • You must have sufficient funds available to support yourself during the entire course of study.
  • You must maintain a residence abroad which you have no intention of giving up.

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:

  • Curricular Practical Training (CPT)
  • Optional Practical Training (OPT) (pre-completion or post-completion)
  • Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)

B-1/B-2 Visitor Visas

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:

  • B-1 Visitor for business
  • B-2 for pleasure

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.

Eligibility Criteria

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:

  • The person's visit will be temporary.
  • The person will depart at the end of his/her authorized stay or any extension granted by USCIS.
  • The person is in possession of a valid passport.
  • The person maintains a foreign residence that s/he has no intention of abandoning, as well as other binding ties which will ensure his or her return abroad at the end of the visit.
  • The person is able to support himself or herself financially while in the United States and has the funds to cover the expenses of the trip and his/her stay in the United States.
  • The person is admissible to the United States or has obtained a waiver for any ground of inadmissibility.
  • The person plans to remain in the U.S. for a specific limited period of time.

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:

  • Consulting or meeting with business associates
  • Traveling for a scientific, educational, professional or business convention, or conference on specific dates
  • Settling an estate
  • Negotiating a contract
  • Participating in a short-term training
  • Transiting through the U.S. with a B-1 visa
  • Deadheading: certain air crewmen may enter the U.S. as deadhead crew with a B-1 visa

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:

  • A U.S. citizen employer having a permanent home or is stationed in a foreign country, who is visiting or is assigned to the United States temporarily; or
  • A foreign citizen employer in the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant visa status.

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 Religious Worker

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.

Eligibility Criteria

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):

  • Proof of tax-exempt status: If the religious organization has its own individual IRS 501(c)(3) letter, it must provide a currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization. If the organization is recognized as tax-exempt under a group tax-exemption, provide a group ruling. If the organization is affiliated with the religious denomination, the petitioner must provide:
    • a currently valid determination letter from the IRS;
    • documentation that establishes the religious nature and purpose of the organization; Organizational literature; and
    • a religious denomination certification, which is part of the R-1 Classification Supplement to Form I-129 (see the links to the right).
  • Proof of salaried or non-salaried compensation: The petitioner must provide evidence of how the organization intends to compensate the religious worker, including specific monetary or in-kind compensation. Evidence of compensation may include: past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc. The petitioner can also submit evidence that room and board will be provided to the religious worker. The petitioner must provide documentation, such as IRS Form W-2 or certified tax returns, if available. If such IRS documentation is not available, the petitioner must provide an explanation why it is not available.

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:

  • That the organization has an established program for temporary, uncompensated missionary work in which: foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;
  • That missionary workers are traditionally uncompensated;
  • That the organization provides formal training for missionaries; and
  • That participation in such missionary work is an established element of religious development in that denomination.

In addition to the above, the petitioner must provide:

  • Evidence that establishes that the organization's religious denomination maintains missionary programs both in the United States and abroad.
  • Evidence of the religious worker's acceptance into the missionary program.
  • Evidence of the duties and responsibilities associated with this traditionally uncompensated missionary work.
  • Copies of the religious worker's bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination's churches), or other verifiable evidence acceptable to USCIS.

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:

  • a copy of the religious worker's certificate of ordination or similar documents;
  • documents reflecting acceptance of the religious worker's qualification as a minister in the religious denomination, as well as evidence that the religious worker has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination.
  • include transcripts, curriculum, and documentation that establish that the theological institution is accredited by the denomination.
  • If the denominations do not require a prescribed theological education, the beneficiary and petitioner must provide an explanation of the religious denomination's requirements for ordination to minister.
  • a list of duties performed by virtue of ordination.
  • the denomination's levels of ordination, if any, and
  • evidence of the religious worker's completion of the denomination's requirements for ordination.

In addition to the above, the petitioner must provide:

  • Proof of previous R-1 employment (if filing for extension of stay as an R-1)
  • If the religious worker received salaried compensation (from prior/current R-1 employer), s/he must provide documentation, such as an IRS Form W-2 or certified copies of filed income tax returns reflecting such work and compensation for the previous R-1 employment.
  • If the religious worker received non-salaried compensation, s/he must provide IRS documentation of the non-salaried compensation (if available).
  • If IRS documentation is not available, the religious worker must provide an explanation for the absence of such IRS documentation and proof of all financial support, including stipends, room and board, or other evidence of support acceptable to USCIS.
  • If the religious worker received no salary but provided for his/her own support and that of any dependents, s/he must provide verifiable documents to show how support was maintained, such as audited financial statements, bank statements, or other evidence acceptable to USCIS.

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.

For more information, please contact us at 215-368-8600 or ak@akaimmigration.com

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