COMMON EMPLOYMENT BASED NON-IMMIGRANT VISA CATEGORIES

There are a number of non-immigrant visa categories which allow foreign nationals to enter and remain in the U.S. for a temporary time period (in some instances up to six or more years). Frequently, employers will find themselves faced with the need to sponsor foreign national employees to work in the United States. It is important therefore to have a general understanding of the basic non-immigrant employment based visa categories.

OVERVIEW OF NON-IMMIGRANT VISA CATEGORIES

H-1B Classification:

One of the most commonly used visa categories, the H-1B visa (temporary worker qualified to perform services in a specialty occupation) is applicable to members of the professions who will work for an employer in a professional capacity. To qualify as a specialty occupation, the job must require a Bachelor's degree or its equivalent in the specific specialty as a minimum for entry in the occupation and the employee must possess at least a Bachelor's degree or its equivalent in a related field. Furthermore, representations are made to the Department of Labor regarding employment conditions. Common examples of occupations qualifying for this visa classification are professions such as attorneys, accountants, computer professionals, engineers, bankers, financial analysts, foreign exchange traders and managers and executives.

H-3 Temporary Trainees:

To qualify as an H-3 Trainee, an alien must have a sponsoring organization conducting a qualified training program of instruction in a field of endeavor (excluding physicians) for which such training is unavailable in the alien's home country, which is not a position of regular employment for U.S. citizens and permanent residents, does not include productive employment and benefits a country other than the United States. Generally, individuals who qualify for H-3 classification are involved in law firm, accounting firm, bank, investment or insurance formal training programs.

L Classification:

The L-1 (intracompany transferee) visa is applicable to employees who have worked abroad, in an executive, managerial or specialized knowledge capacity, for at least one year within the preceding three years of entry to the U.S. for an international organization or business entity and is transferred temporarily to the U.S. to work in a similar qualifying capacity for a branch, parent, subsidiary or affiliate thereof. This visa category is applicable for any multinational company with branch, parent, affiliate or subsidiary in the U.S. Effective January 16, 2002, Public Law 107-125 permits the filing of work authorization for spouses of L-1 employees.

E Classification:

E classifications are frequently utilized for U.K., Japanese, German, French and Swedish based companies, banks, investment firms with U.S. affiliates or branches. E-1 and E-2 nonimmigrant visa status may be utilized by an employee (or company principal or owner) who is a national of a country with which the U.S. has a treaty of commerce and navigation or an equivalent agreement. This visa classification enables an employee to engage in trade (E-1 treaty trader) or the active management of the employer's capital investment (E-2 Treaty Investor). Effective January 16, 2002, Public Law 107-124 permits the filing of work authorization for spouses of E non-immigrants.

O Extraordinary Ability Classification:

To qualify in O-1 classification evidence must be provided which demonstrates the alien has achieved extraordinary standing or national or international recognition for achievements in the sciences, arts, education business or athletics (i.e. prizes, awards, critical reviews or other published materials by or about the individual). Union or peer group consultation letters are required in support of O nonimmigrant visa petitions. Common examples of O visa beneficiaries are extraordinary artists, poets, writers, athletes, musicians, scientists and businesspersons with industry-wide recognition.

P Performing Entertainers and Athletes Classification:

Generally, this visa category is made available to internationally recognized athletes (as part of a group, team or individuals) or entertainment groups. Union or peer group consultation letters are required in support of P nonimmigrant visa petitions. P-2 aliens are permitted under reciprocal exchange programs for performing artists. P-3 aliens are permitted for culturally unique entertainers.

TN Classification:

Closely related to the H-1B category, this nonimmigrant classification provides an expedited admission procedure for Canadian citizens, pursuant to the North American Free Trade Agreement, (NAFTA) in certain professional occupations. Mexican citizens are also eligible for TN classification although in a process nearly identical to the H-1B process.