Work Visas: E1, E2, H-1B, H-2B, R1, L-1A, L-1B
Visa E1/E2
E-1/E-2 visas
The E-2 (E2) Treaty Investors visa is a nonimmigrant visa for certain nationals of countries with which the United States maintains a treaty of commerce and navigation. The E2 visa is available for investors and for employees of E2 treaty investors or companies that, by virtue of their ownership and operations in the United States, can qualify as E2 petitioners. This article will provide a brief overview of the E2 visa category.
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Eligibility for an E2 Visa
The eligibility requirements for an E2 visa as a treaty investor and an E2 visa as an employee of an E2 treaty investor are slightly different. However, in both cases, the alien applicant must be the national of an E2 treaty country.
Eligibility Requirements for Investors
Department of State (DOS) regulations require that an applicant for an E2 visa as an investor must meet the following requirements:
– (i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and
– (ii) Is seeking entry into the United States solely to develop and direct the enterprise; and
– (iii) Intends to depart from the United States upon the termination of E2 status.
In order for an investment to qualify, the applicant must place his or her capital “at risk in the commercial sense with the objective of generating a profit.” This regulation precludes non-profit organizations from qualifying. The investment must be “substantial” relative to the size of the commercial enterprise and to demonstrate the investor’s commitment to the enterprise. The enterprise must be a “bona fide enterprise” that is a real and active commercial or entrepreneurial undertaking that is producing a service or commodity for profit.
The “develop and direct requirement” is usually satisfied by the investor showing that he or she controls at least 50% of the enterprise. It is possible to satisfy the requirement with less than 50% ownership, but this requires substantial evidence demonstrating that despite not having a controlling ownership state, the investor will have the capacity to develop and direct the enterprise.
The E2 visa category permits dual intent. In general, an applicant’s unequivocal intention to depart upon the termination of E2 visa status will satisfy Consular officials. An applicant may obtain or renew an E2 visa even if he or she is the beneficiary of an approved labor certification application.
Eligibility Requirements for Employees of Treaty Investors
First, the alien must be the employee of a treaty investor and be of the same nationality as the treaty investor. In accordance with DOS regulations,[9] the following may qualify as employers of an E2 employee:
– (i) A person having the nationality of a treaty country, who is maintaining the status of treaty investor if in the United States, or, if not in the United States, who would be classifiable as a treaty investor; or
– (ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.
If the employer is in the United States, he or she must be in E2 status as a treaty investor. If the employer is outside of the United States, he or she must be otherwise classifiable as an E2 treaty investor. The ownership stake of a lawful permanent resident (LPR) or U.S. citizen may not be counted, even if the LPR or U.S. citizen is the national of a treaty country.
If the E2 enterprise is owned 50/50 by nationals of two treaty countries, the E2 employee may be a national of either one of the treaty countries.
Provided the alien is the national of the same country as a qualifying E2 employer, he or she must be seeking to enter the United States to work for the treaty enterprise in a:
– Executive and Supervisory Character; or
– Special Qualification/Essential Employee Capacity.
“Job shop” employment, where the treaty enterprise would pay the E2 employee to work at another U.S. company, is strictly prohibited under E2 status.
Just as is the case with persons applying for E2 visas as treaty investors, the “intent to depart” may be established even if the employee is the beneficiary of an immigrant visa petition.
Application Process
A person applying for a change to E status must file a Form I-129 along with an E Supplement. A person filing for an E visa from a Consular post abroad must file a DS-160 visa application along with a DS-156E supplemental form. The validity period of an E visa will depend on the specific treaty country, but will be, in most cases, 5 years.
Admission on E Status
A person may be admitted for an initial period of up to 2 years on E status. Prior to the expiration of 2 years, an E2 treaty investor or employee may file a Form I-129 with E Supplement to apply for an extension of stay, which if granted, may be granted for a maximum of 2 years. Provided that the E2 visa holder continues to meet all of the E2 eligibility requirements, there is no limit to the number of extensions of E status.
E2 visa holders may only engage in employment that is consistent with what the E2 visa was approved for. E2 employees may perform work for a parent or subsidiary of his or her E2 employer provided that the qualifying relationship existed at the last approval of the E2 visa, the work requires an executive, supervisor, or essential skill position, and the work is consistent with the work that the E2 employee obtained an E2 visa to perform. Caution should be exercised however, and in the case of a substantial change in employment, an amended Form I-129 with new E Supplement is required to maintain E status.
If there is ever uncertainty for an E2 treaty investor or an E2 employee about whether an amended petition is needed, a Form I-129 with fee along with a complete description of the change may be filed in order to request advice from United States Citizenship and Immigration Services (USCIS) about whether an amended petition is needed.
Derivative E2 Family Members
Spouses and children of E2 visa holders who are otherwise admissible are eligible for derivative E2 visas. A derivative E2 may be admitted for the same duration as the principal (so long as the qualifying relationship continues to exist). Although derivative E2 visas do not authorize employment incidentally to status, an E2 spouse may apply for employment authorization. E2 derivative children may not obtain employment authorization, but may attend school while on E2 status.
H-1B Specialty Occupation Worker or Fashion Model
As an H-1B specialty occupation worker or fashion model, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), 8 CFR 214.2(h)(13)(iii)(D) and (E).
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates your employment before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position.
|
Classification |
General Requirements (among others) |
Labor Condition Application Required? |
|---|---|---|
|
H-1B Specialty Occupations |
The occupation requires:
The position must also meet one of the following criteria to qualify as a specialty occupation:
For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:
Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.** |
Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129, Petition for a Nonimmigrant Worker. See the DOL’s Office of Foreign Labor Certification. For more information see the Information for Employers & Employees page. |
|
H-1B2 DOD Researcher and Development Project Worker. |
The job must require a bachelor’s or higher degree, or its equivalent, to perform the duties. The petition must be accompanied by:
To be eligible for this classification you must have a bachelor’s or higher degree or its equivalent in the occupational field in which you will be performing services. This requirement can be met based on one of the following criteria:
|
No. |
|
H-1B3 Fashion Model. |
The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability. |
Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129. See the links to the Department of Labor’s Office of Foreign Labor Certification. |
Visa H-1B
H-1B Specialty Occupation Worker or Fashion Model
As an H-1B specialty occupation worker or fashion model, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), 8 CFR 214.2(h)(13)(iii)(D) and (E).
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Your employer will be liable for the reasonable costs of your return transportation if your employer terminates your employment before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position.
|
Classification |
General Requirements (among others) |
Labor Condition Application Required? |
|---|---|---|
|
H-1B Specialty Occupations |
The occupation requires:
The position must also meet one of the following criteria to qualify as a specialty occupation:
For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:
Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.** |
Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129, Petition for a Nonimmigrant Worker. See the DOL’s Office of Foreign Labor Certification. For more information see the Information for Employers & Employees page. |
|
H-1B2 DOD Researcher and Development Project Worker. |
The job must require a bachelor’s or higher degree, or its equivalent, to perform the duties. The petition must be accompanied by:
To be eligible for this classification you must have a bachelor’s or higher degree or its equivalent in the occupational field in which you will be performing services. This requirement can be met based on one of the following criteria:
|
No. |
|
H-1B3 Fashion Model. |
The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability. |
Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129. See the links to the Department of Labor’s Office of Foreign Labor Certification. |
Visa H-2B
H-2B Classification
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):
- One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- Not employed workers to perform the service or labor in the past, and will not need workers to perform
the services or labor in the future;
- Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
- Traditionally tied to a season of the year by an event or pattern; and
- Of a recurring nature.
Note: You cannot claim a seasonal need if the time period when you do NOT need the
service or labor is: - Unpredictable
- Subject to change; or
- Considered a vacation period for your permanent employees.
- Peak load need A petitioner claiming a peak load need must show that it:
- Regularly employs permanent workers to perform the services or labor at the place of employment;
- Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
- The temporary additions to staff will not become part of the employer’s regular operation.
- Intermittent need – A petitioner claiming an intermittent need must show that it:
- Has not employed permanent or full-time workers to perform the services or labor; and
- Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
- One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
- Step 1: Petitioner submits temporary labor certification application to DOL. Before requesting H-2B classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the Foreign Labor Certification, Department of Labor and Foreign Labor Certification, Guam Department of Labor Web pages.
- Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit the original temporary labor certification with Form I-129 (See the Form I-129 instructions for additional filing requirements). If the application for a temporary labor certification was processed in DOL’s FLAG system, the petitioner must include a printed copy of the electronic one-page “final determination” of the H-2B temporary labor certification approval with Form I-129. USCIS will consider a printed copy of the final determination as the original and approved temporary labor certification. If a petitioner has already submitted the original temporary labor certification with a previous Form I-129, submit a copy of the temporary labor certification and provide an explanation that includes the receipt number of the petition with which the original was filed, if available.
- Step 3: Prospective workers outside the United States apply for visa and/or admission. After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:
- Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
- Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.
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H-2B Classification
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
OR
OR
OR
H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).
There is a statutory numerical limit, or “cap,” on the total number of noncitizens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.
H-2B Program Process
*Note: If you are petitioning for one or more Canadian musicians that will be employed within a 50 mile radius from the U.S.-Canadian border for 30 days or less, you may skip Step 1 in the H-2B process.
Visa L-1B/L-2b
L-1A and L-1B visas are available for temporary intracompany transferees who work in managerial positions or have specialized knowledge.
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Eligibility
L-1A and L-1B visas may be issued when an employer files a petition to obtain authorization for qualified employees to be allowed to work and live in the United States.
- The L-1A visa is for intracompany transferees who work in managerial or executive positions in a company that is located outside the United States.
- The L-1B visa is for intracompany transferees who work in positions requiring specialized knowledge.
Establishing New Offices
Foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office must show:
- They have a physical location for the new office;
- The employee has been employed as an executive or manager for one continuous year in the three years before filing the petition; and
- The new office will support an executive or managerial position within one year of the approval of the petition.
L-1A Classification
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.
To qualify, you must:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to your ability to make a wide range of decisions without much oversight.
Managerial capacity generally refers to your ability 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 your ability to manage an essential function of the organization at a high level, without direct supervision of others.
Your employer must also meet general qualifications. L-1B classification
L-1B Classification
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.
To qualify, you must:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admission to the United States; and
- Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
Specialized knowledge either means knowledge you have about the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
Your employer must also meet general qualifications.
Visa R1
R-1 Visas: Temporary Religious Workers
R-1 visas are temporary non-immigrant, work visas for foreign nationals coming to the United States to be employed as religious workers. Ministers, priests, educators, translators, missionaries, and other religious workers may qualify for this type of visa.
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R-1 Visa Qualifications
U.S. Citizenship and Immigration Services (USCIS) has several requirements that foreign nationals and employers must meet to be eligible for an R-1 visa. Qualifications for individuals include the following:
- Membership of a legitimate religious denomination with a bona fide non-profit religious organization in the U.S. for at least two years.
- A job offer to work in the U.S. for an affiliate of that same religious organization for at least 20 hours per week.
- Be coming solely as a clergy member or to perform a religious occupation.
Organizations must fall into one of the following three categories to be eligible to file petitions for R-1 visas:
- A non-profit religious organization in the U.S.;
- A religious organization authorized as a group tax exemption holder; or
- A non-profit religious organization affiliated with a religious denomination in the U.S.
How to Apply for an R-1 Visa
There are three parts to the R-1 visa application process: filing the petition, applying for a non-immigrant visa, and interviewing with the U.S. embassy or consulate.
1. File the Petition
To start the process, religious employers must fill out Form I-129: Petition for a Non-Immigrant Worker. This filing fee is $460, which must be paid by the employer, and requires proof of tax exemption.
In most cases, after receiving the petition, USCIS will conduct an on-site visit to confirm the relationship between the employer and religious denomination.
After the employer receives approval via Form I-797: Notice of Action, the foreign national can begin the visa application process.
2. Complete the Non-Immigrant Visa Application
All non-immigrant visa applicants must fill out Form DS-160: Non-Immigrant Visa Application. This form includes several questions regarding their background as well as the purpose of their visit to the U.S.
Submitting Form DS-160 costs $190. Additional fees may apply depending on the relationship between the U.S. and the foreign national’s home country.
3. Interview with the U.S. Embassy or Consulate
Foreign nationals between the ages of 14 and 79 who apply for a non-immigrant visa must interview with an official at the U.S. embassy or consulate in their home country or country of residence. Schedule this interview as soon as possible to avoid long wait times.
Change of Status to R-1 – Temporary Religious Workers
If the foreign national is already in the United States in another valid non-immigrant status, he or she may apply to change status to R-1 Temporary Religious Worker, thereby avoiding the consular/embassy process.
How Does the U.S. Government Define Religion?
USCIS defines a religious denomination as a group of people governed by a type of ecclesiastical administrative body. Members of a religious denomination must also agree on at least one of the following criteria:
- A recognized statement of faith or shared beliefs.
- A commonly held system of worship
- A commonly held doctrine and code of discipline
- Established places of worship and congregation
- An agreed upon set of ceremonies and services
- Another comparable indication of a religious denomination
Religious entities without a central governing or ecclesiastical administrative body may instead submit a description of their internal organizational structure to satisfy these requirements.
What Are Religious Occupations?
Religious occupations include positions with duties that primarily relate to a traditional religious function: members of the clergy and other religious workers.
Eligible religious occupations include but are not limited to the following:
- Clergy: Ministers, priests, rabbis, salaried Buddhist monks, ordained deacons, etc.
- Other religious workers: Liturgical workers, instructors, counselors, missionaries, translators, broadcasters, cantors, etc.
USCIS does not consider workers with primarily administrative such as Janitors, Fundraisers, Clerical employees, Maintenance workers, or support positions to fall under the category of religious occupations. Volunteers are also not eligible for R-1 visas.
Family of R-1 Visa Holders
An R-1 religious worker’s spouse and unmarried children under the age of 21 may be eligible for R-2 classification. An R-2 dependent is not authorized to work based on this visa classification.
How Long Does It Take to Process an R-1 Visa?
The time it takes to process an R-1 visa varies widely from case to case. If USCIS has already conducted an on-site inspection of the religious employer, the employer may qualify for premium processing, which significantly speeds up the process. If the religious employer is not eligible for premium processing, the process can take about 8 or 9 months (6 months for USCIS to respond to the petition and 2 to 3 months for the visa to process).
How Long Does an R-1 Visa Last?
R-1 visas are initially granted for up to 30 months. However, 1 30- month extension, for a total of 60 months (5 years), may be granted.
Can I Apply for a Green Card as an R-1 Visa Holder?
Yes. R-1 visa holders can seek to become lawful permanent residents of the U.S. through methods such as adjustment of status, family sponsorship, or employment-based immigration visas for religious workers (EB-4 visas). Religious Workers are eligible to apply for a green card after two years of R-1 visa status.
FAQS
How long does the immigration process typically take?
The duration of the immigration process can vary widely depending on the type of visa or immigration benefit you are seeking. For instance, family-based immigration and employment-based immigration have different processing times. On average, it can take several months to several years to complete the immigration process. It's crucial to consult with our experienced attorneys who can provide a more accurate estimate based on your specific circumstances and visa category.
Can I apply for a green card while on a non-immigrant visa like a work or student visa?
Yes, in many cases, you can apply for a green card (permanent residency) while on a non-immigrant visa. This process is known as "adjustment of status." However, eligibility criteria and procedures vary depending on your specific visa type and circumstances. Our attorneys specialize in helping individuals navigate this transition smoothly, ensuring you meet all requirements and deadlines to secure your green card while maintaining your legal status in the United States.
What happens if my visa application is denied?
Visa denials can be disheartening, but they are not necessarily the end of your immigration journey. The next steps will depend on the reasons for the denial and the type of visa you applied for. In many cases, you may have the option to appeal the decision or reapply with additional documentation. It's essential to seek professional legal advice immediately after a denial to explore your options. Our experienced attorneys have successfully assisted clients in overcoming denials and achieving their immigration goals through strategic legal actions.
