Non-Immigrant Employment Visas

Temporary work visas offer a limited stay in the United States for work reasons. There are various types of temporary work visas, and they can apply to multiple professions, from labor positions to specialty occupations.

There are a number of legal requirements to qualify for and get approved for a temporary work visa to the U.S. Immigration laws in the U.S. can change at any time. For specific information about your situation, it is best to talk to an experienced employment immigration attorney in your area.

Types of Temporary Work Visas

Temporary work visas are a category of non-immigrant visa. Non-immigrant visas are for temporary stays without the intent to permanently stay in the U.S. or become a permanent resident. The U.S. Citizenship and Immigration Services (USCIS) administers the temporary visa application process. The most common temporary visas are:

• H-1B: Person in Specialty Occupation
• H-2A: Temporary Agricultural Worker
• H-2B: Temporary Non-agricultural Worker
• H-3: Trainee or Special Education Visitor
• J-1: Exchange Visitor
• L-1: Intracompany Transferee

There are two main categories of visas in the United States:

• Immigrant visas
• Non-immigrant visas

A temporary work visa falls under the classification of non-immigrant status. However, it is possible for a foreign national with a temporary work status to acquire an immigrant status if they meet other requirements.

In limited situations, where a worker has an approved immigrant petition, they can file Form I-485, Application to Register Permanent Residence or Adjust Status. Lawful permanent residence (with a green card) will put immigrants on a path to citizenship.

Employment and Immigration Law

For employment purposes, U.S. immigration law is based on certain principles:

• The foreign workforce does not displace U.S. citizen workers.
• The employment of foreign workers does not promote a decrease in wages, nor does it deteriorate the country’s working conditions.
• The duration of temporary work visas depends on the type of work performed by the foreign worker, education, and special skills.

H-Type Temporary Work Visas

The H visa is the most requested temporary work visa. And it has several classifications:

• H-1B: This visa covers professional and specialized occupations. Foreign workers must hold a U.S. bachelor’s degree or its foreign equivalent for the specialty occupation. If they lack a degree, they may be able to meet the requirement by demonstrating an equivalent based on a combination of education, training, and progressive work experience (typically 3 years of experience for 1 year of college). This requires a Labor Condition Application from the Department of Labor. There are also sub-classifications for specialty occupations and for Free Trade Agreement workers from Chile and Singapore.
• H-2A: This visa covers temporary foreign employees in the agriculture sector. The applicant company must prove that it could not find U.S. workers to fill the vacancies.
• H-2B: This visa covers foreign temporary workers in skilled labor, but not professional positions. The applicant company must verify that the job is temporary and meets one of the following criteria: seasonal, peak load, intermittent, or a one-time occurrence.
• H-3: This work visa is for workers invited to the U.S. as apprentices or to participate in a knowledge exchange program, including special education practical training programs.

All H visas require an offer of employment from a U.S. employer. In addition, sponsors must show that the salary paid to the foreign employee is comparable to other positions in that occupation.

H Visa Limitations

Class H temporary visas have restrictions and a specific legal framework. Understand the characteristics of an H-visa before applying. Limitations for work visas include:

• They are subject to an annual vacancy limit. The United States government says each year how many H visas it will grant. This varies according to the economic needs of the country. Obtaining a visa does not guarantee immediate entry to the U.S.
• Processing times are different. For example, the United States Citizenship and Immigration Services (USCIS) will process an H-1B visa for a professional faster than an H-2B visa.
• They have an extension limit. An H-1 visa can allow a total stay of no more than six years, while an H-2 visa can admit a foreign worker for up to three years.
• The employee must fulfill specific functions with only one employer. If the foreign worker wishes to change jobs, the new employer must obtain a new H visa that covers the employee and meets all the requirements.
• They are not flexible with changes. Suppose the foreign worker’s employer sells or merges the company with another. In that case, the company needs to file a new petition or modify the current one.

L-1 Nonimmigrant Work Visas

The L-1 temporary work visa is for foreign persons transferred within the same company to a United States location. Specifically, an L-1 visa allows an employee of a foreign company to come to work at a subsidiary in the United States.

For example, the use of an L-1 visa is very common for:

• Executives
• Managers
• Employees with specialized knowledge

L-visa employees come from headquarters in another country to provide assistance with operations in the United States office.

E Work Visas

The E visa is for investors and merchants who wish to come to the United States. It follows the rules of the trade agreement with its country of origin. The E visa categories include:

• E-1: This visa is for foreign persons who will do business in the U.S. and live in a country with a trade agreement with the U.S. The trade may involve goods, property, or technology.
• E-2: This visa is for foreign nationals who will make an investment in the U.S. or are actively seeking to make such an investment. In addition, these people will participate in managing the company they plan to open in the U.S. Please note that the E visa is not an immigrant visa. If you want to immigrate to the U.S. as an investor, one option is the EB-5 visa.
• E-3: This is a special visa for foreign citizens of Australia. To request it, you must:
  • Have a job proposal in the United States
  • Have an academic degree that the position requires
  • Meet a work need in that area

J-1 Exchange Visa

The J-1 visa is for exchange visitors. Although it can also be a temporary work visa, some J-1 visa holders cannot work. Others are subject to the specific rules of their patrons to do so.

This visa is common for teachers, researchers, some students, apprentices, teachers with special abilities, specialists in an area of study, babysitters, and consultants.

O, P, and R Work Visas

O, P, and R visa classifications also allow temporary work in the U.S.:

• O Visa: This visa is for foreigners with extraordinary ability in the fields of arts, sciences, sports, business, and education. They also favor foreign citizens who have received national or international recognition in their field.
• P Visa: This visa is for outstanding athletes, sports teams, and entertainment groups of continuing international recognition. This type of visa is also for entertainers entering a reciprocal exchange program.
• R Visa: This visa covers religious workers who come to the country to work for a subsidiary of a foreign religious group.

Temporary visas issued to fulfill a job in the United States serve essential goals for the country’s economy. They allow foreign workers with specialized knowledge to come and share their skills.

TN visas

TN visas are temporary work visas for Mexican and Canadian professionals. These visas were developed with the North American Free Trade Agreement (NAFTA), now the United States-Mexico-Canada Agreement (USMCA).

Other Temporary Worker Visas

There are some less common non-immigrant classification visa categories, including:

• CW-1 (Commonwealth of Northern Mariana Islands transitional workers)
• Q-1 (cultural exchange programs)
• L (intracompany transferees)
• I (representatives of foreign press, radio, film, and media)

Traveling to the U.S. for business purposes does not always require an employment visa. A business visitor with a B-1 visa can travel to the U.S. to engage in limited, short-term business activities incidental to work performed abroad, such as attending conferences, consulting with business associates, or negotiating contracts. They are strictly prohibited from engaging in productive local employment, such as performing “sales” or “training” services, and must not receive income from a U.S. source for their activities.

Do I Need a Lawyer to Get a Temporary Work Visa?

Depending on the type of temporary work visa that you need, you may be able to:

• Request the visa by yourself
• Work with your employer to apply as your sponsor

If you apply for a temporary work visa in your home country, you need to go through your local U.S. embassy or consulate.

Most of the time, U.S. employers seek the services of an attorney to represent them and help with the paperwork because employment-based temporary visa petitions involve many steps with various government agencies.

Companies do not tend to take risks with immigration, nor do they want to lose a visa vacancy with lengthy processes. For example, an employer must ask the Department of Labor (DOL) for a labor certification before a foreign national can apply for a temporary work H-2 visas.

The employer must also:

• Justify the need to hire foreign employees
• Show that there are no American workers available to fill the position
• Prove that the salary and working conditions comply with the regional standards of labor laws

In these cases, an immigration attorney with experience in managing temporary work visas can help you. If you are a foreign employee with a job offer, you can seek advice from the same company’s lawyers or find your own lawyer. For legal advice about getting a non-immigrant employment visa, contact an immigration lawyer.