Non Immigrant Temporary Work Visas

Over 20 different Visas are available for individuals who wish to work in the U.S. without permanently relocating to the U.S. These are known as non-immigrant worker classifications. The following is a sampling of the most common, however this list does not detail all the requirements for each classification, contact us for detailed information:


  • E 1Treaty Traders and E2 Treaty Investors: This visa classification is designed for nationals of a country with a commerce and navigation treaty with the US to engage in international trade or investment. Citizens of same country as the treaty participant can be employed in the US to serve in executive/managerial or specialized skills/knowledge positions for requested time. Spouses of E-1/E-2's are eligible to file for work authorization for the duration that E spouse remains employed in an E1/E2 status in the US.  The petition process for an E1 or E2 may be performed in the US as a change of status request if the foreign person is in the US in a lawful nonimmigrant status or may be filed and adjudicated at the US Embassy or Consulate with jurisdiction over the location where the applicant lives.

  • H-1B Specialty Occupations: Workers must have offers for positions where a bachelor’s degree in a specialized field or higher is normally a minimum requirement for the position and the nature of the duties are so specialized that the knowledge required to perform the duties is associated with attainment of a bachelor’s degree or higher. The Employer must agree to pay the prevailing wage for the position, level, and area of employment, or the same salary as other workers similarly employed, whichever is higher, and must make certain attestations to the Department of Labor in order to be able to hire an H1B worker. However, unless the employer is an H1B dependent employer or has been found to be a “willful violator” by the U.S. DOL, there is no requirement under this category to perform a market test for qualified US workers.  Department of Defense researchers and fashion models also fall into this category.  Spouses of H1B workers do not have employment authorization available pursuant to derivative status.

  • H-2A Temporary Agriculture Workers and H-2B Temporary Non-Agriculture Workers: Workers seeking positions where an employer can demonstrate that there are not enough U.S. workers available, willing, able, and qualified to perform their temporary or seasonal work may qualify for this status. The employer, amongst other duties, must also demonstrate that hiring H-2A workers will not adversely affect the wages and working conditions of similarly employed workers.

  • H-3 Trainee: An employer in the US may request up to 2 years for a foreign national to train in the US if the trainee is not placed within productive employment, the benefit is for the trainee to pursue a career outside the US, and the training is not available to the foreign national in his or her home country. Spouses of H3 workers do not have employment authorization available pursuant to derivative status.

  • J-1 International Exchange Students: Scholars, researchers and trainees may enter the US and work in a J1 capacity, but may be subject to a 2 year home residency requirement under INA 212(e), which requires the J1 participant to fulfill the requirement by going home, or to the place he or she last permanently resided before the J1 admission for a 2 year period of time.  While the majority of J1 participants return to their home country to serve the 2 years, there are waivers available for the J1 applicant to request to waive the two year home residence requirement under certain circumstances.  If the J1 is subject to INA 212(e), and has not been granted a waiver, he or she will be unable to change status to another nonimmigrant status in the US, will be unable to change status or be admitted into the US in an H or L classification, and will be unable to adjust status or be admitted as a permanent resident until completion of the 2 year physical residence in the home country. A J program is designated as subject to INA 212(e) depending on whether there were US government funds, foreign government funds, or the position or field of work/study was listed on the Department of State Skills list for the country where the participant was permanently residing prior to admission to the US. The spouse of a J1 is eligible for work authorization under certain circumstances, but if admitted in a derivative J2 status under a J1 who is subject to the INA 212(e) requirement, the J2 spouse will be subject to the same 2 year requirement, unless the spouse is granted a waiver and fulfills any requirement of the waiver. 

  • L Intra-company Transferees to serve in an Executive/Managerial position or a Specialized knowledge position: US Employers who have a qualifying relationship with a foreign company (parent/subsidiary, joint venture, percentage of ownership, agent) may transfer qualifying employees to the US entity under either an executive/managerial for up to 7 years or in a specialized knowledge position for up to 5 years. Spouses of L1's are eligible to file for work authorization for duration of time that the principal L1 is allowed to work in US. 

  • O Extraordinary Ability: Individuals with extraordinary abilities in sciences, arts, education, business, or athletics, or individuals who have been recognized nationally or internationally for achievements in motion picture or television may qualify for a 3 year period of stay, with extensions available in one year increments. O1 is an employer sponsored classification so that there must be a US employer or agent to sponsor the foreign born individual.  Spouses of O workers do not have employment authorization pursuant to derivate status.
  • P Athletes, Artists and Entertainers: Both individuals and members of athletic or performance groups are eligible for this classification. Essential support personnel for artists and entertainers are also eligible to receive P classification.  P classifications are employer sponsored classifications so that there must be a US employer or agent to sponsor the foreign born individual or group members.  Spouses of P workers do not have work authorization pursuant to derivative status.

  • Q Cultural Exchange: Employers who run established cultural exchange programs may petition to allow certain employees to stay in the U.S. for a period of 15 months.  (For example, DisneyWorld employees.)

  • R Religious Worker: Workers who are employed at least 20 hours by a non-profit religious organization may qualify for R classification. The religious worker must have been a member of the same denomination for at least 2 years before the U.S. religious organization may apply on his or her account. Spouses of R1 workers do not have employment authorization available pursuant to derivative status.

  • TN NAFTA Professionals: Canadian and Mexican citizens may work in the U.S. temporarily as a member of a profession listed in the NAFTA Accord Appendix.  The Canadian or Mexican  can receive a TN approval or status for up to an initial 3 year period, with extensions available, so long as he or she has evidence of qualifications (citizenship, education or licensure, proof of offer of employment in one of the listed occupations, etc.). A U.S. Employer must support the TN petition, offer qualifying employment, and submit appropriate documentation.  However, since Canadians are visa exempt, a Canadian seeking TN status may submit the US employers petition packet at a Port of Entry to permit admission, whereas a Mexican seeking a TN must either seek to change nonimmigrant status if located in the U.S. in a valid nonimmigrant status at the time of job opportunity, or first have a petition adjudicated by USCIS in the U.S. and then proceed to a U.S. Consulate or Embassy with jurisdiction over where he or she resides to make a TN visa application. Spouses of TN workers do not have employment authorization available pursuant to derivative status.

Note, most of the above employment related statuses require that a U.S. employer complete and submit the Form I-129 on behalf of the foreign born worker.

Work Status granted due to Nonimmigrant Status as a Student
A foreign national who has been admitted into the U.S. in an F1 status or who has been granted a change of status in the U.S. typically does not have work authorization, other than for a part-time (20 hr/wk) job providing on-campus services. 
There are some exceptions to the general rule, which require careful review of various codes within the Federal Regulations to determine whether part-time or full-time work is permitted during an authorized stay in the U.S. in a student F1 status.  In emergent situations for a foreign student pertaining to his or her home country or home life, the foreign student is permitted to apply for an employment authorization document (EAD) for part-time work off-campus during the school sessions, and full time hours during vacation or holidays from the regular school session.

Additionally, paid internships known as curricular practical training (CPT) can afford work authorization off campus while the student follows a course of study, or pre-and-post Optional Practical Training (OPT) not to exceed twelve months in total is permitted either prior to graduation or following the completion of a course of study. 

More recently, a new regulation permits students in certain fields of study known as STEM (Science, Technology, Math and Engineering) to gain an additional 17 months of work authorization to work in a position in their field after graduation and completion of the initial OPT time period if the employer is an E-Verify employer.

The regulations pertaining to students are very specific as to timing on how to file, when to file, eligibility and maintaining status.  Some Designated Student Officers (DSO) are quite knowledgeable about the practice, while others are not as familiar There are times that a student will unwittingly fall out of status or have their SEVIS record terminated due to a misunderstanding of the requirements for filing and eligibility. It is, therefore, highly suggested to verify information and direction gained through an international office at a college or university with a knowledgeable immigration attorney.  The Pinjuh Law Firm has helped many students understand the requirements for obtaining work authorization, filing for work authorization, overcome difficulties or Requests for Evidence for obtaining work authorization, and obtaining reinstatements of student status when an application fails.


 

© Copyright 2015 Pinjuh Law Firm. All Rights Reserved. Pinjuh Law Firm: 6116 West Creek Road, Cleveland, OH 44131 | Office: 216-264-4618

Email: lori@pinjuhlaw.com Web design by: IPCS Design