Visas for Skilled Workers

U.S. immigration laws permit a variety of professionals to engage in temporary employment. The most common avenue for temporary skilled labor is the H-1B visa, but also included in the skilled labor category are the E-3 and the TN visas, as well as the I visa for foreign reporters and journalists. The O visa can be used for those who have demonstrated extraordinary ability. The J-1 and H-3 visas for training programs are sometimes overlooked by companies seeking international talent, though they can serve a valuable purpose for building up an overseas or international operation. Knight Immigration has extensive experience working with companies to procure these visas for employees. 

The “H-1B” Visa for Skilled Professionals

Without exception, the most popular employment-based nonimmigrant visa is the H-1B, which allows for U.S. companies to obtain professional, skilled foreign workers. The H-1B is so coveted that the annual allotment of 85,000 visas are only available through lottery. Although the H-1B is intended as a temporary work visa, most beneficiaries of this status start the employment-based green card process within the first four years of receiving the H-1B. 

The range of industries that can support an H-1B petition may be unlimited but the occupations within those industries is circumscribed. The statute and regulations list occupations that usually support H-1B petitions, like banking, engineering, finance, teaching, and medical positions, but the title of an offered position will never satisfy the H-1B requirements. To qualify for an H-1B status, the two critical requirements are that the offered position is a “specialty occupation” and the beneficiary is qualified for the position. Meeting both requirements is intimately linked to the beneficiary’s education.

A specialty occupation is a position that requires the “theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s degree or higher as a prerequisite to getting the position. These two requirements work together and companies can demonstrate their position’s eligibility by demonstrating complex job duties, hiring practices, and commonality within their industry. In each of these avenues, the relevant concepts from the required degrees should be highlighted. However, in explaining their position’s complexity and requirements the U.S. company must also show the beneficiary is qualified for the position, often by virtue of their education. If the foreign national has a degree in finance then they are likely to be qualified for a financial analyst position; a degree in biology is unlikely to qualify one for a position as an editor.

There are a slew of other requirements that accompany the H-1B petition, such as the prevailing wage requirement, the employer-employee relationship, itineraries for third-party worksites, maintenance of status, employer obligations, and the additional filing fees ($500 and $750/$1,500).

Every H-1B petition is different, and each presents its own challenges. USCIS has started taking a narrower view of positions and beneficiaries that qualify for H-1B status, and this interpretation has affected both longtime visa holders and previously uncontested occupations. However, with probative, credible, comprehensive, and thoughtful evidence difficult H-1B petitions can still be won. At Knight Immigration, we specialize in taking on tough H-1B cases.

The H-1B status is valid for a maximum of 6 years; spouses and dependents may join the principal visa holder in H-4 status but may not work. However, both the 6-year limit and ban on spousal work authorization is lifted if the principal H-1B holder has started the PERM process for employment-based permanent residence. The lottery only has to be done once, and H-1B beneficiaries may transfer jobs and employers by filing a new H-1B petition with USCIS.

The H-1B classification also covers fashion models and Department of Defense placements. A subcategory of the visa is the H-1B1, which circumvents the lottery requirement for Chilean and Singaporean nationals. There are also cap-exempt H-1Bs available to individuals working at institutions of higher learning and associated non-profits, which often covers foreign physicians in H-1B status. 

The H-1B Lottery

In 2020, USCIS will be instituting a registration process for the H-1B lottery. This long-awaited change will result in tremendous savings in legal fees for employers and will significantly reduce the processing burden on USCIS. It will also inform foreign students playing the lottery whether they have been selected or not in a timely fashion allowing them to better plan their future in the U.S. The new registration process is also designed in a way to increase the chances of success for H-1B hopefuls with master’s degrees.

The registration process will take place online and will require a $10 filing fee. The required information includes the beneficiaries full name, birth date and place, citizenship, passport number, gender, and an employer attestation. Although a Labor Condition Application and position specifics are not required, the employer attestation ensures that there is a bona fide job offer in a specialty occupation. Attorneys can complete this registration for the employer.

After the registration period is complete, USCIS will conduct the first for the 65,000 H-1B visa slots, followed by a second lottery for the 20,000 master’s degree slots. If selected in the registration, the employer has 90 days to file the physical H-1B petition. These petitions will be adjudicated in order of filing – for this reason, some employers may opt to file their Labor Conditions Applications early.

Cap-exempt H-1B employers and current H-1B holders are not required to register or play the lottery.

The “E-3” Visa for Australian Professionals

Australia enjoys a special visa classification for its nationals coming to perform services in a specialty occupation – the E-3 visa. This visa classification is like the H-1Bvisa in many critical respects: the job offer must be for a specialty occupation, a Labor Condition Application must be obtained, and the employee must possess the requisite credentials – typically a relevant bachelor’s degree.

The E-3 visa has several distinct advantages over the H-1B visa. Although subject to an annual cap of 10,500 visas, the cap has never been exceeded meaning E-3s are readily available throughout the year – no lottery required. The visa classification avoids the additional H-1B fees imposed on employers, and E-3 petitions consistently receive less scrutiny than H-1B filings. E-3 status can be extended indefinitely, and spouses are eligible for employment authorization. 

However, it is important to note that the E-3 visa is not a dual-intent visa like the H-1B. E-3 visa holders must maintain their intent to depart the United States at the end of their employment. Coupled with the two-year grant (instead of the three years afforded for H-1B holders), this can create an important timing issue when pursuing a labor certification for permanent employment in the U.S.

Spouses and children under twenty-one may obtain dependent visas, often annotated as “E-3D” on the I-94 Arrival/Departure Record. Spouses of E-3 principals are eligible for work authorization and most are interested in pursuing employment in the United States. These spouses must keep in mind that there is roughly a three-month processing delay before USCIS issues the physical work card.

The “TN” Visa for Canadian and Mexican Professionals

The North American Free Trade Agreement (NAFTA) created the TN visa classification for professionals from Canada and Mexico. There are significant advantages to the TN visa, but these are accompanied by some drawbacks as well. To be eligible, the foreign national must be a citizen of either Canada or Mexico seeking entry to the United States to engage in business activities at a professional level with a U.S. employer. The list of qualifying professions and activity is lengthy but definite and includes accountants, lawyers, engineers, pharmacists, scientists, and teachers. TN status is valid for 3 years at a time and can be extended indefinitely; spouses and minor children may be granted dependent (TD) status.

An advantage of the TN visa is that it provides, like the E-3, an alternative option to work in the U.S. if the H-1B option is not readily available. Individuals eligible for TN status do not need to play the lottery and wait until October 1st to start employment – they can accept employment at any time. Their compensation is not governed by the prevailing wage requirement tied to H-1B petitions. Canadian citizens can even apply for TN status directly at the border (as well as through USCIS).

However, the major drawback of the TN visa is that it is not a dual intent visa like the H-1B. This means that TN visa holders who want to apply for permanent residence would be best served by starting the PERM process as soon as possible after the initial grant or extension of TN status. The PERM process is lengthy and can take a year or longer to complete and once submitted, the foreign national’s nonimmigrant intent is compromised making it difficult to renew the TN visa. 

The “I” Visa for Foreign Reporters and Journalists

Representatives of foreign media companies may be eligible for the I visa. This visa classification encompasses reporters, journalists, film crews, editors, and other media personnel who are being stationed in the United States. Freelance media reporters are also eligible as long as they have a valid contract with a foreign media company. Applications for I visas are made through the U.S. consulate overseas and representatives are generally admitted for the duration of their assignment (D/S). If an individual wants to extend their I status (or change to I status) they must file an I-539 with USCIS; there is no limit on the number of extensions that can be granted.

Spouses and children under twenty-one may accompany I visa holders; they can study but cannot work. In situations where family members are only visiting the I visa holder, the B-2 visitor visa may be the more appropriate vehicle.

The “O-1A” Visa for Extraordinary Scientists, Educators, Athletes & Business Professionals

Foreign nationals who possess extraordinary ability in the sciences, education, business, or athletics may be eligible for the O-1A visa. In this range of endeavors, the individual must show sustained national or international acclaim in their field – and the U.S. employment must be in that field. The latter requirement is a common pitfall for coaches who try to demonstrate their extraordinary ability by their athletic achievements as a former athlete instead of their coaching record.

To apply, U.S. employer or agent must file an I-129 petition with USCIS to establish eligibility. All petitions must include a detailed explanation of the work to be done, an itinerary of events, and an employment contract. One unique feature of all O and P visas is the consultation requirement, a written advisory opinion from an appropriate labor union. In addition, the O-1A petition requires that the foreign national establish their extraordinary ability – a level of expertise indicating that they are one of a small percentage of people who has risen to the very top of their field. This is a high standard to meet and can be done through receipt of a major award like the Nobel Prize, or more commonly by meeting three of the following:

· Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

· Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;

· Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;

· Original scientific, scholarly, or business-related contributions of major significance in the field;

· Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought; 

· A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

· Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; or

· Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

O-1A petitions are typically hundreds of pages and the difficulty of demonstrating at least three of the above requirements varies in each case according to the individual and the endeavor. Careful attention must be given to the exact language of each requirement to make sure it is met. For example, simply showing articles authored by the foreign national is not enough – they must be accompanied by evidence that the publishing platform was a professional journal or a major media outlet, necessitating evidence regarding the platform itself. Likewise, showing the receipt of awards must be accompanied by evidence of the distinguished nature of the award itself. This is how O-1 filings become voluminous, especially if large portions of documents must be translated to English (an added cost most individuals don’t consider beforehand). If the requirements do not readily fit an endeavor but an individual feels they are still extraordinary, they may submit comparable evidence. But in doing so, the individual must also explain why the individual requirements are not applicable to their field. 

Once USCIS approves the petition, the foreign national will apply for the O-1A visa at a U.S. consulate overseas. The O-1A visa can be granted for a maximum of three years and can be extended. However, the length of validity is usually determined by the particular event or need that precipitated the O-1A application. Spouses and minor children are eligible for the O-3 visa. They may study but are not eligible to work in the U.S.

Support personnel may be eligible for the O-2 visa if they can establish that their assistance is an integral or essential part of the O-1 visa holder’s work or performance. The evidence should establish their current essentiality, critical skills, and experience, as well as their experience in supporting the O-1 principal. 

The “J-1” Visa for Trainees & Interns

The J-1 visa for exchange visitors is expansive and covers several groups of foreign nationals, including trainees and interns. Like all other J-1 categories, these individuals must be fluent in English, have sufficient funding for the program, possess medical insurance, and maintain a residence abroad.

To qualify as a J-1 Intern, the foreign national must be enrolled in a college-level institution outside the United States (or have graduated within the past year). J-1 Trainees, on the other hand, already possess their college degree and have at least 1 year of work experience. In either case, the proposed internship or training program in the U.S. must be directly related to the foreign national’s field of study. If an internship, the maximum stay is 12 months. J-1 Trainees can be admitted for a maximum of 18 months but must remain outside the U.S. for 2 years between training programs.

Occupational categories that will qualify for an internship or training program are limited to: (1) agriculture, forestry, and fishing; (2) arts and culture; (3) construction and building trades; (4) education, social sciences, library science, counseling, and social services; (5) health-related occupations; (6) hospitality and tourism; (7) information media and communications; (8) management, business, commerce, and finance; (9) public administration and law; and (10) the sciences, engineering, architecture, mathematics, and industrial occupations. 

The “H-3” Trainee Visa

The H-3 visa classification is intended for trainees and foreign nationals engaged in special education exchange programs. The H-3 Trainee visa is granted to individuals coming to the United States to receive training in any endeavor (other than medical) that is otherwise unavailable in the home country. H-3 Trainees are subject to a two-year maximum stay. Like the J-1visa for interns, the H-3 is not intended as a vehicle for extended employment in the United States – it is to provide training for employment the beneficiary will take upon returning home.

Consequently, an H-3 petition must be accompanied with evidence that the proposed training program is not available in the trainee’s home country, that the trainee will not fill a position usually filled by a U.S. worker, and that the training program will not constitute productive employment unless incidental and necessary to the training program. Each H-3 petition must contain a detailed statement from the employer that expressly defines the particulars of the training program and the subsequent career advancement expected overseas.

An H-3 Special Education Exchange Visitor program is specifically for individuals receiving practical training and experience in the education of children with physical, mental, or emotional disabilities. These petitions must contain similar supporting evidence for the training program, with the additional requirement that the trainee have formal education in special education. Only fifty of these special H-3 visas are available each year and they come with a maximum stay of eighteen months.

H-3 visa holders may bring their spouses and children under twenty-one through the H-4 visa classification. These dependents are not permitted to work in the United States.