Employment-Based Visas

In order to obtain a work visa in the U.S., you will generally need a sponsor, or employer.  There is not a work visa for “independent contractors”.  In order words, U.S. law does not allow a person to apply for a self-sponsored work visa and come to the U.S. to freelance and provide services to the general public.  Some work visa categories may allow you to be a part owner of a business, such as the H-1B and L-1.  However, it will require a much more in-depth discussion that this website allows.  Please contact us if this applies to you.   

If you are interested in starting a business in the U.S. and operating your own company, please check out the section on “Investors” and the E-1 and E-2 categories.

The H-1B non-immigrant work visa is used to hire foreign national workers for “specialty” positions, meaning that the position must require at least a bachelor’s degree in a specific field.   

Who can have H-1B work authorization? 

The threshold requirements for H-1B status are (1) the job that requires at least a bachelor’s degree (or its equivalent) in a specialized field, and (2) the foreign national has the requisite degree, its foreign equivalent, or its equivalent in training and experience. Most foreign degrees must be translated and evaluated by a third-party educational evaluation service to ensure that they are equivalent to a U.S. degree. 

If the degree is in a field that does not appear to be related to the offered employment, the foreign national’s education and work experience will need to be evaluated to determine if the credentials are equivalent to a U.S. degree in the relevant field. This requires complete transcripts, a detailed resume describing previous employment history, and letters from previous employers confirming work experience in the specialized field. Generally, the U.S. Citizenship and Immigration Services ( USCIS) will recognize three years of full-time work experience in the field for every year of college missing from the specialized degree program. In other words, with no college education, the foreign national will need a minimum of twelve years of full-time related work experience to be able to obtain the equivalent of a four-year bachelor’s degree. 

H-1B status is granted in three-year increments and is “capped” at 6 years. All time spent in either H or L status for any employer in the U.S. counts toward this six-year cap. Extensions past the six-year cap are only available if an employment-based immigrant petition has been initiated on behalf of the foreign national and one of the following applies: 

  • A labor certification or and I-140 immigrant petition was filed at least one year prior to the foreign national’s six-year cap, or 
  • An I-140 immigrant petition has been approved on behalf of the foreign national. 

Whether an extension beyond the six-year cap will be granted in one or three-year increments depends on whether an I-140 has been approved and on the availability of immigrant visa numbers at the time the extension is filed. 

What steps are involved in the processing of an H-1B petition? 

The employer must complete the following two steps to obtain H-1B status for an employee: 

  • File a Labor Condition Application (LCA) with the Department of Labor (DOL): the LCA contains attestations by the employer regarding the H-1B employment, including, confirmation that the H-1B employee will be paid the higher of either the prevailing wage for the H-1B position or the “actual wage” paid to similar workers at the place of employment. The LCA is filed with the DOL on its online portal. 
  • File the H-1B petition: The H-1B petition cannot be filed with USCIS until the LCA has been certified by the DOL. The processing time at the DOL is about 7 days. The processing time at the USCIS Service Centers ranges from three to six months, unless the employer has requested two-week “premium processing” with additional government fees. 

How soon can an H-1B employee start working? 

The H-1B employee can start working as soon as soon as he/she work authorized. Some may already have temporary work authorization based on student visa (F-1) optional practical training and an Employment Authorization Document (EAD) issued by USCIS. If not, the foreign national must wait until the H-1B petition is approved to begin employment. 

If the H-1B employee is already in H-1B status with a different employer and is “transferring” his/her H-1B status to another employer, the H-1B employee may start working at the new employer as soon as the new employer’s H-1B petition is properly filed with the USCIS. This is known as “H-1B portability.” To qualify for “H-1B portability,” the H-1B employee must have maintained H-1B status since last entering the U.S., must have not worked without authorization since last entering the U.S., and the new employer’s H-1B petition must be filed before the expiration of the H-1B employee’s current H-1B status. If the H-1B employee does not qualify for “H-1B portability”, he or she cannot begin working for the new employer until the new employer’s H-1B petition has been approved.  However, it is advisable to wait for the H-1B receipt notice to be issued before an H-1B employee “ports” to the new employer.  Due to heighten H-1B scrutiny, many employer and employees have opted to wait for the H-1B transfer to be approved before porting to the new job.  

If the H-1B employee is outside the U.S., he or she must wait for the H-1B petition to be approved first.  Then, the H-1B employee can apply for an H-1B visa at a U.S. consular post in order to enter the U.S. in H-1B status. The application at a U.S. consular post is not required for foreign nationals who are already in the U.S. 

How is H-1B status extended? 

To extend H-1B status, the employer must file a petition requesting an extension with USCIS. The extension can be filed as early as six months prior to the H-1B employee’s current H-1B expiration date. An extension filed prior to the expiration of the current H-1B status automatically extends work authorization for up to 240 days while the extension application is pending. There may be restrictions on international travel, however, while the extension is pending, so any travel while the extension is pending should be addressed with our team before solidifying plans. 

How long may I stay in the country if I get laid-off? 

You are allowed to remain in the U.S. for 60 days. This provides some time to look for another employer that is willing to submit an H-1B petition on your behalf. The 60-day clock begins running the day after your last day of actual employment. A new employer can file an H-1B petition on your behalf anytime during the 60-day window. 

May I switch from one job site to another, have a change in job responsibilities, be promoted, or change work groups without going through the whole process again? 

The H-1B status is linked to the employer, position, and location.  If any of these conditions is change, an amendment or transfer petition is likely required.  Minor job changes such as promotion or salary increase do not usually require an amendment because these are not “material” changes of the employment.   However, please do not hesitate to contact us to discuss and evaluate whether a change is considered “material.” 

I have an H-1 visa stamp with another company’s name on it. Don’t I have to get a new H-1 visa stamp that shows my current employer? 

You do not need to obtain a new visa stamp specifically for the new employer. As long as your visa stamp has not expired, it remains valid for travel despite the fact that you now work for a different employer. You can enter the U.S. with the former employer’s visa stamp by showing your current employer’s H-1B approval notice to demonstrate to the port-of-entry officer that you remain in valid H-1B status. 

An H-2A classification applies to an alien who is coming temporarily to the United States to perform agricultural work of a temporary or seasonal nature. 

An H-2B classification applies to an alien who is coming temporarily to the United States to perform nonagricultural work of a temporary or seasonal nature, if there are not sufficient workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such services or labor. This classification does not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession. The temporary or permanent nature of the services or labor described on the approved temporary labor certification are subject to review by USCIS. This classification requires a temporary labor certification issued by the Secretary of Labor or the Governor of Guam prior to the filing of a petition with USCIS. 

H-2A & H-2B Key Requirements:  

  • Employment must be temporary or seasonal: “Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. 
  • “Mini” labor certification is required:  An employer must test the labor market and hire qualified U.S. workers. 
  • H-2A workers must be from eligible countries, which is updated annually 
  • Subject to annual quotas of 66,000.  Half of which is used for the first half of the year.  The remaining half is allocated in the second half of the year.  

General 

An employer can request permission from the United States Citizenship and Immigration Services (USCIS) to employ selected foreign national workers with H-3 work authorizations for up to two years.  The purpose of the H-3 program is to allow U.S. companies to bring in foreign individuals to train in the U.S. and then send them to the employer’s operations (or those of a key customer or other commercial relationship) abroad, to serve as a local contact, or perform in the positions trained for.  The employer must establish and submit a training program that involves both classroom instruction and on-the-job training for the individual.  The aliens enrolled in the training program may perform work for the petitioning employer, so long as the work is “incidental” to the training.  The trainees may receive wages.  This is an excellent way to facilitate expansion into foreign markets. 

Process

Before an alien can enter the United States as a trainee in the H-3 category, the employer must petition the USCIS on the I-129 form, attaching information about the company, and an outline of the proposed training program.  In the support letter and outline, the employer is required to (1)  specify the kind of training to be given, (2) the proportion of time devoted to productive employment, (3) the number of hours spent in classroom instruction, (4) the number of hours in on-the-job training, (5) the position or duties for which the training will prepare the alien, (6) the reason the training cannot be received in the alien’s home country, and (7) the reason the alien must be trained in the United States.

Processing times vary, but generally expect at least 3 months for approval of an H-3 petition.  Premium processing is available.  After USCIS approves the petition, the employee must schedule an appointment with the U.S. Consulate in his or her home country, and then apply for the H-3 visa.  If approved, a visa will be placed in the employee’s passport in roughly one week’s time.

Limitations

The USCIS has placed several limitations on this category. For example, trainees are not allowed to participate in productive employment.  When on-the-job training consists of little more than the repetition and practical application of skills, it is likely to be considered productive employment.  Other indications of productive employment include a high salary, prior experience indicating that the training would be little more than a repetition of the prior experience, on-the-job training which does not impart skills, and the degree to which the activities of the trainees are essential to the company’s U.S. operations.    

Another limitation on H-3 is that the employer must have the intention to return the trainee abroad.  In other words, the training cannot be for the purpose of placing the trainee with the U.S. operation once training is complete.  Similarly, the trainee must have the intention to depart the United States upon completion of the training and must maintain a foreign residence which he or she has no intention of abandoning.  It should be noted, however, that the employer may have initial plans to employ graduates of its training program in facilities abroad or as agents abroad.   

Employees who have worked for a company outside the U.S. for at least one full year may be eligible for an L-1 (intracompany transferee) visa if they are being transferred to a related company in the U.S. The definition of “related” includes subsidiaries, parent companies, or affiliate offices. The year of employment outside the U.S. must have been in a managerial or executive role, or in a “specialized knowledge” role, which requires knowledge and experience in company–specific technologies, systems, processes and, procedures., etc. In addition, the role in the U.S. must also be either a managerial or specialized knowledge role. Managers and executives are designated as L-1A and employees with specialized knowledge are classified as L-1B. 

There are mainly three requirements for the L-1 visa: 

First, the company in the U.S. and outside of the U.S. must have qualifying relationship. 

Second, the employee must have worked for the employer’s office outside of the U.S. for at least one year in the three years preceding the transfer to the U.S. 

Third, the employee is being transferred to the U.S. to assume a position that requires either specialized knowledge of the company or as a manager or executive. 

What is considered a “manager” or “executive” for L-1A purposes? 

Generally, a “manager” refers to an employee who: 

  • manages the organization, or a department, subdivision, function, or component of the organization; 
  • supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; 
  • has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and 
  • exercises direction over the day-to-day operations of the activity or function for which the employee has authority. 

An executive, on the other hand: 

  • directs the management of the organization or a major component or function of the organization; 
  • establishes the goals and policies of the organization, component, or function; 
  • exercises wide latitude in discretionary decision-making; and 
  • receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. 

As illustrated above, the requirements for a manager or executive are nuanced and will require a case-by-case analysis to determine whether an employee meets the standard for L-1A eligibility. 

What is “specialized knowledge”? 

“Specialized knowledge” is knowledge of the employer’s products, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise of the organization’s processes and procedures. For example, it is not sufficient to merely demonstrate that someone is a good computer engineer for a certain company. For that person to qualify for the L-1B status as an employee with “specialized knowledge”, the employee must demonstrate that he possesses specialized knowledge of the company’s technologies or systems, which other computer engineers would not possess, except for those who have worked for the company for at least one year. 

Similar to the L-1A standard, the requirements for a specialized knowledge employee are nuanced, so a case-by-case analysis is required to determine whether an employee meets the standard for L-1B eligibility. 

What steps are involved in the processing of an L-1 application? 

For most employers, an L-1 petition must be filed with the appropriate USCIS service center. Some employers, however, are able to obtain an approved “blanket” L-1 petition, which allows an employee to bypass the USCIS service center and apply the employee directly applying for an L-1A or L-1B visa at a U.S. embassy or consulate outside the U.S. Canadian citizens can apply directly at a U.S. land port-of-entry or an airport pre-flight inspection station. 

How long will it take to go through the L process? 

Processing times for an L-1 petition vary depending on backlogs at USCIS, or in the case of a blanket L-1 application, at the relevant consulate or embassy. USCIS processing times generally range between 4 to 6 months, but premium processing is available for an additional USCIS fee. On average, processing time of an L visa application at a consulate or embassy is about a week, plus the time required to obtain an appointment. 

Can my L-1 status be extended? 

Extensions of L status may be filed only during the six-month period prior to expiration of your current status. Extensions are generally granted in two-year increments, up to a maximum of five years for specialized knowledge employees (L-1B) and seven years for managers and executives (L-1A). This time is cumulative of all U.S. stay in H-1B or L-1 status for any employer. If the extension application is filed prior to expiration of the current authorized stay, you automatically have continued work authorization for up to 240 days while the application is pending. There may be restrictions on international travel, however, while the extension application is pending. 

TN “Trade NAFTA” classification is available to qualified Canadian and Mexican citizens pursuant to the North America Free Trade Agreement (NAFTA).  Although NAFTA has been replaced by the U.S. Mexico Canada Agreement (USMCA), the TN work status categories and requirements have remained the same. TN status is granted up to three years at a time. Currently there is no limit to TN stay in the U.S. However, an individual in TN status must maintain an intent to return to his or her home country. Thus, it is wise to consider changing to H-1B prior to the commencement of any permanent residence process. 

Who is eligible for TN classification? 

TN status is available only to citizens of Canada and Mexico. TN applicants must be offered a temporary position in one of the professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA. The list of professions includes, among others, Engineer, Computer Systems Analyst, Accountant, and Scientific Technologist. Most of the listed TN professions require a minimum of a bachelor’s degree in the specialized field, but in contrast to the H-1B category, work experience equivalent to a degree is not typically recognized. 

How is a TN application processed? 

The TN application process cannot begin until the offer of employment is made and accepted. Although the TN classification is available to Canadian and Mexican nationals, the application process and timing is different for each. 

  1. Canadian applicants: Canadians can apply for admission to the United States in TN status at a U.S. port-of-entry or pre-flight inspection. The application consists of a letter from the employer describing the duties of the offered employment and how the position qualifies as a TN profession. The applicant must also present his or her educational documents to satisfy the education requirement for that TN profession. The application is reviewed by an officer as the Canadian is crossing the border to enter the U.S.
  2. TN petitions for Mexican nationals: Mexican citizens can apply for a TN visa at one of the U.S. consulates in Mexico. The visa application must include a letter from the employer describing the duties of the offered employment and how the position qualifies as a TN profession. The applicant must also present his or her education documents to satisfy the education requirement for that TN profession.
  3. TN petitions may also be filed with the USCIS by mail. The processing time varies between 3 to 5 months, and premium processing is available.

Can I extend TN status? 

As with all work authorization status types, TN status must be renewed or extended prior to the expiration of the employee’s current TN status (evidenced by the expiration date of the I-94 admission record). Canadian nationals may make a new application for admission in TN status at a U.S. port of entry or pre-flight inspection. Upon reentry, the TN employee can be admitted for up to three more years of stay in TN status. Mexican citizens can renew a TN by applying for a new TN visa at a U.S. consulate. 

Either a Canadian or Mexican may apply for TN extension by mail at USCIS.  Once the TN extension request has been filed, the employee will have continued work authorization for up to 240 days or upon USCIS approval of the extension, whichever comes sooner. 

To obtain the O-1 classification, one must be: 

  • An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or 
  • An individual who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement. 

The O-2 classification applies to an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O-1. The O-2 alien must: 

  • Be an integral part of the actual performances or events and possess critical skills and experience with the O-1 alien that are not of a general nature and which are not possessed by others; or 
  • In the case of a motion picture or television production, have skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. 

Requirements for an O-1 individual of extraordinary ability in the fields of science, education, business, or athletics   

An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of: 

  • Receipt of a major, internationally recognized award, such as the Nobel Prize; or 

At least three of the following forms of documentation: 

  • Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 
  • Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; 
  • Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; 
  • Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; 
  • Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field; 
  • Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media; 
  • Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; 
  • Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. 
  • If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility. 

Requirements for an O-1 alien of extraordinary ability in the arts 

To qualify as an alien of extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the following: 

  • Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or 

At least three of the following forms of documentation: 

  • Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements; 
  • Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; 
  • Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; 
  • Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; 
  • Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or 
  • Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or 
  • If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility. 

Requirements for an alien of extraordinary achievement in the motion picture or television industry 

To qualify as an alien of extraordinary achievement in the motion picture or television industry, the alien must be recognized as having a demonstrated record of extraordinary achievement as evidenced by the following: 

  • Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or 

At least three of the following forms of documentation: 

  • Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements; 
  • Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; 
  • Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; 
  • Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; 
  • Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or 
  • Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence. 

 

O-2 accompanying alien 

An O-2 accompanying alien provides essential support to an O-1 artist or athlete. Such aliens may not accompany O-1 aliens in the fields of science, business, or education. Although the O-2 alien must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the O-1 alien to whom he or she provides support. An O-2 alien must be petitioned for in conjunction with the services of the O-1 alien. 

Requirements for qualifying as an O-2 accompanying alien.– 

  • Alien accompanying an O-1 artist or athlete of extraordinary ability. To qualify as an O-2 accompanying alien, the alien must be coming to the United States to assist in the performance of the O-1 alien, be an integral part of the actual performance, and have critical skills and experience with the O-1 alien which are not of a general nature and which are not possessed by a U.S. worker. 
  • Alien accompanying an O-1 alien of extraordinary achievement. To qualify as an O-2 alien accompanying an O-1 alien involved in a motion picture or television production, the alien must have skills and experience with the O-1 alien which are not of a general nature and which are critical based on a pre-existing longstanding working relationship or, with respect to the specific production, because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production. 
  • The evidence shall establish the current essentiality, critical skills, and experience of the O-2 alien with the O-1 alien and that the alien has substantial experience performing the critical skills and essential support services for the O-1 alien. In the case of a specific motion picture or television production, the evidence shall establish that significant production has taken place outside the United States, and will take place inside the United States, and that the continuing participation of the alien is essential to the successful completion of the production. 

How soon can an O-1 employee start? 

An O-1 employee cannot begin employment until the USCIS has approved the O-1 petition. Processing times for the O-1 petition vary according to the availability of information needed to prepare the petition, and backlogs at USCIS. The preparation of an O-1 takes more than other visa categories because of the documentation needed to establish eligibility. On average, USCIS takes about 4 to 5 months to adjudicate an O-1 petition, but premium processing is available for an additional USCIS fee. 

If an O-1 employee is outside the U.S., he or she use the USCIS notice approving the O-1 petition to apply for an O-1 visa stamp at a consulate or embassy outside the U.S. With the O-1 visa, the employee may apply for admission into the U.S. 

How is O-1 status extended? 

Extensions of O-1 status may be filed during the six-month period prior to expiration of current stay, and are granted usually for two years. The employee’s qualifications and the employer’s continued need to employ an individual of extraordinary ability in the offered position must be established anew (and fully documented) with each extension application. If the extension application is filed prior to expiration of the current authorized stay, the individual will have continued work authorization for up to 240 days while the application is pending. There may be restrictions on international travel while the extension application is pending. 

Generally, the P-1 visa is suitable for individual or team athletes that are internationally recognized. This means a high level of achievement, evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the achievement is renowned or well known in more than one country. The athlete must enter the US to participate in a competition, event, or performance. This includes promotional appearances and can also include several seasons. 

There are several types of P visa holders: 

A P-1 is a person who enters the U.S. to:  

  • Perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance, or 
  • Perform with, or as an integral and essential part of the performance of, an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, and who has had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provides functions integral to the performance of the group. 

A P-2 is a person who is coming temporarily to the U.S. to perform as an artist or entertainer, individually or as part of a group, or to perform as an integral part of the performance of such a group, and who seeks to perform under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states, and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers. 

A P-3 is a person who is an artist or entertainer who is coming temporarily to the U.S., either individually or as part of a group, or as an integral part of the performance of the group, to perform, teach, or coach under a commercial or noncommercial program that is culturally unique. 

The law defines some terms used for P classification to provide clarity:  

Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts. 

Competition, event, or performance means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event. In the case of a P-2 petition, the event may be the duration of the reciprocal exchange agreement. In the case of a P-1 athlete, the event may be the duration of the alien’s contract. 

Contract means the written agreement between the petitioner and the beneficiary(ies) that explains the terms and conditions of employment. The contract shall describe the services to be performed, and specify the wages, hours of work, working conditions, and any fringe benefits. 

Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. 

Essential support alien means a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services by the P-1, P-2, or P-3 alien. Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien. 

Group means two or more persons established as one entity or unit to perform or to provide a service. 

Internationally recognized means having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country. 

Member of a group means a person who is actually performing the entertainment services. 

Sponsor means an established organization in the United States which will not directly employ a P-1, P-2, or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition. 

Team means two or more persons organized to perform together as a competitive unit in a competitive event. 

What steps are involved in the processing of a P-1? 

A U.S. employer must file a petition with USCIS, and the petition must include evidence of the athlete’s international recognition. Each P-1 case must be well documented with supporting evidence proving that all legal requirements are met. The petitions usually include the following evidence: 

  • International ranking 
  • Significant honors/awards in the sport 
  • Written statement from the sports media or a recognized expert 
  • Written statement from a major US sports league or official of the sport’s governing body (in both the US and the athlete’s home country, at the very least) 
  • Participation in international competition with a national team 
  • Significant participation in a prior US major league  

Filing Fees and Processing Times 

Processing times for a P-1 petition vary depending backlogs at the USCIS. Premium processing is available. 

How long can the P-1 Athlete remain in the US? 

Individual athletes may be admitted for up to 5 years initially. Extensions of up to 5 years are allowed. 

In order to obtain R-1 status, an individual must:  

  • Be a member of a religious denomination having a bona fide nonprofit religious organization in the United States for at least two years immediately preceding the time of application for admission; 
  • Be coming to the United States to work at least in a part time position (average of at least 20 hours per week); 
  • Be coming solely as a minister or to perform a religious vocation or occupation as defined in paragraph (r)(3) of this section (in either a professional or nonprofessional capacity); 
  • Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner; and 
  • Not work in the United States in any other capacity 

 

The following are special terms used for R-1 petitions:   

Bona fide non-profit religious organization in the United States means a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a currently valid determination letter from the Internal Revenue Service (IRS) confirming such exemption. 

Bona fide organization which is affiliated with the religious denomination means an organization which is closely associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a currently valid determination letter from the IRS confirming such exemption.. 

Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the alien will work. 

Minister means an individual who: 

(A) Is fully authorized by a religious denomination, and fully trained according to the denomination’s standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination; 

(B) Is not a lay preacher or a person not authorized to perform duties usually performed by clergy; 

(C) Performs activities with a rational relationship to the religious calling of the minister; and 

(D) Works solely as a minister in the United States, which may include administrative duties incidental to the duties of a minister. 

Religious denomination means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following: 

(A) A recognized common creed or statement of faith shared among the denomination’s members; 

(B) A common form of worship; 

(C) A common formal code of doctrine and discipline; 

(D) Common religious services and ceremonies; 

(E) Common established places of religious worship or religious congregations; or 

(F) Comparable indicia of a bona fide religious denomination. 

Religious occupation means an occupation that meets all of the following requirements: 

(A) The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination; 

(B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination; 

(C) The duties do not include positions which are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and 

(D) Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status. 

Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters. 

Religious worker means an individual engaged in and, according to the denomination’s standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister. 

Tax-exempt organization means an organization that has received a determination letter from the IRS establishing that it, or a group it belongs to, is exempt from taxation in accordance with sections 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendments or equivalent sections of prior enactments of the Internal Revenue Code. 

Employment-Based Permanent Residence Processes

Generally, the employment-based permanent residence processes require you to either:  

  • Work for an employer and be sponsored by your employer, or 
  • Create jobs for U.S. workers  

This page discusses in general categories that require you to be sponsored by an employer.  If you are interested in obtaining permanent residence by creating jobs for U.S. workers, please visit the section on EB-5 investment immigration.   

There are five categories for employment-based permanent residence processes.  

Employment-Based First Preference Category (EB-1) 

Employment-Based Second Preference Category (EB-2) 

Employment-Based Third Preference Category (EB-3) 

This category is broken down into three sub-categories: 

  • Professionals – for positions that require at least a bachelor’s degree 
  • Skilled workers – for positions that require at least two years of experience 
  • Other workers – for positions that require less than two years of experience 

Employment-Based Fourth Preference Category (EB-4) 

This category is for special immigrants, such as religious workers.  

Employment-Based Fifth Preference Category (EB-5) 

This category is for investors.  See “EB-5” section.

Employment-based green card process usually has three steps, the first step is labor certification.  

The labor certification is often called “PERM” application.  Interestingly, “PERM” is not short form for “permanent residence.”  PERM stands for “Program Electronic Review Management.”  The PERM application is done through the Department of Labor (DOL).  DOL requires the employer to test the labor market to see if there are any “qualified, available, and willing” US workers for the position.  The employer must test the labor market by running ads on newspaper, Internet, job bank, etc. for about 35 days.  If the ads do not result in any qualified US workers, we can submit the PERM application.  We do have to keep careful documents of the recruitment, including the resumes and interview notes for all applicants, in the event that DOL audits the application.  If the labor market testing yields a fully qualified US worker, the employer is not required or expected to hire the US worker and terminate the foreign worker.  However, identifying a fully qualified US worker will not allow us to attest that the employer is unable to find a qualified US worker.  Therefore, we cannot submit the application. .  

The preparation of the PERM application generally takes about 6 to 8 months, and the current processing time is approximately 4 months. 

After the PERM application is approved, we can submit an I-140 petition with USCIS (US Citizenship and Immigration Services).  In this step, we have to prove that the employer has financial ability to sponsor a visa employee for a green card. USCIS will expect to see tax returns and payroll records.  Also, we will need to prove that the employee qualifies for the position.   We will have usually collected all the credentials already during the labor certification process.  This step is not usually difficult. However, USCIS can be very picky on employer’s “ability to pay” the foreign workers, especially if the employer is small and does not show good income and asset on the tax return 

This preparation generally takes about 2 to 4 weeks, and the standard processing time is about 4 to 6 months.  Premium processing is available.

I-485 Adjustment of Status 

After the I-140 petition is approved, we have to wait for the visa employee’s “priority date” (aka a green card quota) to become available. There is sometimes no wait, but the wait can be for years, all depending on the employee’s country of birth and the application category.   

If the employee is in valid non-immigrant status in the U.S., we may submit the I-485 application for “adjustment of status” with USCIS.  The employee and each family member will submit a separate application.  They will be required to provide a lot of personal data and go through a medical exam as well.  However, this is a fairly straight forward step, unless the employee has had previous immigration violation or criminal arrest and/or conviction.  The employer usually only needs to complete a short form and provide proof of continued job offer.  We also submit a work permit and travel document in connection with the I-485 application.  There will also be an interview at the local USCIS office before the application can be approved.  

Individuals with current priority date may submit the I-140 petition and the I-485 application concurrently.  Whether this will provide an advantage will depend on a number of factors.    

The preparation of the I-485 application generally takes about 4 weeks, and the current processing time is approximately 6 to 12 months.  

 

Consular Processing 

If the employee is not in the U.S., the employee will go through consular processing.  USCIS will notify the National Visa Center (NVC) of the approval of the I-140.   The NVC will notify the employee to pay fees and provide documentation if the employee’s priority date is current or close to be current.   If the employee’s priority date is not current, NVC will notify the visa employee and let him/her know that the case will be on hold till his/her priority date is close to be current.  After the NVC has received all fees and documentation, it will contact the U.S. consulate or embassy having jurisdiction over the employee’s residence to schedule for an interview.   If the interview is successful, the employee will be issued an immigrant visa and be allowed to immigrate to the U.S.   

For additional information, please see “Visa Processing for Immigrant Visa (IV)” section.

Interestingly, an employee who is in the U.S. in valid status may choose to go through consular processing, instead of adjustment of status.   Whether this will provide an advantage will depend on the case. 

Schedule A positions are deemed by the Department of Labor to be in shortage and they do not need to go through the labor certification process.  The most common Schedule A positions are Registered Nurse and Physical Therapist.  

Employees employed in Schedule A positions skip the labor certification process and start directly with the I-140 petition.  The rest of the process remains the same.   

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