Temporary Visas (Nonimmigrant)
“Alphabet of Visas”
While President Trump and his administration have a hardline approach regarding immigration issues (which has been controversial), it is important to remember that the U.S. still values aliens coming to the U.S within the legal immigration system. The U.S. is still offering and approving temporary visas for aliens to enter the United States.
Aliens (“foreign nationals”) can obtain a temporary visa to the U.S. for a multitude of reasons including visiting for family, business, or pleasure; education or training; temporary work ranging from: unskilled labor to specialty occupations to extraordinary ability professionals; professional athletes and artists; and safe haven for victims of crimes or trafficking. The visas offered to aliens for temporary status in the U.S. are identified by a given alphabet letter and number. It is for this reason that temporary visas are referred to as the “Alphabet of Visas”.
See the following chart which provides a list of temporary visas and the reasons for those visas:
Visa Category
*Chart according to U.S. Department of State: travel.state.gov/content/travel/en/us-visas.
The most commonly known visa categories are B, F, H, J, O, and TN. The following provides more information about each of these common visa categories including expanding on the visa purpose, the qualifications of the visa, and the process for obtaining the visa.
B-1 and B-2 Visa
The purpose of a B visa is to temporarily visit the U.S. for business (B-1) or for tourism/ family (B-2).
Process to Obtain Visa
A foreign national can apply for a B visa by completing the DS-160 form on the U.S. “Department of State” website. Then the foreign national will schedule an interview at the U.S. Embassy or Consulate in the country where they live. (Interviews can be scheduled in other countries in which the person will be present, but this may be more difficult to schedule an interview and possibly be approved.)
Qualifications for Visa
Since the purpose of a B visa is visiting, the qualifications are minimal. A foreign national needs to explain the purpose of their trip, show their intent to depart the U.S. after their trip, and/ or ability to pay all costs of their trip.
Importance of Consulting an Attorney
Foreign nationals are easily able to qualify and apply for the B visa. However, there are several simple mistakes that people make which can cause their visa to be denied such as proof of nonimmigrant intent, sufficiency of funds, or just understanding the immigration laws. Also, some cases are more complex if there are prior immigration violations or criminal history.
Our firm assists those individuals who want to maximize their chances of approval and those who desire professional guidance and support throughout the process. Our firm will review your DS-160 application for accuracy and legal compliance; as well as prepare you for your visa interview to ensure that you are confident and articulate in explaining the purpose of your travels and intent to return.
The visa application process can be stressful. Hiring our firm can alleviate some of this burden by having a knowledgeable professional guide you through the process.
H-1B Specialty Occupation Visas
H-1B visas permits U.S. employers to temporarily employ foreign national workers in “specialty occupations” that require specialized knowledge and a bachelor’s degree or higher (or equivalent). The H-1B visa is designed to fill gaps in the U.S. workforce by bringing in skilled workers from other countries when there is a shortage of qualified American workers.
Qualifications for Visa
In order to qualify for an H-1B visa the foreign national needs a job offer in a specialty occupation from a U.S. employer, and the position must require a bachelor’s degree or higher in a specific field related to the job duties. The foreign national must also possess the required degree or its equivalent for the occupation.
Process to Obtain Initial H-1B Visa
The H-1B visa process is completed by the employer who is sponsoring the foreign national’s visa application (also known as beneficiary). The following steps are performed by the employer and or their attorney on behalf of the beneficiary.
Step 1. H-1B Lottery Registration and Selection. – Employers will register the qualified beneficiary for the lottery for the next fiscal year, registration begins in March and is open for 14 calendar days. The lottery then selects from the registered applicants. If selected, the employer will then proceed to filing the LCA. See USCIS H-1B Electronic Registration Process for more information.
**The number of qualified applicants far exceeds the Congressional H-1B Cap of 65,000 visas and 20,000 advanced degree exceptions allotted in a given fiscal year. Therefore, Congress utilizes a lottery system that randomly selects from qualified registered applicants to proceed in the H-1B process.
Step 2. Certified Labor Condition Application (LCA). – The employer must file the LCA with the Department of Labor (DOL) electronically through the FLAG systems no more than 6 months prior to the employment start date. Once the LCA has been reviewed and certified by the DOL, the employer may continue with the H-1B application for the beneficiary.
**The purpose of an LCA is to ensure fair wages and working conditions for alien workers in specialty occupations.
Step 3. File Petition for Nonimmigrant Worker (Form I-129). – The employer will file the complete H-1B petition (Form I-129, certified LCA, lottery receipt, other required documents, and all applicable fees) on behalf of the beneficiary to USCIS via mail or online.
Step 4. Adjustment of Status and Visa Stamping. – If the beneficiary is in the U.S. at the time of filing, they can apply for adjustment of status in which they can remain in the U.S. with the approval of their H-1B. However, when the beneficiary travels abroad they will need to apply for their H-1B visa stamp with the U.S. Department of State at a U.S. Embassy or Consulate abroad.
If the beneficiary is outside the U.S., they will need to apply for their H-1B visa stamp with the U.S. Department of State at a U.S. Embassy or Consulate to obtain an H-1B visa to enter the U.S.
H-1B Visa Transfer or Extension
If the beneficiary has already been selected in the H-1B lottery and obtained an approved H-1B visa they can apply for an extension of their visa and/ or apply for a transfer to another job without having to go back through the lottery.
The beneficiary’s H-1B visa is applicable for an initial 3 years and able to extend for another 3 years for a maximum period of 6 years.
Whether the beneficiary is extending their H-1B or transferring to another job, the employer must still file a new LCA, file the I-129 with supporting documentation, apply for continued status in U.S. or apply through DOS.
Importance of Consulting an Attorney
Several errors can occur during the H-1B process that can lead to a denial or delay in approval. These include issues with the petition itself, such as incorrect information, insufficient documentation, or failure to meet the specialty occupation requirements. Additionally, mistakes in the LCA or problems with the employer-employee relationship can also cause problems.
Employing our law firm for the H-1B visa process offers employers several significant advantages due to the intricate nature of immigration laws and the complexities involved.
Here's why an employer should hire our firm for the H-1B visa process:
1. Highly Qualified Attorneys in Immigration Law: Our firm possess a deep understanding of U.S. immigration laws and regulations, which are constantly evolving. This knowledge ensures that the employer is following all current requirements, minimizing potential issues or delays.
2. Streamlined Process and Compliance: Our firm will guide employers through the entire application process, including navigating the H-1B cap and lottery system (if applicable), completing and submitting required forms accurately, and meeting strict deadlines. This reduces the risk of errors and ensures compliance, improving the chances of a successful application.
3. Handling Complexities and RFEs: The H-1B process can be challenging, especially when addressing complexities like Requests for Evidence (RFEs) from USCIS. We are skilled in preparing detailed responses to RFEs, strengthening the case and addressing any concerns raised by USCIS.
4. LCA Preparation and Filing: A crucial step is filing the Labor Condition Application (LCA) with the Department of Labor. This ensures that the employer is offering fair wages and working conditions to the foreign worker without negatively impacting U.S. workers. Our firm will guide the employer through this process and ensure compliance.
5. Navigating the Specialty Occupation Requirement: The H-1B visa requires the position to qualify as a "specialty occupation". Our firm will assess the job role and qualifications to ensure they meet the criteria and that the job description accurately reflects the duties and educational requirements.
6. Avoiding Costly Mistakes and Delays: Errors in the H-1B application process, such as filing incomplete forms, missing documents, or submitting incorrect fees, can lead to denials and significant delays. Our firm’s meticulous preparation and attention to detail can help avoid these pitfalls.
7. Support for Extensions and Transfers: Or firm also assists with H-1B visa extensions and transfers, ensuring that all legal requirements are met and preventing any potential gaps in the employee's work authorization.
In summary, while it may not be strictly mandatory to hire an attorney for the H-1B process, our knowledge, guidance, and support significantly improve the chances of a smooth and successful application, ultimately benefiting both the employer and the prospective H-1B worker.
F-1 visas
The F-1 visa is a non-immigrant visa that allows a foreign national to stay in the U.S. as a full-time student pursuing academic studies. The F-1 visa is a temporary visa, meaning students are expected to return to their home country after completing their studies.
Qualifications and Process to Obtain an F-1 Visa
To obtain an F1 visa for studying in the US, the prospective foreign student needs to be accepted into a SEVP-certified school, receive the Form I-20, pay the SEVIS fee, complete the DS-160 application, schedule and attend their visa interview.
The prospective foreign student will receive the Form I-120 (Certificate of Eligibility for Nonimmigrant Student Status) from a Student and Exchange Program (SEVP)- certified school after being accepted into the program. The designated school official (DSO) will issue the I-20 to the foreign student after entering their information into the Student and Exchange Visitor Information System (SEVIS).
A foreign student can complete their DS-160 application on the U.S. Department of State website. The site also provides additional instructions and information regarding the application, scheduling the visa interview, and paying visa application fees.
Consulting an Attorney
The F-1 visa is typically applied for and granted with the help of the SEVP-certified school which accepted the student. The primary reason a foreign student should consult with an attorney is if they worried about leaving the program early and falling out of legal status. This is a very hot topic with the current Presidential immigration agenda; thus, any concerns should be addressed immediately!
Also, a foreign student may want to consult an attorney if they are concerned about F-1 work authorizations through CPT, OPT, or STEM OPT programs. The work authorizations are approved through the specific SEVP-certified school, however if there are concerns about work compliance, pay, or other obligations a foreign student should consult with attorney.
Our firm is experienced in guiding foreign students through the immigration process. We assist foreign students in maintaining legal status and that they are working in compliance with current immigration laws. Please reach out should you have any concerns or questions.
J-1 Visas
The J-1 visa facilitates educational and cultural exchange between the U.S. and other countries around the globe. It provides opportunities for foreign nationals to engage in various educational and cultural activities in the U.S. such as studying (participating in academic programs in at U.S. institutions), teaching and research (working as professors, researchers, or scholars), training (receiving on-the-job training or professional development), and cultural exchange (participating in programs like au pairs or summer work travel).
Since the primary purpose of the J-1 visa is to foster mutual understanding and strengthen ties between the U.S. and other countries through exchange, the participants are expected to return their home countries to share their experiences.
Process to Obtain Visa
The J-1 visa is primarily applied and approved through the U.S. Department of State (DOS). Please visit the U.S. Department of State website for more information and next steps.
Consulting an Attorney
The process of obtaining a J-1 visa is fairly easy through the DOS. The primary reason to consult an attorney is if nearing the end of the program or after the program, the participant’s intent has changed from returning home to wanting to stay in the U.S. Participants may change their intent due to marriage, family connections, and new work opportunities here in the U.S. A participant should consult with an attorney to discuss other visa options and J-1 visa waivers if applicable.
Applying for a J-1 visa waiver can be a complex and intricate process. There are specific requirements and documentation needed for each waiver type. An experienced immigration attorney specializing in J-1 visa waivers can greatly assist participants in navigating this process and increase their chances of a successful outcome.
Our firm will evaluate your specific situation and determine your eligibility for a waiver, discussing your options and required next steps. If you are eligible, our firm will then guide you through the J-1 visa waiver process. We will ensure your application is accurate, complete, and supported by necessary documentation reducing the risk of denial or delays due to errors.
O-1 Visa
The O-1 visa is for individuals of extraordinary ability or achievement in the sciences, arts, education, business, athletics, motion picture, television industry, and has been nationally or internationally recognized for those achievements. An individual of extraordinary ability is one who has reached the upper echelon of their field or industry. Thus, allowing them the added privileges and opportunities that are accompanied with obtaining a nonimmigrant O-1 visa.
Qualifications for Visa
Dependent upon the alien’s field, the person will either apply for an O-1A or O-1B. “An O-1A are for individuals with extraordinary ability in the sciences, education, business, or athletics. An O-1B are for individuals with extraordinary ability in the arts, motion picture, or television industry” (Definitions are provided according to USCIS website.)
The following provides the specific criteria for the O-1A, according to the USCIS Policy Manual Volume 2, Part M, Chapter 4, Section C.
“An O-1A Petitioner must establish that the beneficiary:
- Has extraordinary ability in the sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim;
- Has achievements that have been recognized in the field through extensive documentation; and
- Is coming to continue work in the area of extraordinary ability (but not necessarily that the particular duties to be performed require someone of such extraordinary ability).
The supporting documentation for an O-1A petition must include evidence that the beneficiary has received a major internationally recognized award (such as the Nobel Prize) or satisfies at least three of the following evidentiary criteria:
1. Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
2. Documentation of the beneficiary’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.
3. Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought. This evidence must include the title, date, and author of such published material and any necessary translation.
4. Evidence of the beneficiary'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 for which classification is sought.
5. Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field.
6. Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media.
7. Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
8. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence.”
The following provides the specific criteria for the O-1B, according to the USCIS Policy Manual Volume 2, Part M, Chapter D.
“An O-1B Petitioner must establish that the beneficiary:
- Has extraordinary ability in the arts which has been demonstrated by sustained national or international acclaim;
- Has achievements that have been recognized in the field through extensive documentation; and
- Is coming to work in the area of extraordinary ability (but not necessarily that the particular duties to be performed require someone of such extraordinary ability).
The supporting documentation for an O-1B (Arts) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award or prize in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following evidentiary criteria:
1. Evidence that the beneficiary 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.
2. Evidence that the beneficiary has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publication.
3. Evidence that the beneficiary 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.
4. Evidence that the beneficiary 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.
5. Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements.
6. Evidence that the beneficiary 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.”
The O-1 visa isn’t just about a meeting the minimum criteria or check marking a box on a list of accomplishments. The individual must demonstrate that the totality of the evidence shows they are an individual of extraordinary ability. USCIS officers will “subjectively” weigh the evidence provided to them to determine whether an individual is qualified as an individual of extraordinary ability for the O-1 visa. Therefore, it is important to consult with an experienced attorney to assist with filing the strongest case possible and to minimize the chances for a denial. As the owner and attorney at Kreutz Immigration Services, I have vast experience in handling O-1 visa petitions. Please reach out to our firm for more information or a consultation.
Process to Obtain Visa
The O-1 visa must be sponsored by an employer or agent; however, the O-1 visa sponsorship greatly differs from the H-1B visa sponsorship in that the employer is not required to show wage requirements and not required to pay the visa costs. The visa costs can be paid by either the employer or the beneficiary or a combination of the two.
In order to obtain the O-1 visa the employer or agent will file the nonimmigrant petition on behalf of the beneficiary or alien with USCIS. The petition will include Form I-129 (Petition for Nonimmigrant Worker), advisory opinion from peer group or labor organizations (when applicable), employment contract, evidence demonstrating O-1 eligibility, among other supporting documents and applicable fees.
The O-1 visa can be file with Form I-907 (Request for Premium Processing Service) in which the visa will be processed within 15 business days of receiving the petition.
Consulting an Attorney
An individual should consult an attorney if they are considering an O-1 visa. As the owner and attorney with vast experience in O-1 visa case, I will be able to assist with navigating the complexities of the case and help to optimize an individual’s chances of approval.
TN Visa
In the facilitation of enhancing trade and economic cooperation under NAFTA/ USMCA, Canadian and Mexican citizens, employed in specific professional occupations are granted the opportunity to work in the U.S. on TN visa.
Qualifications and Process for the TN Visa
In order to qualify for a TN visa, a foreign national must be a Canadian or Mexican citizen and their occupation must fall within the predetermined list of professional occupations provided by the Code of Federal Regulations (8 CFR 214.6). (It should be noted that when viewing the list of occupations, these are occupations and not job titles. For example, there are many job titles that fit under the occupation of an engineer.) Additionally, the TN visa classification requires the petitioner of the visa to be the employer. However, like the O-1 visa the employer does not have to show wage requirements and is not required to pay for the visa costs.
If a Canadian or Mexican citizen meets the qualifications, then the individual can apply for the TN visa via USCIS Form I-129 (Petition for Nonimmigrant Worker), U.S. Customs and Border Protection (CBP) Port of Entry Application, or U.S. Embassy or Consulate Form DS-160.
Regardless of where the individual applies, each petition should consist of an employer’s letter of support, employer’s offer letter or employment contract, employer’s proof of ability to pay, the individual’s resume, proof of the individual’s degree or equivalent, among other supporting documents. The individual will also need the additional forms and applicable fees according to where they choose to file.
Consult and Attorney
A TN visa is not complicated, however, there are many common errors that can happen if the visa is not properly prepared and filed. The TN visa is commonly denied for lack of supporting evidence demonstrating citizenship of Canada or Mexico, lack of evidence supporting their degree or qualifications for the position, lack of evidence to show the job was within the professional occupation lists, etc.
Our firm is experienced with preparing the TN visas. We work closely with both the employer and the individual to draft the necessary documents and prepare a comprehensive visa petition. Working with our firm will alleviate your stress and optimize your chances of an approval.