US work visa types: options to consider
Under current immigration rules, a number of different US work visa types are available to non-US citizens looking to work in the USA. Each classification brings its own eligibility criteria and application processes can also vary across different visas.
If you are looking to travel to the US for the purposes of work, you will need to ensure you have permission under the relevant visa classification. You cannot for example, undertake paid employment while travelling under the Visa Waiver Program. We take a brief look at some of the more commonly-used US work visa types.
US work visa types for business owners
As an overseas entrepreneur, you may be looking either to trade from within the United States, or maybe you are hoping to invest in a US business. In either case, you will need to consider whether you fit the eligibility criteria for an E-visa.
There are two different types of E visa for businesses:
- The E1 visa is for overseas traders who have established trade links with the US and are looking to expand further into the US market.
- The E2 visa is for overseas investors looking to buy or invest in a US enterprise.
For both classifications, one of the eligibility requirements is that you are a national of a country with which the United States maintains a treaty of commerce and navigation.
Further, as a treaty trader you must be coming to the US solely to carry on substantial and principal trade between the US and your treaty country, rather than for any other purpose. As a treaty investor, your reason for coming to the US must be to develop and direct the operations of a bona fide enterprise in which you have, or are in the process of investing, a substantial amount of capital.
If you are granted E1 or E2 status, you will be allowed to come to the United States to pursue your entrepreneurial plans for a period of up to five years. Thereafter, if you continue to meet all the relevant conditions, you may request an extension, and there is no limit on the number of extensions that you can request, leaving you to build up your business on an indefinite basis.
For those looking to expand further, you can also use the E-visa to bring senior or essentially skilled employees to work for you in the United States.
To qualify for E1 or E2 classification, the employee must be the same nationality of the principal trader or investor, who must have the nationality of the treaty country.
They must also meet the definition of “employee” under the relevant law, and either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special skills essential to the efficient operation of the business enterprise.
Please note that with this type of nonimmigrant visa, whether for the treaty trader, investor or employee, it will be granted on a temporary and time-limited basis only. As such, and notwithstanding that you can apply for as many extensions as you are deemed eligible for, you must continue to show an intention to depart the United States when your E-status comes to an end. This also means it is not possible to go directly from the E-1 or E-2 to a Green Card; you would instead need to take advice and plan for an alternative path to US permanent residence.
US work visa types for employee transfers
As an overseas employee of a multinational company, you may be looking to transfer within the same company or organisation to an affiliated US office. As such, you may be eligible for an L1 visa.
There are two different types of L1 visa: the L1A and L1B visa. The L1A visa is for employees working in an executive or managerial capacity, while the L1B visa is for employees working within a role that requires specialized knowledge. Specialized knowledge is defined as “knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures”.
In either case, you must have worked for the company in an executive or managerial capacity, or as a specialized knowledge employee, for one complete year out of the previous three, and be seeking to enter the US to undertake work in the same or a similar role.
The overseas company or organisation that you work for must also have a qualifying relationship with a parent company, branch, affiliate or subsidiary in the United States. In other words, there must be common majority ownership or common control by the same persons or entities.
If you are granted L1 status, you will be allowed to come to the United States to further your career for a period of up to three years. Thereafter, if you continue to meet all the relevant conditions, you may request an extension of stay.
For L1A visa holders, extensions may be granted in increments of up to two years, until the employee has reached the maximum limit of seven years. This slightly differs for L1B employees, where requests for extension of stay have a maximum limit of five years.
The L1 visa also enables a multinational company that does not yet have an affiliated US office to send an overseas executive, manager or specialised knowledge employee to travel to the US with the purpose of establishing one.
Please note that for intra-company transferees entering the US to establish a new office, a visa will be granted initially for a period of just one year.
Companies who transfer multiple non-US national to US-based operations should look at the Blanket L, which provides a faster and simpler process to transfer qualifying employees under the L1 route.
US work visa types for graduates and professionals
The H1B visa is for skilled, educated individuals in speciality occupations that require theoretical or technical expertise, such as engineering and computer science. The H-1B is open to graduates and experienced professionals alike, provided they have a qualifying job offer in the US with an authorized employer/sponsor.
To qualify as a specialty occupation the job must require a bachelor’s or higher degree as a minimum entry requirement, or the nature of the specific duties are so specialised and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In turn, as a qualifying candidate, you must be at least graduate level or be able to show degree equivalence experience.
If you are granted H1B status, you will be allowed to come to the United States to work in your new role for a period of up to three years. Thereafter, if you continue to meet all the relevant conditions, you may request an extension of stay, although generally any extensions will not go beyond six years.
Please also note that the H1B visa will only enable you to work for a specific employer in the United States. As such, if you change jobs, your new employer will need to file a fresh petition on your behalf prior to the expiry of your existing status. This is known as an H1B visa transfer for which legal advice should be sought.
US work visa types for the exceptionally talented
As an exceptionally talented individual in your field of expertise, you may be looking to progress your achievements or share your knowledge in the United States. As such, you may be eligible for an O1 visa.
There are two types of O1 visa: the O1A and the O1B. The O1A visa is for individuals with an extraordinary ability in the sciences, education, business or athletics, while the O1B visa is either for those with an extraordinary ability in the arts, or extraordinary achievement in motion picture or television industry.
In either case, you must demonstrate extraordinary ability by sustained national or international acclaim, or that you possess a degree of skill and recognition substantially above that ordinarily encountered, and must be coming to the US to continue work in this area.
If you are granted O1 status, you will initially be allowed to come to the United States to work in your new role for a period of up to three years. Although your status may be extended, this will be determined based upon the time necessary to accomplish the initial event or activity in increments of up to one year.
US work visa for media professionals
Under US immigration rules, media workers are not allowed to enter the US visa-free to undertake paid employment in the US. They must instead have been granted an I visa; a visa category specifically for foreign media professionals – including journalists, bloggers, production teams and photographers – to come to the US to work.
The I visa application requires the applicant to detail both their own credentials and the nature of the work and media content that is the subject of the visit to the US. The visa adjudicator will need to be satisfied that the content meets the requirements under the media visa, or the visa will not be granted.
Need assistance?
The first step in any US visa application is to ensure you are proceeding with the best route for your needs and eligibility. As specialist US immigration attorneys, we can advise on your visa options and support you through the petitioning process and with compiling the required supporting documentation.
For advice on your US immigration options, speak to us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
