Which American Work Visa?
A number of American work visas are potentially available to UK citizens looking to work in the USA.
When deciding which route is best for you, consider the type of work you intend to carry out, the length of time you intend to work in the US and the skills and qualifications you bring.
In this article, we summarize the main American work visa options for British nationals.
E-1 visa – Treaty Trader visa
The E-1 Treaty Trader visa is a nonimmigrant American work visa for citizens of countries with which the US maintains a treaty of commerce and navigation. This type of visa was established to enhance or facilitate economic and commercial interaction between the US and other treaty countries, including the UK.
Under an E-1 visa you must be coming to the US to engage in trade between the UK and the US. To be eligible for an E-1 visa, you must demonstrate the following:
- Whether as an individual or business, you must possess the nationality of a country with which the US maintains a treaty of commerce and navigation, ie; the UK. The nationality of a business is determined by the nationality of the individual owners of that business.
- The trade constitutes an actual traceable exchange of qualifying commodities such as goods, money or services between the US and the treaty country.
- The trading relationship is already in existence, for example, there are successfully integrated contracts binding upon the parties that call for the immediate exchange of qualifying items of trade.
- That the trade is substantial, ie; there have been numerous transactions establishing a continuing course of international trade, although the monetary value of the transactions will also be factored in.
- That the trade is principally between the US and the treaty country. You will need to show that over 50% of the total volume of your international trade is between the UK and US. The remainder of the trade in which you are engaged may be international trade with other countries or domestic trade.
- If an employee, that you are destined to an executive or supervisory position, or that you possess skills essential to the firm’s operation in the US.
- Whether as a trader or an employee, that you intend to depart the US when your E-1 visa status comes to an end.
E-2 visa – Treaty Investor visa
As with the E-1 visa, the E-2 Treaty Investor visa is a nonimmigrant American work visa for citizens of countries with which the US maintains a treaty of commerce and navigation.
Under an E-2 visa, you must be coming to the US to develop and direct the operations of an enterprise in which you have invested or are in the process of investing a substantial amount of capital, or to work in the enterprise as an executive, supervisor, or essentially skilled employee.
To be eligible for an E-2 visa, you must demonstrate the following:
- You are a national of a country with which the US maintains a treaty of commerce and navigation.
- You have invested, or are in the process of investing, a substantial amount of capital in a bona fide enterprise in the US
- The investment is more than a marginal enterprise solely for earning a living for you and your family.
- You are seeking to enter the US solely to develop and direct the investment enterprise. Under the “fifty percent rule” you will need to show at least 50% ownership of the enterprise, or possession of operational control through, for example, a managerial position.
- As with an E-1 visa, if you applying as an employee, you will need to show that you are destined to an executive or supervisory position, or that you possess skills essential to the firm’s operations in the US
- Whether as an investor or an employee, you will need to show that you intend to depart the US when your E-2 visa status comes to an end.
L-1 visa – Intra-Company Transfer visa
The Intra-Company Transfer visa is a nonimmigrant American work visa for an employee of an international company who is being temporarily transferred to a parent, branch, affiliate, or subsidiary of the same company in the US.
The L-1 visa can also be used where a qualified employee of an international company is looking to establish a parent, branch, affiliate or subsidiary, ie; to open a new office in the US
To be eligible for an L-1 visa you must work in a managerial or executive capacity, or have specialised knowledge or skills. You must also have been employed with the international company continuously for 1 year within the 3 years preceding the American work visa application.
As with many American work visas, a petition must be filed by your employer and approved by the US Citizenship and Immigration Services (USCIS) before applying for the visa at a US Embassy or Consulate.
In circumstances where you are looking to open a new office, when filing a petition the company will be required to show that premises to house the new office have been secured, and that within 1 year of petition being approved, the intended US operation will support an executive or managerial position.
In the case of a person with specialised knowledge, the petitioner is required to show that it has the financial ability to remunerate the beneficiary and to commence doing business in the US.
H-1B visa – Speciality Occupation visa
The Speciality Occupation visa is a nonimmigrant American work visa if you are travelling to the US to perform services in a prearranged professional job for a US employer.
To be eligible you will need a bachelor’s or higher degree, or the equivalent thereof, in the specific specialty for which authorisation is being sought. However, it is for the USCIS to determine whether the employment constitutes a specialty occupation and whether or not you are qualified to perform the services.
Your prospective employer must file a “labor condition” application with the Department of Labor setting out the terms and conditions of your contract of employment, as well as an employment-based petition on your behalf with USCIS.
O-1 visas – Persons with extraordinary ability
The O-1 visa is a nonimmigrant American work visa for the individual who possesses extraordinary ability in the sciences, arts, education, business or athletics, or has a demonstrated record of extraordinary achievement in the motion picture or television industry.
The eligibility threshold for an O-1 visa is high – you must demonstrate extraordinary ability or achievement through national or international acclaim, and you must be coming temporarily to the US to continue work in this area.
I-visa – members of the media
The I-visa is a nonimmigrant American work visa for representatives of the media travelling on assignment to the US. This includes members of the press, radio or film, such as reporters, film crews or editors.
To be eligible for an I-visa the qualifying activity must be “informational” in content and associated with journalism or disseminating information and news. This, therefore, excludes anything staged or recreated.
Filing a petition for an American work visa
The instructions on filing a petition will vary with each American work visa category. Once the petition has been approved by USCIS and you are in possession of either the Notice of Action, Form I-797 or Petition Receipt number, you may apply for your visa.
Renewing or extending an American work visa
A nonimmigrant American work visa is designed for those coming to the US to work on a temporary basis. Whilst these types of visa can generally be renewed or extended, you must continue to meet all applicable requirements of US immigration laws and regulations.
If you wish to remain indefinitely in the US, you should apply for permanent residence under the appropriate employment-based immigrant visa, otherwise known as a green card.
Need assistance?
Specialist legal advice from NNU Immigration can assist in helping you identify which visa is most suitable for your purpose, gathering supporting documentation, and communicating with the relevant authorities on your behalf so that your visa application has the best chance possible of a successful outcome.
If you have a question about a US visa application, US travel restrictions or any other US immigration-related matter, please contact us for advice.
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
