There are several different avenues that can be used to live and work in the United States. One of the main ways that you can immigrate to the U.S. is through your employment or through your own employment credentials. In this article, we’ll give an overview of all of the major available work visas as well as opportunities to delve deeper if you find a visa that fits your situation. Remember, hiring an immigration attorney can save you from costly rejections or denials in the future.
General Work Visa Requirements
While each visa has its own set of requirements and qualifications that will make you eligible, there are some that are present among most if not all of the options available.
- You must have a sponsor. For most work visas, this is your employer. For the outliers, you can be your own sponsor.
- That sponsor must file a petition with the USCIS. The exact form that must be filed is specific to the visa. However, the most common form is the I-129.
- You must determine the appropriate fees for the visa and send them to the correct locations.
- If you are not inside the U.S., you will need to go through a consular interview at a U.S. Consulate or Embassy in your home country. .
Filing a Petition
For all work visas except for the H-1B, the petition can be filed at any time. It also must be filed by your sponsor and cannot be filed by the beneficiary unless the beneficiary is the sponsor. These petitions often take at least six months to process, though the time may be more or less depending on the type of petition, the demand for that visa, and the caseload of the service center that is processing your case. New petitions need to be filed for new visas as well as renewals, extensions, transfers, or changes of status.
If you are already in the U.S. under a different nonimmigrant status, then your status will change as soon as your petition is approved (unless you are getting an H-1B visa). However, as previously stated, if you are outside the U.S., you will need to go to a consular interview when your petition is approved in order to get your visa.
Types of Nonimmigrant Work Visas
Nonimmigrant work visas vary widely in requirements, duration of stay, green card benefits, processing time, and cost. It is important to select the visa that best fits your work and your personal qualifications before moving forward with any of these.
Perhaps the most well-known and definitely the most popular work visa, the H-1B has undergone much controversy in the last several years. Because of its relatively low requirements, it is highly accessible and can be easily abused.
In order to qualify, you must simply have a specialty position that requires at least a bachelor’s degree (full or part-time) as well as the degree that the job requires. Compared to some of the other work visas we’ll go over, this is a low barrier to entry.
In fact, because so many people petition for the H-1B each year, the USCIS instituted an annual cap for how many visas can be issued in any given year. However, this cap is not first-come-first-serve. The window for filing your petition opens on the first business day in April and usually in just one week, or however long it takes to reach the cap. After that, the USCIS randomly selects 85,000 petitions, giving 20,000 to candidates with advanced degrees.
Unfortunately, because of the sheer number of petitions that the government receives, the chances of being randomly selected can be low. To bypass the cap, there are a few circumstances that do not require your petition to be entered into the lottery:
- If you are filing a petition for a transfer, renewal, or extension of your H-1B status.
- If your sponsor is an institute of higher education, a non profit organization associated with an institute of higher education, or a governmental research center.
If your petition is selected in the lottery (or if you filed a cap-exempt petition), then it will go on to processing. If it is approved, then your H-1B visa will be valid for three initial years with the opportunity to extend it three more. You can move from one H-1B employer to the next with relative ease and you can also work for multiple employers simultaneously. Fortunately, the H-1B is also a “dual intent” visa, which means that you can petition for a green card while under H-1B status.
The J-1 visa is unlike the other work visas in that your sponsor is a program rather than an employer. It is the visa for exchange visitors, intended for people from all over the world to spend time in the U.S. before bringing their newfound knowledge back to their home countries. There is a finite list of jobs that qualify under these programs:
- Government Visitors
- Camp Counselors
- Nannies and Au Pairs
If you are granted a J-1 visa, your period of stay will be determined by your program. Some J-1 holders are given less than a year, others are given as much as a decade. You will need to check with your program to find out exactly how long you can stay. The J-1 is not a dual intent visa, which means that pursuing a green card would be a violation of your status.
Unfortunately, the J-1 requires all holders to return to their home country for at least two years after their stint before coming back to the U.S. under any visa. However, this requirement can be waived by demonstrating one of four statutory bases:
- A No-Objection Statement from your home country
- Evidence that you will experience persecution in your home country
- Evidence that you or your dependents will experience extreme hardship if you were to return home
- Having a U.S. government agency express interest in your home residency requirement being waived.
As the only visa on this list that allows the beneficiary to self-petition, the E visa is highly regarded. However, it is designed for a very specific group of immigrations: they must be entrepreneurs from one of the countries that hold a treaty of commerce and navigation with the U.S. There are two subcategories under the E classification:
- E-1 Visa: This is for traders who perform substantial trade between the treaty country and the U.S.
- E-2 Visa: This is for investors from treaty countries that invest a substantial amount of capital into an enterprise in the U.S. This can be starting a new business or purchasing an existing one. The exact amount that must be invested is up to the discretion of the USCIS.
- E-3 Visa: This last group essentially works as an H-1B visa. However, it is only available to Australians with specialty positions. Fortunately, there is no annual cap on this work visa. However, you cannot petition for yourself, as you require a job offer from a sponsoring U.S. employer.
If your E visa is approved, your initial period of stay will be two years (less than the H-1B). However, you will be able to apply for indefinite two-year extensions as long as you still qualify for the visa, which is a major advantage of this classification. This visa technically does not have dual intent, but ask your immigration attorney about gaining permanent resident status through your E visa.
The L-1 visa is for multinational companies with locations in the U.S. to transfer their employees without much hassle. This visa is broken down into two subcategories:
- L-1A Visa: This is for the managers and executives of multinational companies. Managers must be in charge of a group of employees and executives must be in charge of managers. Under the L-1A, a company can send managers and executives to the U.S. to open a new office or branch where previously none existed.
- L-1B Visa: This is for specialized employees that are instrumental to the effective operations of the company’s efforts in the U.S.
There is no annual cap to the L-1 and no formal education is required. If you are granted one, you stay for an initial period of three years with the opportunity to extend it to seven years for the L-1A and five years for the L-1B. However, if you are starting a new office, your initial period will only be one year. After which, you will need to renew the visa. Also, keep in mind that you can only work for your sponsoring employer and cannot transfer your status. This visa has dual intent.
The O-1 visa is one of the most prestigious temporary work visas available. Officially, it is a visa for those with extraordinary achievement, making it one of the most difficult visas to obtain. Because “extraordinary” is a vague term, the USCIS has a list of evidence that qualifies as criteria for extraordinary achievements. This is based on which of the two subcategories of the visa you are pursuing:
- O-1A Visa: This is for extraordinary scientists, professors, and athletes. To prove these achievements, you can submit evidence of a major international award such as a Nobel Prize, Olympic Medal, or Pulitzer Prize. IN lieu of these, you can also provide evidence of three of the following:
- A lesser national or international award
- Membership in an association that requires extraordinary ability to be a part of
- Your published material being mentioned in professional publications
- Original and significant contributions to your professional field
- Article of a scholarly nature that were authored by you
- Having received a large salary for your efforts
- Holding critical positions in reputable organizations within your professional field
- O-1B Visa: This is for extraordinary artists and actors. Like the O-1A, you can submit evidence of a major award such as an Oscar, Grammy, Emmy, or Tony. Or you can give proof of at least three of the following:
- Having a lead role in a production
- National or international recognition for your achievement
- Having a lead role in an organization of repute in your field
- Commercial success in your artistic field
- Recognition for your achievements by organizations in your artistic field
- Having received a large salary for your achievements
If you are fortunate enough to obtain an O-1 visa, it will be valid for an initial period of three years with the opportunity to extend it indefinitely as long as your presence in the U.S. is critical to your work or the work of the organization you are working for. To get an O-1, you must be sponsored b your employer or by an agent that represents you. You cannot self-petition. However, the O-1 is a dual intent work visa.
The TN is a visa that is less well-known due to the fact that it only accommodates workers from a very limited number of professions and from an even more limited number of countries. People who are eligible for a TN visa are either from Canada or Mexico and have one of only about sixty occupations.
Gaining a TN is relatively simple and inexpensive compared to some of the other work visas, but there is one major drawback. The TN is not a dual intent visa, so you will have to return to your home country after your stay. However, if you are eligible and are only planning to work temporarily, the TN is a great option.
Work Visas for Family
Each of the above work visas makes some allowance for family members to accompany the principle holder to the U.S. In some cases, these are auxiliary visas (such as the H-4 or L-2). In other cases, family members can enter the country under the same status as you (such as the E visas).
Ask your immigration attorney what the benefits are for your family members under these visas. Some allow them to study and even work in the U.S. They will always be tied to your status, however. Which means that, if your status is revoked or otherwise terminated, so is theirs.
As we stated earlier, the average processing time for these visas is about six months (except for the H-1B). The only way to expedite this process is to use an optional feature called premium processing. For an extra fee of $1,440, you can speed up the processing time of almost any work visa that uses an I-129 petition to just 15 calendar days.
However, premium processing is not always the best option. It also will not increase your chances of being selected in the H-1B lottery nor will it help your petition get approved. Also, in the case of the H-1B visa, it has been suspended in the past in order to give other petitions the opportunity to be processed. Work with your immigration attorney to determine if premium processing is appropriate for your case.
If the USCIS receives your petition and find that there is evidence lacking, you may face an immediate rejection. However, there are many cases in which they will instead send you a Request for Evidence (or RFE for short) to give you the opportunity to submit the missing evidence and save your case. This can be something simple such as a missing copy of a passport or degree. It can also be more complicated, such as needing to see evidence of an employer-employee relationship in an H-1B visa case.
The first thing you need to do with an RFE is bring it to your immigration attorney. There is a limited window in which you can respond, and your attorney will know exactly when and how to respond to best suit your case. The same goes if the USCIS issues you a Notice of Intent to Deny, or NOID.
Work Visa Denials and Rejections
This is often a fear of many people who are applying or petitioning for a work visa. Why would the USCIS deny my petition? How do I avoid a denial? What should I do if I’ve received a denial? We’ll answer all these questions and more.
Denial vs Rejection
First of all, there is a difference between rejection and denial. The USCIS approaches cases with a two-step method. During the first step, an evaluating officer will look at your petition to see if your information is complete, correct, and properly supported with required documents. If it fails this stage, your petition will probably be rejected. To remedy this, you simply need to fix the error and re-submit the petition.
In the second step, the evaluating officer will closely scrutinize your case to see if you are eligible for the work visa that you are pursuing. If your petition fails this step, then you might face a denial. This is more difficult to fix, since the officer does not believe that your case merits the visa. This may be a problem with your qualifications or your employer’s qualifications.
What to Do
If your petition is denied, there are a few options that may be available to you depending on the type of visa you are pursuing. However, the first thing you should always to is take your denial notice to a qualified immigration attorney so that you can have your case reviewed and determine what options are at your disposal.
Refiling – If your petition has been rejected on the grounds of a simple error or omission, your best bet may be to just find the error, fix it, and refile the petition along with new fees. However, if you are pursuing an H-1B visa, you may need to wait until the next filing season the following year. For this reason, if you want an H-1B, you need to make sure that your petition is perfect the first time.
Legal Motions – Sometimes, the problem is deeper than just a simple error. If the evaluating officer does not think you are qualified for the work visa, you may be denied. You can protest this decision with the evaluating officer by using one of two legal motions:
- Motion to Reopen: This is used when you have found new evidence that may change the officer’s mind if your case were to be re-opened.
- Motion to Reconsider: This is to be used if you and your attorney believe that the evaluating officer was wrong in his or her decision to deny your case. You will need to present an argument that defends your case from a legal standpoint.
Appeals – If legal motions don’t work or are not available, yet you feel that the decision to deny your petition was incorrect, you may want to consider appealing to a third party known as the Administrative Appeals Office. However, you should note that the AAO usually sides with the decision and that appealing is not always an option. In fact, a denial notice for an H-1B visa will likely state that appealing is not an option.
Different Options – Lastly, if all else fails or is not viable, then you should consider trying a different route. There may be other work visas for which you are eligible that could be alternatives to the one you were pursuing.
In all cases, it is important to make sure that your immigration attorney is at the helm of whichever action you take following a denial. Arguing, motioning, and appealing a case can be a very difficult if not impossible task for anyone outside of the field of immigration law. To make sure that you are making the best decision and that you have the best chance of succeeding, put your case into experienced hands.
How Our Immigration Attorneys Can Help
No matter whether you are trying to get a J-1 visa or an O-1, you are always making a large investment when you petition for a work visa. The problem is, immigration law is complex and confusing at times, and one small error can cost you hundreds of dollars and months of waiting. The best way to protect your investment is to hire an immigration attorney to help you get your work visa right the first time.
Here at Immi-USA, we have a dedicated team of expert immigration attorneys that specialize in work visas of all types. From choosing the right visa to filing the petition to addressing any RFEs or other obstacles, our lawyers will be right beside you every step of the way to protect your immigration investment. To get in touch with one of our attorneys, you can fill out this contact form and schedule your consultation today.