VISAS | EMPLOYMENT BASED CATEGORIES

E-1 Treaty Traders

The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade between U.S. and the country of applicant’s nationality.

Qualification of E-1 Treaty Trader

1. Carry on substantial trade
2. Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification. Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.

Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country. The USCIS definition also includes date processing, advertising, accounting, design and engineering, and management consulting. Goods are “tangible commodities or merchandise having extrinsic value.” Services are “legitimate economic activities which provide other than tangible goods.”

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities.

E-2 Treaty Investors

The E-2 nonimmigrant classification allows a national of a treaty country to enter the U.S. for investing a substantial amount of capital in a U.S. business.

Qualification of E-2 Treaty Investor

1. Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.

2. Seeking to enter the United States solely to develop and direct the investment enterprise.
This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.

A substantial amount of capital

• Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
• Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise

It is a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

Marginal Enterprises

The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.

E-3 Austrian Specialty

The E-3 category applies only to nationals of the Commonwealth of Australia. Application is coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.

The job must meet one of the following criteria to qualify as a specialty occupation:

• Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
• The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
• The employer normally requires a degree or its equivalent for the position
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*

H-1B Specialty Occupations

The H-1B specialty nonimmigrant workers classification is a nonimmigrant visa which allows foreign nationals to enter into the U.S. and perform services in a prearranged professional job. The job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum for entry into the field.

The position must meet one of the following criteria to qualify as a specialty occupation:

• A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
• The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
• The employer normally requires a degree or its equivalent for the position.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Criteria in evaluating the position include:

• Focus on tasks, demands, duties and actual requirements of position as specified both by petitioner and industry documents;
• Position requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at institution of higher learning;
• Position requires a precise and specific course of study which relates directly and closely to the position;
• Obtaining a college degree in business or liberal arts, without further specification, does not establish eligibility. Requirement of college degree for sake of general education or to obtain higher caliber employee is insufficient;
• Other factors – form, method, extent of agreement of compensation.

H-2A Temporary Agricultural Workers

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs

To qualify for H-2A nonimmigrant classification, the petitioner must:

• Offer a job that is of a temporary or seasonal nature.
• Demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
• Show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• Generally, submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor.

Petitioner files Temporary Employment Certification (TEC) application – ETA Form 9142 with ETA-790 that was submitted to SWA. Prior to requesting H-2A classification from USCIS, the petitioner must apply for and receive a Temporary Employment Certification for H-2A workers with DOL.

Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The
maximum period of stay in H-2A classification is 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.

H-2B Temporary Non-Agricultural Workers

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

To qualify for H-2B nonimmigrant classification, the petitioner must establish:

• There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
• The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):

H-3 Nonimmigrant Trainee

The H-3 nonimmigrant visa category allows foreign nationals coming temporarily to the United States as either a:

• Trainee to receive training in any field of endeavor, other than graduate medical education or training, that is not available in the foreign national’s home country.
• Special Education Exchange Visitor to participate in a special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

Trainees

An H-3 “trainee” must be invited by an individual or organization for the purpose of receiving training, in any field including but not limited to:

• Commerce
• Communications
• Finance
• Government
• Transportation
• Agriculture
• Other professions

This classification is not intended for U.S. employment. It is designed to provide a foreign national with job-related training for work that will ultimately be performed outside the United States.

In order to obtain H-3 classification, a U.S. employer or organization must demonstrate that:

• The proposed training is not available in the foreign national’s own country;
• The foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
• The foreign national will not engage in productive employment unless such employment is incidental and necessary to the training; and
• The training will benefit the beneficiary in pursuing a career outside the United States.

Each H-3 petition for a trainee must include a statement that:

• Describes the type of training and supervision to be given, and the structure of the training program;
• Sets the proportion of time that will be devoted to productive employment;
• Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;
• Describes the career abroad for which the training will prepare the foreign national;
• Indicates the reasons why such training cannot be obtained in the foreign national’s country and why it is necessary for the foreign national to be trained in the United States; and
• Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the employer/organization for providing the training.

A training program may not be approved which:

• Deals in generalities with no fixed schedule, objectives or means of evaluation;
• Is incompatible with the nature of the petitioner’s business or enterprise;
• Is on behalf of a foreign national who already possess substantial training and expertise in the proposed field of training;
• Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
• Will result in productive employment beyond that which is incidental and necessary to the training;
• Is designed to recruit and train foreign nationals for the ultimate staffing of domestic operations in the United States;
• Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
• Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

L-1A Intracompany Transferee Executive or Manager

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

To qualify, the named employee must also:

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.

New Offices

For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

• The employer has secured sufficient physical premises to house the new office;
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
  Blanket Petitions

Certain organizations may establish the required intra-company relationship in advance of filing individual L-1 petitions by filing a blanket petition. Eligibility for blanket L certification may be established if:

• The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
• The petitioner has an office in the United States which has been doing business for one year or more;
• The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
• The petitioner along with the other qualifying organizations meet one of the following criteria:
  ••o Have obtained at least 10 L-1 approvals during the previous 12-month period;
  ••o Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  ••o Have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.