Although the most commonly known work visa is the H-1B visa for highly skilled workers, there are other options that provide for temporary and long-term employment in the United States. Whether you are an international company who needs executives and specialized employees to work seamlessly between office locations, or a business owner or entrepreneur who hopes to tap into the unique talents of employees from your home country to the United States, experienced immigration attorneys can help you determine the right employment visa for your desired employee.
Strategic use of B-1 Visa:
Two scenarios often come into play with the B-1 visa. The primary scenario is using the B-1 to allow a key employee of your overseas office enter the U.S. to attend business meetings, or receive or provide training. A secondary option is the B-1 in lieu of H-1B that may be used strategically by employers to bring an overseas employee to the United States for a temporary period. The employee will need to remain on foreign payroll and must otherwise meet B-1 and H-1B qualifications. We counsel clients on whether a B-1 in lieu of H-1B visa could be a viable alternative for short-term employment, which is highly sought after but limited in availability. A B-1 visa has a number of requirements that differ from an H-1B visa; these requirements are primarily focused on the visa holder’s ties to their native country. For a B-1 visa, among other requirements, the applicant must be paid by a company’s associated foreign entity; they must have a residence in a foreign country, which they do not intend to abandon; they must intend to enter the United States for a period of specifically limited duration; and they must be seeking admission for the sole purpose of engaging in legitimate activities relating to business.
L-1 visas are critical for companies that have an international presence, as the visas give employers the opportunity to bring overseas employees to the United States. The L-1 employee must have been employed by an overseas affiliate for at least 1 year within the last 3 years and must be coming to an affiliated company in the U.S. to occupy a managerial, executive or specialized knowledge position. There are two levels of the L-1 visa; the L-1A is for executives and managers, and the L-1B is for employees who have “specialized knowledge.” When considering the use of an L-1B visa, it is important to note that there is not a clear definition of “specialized knowledge,” making the decision to grant the visa subject to interpretation. L visas are dual intent, so the visa holder can live and work in the US while also seeking lawful permanent resident status.
We represent clients who are navigating the Treaty NAFTA (TN) visa process. Citizens of Mexico and Canada may be able to utilize the TN visa if they possess the requisite skills or education, and their position is listed within the NAFTA Appendix for TN occupations. The TN is generally a viable option for Canadian and Mexican professionals who cannot secure an H-1B due to “cap out” scenarios. TN visas allow specific categories of professionals such as accountants, attorneys, scientists, and engineers to temporarily enter the United States and work for your business. The TN program is relatively easy to qualify for, and employees may remain in the United States for an initial period of three years, with the potential for a three year extension.
To obtain an O-1 visa, an individual must demonstrate extraordinary ability in the sciences, arts, business, education, or athletics. While difficult to obtain, the O-1 visa can be worth applying for if other options are not viable, as its qualifying categories can be broadly interpreted. Additionally, while there are eight regulatory categories for demonstrating extraordinary ability, the requirements for this visa also state that “if the criteria do not apply, the petitioner may submit comparable evidence to establish eligibility.” The initial O-1 is valid for a three-year term and may be extended in one-year increments. Download our guide on extraordinary ability visas and petitions to learn about extraordinary ability green card petitions.
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