Employment Visa Information
Temporary Employment Visas | Employment Based Permanent Residence
Temporary Employment Visas
Treaty Nationals: TN Status | Specialty Occupations: H-1B and H-4
Extraordinary Ability: O-1A, O-1B, O-2 and O-3 | Intracompany Transferee: L-1A and L-2
Treaty Nationals: TN Status
TN status is a nonimmigrant employment status available to nationals of Canada and Mexico pursuant to the North American Free Trade Agreement (NAFTA). The status is available to these nationals who wish to work in specified professional-level positions within the U.S. The TN category is similar to the H-1B category - in that it allows professionals to work in the U.S. - but differs in several significant respects. For example, TN status holders are not subject to the limitations on the length of stay (6 years) or the numerical limitations (65,000) that affect the H-1B category. However, TN status holders - unlike H-1B status holders - must prove their intent to remain temporarily in the U.S., making the TN status problematic for those who seek permanent residence in the U.S.
Canadian nationals do not require a TN visa and may make application for entry to the U.S. at a Class A port of entry or at a pre-inspection station at a Canadian airport. Mexican nationals must obtain a visa at a U.S. consulate before applying for entry in TN status. TNs are admitted for a one-year period and may apply for extensions in one-year increments. Spouses and unmarried minor children of TNs are admitted in TD status. TD Status holders may not work in the U. S., but may attend school.
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Specialty Occupations: H-1B and H-4
H-1B status is a nonimmigrant employment status available to individuals qualified to work in “specialty occupations.” Specialty occupations generally require a minimum of a bachelor's degree and persons wishing to fill these positions must possess a bachelor's degree (or higher) in the specific specialty or have relevant experience. With certain exceptions, H-1B status holders are limited to a six (6) year stay. An advantage of the H-1B visa category is the ability to pursue permanent residence while simultaneously remaining in the U.S. in H-1B status.
One major drawback to H-1B category status is the limited number of available visas. In fact, when taking into consideration the 6,800 H-1B visas held aside for nationals of Chile and Singapore, only 58,200 H-1B are available each fiscal year. For that reason, over the past several years, the yearly allocation of H-1B visas has been depleted in approximately two months. It should be noted that the 58,200 cap does not apply to persons accepting positions at institutions of higher education, non-profit research organizations or governmental research organizations and that an additional 20,000 visas are available to persons who received a master's or higher degree from a U.S. university.
To obtain H-1B status, a prospective employer must file an H-1B petition with the immigration service together with a supporting letter, labor conditional application and proof that the beneficiary attained a bachelor's or its equivalent in experience. If the person is in the U.S., a change of status may be granted. If not, the person must apply for an H-1B visa at a U.S. consulate before entering the U.S. in H-1B status. Spouses and unmarried minor children can accompany the H-1B status holder in H-4 status.
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Extraordinary Ability: O-1A, O-1B, O-2 and O-3
O status is a nonimmigrant employment status available to persons of “extraordinary ability” in the sciences, arts, education, business or athletics (the O-1A visa) and persons with “a demonstrated record of extraordinary achievement” in the motion picture or TV production industries (the O-1B visa). The O-1A recipient may be in any field of endeavor (for example, craftsmen may qualify) so long as they are considered to have extraordinary ability. Extraordinary ability (except in the arts) is defined as “expertise indicating that the person is one of a small percentage who has arisen to the very top of their field of endeavor.” Extraordinary ability in the arts requires a lesser showing; namely that the artist is “prominent in his or her field of endeavor.” The arts include such fields as architect and executive chef. And finally, O-2 visas are available to persons accompanying O-I artists or athletes who possess critical skills and experience.
Extraordinary achievement in the motion picture and TV production industries (O-1B status) requires a “very high level of accomplishment … as evidenced by a degree of skill and recognition substantially above that ordinarily encountered …" The O-1B category includes all essential personnel including set designers, choreographers, costume designers, make-up artists and stage technicians.
To obtain O status, a prospective employer or agent (for those persons traditionally self employed) must file a petition with the immigration services together with a detailed supporting letter, affidavits by employers and experts attesting to the persons extraordinary ability, and other supporting documentation such as awards. The petition may also require a written advisory opinion from a labor union or management group. If the person is in the U.S., a change of status may be granted. If not, the person must apply for an O-1A or O-1B visa at a U.S. consulate before entering the U.S. in O status. Spouses and unmarried minor children can accompany the O status holder in O-3 status.
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Intracompany Transferee: L-1A and L-2
L-1A status is a nonimmigrant employment status available to persons who have worked abroad for one of the past three years for a parent, branch, affiliate or subsidiary of a U.S. entity. The nonimmigrant employee must have worked abroad in an executive, managerial or specialized knowledge capacity and must be coming to fill a position in a similar capacity. L status holders are limited to seven (7) year stays. An advantage of the L-1A visa category is the ability to pursue permanent residence while simultaneously remaining in the U.S. in L-1A status. This is particularly advantageous for L-1A visa holders in executive and managerial capacities who can apply for permanent residence through the EB-1 category. (See explanation below.)
To obtain L-1A status, a prospective employer must file a petition with the immigration service together with a supporting letter, proof of the relationship between the U.S. and foreign entities, and proof that the job previously held and being offered is/was executive, managerial and/or specialized knowledge in nature. If the beneficiary is in the U.S., a change of status may be granted. If not, the beneficiary must apply for an L-1A visa at a U.S. consulate abroad. Spouses and unmarried minor children can enter the U.S. in L-2 status. Moreover, an L-2 spouse may obtain work authorization.
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Employment Based Permanent Residence
There are several ways for an individual to obtain permanent residence (i.e., obtain a “green card”) in the U.S. through employment. There are currently five categories (referred to as preferences) for employment-based immigration. The First Preference includes priority workers who are persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. The Second Preference applies to advanced degree holders or persons of exceptional ability. The Third Preference covers professionals, skilled workers and unskilled workers. The Fourth Preference applies to a wide range of individuals (referred to as special immigrants) who include religious workers, court dependents, returning residents and U.S. servicemen. And finally, the Fifth Preference benefits individuals who invest significant funds in the U.S. to create (or maintain) at least ten (10) full-time jobs for U.S. workers.
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First Preference - Priority Workers (EB-1 Category)
The EB-1 category includes persons of extraordinary ability, outstanding professors and researchers, and executives and managers of multinational companies. Persons of extraordinary ability are persons who can demonstrate sustained national or international acclaim in the sciences, arts, education, business or athletic fields. Outstanding professors and researchers are persons recognized internationally as outstanding in a specific academic area with at least three (3) years experience as a professor or researcher. And multinational executives and managers are persons who were employed for one year in the past three years before entering the U.S. for a parent, subsidiary or affiliate of the intended employer in the U.S. in an executive or managerial capacity. No labor certification is required for any of these categories. A total of 40,000 immigrant visas are allocated each year to this category.
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Second Preference - Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability (EB-2 Category)
The EB-2 category includes persons holding advanced degrees in their professions or their equivalent or who because of their exceptional ability in the sciences, arts or business will substantially benefit the economy, culture, education or welfare of the U.S. Labor certification is required except the immigration service may waive this requirement if it determines it is in the national interest to do so. A total of 40,000 immigrant visas are allocated each year to this category.
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Third Preference - Professionals, Skilled and Other Workers (EB-3 Category)
The EB-3 category includes person considered professionals, skilled and unskilled workers. Professionals are those persons holding a bachelor's degree; skilled workers are persons seeking to fill a permanent full-time job requiring at least two years of training or work experience; and unskilled workers include persons with less than two years of training and work experience. A labor certification is required for all third preference categories. A total of 40,000 immigrant visas are allocated each year (with 10,000 reserved for unskilled workers), plus any unused visas from the First and Second Preference groups. There are significant backlogs in the category.
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Fourth Preference - Special Immigrants (EB-4 Category)
The EB-4 category includes a great variety of intending immigrants including but not limited to: persons seeking reacquisition of citizenship or returning residence; religious workers; certain U.S. employees abroad; Panama Canal Treaty employees; court dependents; and person who have served honorably in the U.S. armed services for a twelve-year period. No labor certification is needed for this category. A total of 10,000 immigrant visas are made available in this category.
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Fifth Preference - Investors (EB-5 Category)
The EB-5 category includes person how have invested (or are actively in the process of investing) $1 million (or under certain circumstances $500,000) in a commercial enterprise that employs ten (10) full-time U.S. workers and who engages in the business through the day-to-day management of the business. No labor certification is required for this category. A total of 10,000 immigrant visas are made available in this category.
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The Law Offices of Patrick C. McGuinness, LLC
Red Bank Office
331 Newman Springs Rd.
Bldg. 1, 4th Floor, Suite 143
Red Bank, NJ 07701
Phone: 732-784-2839
Fax: 732-909-2676
Scotch Plains Office
373 Park Ave. Suite 204
Scotch Plains, NJ 07076
Phone: 908-490-0909
Fax: 732-909-2676
With law offices in Red Bank and Scotch Plains, New Jersey, The Law Offices of Patrick C. McGuinness, LLC, serves clients in the cities of Asbury Park, Cranford, Eatontown, Elizabeth, Freehold, Long Branch, Neptune, Newark, North Plainfield, Ocean, Plainfield, Red Bank, Roselle Park, Scotch Plains, Shrewsbury, Union, and Westfield, including New Jersey County, Essex County, Middlesex County, Monmouth County, Ocean County, Somerset County, and Union County, in both New Jersey and New York.