WORKING TEMPORARILY IN THE U.S.

There is no generic work visa.  Applicants must fit within one of the following categories:

B-1/Business Visa - Allows brief visits for business meetings, conferences, and training of a brief duration.

·         Sometimes permitted for 6-month periods involving professional work activity, but may not normally be used for hands-on work activity.

·         Quick processing time, often same day service at time of application, but several weeks at busier consulates abroad

·         Citizens of most Western European countries, Argentina, Australia, Japan, Singapore, Slovenia, and Uruguay are visa exempt if coming for business or pleasure for no more than 90 days (extensions or changes of status while in the U.S. not permitted)

·         Natives of 34 countries designated in response to 9-11 require special security checks that will delay issuance of any new visa for 1 or more months.  These restrictions may apply to natives of other countries seeking a visa in a designated country.

L-1/Inter-Company Transfers - Applicants must have at least 12 months experience within the same corporate group outside of the U.S.  (Note: Time spent on travel in the US does not count towards the 12 months.)

·         Only for Managers/Executives or employees with specialized knowledge about the company’s operations/products abroad

·         5-year limit for specialized knowledge employees / 7-year limit for managers/ executives

·         Only within corporate family with majority control over the sending and receiving entity, not available for franchises or affiliates connected by minority interests

·         L-1 petitions require extensive documentation and take a minimum of 3-5 weeks to process  (Corporate-wide blanket approvals may be available if company has substantial U.S. presence or history of using L-1s)

·         Managers/executives of firms with blanket approval require only 6 months qualifying experience within the same corporate group abroad

H-1B/Specialty Occupation Visa - Applicants must be engaged in an occupation requiring a degree (at least bachelor's level) in a field of specialization and must have that degree or equivalent (Experience is acceptable at a rate of three years of work experience in specific field for each year of a four-year bachelor's level education that individual does not have).

·         6-year limit.  Seventh year available in certain cases where (1) an immigrant visa petition has been pending for over a year or (2) a labor certification has been pending over a year and an immigrant visa petition has been filed.

·         Employers must pay prevailing wage and are subject to strict controls over documentation of working conditions and penalties for failure to pay.

·         Employers are not required to recruit to show unavailability of U.S. workers unless 15% or more of workforce has H-1B status.

·         Requires Labor Department Attestation and Petition

·    Combined Department of Labor and Immigration Service processing can typically take a minimum of 2-4 months to process. Premium Processing option can reduce turnaround to 3-4 weeks.

·    Blackout periods due to 65,000 annual limitation H-1 B's: There are times during the year when H-1B's are unavailable.  Flynn & Clark works with you to assure you can get your H-1 B or an alternative visa category in a timely manner.

E/Treaty Trader or Investor - Firms from countries with special treaties with the U.S. can employ investors and key employees from the treaty country if majority ownership is a citizen of the treaty country.  There must be either a substantial investment by treaty nationals or substantial trade with the U.S. office and the treaty country.  Most E.U. countries have treaties, but ownership or trade must be with the specific nation, not another E.U. country.

H-2B/Temporary Nonagricultural Worker - Available for 1-year period.  This is the only generally available work visa, but the strict temporary requirement makes it impossible for most to use.  Temporary requirement restricts its use to unusual situations such as seasonal positions in resort areas or one-time occurrences such as telephone workers to restore service after ice storm.

J-1/Exchange Visa - Allows visitors to engage in training in the U.S. for up to 18 months to further skills in profession.  Applicants must first obtain documentation from authorized sponsor, which typically takes a minimum of 1 month.

H-3/Training Visa - Allows trainees to enter the U.S. for up to 24 months.  Practical use of this category is limited because a substantial classroom element is required and on-the-job training must not include productive work.  Applicants must clearly establish that they are being trained for positions outside the U.S.  Petition takes minimum of 2 months to process.

Note about Dependents:  Dependents are not generally permitted to work in the U.S. unless they obtain their own work visa or have permanent residence.    Work authorization may be granted to the spouse or minor child of a person in J-1 status and to the spouse of a person in E-1 or L-1 status.  In either case, the spouse or dependent must apply to the INS for work authorization.  If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document.