When your recruitment yields foreign workers in need of proper work authorization, you need a legal partner with expertise in employment-based immigration. The team at Trow & Rahal has been helping multinational and domestic employers transfer, recruit, and hire foreign nationals for nearly 30 years. Whether you are actively recruiting new employees from overseas, managing case files for workers currently in the United States on temporary visas, or looking to move executives and specialists to the United States from foreign offices, you can trust our team to streamline routine cases and apply creative problem solving to resolve challenging situations.
Employment-Based Temporary Visas
In most cases, the first step in hiring foreign nationals is filing a nonimmigrant visa petition with the United States Citizenship and Immigration Services (USCIS). If the foreign national is already in the United States, they can begin work once the USCIS approves the petition with a request for a change of visa status. If the foreign national is abroad, they will take the additional step of applying for a visa at a U.S. Consulate before they can enter the United States and begin work. Canadians are generally exempt from this visa requirement. There are over a dozen categories of non-immigrant professional work visas, and, as your trusted legal partner, we can help you determine which category best fits each of your foreign national employees.
The most common nonimmigrant (temporary) work visa categories used by employers include:
Professional Worker in a Specialty Occupation (H-1B)
The H-1B requires that the employer offer a professional job that is considered a “specialty occupation” requiring the foreign national employee to have at least a university-level degree in a specific field, such as engineering, computer science, chemistry, economics, and architecture. H-1B status is granted for an initial period of three years and can be extended for three more years, with a maximum stay of up to six years. The United States caps the number of new H-1B visas granted each government fiscal year and conducts a lottery selection process, shrouding this practical work visa solution in uncertainty. Some organizations benefit from a cap-exempt designation and make frequent use of this visa classification to build a professional staff. These are universities, nonprofit organizations affiliated with universities, and nonprofit or government research organizations.
Foreign Student (F-1)
A foreign national who is studying at or has recently graduated from a college or university in the United States can often work for a U.S. employer in F-1 student status for up to 12 months with Optional Practical Training (OPT). If the foreign national has a STEM degree, an additional 24 months of STEM OPT is available if the employer is registered for E-Verify. While in F-1 OPT, most employers will register the student for the H-1B cap lottery to plan for continued employment in H-1B status
Trainee (H-3 or J-1)
If you are looking to bring foreign national employees to the United States to complete a specialized training program, there are several possible training visas, including H-3 and J-1. These training visas allow employers to train employees in the United States for up to 18 months (J-1) or two years (H-3) if specific requirements are met.
The J-1 is an exchange visitor visa administered by the U.S. Department of State and not the USCIS. The J-1 trainee requires a college or university degree from outside of the United States and at least one year of experience, or at least five years of work experience in their field of training. There is also a J-1 program for interns for college or university students outside of the United States or who have recently graduated in the last 12 months, and the program can last up to 12 months.
J-1 Exchange Visitors must have an intent to return home after the training or internship and sign a contract verifying this. Some J-1 interns or trainees can be subject to a 2-year home resident requirement which is dependent upon their home country.
Scholars and Researchers (J-1)
While possibly eligible for other work visas such as H-1B or O-1, there are J-1 exchange visitor programs designated specifically for scholars and researchers to teach, study, or conduct research in the United States. This nonimmigrant visa is available to foreign citizens in a range of roles for anywhere from one day to seven years, depending on the purpose of the visit. J-1 options for researchers and scholars include:
- Short-Term Scholar. This visa is an option for professors, researchers, post-docs, and graduate students who want to come to the United States to lecture, observe, consult, train, or demonstrate special skills. The duration of this visa is six months or less. The visa holder may conduct their scholarship at a research institution, museum, library, college, or university. This visa can be obtained multiple times with no waiting period.
- Professor and Research Scholar. Professors, researchers, post-docs, and graduate students who intend to stay for up to five years to consult in connection with a research project or teach in a non-tenure track position can apply for this visa. Applicants must have a bachelor’s degree and must not have been physically in the United States for any part of the 12 months preceding the start date. This visa can be repeated after the person has lived outside of the United States for at least two years.
Intracompany Transfers (L-1)
Multinational companies can transfer employees to the United States in L-1 visa status if they have worked for the company abroad for at least one year in the last three years and if the companies have more than fifty percent common ownership. The employees must qualify as either executives or managers (L-1A) or as a person with highly specialized knowledge (L-1B). The employee can stay in the United States initially for up to three years and then extend in two-year increments for up to five years if L-1B specialized knowledge or up to seven years if L-1A executive or manager.
Individual With Extraordinary Ability or Achievement (O-1)
Persons with extraordinary ability or achievement in the sciences, education, business, and athletics, can apply for an O-1A visa to work in their field of expertise. The O-1B visa is reserved for people with extraordinary ability in the arts or in motion pictures or TV. O-1 petitions may be filed by U.S. employers or agents. The O-1A requires a showing of sustained national or international acclaim and status as one of the few who has risen to the top of a particular field; the O-1B motion picture standard requires a degree of skill and recognition significantly above that ordinarily encountered; and the O-1B for artists requires evidence of prominence in one’s field. The O-1 visa is valid for an initial period of three years and may be extended in one-year increments indefinitely, as long as acclaim persists. A three-year extension is possible in some cases where there is a “new” event or employer.
Citizens of Canada and Mexico (TN)
U.S. Employers can hire foreign nationals from Canada and Mexico in TN status for certain professional occupations such as computer systems analysts, attorneys, economists, and scientists, among others. Canadian citizens can apply for TN status upon entry to the United States at pre-flight inspection at an airport or at a port-of-entry at the land border. Mexican citizens must apply for a TN visa at the US embassy before entering the United States in TN status. TN status is granted initially for three years and can be renewed in 3-year increments with no upper limit. However, the TN status does require evidence of the intent to return home by demonstrating ties to one’s home country.
Citizens of Australia (E-3)
Available only to Australian citizens, the E-3 visa is similar to the H-1B visa in that it requires a job offer for a professional position and the foreign national has at least a bachelor’s degree in a specific field related. E-3 status is granted in two-year increments without an upper limit, as long as the person maintains nonimmigrant intent -- the intent to return back to their home country by maintaining ties to their home country
Citizens of Singapore and Chile (H-1B1)
Employers can hire foreign nationals from Chile and Singapore in H-1B1 status, which is similar to the H-1B visa but not subject to the H-1B cap. The potential employees apply for the H-1B1 visa at the US embassy in their home country. This visa also requires a showing of nonimmigrant intents.. Like the H-1B visa, it does require that the job offered is a professional position and that the applicant has a university degree in a field that is required for the position. The H-1B1 also requires the intent to return home and a showing of ties to the home country.
Treaty Traders or Treaty Investors (E-1 or E-2)
Treaty Trader (E-1) and Treaty Investor (E-2) visas are only available to foreign national employees and principals of companies that are at least fifty percent owned by citizens of countries that have E-1 and E-2 treaties with the United States. The companies cannot be U.S. owned. The E-1 visa is for a company with a substantial volume of trade with already more than fifty percent of its trade between the United States and the home country. The E-2 is for companies or individuals from treaty countries that make a substantial investment in the United States.
The E-1 and E-2 visas are available to the investor or owner themselves or to managers and executives of the company that have the same nationality as the company. The E-2 visa is usually granted for up to 5 years and can be renewed for an additional 5 years on an ongoing basis with no upper limit. An initial E-2 visa for a start-up company can be limited to only 1 or 2 years.
Trow & Rahal Can Be Your Partner
Assessing visa options for foreign nationals and developing immigration strategies for companies and their employees is where Trow & Rahal excels. Consideration is given to the employer’s corporate culture, what will best fit the employer’s needs and compliance responsibilities, the beneficiary’s qualifications, and the immediate and long-term work plans for the foreign national employee in the United States. Assessing visa options and developing immigration strategies requires fluency with the U.S. immigration alphabet and knowledge of the current climate and processing times at various U.S. government agencies including the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor, Customs and Border Protection (CBP) as well as U.S. consulates around the world.
Because all these visas are temporary, the immigration status of foreign workers must be constantly monitored, and expiration dates must be tracked and extensions filed in a timely manner. The team at Trow & Rahal partners with employers to keep their international employees eligible to work in the United States. We work as a team with Human Resource departments and/or General Counsel’s office to ensure that the foreign national employees are able to continue to live and work in the United States.
Are You an Employer Hiring Foreign Talent With Nonimmigrant Visas?
If you are an employer seeking to hire foreign talent who currently have a nonimmigrant visa or are in need of one, you should speak with an experienced immigration attorney as soon as possible. We have been helping employers with the immigration process related to their employees since 1993 and always work towards exceeding expectations. Please contact us online or call our office directly at 202.537.4830 to discuss your specific business immigration legal needs. We service clients throughout the United States from our Bethesda, Maryland office and look forward to working with you.