B-1/B-2 Visitor Visas and the Visa Waiver Program

B Visitor Visas and the Visa Waiver Program (VWP) should be used for an entry of limited duration where the Foreign National intends to depart the U.S. at the conclusion of the trip and is maintaining a foreign residence abroad.

The VWP allows individuals from certain countries to travel to the U.S. for up to 90 days at a time without obtaining a visa. Nationals from countries that are not part of the VWP must apply for a B-1 (to enter for business) or B-2 (to enter for pleasure or medical treatment) visitor visa to enter the U.S.

Grzeca Law Group can help to apply for a B1 or B2 visa and will also provide an evaluation to determine appropriate activity as a business visitor to the U.S.

Acceptable B Visitor and Visa Waiver Program Activities

• Meetings and consultations with U.S. business associates in order to offer expertise on a specific matter;

• Advice or consultation on a specific project;

• Attending conventions, conferences or seminars;

• Receiving training for an established, defined program, so long as the source of pay remains outside the U.S.;

• Engaging in activity that is associated with international trade or commerce where the principal benefit of the activity accrues to the business person or corporate entity abroad;

• Soliciting sales, negotiating contracts or taking orders from established customers for work that will be performed outside the U.S.;

• Independent research, such as market or product research, that is not directly connected with sales or service contracts or the solicitation of business;

• Members of the boards of directors of U.S. corporations coming to the U.S. to attend board meetings or to engage in other functions arising from board membership; or

• Preliminary activities prior to accepting a U.S. position such as a job interview, house hunting, school visits and banking activity. However, please be advised that such visits immediately preceding a work visa (H, L, E) at a U.S. Consulate or Embassy overseas may be strictly scrutinized by Consular Officers.

Unacceptable B Visitor and Visa Waiver Program Activities

• Performing services or duties of the foreign or U.S. job (i.e., engaging in the same activity that you would engage in at your office abroad);

• Engaging in gainful or productive employment whether as a salaried employee or as an independent contractor or freelancer;

• Receiving remuneration (other than expense allowance) from a U.S. employer. However, even if the pay source is outside the U.S., the visitor category cannot be used to enter the U.S. and perform services (with some exceptions);

• Conducting training;

• Work product that is predominately created in the U.S.;

• Long trips to the U.S. for business with vague or uncertain intentions that may encourage the Foreign National to do work other than what is specifically permitted; or

• Business trips to the U.S. that lack documentation in support of admission to the U.S. as a business visitor, such as meeting agendas, a letter of invitation from the U.S. employer, or a return ticket abroad.

B-1/B-2 FAQS

E-1 and E-2 Visas - Treaty Investors/Traders

In our global economy, it is important for companies to be able to easily expand their business around the world and Grzeca Law Group is here to help.

The U.S. has various treaties with countries around the world that are meant to facilitate trade between the U.S. and its treaty partners. These treaties encourage businesses from each country to establish operations in the other and transfer essential personnel. To that end, the U.S. has established E-1 and E-2 visa classifications for "treaty-traders" and "treaty-investors."

Three general requirements must be met for a company and its owners or employees to qualify in either E-1 or E-2 classification:

1. A treaty must exist between the U.S. and the country of nationality of the E visa applicant.

2. Majority ownership or control of the investing or trading company must be held by nationals of the country in question.

3. That country's citizenship must be held by each employee or principal of the company who seeks E status under the treaty.

In addition, for an employee to qualify for the treaty-trader (E-1) classification, the employing company must be engaged in "trade." Said trade must be "substantial," "principally" between the U.S. and the treaty country, and the employee or principal must serve the company in either a managerial or executive capacity or one involving "essential skills."

The requirements for treaty-investor (E-2) classification include that the investment must be active, the investment must be substantial, the enterprise must not be marginal, and the E-2 beneficiary must seek to enter the United States solely to develop and direct the investment enterprise.

One major benefit of the E-1 and E-2 visa program is that it the company's certification, as well as approval of each individual's visa classification, can be obtained directly through a U.S. Embassy or Consulate. An additional benefit of E visas is that they are not subject to the maximum validity periods found in the H-1B and L-1 classifications and may be renewed by applicants indefinitely (as long as they continue to qualify). All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

Finally, spouses and unmarried children under 21 can apply for the E-2 dependent classification. Spouses E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status, except for spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization.

Our firm has guided many clients through the initial process of determining a company's eligibility for E visa classification and has transferred numerous key employees to the U.S. so that they can oversee the enterprise. Clients of Grzeca Law Group appreciate the high level of support the firm provides in this detailed process.

E-3 Specialty Occupation Visas for Australians

The E-3 visa classification applies to Australian nationals only and is limited to a maximum of 10,500 visas annually.

To qualify for E-3 classification, which has similar requirements to the H-1B classification, it is necessary to establish that the Australian national is a professional seeking employment in a "specialty occupation," defined as an occupation that requires a U.S. bachelor's degree, or its equivalent, in a specific field for entry into that field. It is possible that experience can be evaluated to equate a formal degree.

The initial application for an E-3 visa can be completed directly at a U.S. Embassy or Consulate abroad (without the need to apply to the CIS first) or by changing status to E- 3 while in the United States. E-3 nonimmigrant status is initially granted for a period of no more than two years. However, extensions of stay may be granted indefinitely in increments up to two years in duration.

Grzeca Law Group is happy to counsel employers about this unique opportunity for Australian nationals.

F-1 and OPT

Many foreign nationals enter the U.S. in F-1 status, which allows an individual to study at a college or university. Upon completion of their studies, many of these foreign nationals are granted Optional Practical Training (OPT) for a period of one year (or up to 27 months if their degree is in a STEM (science, technology, engineering or math) field, which allows them to gain work experience in their field of study. Once approved for OPT by their college or university, these individuals must apply for an Employment Authorization Document (EAD), and receive it, prior to beginning their OPT employment. Upon completion of their OPT, many foreign nationals prefer to remain in the U.S. in order to continue gaining experience and knowledge. Most of these individuals make the logical progression toward H-1B classification. However, due to the numerical cap on H-1B visas, prior planning by both the foreign national and their employer is necessary in order to apply for H-1B classification. If you would like more information regarding options after OPT, please contact our office.

H-1B Specialty Occupations

The H-1B visa is one of the most talked about and sought after visa classification categories. The H-1B visa is a nonimmigrant classification available to individuals in a "specialty occupation," defined by regulation as an occupation that requires a U.S. Bachelor's Degree, or its equivalent, in a specific specialty for entry into the field. These typically include occupations such as Software Developers, Architects, Engineers or Professors. However, many other positions may fit within the category.

The H-1B visa classification is valid initially for three years and generally may be extended once for an additional three years. Individuals in H-1B visa status may change employers if the new employer files a new petition on their behalf and certain conditions are met.

The number of H-1B visas available to employers and their potential employees is extremely limited - only 65,000 new H-1B visas are issued each year. In addition, up to 20,000 foreign nationals with Master's or higher level degrees from U.S. institutions of higher education are exempt from the traditional H-1B cap each year. Once the traditional and Master's caps are reached for a particular year (which, unfortunately, in recent years, has been within the first couple of days that petitions may be filed), no new H-1B petitions can be filed until the following April 1, for positions beginning no earlier than October 1 of that same year.

Unless cap-exempt, prospective employers must first electronically register their beneficiaries through an online portal that is open for a minimum of 14 calendar days in March. If selected in the lottery, petitioners can then file their H-1B petitions with U.S. Citizenship and Immigration Services.

Grzeca Law Group has vast experience and a high success rate with H-1B visas and can help your company apply for initial H-1B classification for a new employee, transfer that employee's H-1B classification to your company or extend the classification of an Specialty Occupation employee currently in H-1B status.

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H-1B FAQS

H-2B

The H-2B visa category is used to temporarily employ foreign nationals in a nonagricultural position for which the employer has a temporary need and for which qualified U.S. workers are unavailable. These foreign nationals must be entering the country to fill an employer's need that is a "one-time" occurrence, seasonal, a peak load time, or intermittent. Typically, H-2B Temporary Workers work in industries such as landscaping, hospitality or construction.

A Labor Certification must be sought from the U.S. Department of Labor (DOL) certifying that the foreign nationals are not displacing qualified, unemployed U.S. workers in the region and that the proposed employment does not adversely affect the working conditions of U.S. workers who are similarly employed. This "Labor Certification" can be filed up to 90 days prior to the date the foreign nationals are needed.

Once "Labor Certification" has been secured, a petition based on the Certification is filed with U.S. Citizenship and Immigration Services (CIS). The initial period of stay granted to the workers admitted to the U.S. in H-2B status is governed by the period of time that his or her temporary services are needed. This period must be reasonable in terms of the duties to be performed and cannot extend beyond ten months. However, a worker may remain in the U.S. in H-2B status for a maximum of three (3) years before needing to depart the U.S. for one year.

There are only 66,000 H-2B visas available each fiscal year. Every year, 33,000 of these H-2B visa numbers are released on October 1 and 33,000 are released on April 1. Employers with a temporary need for employees quickly scoop up these available H-2Bs. Therefore, it is imperative that employers interested in utilizing the H-2B program to supplement their workforce be in contact with a firm such as Grzeca Law Group to be ready to apply for H-2Bs immediately when they become available.

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H-3 Trainees

The H-3 visa classification is used by U.S. companies and institutions to bring foreign employees to the U.S. for up to two years to participate in an established company training program that is not available in the trainee's home country. The training must benefit the trainee and the individual must be able to apply what they have learned in their position in their home country. On the other hand, the trainee cannot be part of the normal operation of business or engage in productive employment while they are "training" in the U.S. unless such work is incidental and necessary to the training and must not be placed in a position which is in the petitioning entity’s normal operation and in which citizens and resident workers are regularly employed.

When a company decides to pursue H-3 classification for a trainee, Grzeca Law Group assists the company in providing an extremely specific and detailed training plan to U.S. Citizenship and Immigration Services (USCIS), including the specific amount of time that will be spent learning each task, why the applicant needs the training and the training cannot be obtained in the trainee’s country, and how the individual will use the acquired skills in their career abroad for which the training will prepare them. The company must also show that it has the financial resources for training and explain the trainee's salary, if applicable.

Employers may want to consider using B-1/B-2 visitor classification in lieu of the H-3 training program when the trainee will only be coming for six months or less and will continue to be paid from abroad.

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J-1 Exchange Visitors

The J-1 Exchange Visitor Program was established to "promote a better understanding of the U.S. in other countries, and to increase mutual understanding between the people of the U.S. and other countries." This program provides foreign nationals with opportunities to participate in educational and cultural programs in the U.S. and return home to share their experiences as well as allowing U.S. citizens to participate in such programs in other countries.

The J-1 Exchange Visitor Program is available to nonimmigrant visitors to the U.S. in the categories of professor or research scholar, short-term scholar, trainee or intern, college, university or secondary student, teacher, nonacademic specialist, foreign physician, international or government visitor, camp counselor, au pair, and summer student in a travel/work program. Specific requirements and regulations govern each exchange designation. For example, J-1 classification for trainees is granted for a maximum of 18 months, with some exceptions that may limit this time to 12 months.

Before an individual can apply for a J-1 visa at a U.S. Embassy or Consulate, he or she must meet the requirements, apply for and be accepted in one of the Exchange Visitor Program categories through a designated sponsoring "umbrella organization." In addition, companies interested in hosting J-1 visitors must facilitate their participation in the program through the same "umbrella organization."

Of interest to many U.S. employers (particularly in the hospitality industry, specialty and non-specialty training), internship and summer work/travel programs are designated in a number of fields, including hospitality, management, business, commerce and finance.

Please contact Grzeca Law Group's J-1 Exchange Visitor Lawyers for information regarding company programs available, as well as information on other regularized recruitment rotation programs related to the J-1 Exchange Visitor Program.

Waiver of 2-year foreign residence requirement

The J-1 Exchange Visitor Program is intended to promote cultural exchange and encourage participants to share what they learned during their experience with others in their home country. Therefore, many J-1 visa holders must, by law, return to their home country or country of last residence and reside there for two years after completion of the program in the U.S. before they are eligible to apply for a change of status to H, K or L classification, an immigrant visa or adjustment of status.

J-1 visa holders who are subject to the two-year foreign residence requirement are those:

• Whose participation was financed, in some way by the U.S. government or the government of the participant's nationality or last residence;

• Who, when they acquired J-1 status or were admitted to the U.S., were engaged in a field on the Department of State "Skills List" applicable to their country; or

• Who came to the U.S. or acquired J-1 status to receive graduate medical education or training.

However, U.S. Citizenship and Immigration Services, upon recommendation by the Department of State, may waive the two-year foreign residence requirement if a J-1 participant can prove that he or she should not be required to leave the U.S. Grounds for the waiver may include a credible claim that the participant would be persecuted in his or her home country, that it would be in the public interest to allow the individual to remain, that the individual is employed as a physician in a designated medically underserved area, a request by an interested U.S. federal government agency, or a "No Objection" statement from your home country.

The process for obtaining a waiver of the two-year residence requirement depends on the type of waiver sought. Grzeca Law Group's J-1 Lawyers have the expertise and track record to determine whether or not an individual is subject to the two-year foreign residence rule, and, if so, what waivers may be available in a particular situation.

L-1 Intracompany Transfers

The L-1 intracompany transfer classification allows a company to transfer an employee to the U.S. who has served the company or its qualified affiliates abroad for at least one year within the last three years in a "managerial," "executive," or "specialized knowledge" capacity. The foreign national must continue to serve the company in a "managerial," "executive," or "specialized knowledge" capacity in his or her new position in the U.S.

L-1 classifications are valid initially for a period of three years. Unless entering the U.S. intermittently, managers and executives in L-1A classification may extend their classification for up to four additional years in two year increments while specialized knowledge employees in L-1B classification may extend their classification for up to two additional years. In addition, U.S. Citizenship and Immigration Services has updated their policy to allow L-2 dependent spouses to work “incident to status,” thus eliminating the need for an Employment Authorization Document (EAD).

Whether a company has a large or small international presence, Grzeca Law Group has helped transfer hundreds of qualifying employees to the U.S. in L-1 classification. In addition, Grzeca Law Group has successfully obtained Blanket L Certifications for many of our corporate clients.

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L-1 FAQS

Blanket L Certification

A L-1 Blanket Certification is crucial to those international companies that continuously transfer executives, managers, and specialized knowledge personnel to the U.S. By obtaining pre-approval from U.S. Citizenship and Immigration Services (CIS) of the corporate relationship between the petitioning employer and its corporate parent, affiliates and subsidiaries, qualifying companies are granted this certification. The L-1 Blanket Certification allows specific employees to bypass the CIS application process (which may take several months) and apply directly for an L-1 visa at a U.S. Embassy or Consulate abroad or at a port-of-entry for Canadian citizens. This process helps to expedite obtaining L-1 classifications as a whole, and is a practice Grzeca Law Group assists large multinational companies with on a regular basis.

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O-1 Extraordinary Ability

The O-1 category is a nonimmigrant classification for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim. The O-1 is also available to individuals with a demonstrated record of extraordinary achievement in the motion picture or television industry.

The O-1 classification requires that a U.S. employer, U.S. agent, or foreign employer through a U.S. agent files the O-1 petition with U.S. Citizenship and Immigration Services, along with evidence of the individual's extraordinary ability. The O-1 applicant must be coming temporarily to the United States to continue work in the area of their extraordinary ability. There is no explicit limitation on the period of stay in O-1 classification. An initial petition may request a validity period of up to three years, and subsequent extensions may be requested in one-year increments.

Although many employers may consider their potential employees to be "extraordinary," specific standards, such as receipt of nationally or internationally recognized prizes or awards for excellence in the field, authorship of scholarly articles, or other high levels of notable recognition that demonstrate the individual is one of the small percentage who have risen to the very top of their field govern this classification. Grzeca Law Group has been very successful in obtaining O-1 classification for many individuals, including those employed in fields such as the arts, sciences, hospitality and management.

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Canadian and Mexican TN Professionals

As parties to the U.S. Mexico Canada Agreement (USMCA), the United States, Canada and Mexico have sought to simplify and expedite the process for temporary, business-related admissions of citizens of one party into the territory of another party. The TN classification, reserved for professionals, is divided into specific designations covering a variety of professions, ranging from Engineers to Hotel Managers, Designers, Accountants and Librarians.

Specific education and work experience requirements pre-determined for each of the designations must be met for an individual to be eligible to apply for the TN classification. In addition, the U.S. position offered to the individual must meet certain requirements and fall within the field of the specific designation.

The TN classification is issued in three-year increments and serves as an employer-specific work authorization.

With proper documentation, Canadian Citizens may apply for TN classification at a port-of-entry inspection through immediate review and adjudication. However, Mexican Citizens are still required to visit a U.S. Embassy or Consulate for adjudication of their TN Petition and issuance of the TN visa.

Dependent spouses and children under 21 of a TN classification holder can apply for the TD classification. However, dependent spouses and children are not eligible for work authorization in the U.S.

Grzeca Law Group regularly assists companies in bringing Mexican and Canadian personnel to the U.S. to work as TN professionals.

TN FAQS

B1/B2 for Domestic Partners

Dependent spouses and children of nonimmigrant visa classification holders (such as an L-1, H-1B, TN, etc.) are usually entitled to apply for derivative classifications, such as L-2, H-4, or TD, in order to join the primary applicant in the U.S. When applying for these classifications, spouses must prove they are part of a "valid marriage," and a Marriage Certificate is required for a spouse to enter the U.S. as a dependent. Since the repeal of the Defense of Marriage Act (DOMA) in 2013, same-sex marriages are now recognized for immigration purposes if the marriage is considered valid in the place where the marriage occurred. This includes U.S. states and territories, as well as foreign states that recognize same-sex marriage.

While same-sex marriage may be recognized, opposite or same-sex domestic partners and common law spouses still may not be eligible for these categories. The only situation where a common law marriage may be considered a "valid marriage" by U.S. Citizenship and Immigration Services (CIS) is when the local laws of the place of residence recognize the partnership as being the equivalent in every respect to a traditional legal marriage (including all of the same legal rights and duties).

Alternatively, domestic partners, whether same- or opposite sex, are eligible to apply for a B-2 Visitor visa. The holder of a B-2 visa may be admitted for an initial period of six months to a year, which may be extended in six-month increments with the CIS as long as the primary visa holder remains in the U.S. However, individuals entering the U.S. with B-2 visas are not eligible to apply for employment authorization.

Please contact Grzeca Law Group for information regarding documentation or assistance with applications for a B-2 visa.

H-4 Classification

Dependents, spouses and children under the age of 21 of H-1B workers are eligible to receive H-4 status, dependent on the continued validity of the principal's H-1B status. When an extension of the principal's H-1B status is filed, a separate application to extend H-4 status generally should also be filed concurrently.

Applications for H-4 status request general information regarding the applicant and must include evidence of the relationship to the principal H-1B holder such a copy of a Marriage Certificate for a spouse or copy of a Birth Certificate for a child. Please note, individuals applying for an H-4 visa at a U.S. Embassy or Consulate must also be prepared to present completed forms, fees and other supporting documents as required by the specific Consular Office.

Unfortunately, individuals in H-4 classification are not eligible to work in the U.S.

Grzeca Law Group is accustomed to playing an integral role in assuring that all family members maintain valid immigration status while in the U.S.

L-2 Classification

L-2 nonimmigrant classification is available to dependent spouses and children under the age of 21 of an L-1 classification holder. This status is dependent on the continued validity of the principal's L status. When an extension of the principal's L-1 status is filed, a separate application to extend L-2 status generally should also be filed concurrently.

An applicant for L-2 classification must present his or her valid passport, Marriage Certificate and children's Birth Certificates to the U.S. Customs and Border Protection or Consular Officer. Please note, individuals applying for an L-2 visa at a U.S. Embassy or Consulate must also be prepared to present completed forms, fees and other supporting documents as required by the specific Consular Office.

After entering the U.S. in L-2 classification, dependent spouses will be designed L-2S and are eligible to work as long as their L-2S classification is valid. However, dependent children will be designed as L-2Y and are not eligible.

Grzeca Law Group has a vast amount of experience in assuring that all family members maintain valid immigration status while in the U.S.

To find out more information on Employment Authorization, click here.

TD Classification

The TD nonimmigrant classification is available to dependent spouses and children under the age of 21 of a TN classification holder. This status is dependent on the continued validity of the principal's TD status. When an extension of the principal's TN classification is filed, a separate application to extend TD status generally should also be filed concurrently.

An applicant for TD classification must present his or her valid passport, Marriage Certificate and children's Birth Certificates to the U.S. Customs and Border Protection or Consular Officer. Please note, individuals applying for a TD visa at a U.S. Embassy or Consulate must also be prepared to present completed forms, fees and other supporting documents as required by the specific Consular Office.

Unfortunately, Employment Authorization in the U.S. is not available to TD classification holders.

Grzeca Law Group is accustomed to playing an integral role in assuring that all family members maintain valid immigration status while in the U.S.