From the Labor & Employment Practice.

Quick-Reference Guide To Employment-Based VISAs

June, 2003

Employment-Based Immigrant (“green cards”) Visas

EB-1 Priority Workers – Persons of Extraordinary Ability in the sciences, arts, education, business or athletics; Outstanding Professors or Researchers; Multinational Executive and Manager Transferees. INA 203(b)(1), 8 U.S.C. section 1153(b)(1).

Persons of Extraordinary Ability are aliens with extraordinary ability in one of the named areas that have demonstrated that ability by sustained national or international acclaim, and whose achievements have been recognized in their field through extensive documentation; these aliens must seek to enter the U.S. to continue work in their area of extraordinary ability, and represent that their entry will substantially benefit the U.S. INA 203(b)(1)(A), 8 U.S.C. section 1153(b)(1)(A).

Outstanding Professors and Researchers are those recognized internationally in a specific academic area, have three years experience teaching or in research in that area, and who seek entry for a tenured comparable position. INA 203(b)(1)(B), 8 U.S.C. section 1153(b)(1)(B).

To be eligible for the EB-1 visa, Multinational Executives and Managers must have been employed for atleast one of the three years preceding their application by a “firm or corporation or other legal entity or an affiliate or subsidiary thereof,” and must seek to enter the U.S. to continue to work for the same employer or to a subsidiary 9or affiliate of that employer in a managerial or executive capacity. INA 203(b)(1)(C), 8 U.S.C. section 1153(b)(1)(C).

EB-2 Members of the Professions Holding Advanced Degrees; Persons of Exceptional Ability in the Sciences, Arts or Business. INA 203(b)(2); 8 U.S.C. section 1153(b)(2); 8 C.F.R. section 204.5(k). Note that the law specifically defines “extraordinary ability” and “advanced degree.”

EB-3 Professionals with Bachelors Degrees; Skilled Workers; Other Workers.INA 203(b)(3); 8 U.S.C. section 1153(b)(3). Eligible “Professionals” are those that hold a Baccalaureate degree (or foreign university equivalent) and are members of the profession. “Skilled Workers” are those whose full-time permanent job requires at least two years training or experience. “Other Workers” include those having less than two years of training and experience.

Employment-Based Nonimmigrant (temporary) Visas

Nonimmigrant visas, unlike immigrant visas, are those that allow individuals to enter the U.S. for a temporary period of time, and are confined to the specific activity for which they are issued. Consequently, nonimmigrants must demonstrate that their visit to the U.S. is temporary. The primary employment-based Nonimmigrant Visas are:

B-1 Business Visitors – individuals whose sole purpose in coming to the United States is to engage in business, but not to be employed. The individual must: intend to leave the United States at the end of the temporary stay, have permission to enter a foreign country at the end of their stay, and at the time of application have made adequate financial arrangements to carry out the purpose of the visit and at its conclusion to leave the U.S. Along with the TN Professional visa, the last discussed below, the B-1 Business Visitor visa offers the possibility of entry on relatively short notice.

E-1; Treaty Traders and Treaty Investors – employees of treaty foreign national businesses or E-2 enmities that are or will be engaged in duties that are executive, managerial, or supervisory in nature, or such employees that have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. See 8 CFR section 214.2(e)(3). The treaty trader or investor must possess the nationality of the treaty country. The employer must either have the nationality of the treaty country, or be an organization that is at least 50 percent owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty status (if residing in the U.S.).

F-1 Students – foreign-country residents who are bona fide students qualified to pursue a full course of study in the U.S. and who seek to enter for a temporary period and solely for the purpose of pursuing that course of study at an established and specially approved college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the U.S. Immigration and Nationality Act of 1952 (hereinafter INA), section 101(a)(15)(F), 8 U.S.C. section 1101(a)(15)(F).

H-1B Specialty Occupation Professionals – workers in specialty occupations. A specialty occupation is one in which: (1) the position normally requires a bachelor´s or higher degree or its equivalent; (2) the position is so unique that it can be performed only by a person holding that degree; (3) the employer would normally require a degree for the position, or (4) the specific duties are so specialized that the knowledge required for the position are typically associated with the attainment of at least a bachelor´s degree. 8 C.F.R. section 214.2(h)(iii)(A). A petitioner must file a Labor Condition Application (LCA) with the Department of Labor (DOL) to support their H-1B Visa petition.

H-2B Temporary Nonagricultural Workers – aliens who intend to come temporarily to the U.S. to perform temporary service or labor, and who will not displace U.S. workers capable of performing such services or labor, and whose employment will not adversely affect the wages and working conditions of U.S. workers. 8 C.F.R. section 214.2(h)(6)(i).

H-3 Temporary Trainees – individuals who seek to enter the U.S. at the invitation of an organization or individual to receive training in a specific field of endeavor as well as training in a purely industrial establishment.

J-1 Exchange Visitors – an alien resident of a foreign country who has no intention of abandoning their home country and who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist or leader in a field of specialized knowledge or skill, or other person of similar description who is coming temporarily to the U.S. as a participant in a specially designated program for the express purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training.. INA, Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 U.S.C. section 1101 et seq.).

L-1 Intra company Transferees – high-level or essential employees of multinational companies who seek to enter the U.S. to provide services in a similar capacity to a related U.S. entity.

O-1 Extraordinary Ability Individuals – highly talented or acclaimed foreign nationals such as artists, athletes, entertainers, high-end chefs, and non-degree business people. O-1 petitioners must demonstrate extraordinary ability “demonstrated by sustained national or international acclaim.” 8 C.F.R. section 214.2(o)(1)(ii)(A)(1).

P-1 Athletes and Entertainers – individual athletes, athletic teams, and entertainment groups having “a high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.” 8 C.F.R. section 214.2(p)(3).

P-2 Reciprocal Exchange Artists and Entertainers – artists and entertainers who perform individually or as part of a group, under a reciprocal exchange program between one or more U.S. organization and at least one similar organization in a designated foreign country.

P-3 Culturally Unique and Entertainers – culturally unique artists and entertainers who seek to come to the U.S. to develop, interpret, represent, coach, or teach their particular art or discipline.

Q-1 Cultural Exchange Visitors – an alien resident of a foreign country who has no intention of abandoning their home country and who comes to the U.S. for a 15 (or less) month period as a participant in an approved international cultural exchange program “for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien´s nationality ad who will be employed under the same wages and working conditions as domestic workers.” INA section 101(a)(15)(Q), 8 U.S.C. section 1101(a)(15)(Q).

R-1 Religious Workers – an alien who both: (1) has been a member of a religious denomination having a bona fide nonprofit, religious organization in the U.S. for at least two years immediately preceding his visa application, and (2) seeks to enter the U.S. for no more than five years to perform the work of a “special immigrant” as defined in INA section 101(a)(27)(C)(ii). INA section 101(a)(15)(R), 8 U.S.C. section 1101(a)(15)(R).

TN NAFTA Professionals – individuals who seek to enter the U.S. to engage in one of the 63 professions listed under the North American Free Trade Agreement and who possess the relevant educational degree or background (and/or work experience) for that specific occupation. See 8 C.F.R. section 214.6(b). Along with the B-1 Business Visitor visa, the TN Professional visa offers the possibility of entry on relatively short notice.