Temporary Worker Visas

 

The Immigration and Nationality Act provides several categories of non-immigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications which are shown in parentheses.

 

H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor (65,000). This classification also applies to Government-to-Government research and development, or coproduction projects administered by the Department of Defense (100);

 

H-2A classification applies to temporary or seasonal agricultural workers;

 

H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);

 

H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50);

 

L classification applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;

 

O-1 classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;

 

O-2 classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;

 

P-1 classification applies to individual or team athletes, or members of an entertainment group that are internationally recognized (25,000);

 

P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program;

 

P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and

 

Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien’s home country.

 

Petitions

 
In order to be considered as a nonimmigrant under the above classifications the applicant’s prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, with the United States Immigration and Naturalization Service (INS). Once approved, the employer or agent is sent a notice of approval, Form I-797. It should be noted that the approval of a petition shall not guarantee visa issuance to an applicant found to be ineligible under provisions of the Immigration and Nationality Act.

 

Visa ineligibility/waiver

 
The nonimmigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a temporary worker, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.

 

Applying for the Visa

 
Applicants for temporary work visas should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.

 

Required Documentation

 
Each applicant for a temporary worker visa must pay a nonrefundable US$45 application fee and submit:

 

  • An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;
  • A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;
  • One photograph 1 and 1/2 inches square (37x37mm) for each applicant, showing full face, against a light background; and
  • A notice of approval, Form I-797.

 

Other Documentation

 
With the exception of the H-1 and L-1, applicants may also need to show proof of binding ties to a residence outside the United States which they have no intention of abandoning. It is impossible to specify the exact form the evidence should take since applicants’ circumstances vary greatly.

 

U.S. port of entry

 

Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the bearer of a temporary work visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. Those temporary workers who wish to stay beyond the time indicated on their Form I-94 must contact the INS to request Form I-539, Application to Extend Status. The decision to grant or deny a request for extension of stay is made solely by the INS.

 

Additional Information

 

Family Members

 
With the exception of “Q-1 Cultural Exchange Visitors,” the spouse and unmarried, minor children of an applicant under any of the above classifications may also be classified as nonimmigrants in order to accompany or join the principal applicant. A person who has received a visa as the spouse or child of a temporary worker may not accept employment in the United States. The principal applicant must be able to show that he or she will be able to support his or her family in the United States.

 

Time Limits

 
All of the above classifications have fixed time limits in which the alien may perform services in the United States. In some cases those time limits may be extended by the INS in order to permit the completion of the services. Thereafter, the alien must remain abroad for a fixed period of time before being readmitted as a temporary worker under any classification. The INS will notify the petitioner on Form I-797 whenever a visa petition, an extension of a visa petition, or an extension of stay is approved under any of the above classifications. The beneficiary may use a copy of Form I-797 to apply for a new or re-validated visa during the validity period of the petition. The approval of a permanent labor certification or the filing of a preference petition for an alien under the H-1 or L classifications shall not be a basis for denying a visa.