Foreign Nationals Guide to Getting a Job in the U.S.

Devon FeuerAuthor
Hendrik PretoriusInterviewed Expert

March 30, 2020

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Each year, the U.S. issues thousands of visas to qualified applicants. Finding an employer that will sponsor your visa can be challenging. We created a resource guide to help you navigate the visa application process. First, the guide provides general information on visas available. We outline various nonimmigrant and immigrant visa categories. Next, learn about your rights as a nonimmigrant visa holder and what to do if those rights were violated. If you are looking at a Green Card, learn about what you should know and how to avoid fraud. We also have a list of helpful resources, information about Form I-9, and advice from an immigration attorney.

Immigrant Visa – Green Cards

The U.S. grants up to 140,000 employment-based immigrant visas annually to qualified applicants and their accompanying family members. U.S. immigrant visas are issued to foreign nationals who plan to live and work permanently in the U.S. Here are three immigrant visas explained. Individuals in the EB-1, EB-2, and EB-3 categories can apply for lawful permanent residence while in the U.S. For a complete list of immigrant visas, look here.

  • First Preference (EB-1): This is for foreign nationals with “extraordinary ability” in their field, internationally recognized professors or researchers in their academic field, or multinational executives or managers. Eligibility requirements are outlined here. Below is an outline of the application process:

    1. Individuals need to file Form I-485, Application to Register Permanent Residence or Adjust Status while in the U.S.
    2. Individuals with “extraordinary abilities” are allowed to petition and file Form I-140, Immigrant Petition for Alien Workers personally with required fees and supporting documentation.
    3. Individuals who are “outstanding professors and researchers” or “multinational managers or executives” need to have their employers fill out Form I-140, Immigrant Petition for Alien Workers with required fees and supporting documentation.
    4. Individuals also need to submit documents that can be found here under the “what to submit” section.
  • Second Preference (EB-2): This is for foreign nationals who hold advanced degrees or their equivalents or have “exceptional” abilities. The individual's advanced degree must be related to the job they are looking at. Below is an outline of the application:

    1. Individuals need to file Form I-485, Application to Register Permanent Residence or Adjust Status while in the U.S.
    2. Individuals usually need an approved individual PERM from the Department of Labor on Form ETA-9089. The United States Department of Labor has an itemized instruction guide for completing this form.
    3. Individuals need to have a Form I-140 filled out by their employer.
    4. Individuals also need to submit documents that can be found here.
  • Third Preference (EB-3): This is for skilled workers with jobs that require two or more years of work experience or a U.S. baccalaureate degree or foreign equivalent. The U.S. also gives this preference to unskilled laborers, whose jobs are not temporary or seasonal. These jobs require less than two years of experience. Below is an outline of the application:

    1. Individuals need to file Form I-485, Application to Register Permanent Residence or Adjust Status while in the U.S.
    2. Individuals usually need an approved, individual PERM from the Department of Labor on Form ETA-9089. See more details here.
    3. Individuals need to have a Form I-140 filled out by their employer.
    4. Individuals also need to submit a few minor things that can be found here.

Green Card Information

There are numerous ways to obtain a green card, and the steps to getting one can vary from person to person. Here are a few helpful things to know about green cards.

  • How to get a green card: Many individuals get a green card through employment. First, you have to find out if you are eligible and are in possession of the petition listed above. If you qualify, you need to fill out Form I-485, Application to Register Permanent Residence or Adjust Status and pay required filing fees. Once the U.S. Citizenship and Immigration Services (USCIS) has reviewed your application, they may schedule an interview with you. If you are approved, they will issue you a green card.

  • Green Card Lottery: This lottery, also known as the Diversity Immigrant Visa Program (DV Program), randomly offers 50,000 Green Cards to applicants. To be eligible, you need to be a native of a qualifying country. You also need to have worked in one of these qualifying jobs for two or more years in the last five years or have completed a U.S. High school education or foreign equivalent. You can register for the lottery here. Keep in mind that less than 1% of applicants are selected.

  • How long does it take to get a green card: The green card process is dependent on visa availability The Visa Bulletin therefore the processing time to obtain a visa is dependent uponvisa category and country of birth. After you apply for your green card, the U.S. Citizenship and Immigration Services (USCIS) processes your application. A green card application, also known as Form I-485: application for permanent residence. USCIS created a pilot program that allows individuals to see how long it will take USCIS to process their green card application form. Applicants, petitioners, and requesters can track their case status here . If you are applying for an employment-based green card, you have to factor in the time it takes for your employer to file PERM with the U.S. Department of Labor in some cases and the I-140, Immigration Petition for Alien Workers with U.S. Citizenship and Immigration Services (USCIS).

  • How much does a green card cost: Different factors can affect the price of a green card including filing fees and legal fees. For example, there are filing fees for Form I-485, Application to Register Permanent Residence or Adjust Status, which can be found here. You also may need to file: Form I-90, Application to Replace Permanent Resident Card, ( fee found here ); Form I-698, Petition to Change Status from Temporary Resident to Permanent Resident, ( fee found here ); Form I-130, Petition for Alien Relative ( fee found here ); and Form I-129F, Petition for Alien Fiancé(e) ( fee found here ). Some people choose to hire an immigration lawyer, which can be costly.

  • How to check green card status: Applicants, petitioners, and requesters can track their case status on this U.S. Citizenship and Immigration Services webpage . You have to sign up for an account to do this.

  • How long does a green card last: Different green cards have different expiration dates. Regular permanent resident green cards last for ten years. Conditional permanent resident green cards last for two years.

  • How to renew a green card: There are different ways to renew your green card, depending on which one you have.

    1. 10-Year Green Card: To renew this green card, you have to file Form I-90. You should renew this green card when you are six months away from it expiring.
    2. 2-Year Green Card: You cannot renew this green card. To remain a permanent resident, you have to remove the conditions on your green card. If you have a marriage-based green card, you have to file file Form I-751, Petition to Remove the Conditions on Residence . If you have an entrepreneurial-based green card, you have to file file Form I-829, Petition by Entrepreneur to Remove Conditions. Both have to be no earlier than 90 days before the card expires.

Nonimmigrant Visa

Nonimmigrant visas, also known as temporary worker visas, are issued to foreign nationals who want to work in the U.S. temporarily. Individuals use this visa for tourism, business, education, and more. Here is a list of 21 nonimmigrant visas. Find out which is right for you.

FOREIGN STUDENTS

Foreign students (F-1) may be eligible for practical training. There are two types available.

Curricular Practical Training

Curricular practical training (CPT) is available to students while pursuing a degree and must be an integral part of one’s major and must be part of the program. The school’s Designated Student Official (DSO) can authorize CPT on the Form I-20.

Optional Practical Training

Optional Practical Training (OPT) is available while pursuing a degree or upon graduation. OPT is limited to 12 months. One would apply for OPT through the DSO; once the DSO recommends OPT on the student’s Form I-20, the student would apply for an Employment Authorization Document (Form I-765) with USCIS. When the EAD is issued, the student can commence employment.

Science Technology Engineering Math OPT

Science Technology Engineering Math (STEM) OPT: An additional 24 months of OPT is available to students who graduated with a STEM degree. The Employer must be an E-Verify employer. The student and the prospective employer would be required to complete Form I-983 (Training Plan for STEM OPT students) and submit it to the DSO. Once DSO verifies for completeness, the I-20 will be updated and the student would apply for another EAD with the Form I-983.

Exchange Visas

These two visas are for individuals participating in exchange programs. A J-1 visa is for individuals looking to participate in several areas including, au pairs, interns, students, researchers, professors, specialists, and more. A Q-1 is for cultural exchange.

J-1 Exchange Visitor

Recipients A J-1 visa is for foreign nationals who are coming to the U.S. to participate in exchange visitor programs

  • Eligibility: An individual needs to be in an exchange visitor category, which include: au pairs, camp counselors, college and university students, government visitors, interns, international visitors (Dept. of State use), physicians, professors, research scholars, secondary school students, short-term scholars, specialists, summer work travelers, teachers, and trainees. Each category has its own set of requirements, which you can find here .

  • Application: An individual should be aware of the following six-steps when applying for a J-1 visa.

    1. Choose a program. The U.S. Department of State has a great chart where applicants can compare programs, check their eligibility, and more.
    2. Apply to an exchange visitor program with a designated sponsoring organization in the U.S.
    3. If a sponsoring organization accepts you into an exchange visitor program, they will provide you with a form DS-2019. They will let you know if you need to pay a SEVIS I-901 fee or if they cover the cost. If they pay for you, they need to give you a receipt.
    4. Apply for a nonimmigrant visa at a U.S. embassy or consulate by filling out Form DS-160 The U.S. Department of State has a sample form where they walk you through how to complete.
    5. Schedule an interview. Once you submit the form, contact the embassy or consulate where you are looking to apply and see if you need to schedule an interview. You may need a passport, your DS-160 confirmation page, an application fee payment receipt, personal photograph, Form DS-2019, and Form DS-7002 (interns and practical trainees).
    6. Nationals of certain countries may have to complete a two-year home-country physical presence requirement. If you are in a government-funded exchange program, have specialized knowledge or skills , or are receiving graduate medical education or training, you may need to return to your home country for two years after your program. You can apply for a waiver to avoid this.
  • Visa Stay: The duration of this visa ranges from one day to five years.

  • Spouses/Children: Spouses and unmarried children under 21-years old of J-1 workers can apply for J-2 visas. J-2 visa holders can usually look for employment in the U.S.

  • Extra Information: J-1 visa holders help fill positions where it is difficult to find enough U.S. workers. In 2017, The U.S. issued nearly 1/3 of J-1 visas during the summer to individuals working primarily in the hospitality industry and as camp counselors.

Q-1 Nonimmigrant Visa

Recipients Q Cultural Exchange is an employment-oriented program with a cultural element. It provides individuals with training, employment, and the chance to share their culture and learn about a new one.

  • Eligibility: An individual needs to be 18-years old or older and be able to discuss cultural aspects of their county.

  • Application: An applicant’s sponsoring organization in the U.S. needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: This visa has a maximum stay of 15 months.

  • Spouses/Children: This visa does not have provisions for spouses or children.

Visas Requiring No Education

These two agricultural visas have no educational requirements. To qualify, an individual needs to be a national of an eligible country specified below.

H-2B Temporary Non-Agricultural Workers

Recipients An H-2B visa is for foreign nationals who are coming to the U.S. to work in temporary non-agricultural jobs.

  • Eligibility: For an applicant to qualify, their petitioner must show that there is an insufficient amount of workers who are willing, qualified, and available to perform the temporary work. The petitioner also needs to prove that the H-2B workers will not adversely affect the wages and working conditions of U.S. workers similarly employed. Finally, the H-2B applicant needs to be a national of an approved country .

  • Application: An individual’s employer or agent needs to submit a temporary labor certification application to the U.S. Department of Labor and Form I-129, Petition for a Nonimmigrant Worker with required fees, and supporting documentation to the United States Citizenship and Immigration Services (USCIS). If USCIS approves Form I-129, the prospective H-2B worker needs to apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad.

  • Visa Stay: An H-2B visa has a maximum stay of three years.

  • Spouses/Children: Spouses and unmarried children under 21-years old of H-2B workers can apply for H-4 visas. They are not eligible for employment.

H-2A Temporary Agricultural Workers

Recipients An H-2A visa is for foreign nationals who are coming to the U.S. to work in temporary agricultural jobs.

  • Eligibility: An individual needs to be a national from an eligible country.

  • Application: An individual’s employer, agent, or sponsor needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation. Individuals outside of the U.S, then need to apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate.

  • Visa Stay: An H-2a visa has a maximum stay of 3-years.

  • Spouses/Children: Spouses and unmarried children under 21-years old can apply for an H-4 visa, which does not allow them to work.

Visas Requiring a Bachelor’s Degree or Higher

These three visas are for skilled and educated individuals. To qualify, an applicant needs to have a bachelor’s degree or its equivalent. While an H1-B visa is for individuals from several countries, an E-3 visa is limited to nationals of Australia, and the H-1B1 visa is limited to nationals of Chile and Singapore.

H1-B Specialty Occupation, DOD Cooperative Research and Development Project Workers, and Fashion Models

Recipients An H1-B visa is for skilled and educated workers who are coming to the U.S. to work.

  • Eligibility: An individual usually has to have a bachelor’s or higher degree or its equivalent and be applying to a job that requires said degree.

  • Application: An individual’s employer needs to submit a Labor Condition Application Form 9035E/9035 to the Department of Labor through the iCERT System. For those without internet access, there is a printable version. An employer must submit this form with Form I-129, Petition for a Nonimmigrant Worker with required fees, and supporting documentation to the United States Citizenship and Immigration Services (USCIS). If USCIS approves Form I-129, the prospective H-1B worker needs to apply for an H-1B visa at a U.S. Embassy or Consulate abroad.

  • Visa Stay: An H1-B visa has an initial maximum stay of three years. This visa can be extended and generally cannot go past six years.

  • Spouses/Children: Spouses and unmarried children under 21-years old of H-2B workers can apply for H-4 visas. Certain H-4 dependent spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

  • Extra Information: Employers must pay an H1-B employee no less than similarly qualified workers. If you have questions about filing, you can email LCA.Chicago@dol.gov or call (312) 353-8100.

E-3 Certain Specialty Occupation Professionals From Australia

Recipients An E-3 visa is for nationals of Australia who are coming to the U.S.

  • Eligibility: An individual needs to work in a specialty occupation that requires a bachelor’s or higher degree or its equivalent.

  • Application: An individual’s employer, agent, or sponsor needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: An E-3 visa has an initial maximum stay of two years. An individual can get it extended in increments of no more than two years with no limit to the number of extensions.

  • Spouses/Children: Spouses and unmarried children under 21-years old can apply for E-3 visas. Spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

Visas for Specific Occupations

These five visas are for individuals coming to the U.S. to work in designated areas. An H-1C visa is for registered nurses, H-3 for individuals receiving training in educating children with disabilities, I for foreign media, P-1A for athletes, and R-1 for religious workers.

H-1C Registered Nurse

Recipients An H-1C visa is for foreign registered nurses who are coming to the U.S. to work in health professional shortage areas.

  • Eligibility: An individual needs to pass the Commission on Graduates for Foreign Nursing Schools examination or have a valid full and unrestricted nursing license. An individual also needs to have authorization by the U.S. Board of Nursing to practice in the U.S. and be qualified and eligible as deemed by the state where they are seeking employment.

  • Application: Application: DOL must provide an attestation to the hospital where the applicant wants to work that shows that they are qualified. The applicant’s U.S. employer/hospital needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation. If it gets approved, the applicant will receive Form I-797. They will then get an appointment at a U.S. embassy or consulate. The applicant needs to bring a completed Form DS-156, Nonimmigrant Visa Application with them and Form DS-157, Supplemental Nonimmigrant Visa Application if they are a male between 16-65 years old.

  • Visa Stay: An H-1C visa has an initial maximum stay of 3 years.

  • Spouses/Children: Spouses and unmarried children under 21-years old can apply for an H-4 visa, which does not allow them to work.

H-3 Nonimmigrant Trainee or Special Education Exchange Visitor

Recipients The H-3 visa is for foreign nationals that are coming to the U.S. to receive training in educating children with disabilities.

  • Eligibility: Special education exchange visitors need to be invited by an individual or organization that will provide them with training not available in their native country. Applicants need to get a petition filed by employers or a program that educates children with disabilities.

  • Application: An individual’s U.S. employer or U.S. organization needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: An H-3 visa has a maximum stay of two-years.

  • Spouses/Children: Spouses and unmarried children under 21-years old can apply for an H-4 visa, which does not allow them to work.

I Representatives of Foreign Media

Recipients The I visa is for representatives of foreign information media outlets who are coming to the U.S. for the sole purpose of performing that profession.

  • Eligibility: An applicant needs to be a representative of a foreign media outlet.

  • Application: Individuals can apply for an I visa at an American Embassy or consulate abroad. After an applicant completes an online Nonimmigrant Visa Application (DS-160), they need to schedule an interview, pay any required fees, and collect required documentation.

  • Visa Stay: Form I-94 indicates the period of an individual’s stay. If a person wants to extend their stay, they need to fill out Form I-539, Application to Extend/Change Status.

  • Spouses/Children: Spouses and children under 21-years old can apply for an I nonimmigrant visa, which allows them to study but not to work.

P- 1A Internationally Recognized Athlete

Recipients A P-1A visa is for foreign nationals who are coming to the U.S. to play or coach in an athletic competition. It also applies to theatrical ice skaters.

  • Eligibility: An individual needs to be an internationally recognized athlete traveling to the U.S. to participate in a specific athletic competition. Amateur athletes and coaches that are members of foreign league associations can also obtain this visa. Finally, theatrical ice skaters traveling to the U.S. to perform in a theatrical ice-skating production or tour are eligible for this visa.

  • Application: An applicant’s employer, agent, or sponsor needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: The initial maximum stay for athletes and essential personnel is five years. However, it cannot exceed the time they need to complete their event competition or performance. This visa can be extended up to an additional five years. The maximum initial stay for essential support personnel to individual athletes visas is one year but can be extended in increments up to five years. The initial maximum stay of athletic groups and their essential support personnel cannot exceed one year. This visa can be extended in increments up to one year.

  • Spouses/Children: Spouses and unmarried children under 21-years old can apply for P-4 visas, which allows them to attend school but not to work. If they are in the U.S., they can change their visa status or extend their stay by filing Form I-539, Application to Change/Extend Nonimmigrant Status.

R-1 Temporary Nonimmigrant Religious Workers

Recipients The R-1 visa is for foreign nationals who are coming to the U.S. temporarily to work as a minister or in another religious occupation.

  • Eligibility: An individual needs to be a member of a religious denomination that has a non-profit religious organization in the U.S. for a minimum of two years before applying.

  • Application: An applicant’s employer, agent, or sponsor needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: This visa has a maximum initial stay of 30 months and cannot exceed 5-years.

  • Spouses/Children: Spouses and children under 21-years old can apply for R-2 visas, which do not allow them to work.

Visas For Extraordinary Individuals

The O-1 visa is for individuals with extraordinary abilities or achievements in a wide array of fields.

O-1 Individuals with Extraordinary Ability or Achievement

Recipients An O-1 visa is for foreign nationals who have “extraordinary abilities” and are recognized nationally or internationally. O nonimmigrant classification is broken down into multiple categories. O-1A is for individuals in the sciences, arts, education, business or athletics. O-1B is for individuals in the arts, motion picture, or television industry. O-2 is for individuals who accompany and assist O-1A or O-1B individuals. O-B is for spouses and children of O-1 and O-2 visa holders.

  • Eligibility: An individual needs to be traveling to the U.S. to work in their area of expertise where they demonstrate “extraordinary” ability and achievement.

  • Application: An applicant’s petitioner needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation. An individual also needs a written advisory opinion, also called a consultation, from someone with expertise in their field. The U.S. makes exceptions when a peer group does not exist for a field. Applicants also need a written or oral contract between them and their petitioner and an itinerary for their visit.

  • Visa Stay: An O-1 visa has an initial maximum stay of three years and can be extended.

  • Spouses/Children: Spouses and children under 21-years old of O-1 and O-2 visa holders can apply for an O-3 visa. This visa allows them to study but not to work.

Visas For Performers

These three visas are for artists and entertainers. A P-1B visa is for members of entertainment groups, a P-2 is for individual performers or those part of a group, and a P-3 is for artists or entertainers who are part of a culturally unique program.

P-1B Member of an Internationally Recognized Entertainment Group

Recipients A P-1B visa is for foreign nationals who are coming to the U.S. to perform in an internationally recognized entertainment group.

  • Eligibility: For a group to be eligible, it has to be recognized as “outstanding” for a certain amount of time, and 75% or more of its members need to have been in the group for at least one year. The U.S. makes exceptions for circus performers who are performing with a nationally recognized circus.

  • Application: An applicant’s employer, agent, or sponsor needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: The event, competition, or performance cannot exceed 1-year. If an individual is not done after a year, their visa can be extended in increments not exceeding one year.

  • Spouses/Children: Spouses and children under 21-years old can apply for a P-4 visa, which allows them to attend school but not to work. If they are in the U.S., they can change their visa status or extend their stay by filing Form I-539, Application to Change/Extend Nonimmigrant Status.

P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program

Recipients A P-2 visa is for foreign nationals coming to the U.S. to perform as artists or entertainers under a reciprocal exchange program with an organization in the U.S and in another country.

  • Eligibility: An individual needs to enter the U.S. through a government recognized reciprocal exchange program.

  • Application: An applicant’s U.S. employer or sponsoring labor organization in the U.S. needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: An individual’s competition or performance cannot exceed one year. If they are not done after one year, their visa can be extended in increments not exceeding one year.

  • Spouses/Children: Spouses and children under 21-years old can apply for a P-4 visa, which allows them to attend school but not to work. If they are in the U.S., they can change their visa status or extend their stay by applying with Form I-539, Application to Change/Extend Nonimmigrant Status.

P-3 Artist or Entertainer Part of a Culturally Unique Program

Recipients The P-3 visa is for foreign national artists or entertainers that are coming to the U.S. to perform, teach, or coach in a culturally unique program.

  • Eligibility: An individual has to be participating in a cultural event that will enhance their art form and involved in a unique or traditional ethnic performance or presentation.

  • Application: An applicant’s U.S. employer or sponsoring labor organization in the U.S. needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees and supporting documentation.

  • Visa Stay: This visa is valid for the duration of the event, activity, or performance. It has a maximum initial length of one year and can be extended in increments of up to one year.

  • Spouses/Children: Spouses and children under 21-years old can apply for a P-4 visa, which allows them to attend school but not to work. If they are in the U.S., they can change their visa status or extend their stay by applying with Form I-539, Application to Change/Extend Nonimmigrant Status.

Visas For Individuals Traveling For Business

These six visas are for individuals engaging in business. A B-1 visa is for temporary business, E-2 for international trade, E-2 for investors, L-1A, and L-1B for individuals coming to an office or establishing one in the U.S., and TN NAFTA Professionals are for citizens of Canada and Mexico engaging in professional business activities.

B-1 Temporary Business Visitor

Recipients A B-1 visa is for foreign nationals who are coming to the U.S. for temporary business, including consulting with business associates, negotiating contracts, settling estates, and attending conferences.

  • Eligibility: An individual needs to be traveling to the U.S. for legitimate business, staying temporarily, have the capital needed to pay for the trip, and not intend to leave their residence outside the U.S.

  • Application: An applicant needs to complete Form DS-160, nonimmigrant visa application online. After, they need to schedule an interview at a U.S. Embassy or Consulate where they live. The U.S usually requires individuals between the ages of 14-79 to be interviewed. Individuals need to bring a printed version of their application confirmation page to the interview.

  • Visa Stay: A B-1 visa has an initial maximum stay of six months. An individual can get it extended in increments of no more than six months. The total visit usually does not exceed one year.

  • Spouses/Children: Spouses and unmarried children under 21-years old maybe eligible for B-2 visas.

E-1 Treaty Trade

Recipients An E-1 visa is for nationals of a treaty country who are coming to the U.S. to engage in international trade. Treaty countries have treaties of commerce and navigation with the U.S. Individuals that are employed by a treaty investor, or an authorized organization can also get this visa.

  • Eligibility: An individual needs to be a national of a treaty country, carry on substantial trade, and maintain principal trade with the U.S. and their country. Employees of treaty investors need to be the same nationality as the investor.

  • Application: Individuals obtain their visa by applying with the State Department in their home country. For more information about applying while abroad, look at the U.S. Department of State website.

  • Visa Stay: An E-1 visa has an initial maximum stay of two years and is extendable in two year increments. There is no limit to the number of extensions.

  • Spouses/Children: Spouses and unmarried children under 21-years-old can apply for E-1 nonimmigrant visas. Spouses and children already in the U.S. can change their status or extend their stay by filling out Form I-539, Application to Extend/Change Status. Spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

E-2 Treaty Investors

Recipients An E-2 visa is for nationals of treaty countries who travel to the U.S. when they invest a large amount of capital in a U.S business or work for an E-2 treaty employer that has invested the required capital. Treaty countries have treaties of commerce and navigation with the U.S. Individuals that are employed by an investor or an organization that invests can also get this visa.

  • Eligibility: An individual needs to be a national of a treaty country, and have invested or worked for someone who invested a considerable amount of capital in a U.S. business. The applicant needs to be traveling to the U.S. to develop an investment enterprise. Employees of treaty investors need to be the same nationality as the investor. For more details about eligibility, look here.

  • Application: Employer and lawful nonimmigrants in the U.S. can file Form I-129, Petition for a Nonimmigrant Worker to change their visa to E-2 classification. If an individual is outside the U.S., their employer has to file Form I-129 for them. An individual can also file a E-2 visa application directly with the American Embassy

  • Visa Stay: An E-2 visa has an initial maximum stay of two years. An individual can get it extended in increments of no more than two years with no limit to the number of extensions.

  • Spouses/Children: Spouses and unmarried children under 21-years-old can apply for E-2 visas. Spouses and children in the U.S. can change their status or extend their stay by filling out Form I-539, Application to Extend/Change Status. Spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

L-1A Intracompany Transferee Executive or Manager

Recipients An L-1A visa is for executives or managers who are coming to an office in the U.S. from affiliated foreign offices. Executives or managers traveling to the U.S. to establish an office on behalf of an international company can also apply.

  • Eligibility: An individual needs to be employed with a foreign company for a minimum of one year and be doing business in the U.S. and one or more countries outside of the U.S.

  • Application: An applicant’s employer needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees, and supporting documentation.

  • Visa Stay: The initial maximum stay for an executive or manager traveling to the U.S. to establish an office is one year. The initial maximum stay for other qualified individuals coming to the U.S. is three years. The visa can be extended in increments of two years and has a limit of seven years.

  • Spouses/Children: Spouses and unmarried children under 21-years old can request L-2 nonimmigrant classification. Spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

  • Additional information
L-1B Intracompany Transferee Specialized Knowledge

Recipients An L-1B visa is for foreign nationals with “specialized knowledge” who are transferring from an organization’s affiliate international office to one in the U.S. Individuals traveling to the U.S. to establish an office on behalf of a foreign company can also apply.

  • Eligibility: An individual needs to be employed with a foreign company for a minimum of one year and doing business in the U.S. and one or more countries outside of the U.S.

  • Application: An applicant’s employer needs to fill out Form I-129, Petition for a Nonimmigrant Worker with required fees, and supporting documentation.

  • Visa Stay: The maximum initial stay for individuals traveling to the U.S. to establish an office is one year. The maximum initial stay for other qualified individuals coming after cannot exceed three years. This visa can be extended in increments of two years and has a limit of five years.

  • Spouses/Children: Spouses and unmarried children under 21-years old can request L-2 nonimmigrant classification. Spouses are allowed to work and can file Form I-765, Application for Employment Authorization.

  • More information
TN NAFTA Professionals

Recipients TN NAFTA Professionals are citizens of Canada and Mexico who are entering the U.S for professional business activities.

  • Eligibility: An individual needs to meet several requirements. An applicant must be a citizen of Canada or Mexico, be applying to a position that is specifically listed on the NAFTA occupational list 8 CFR 214.6, requires a NAFTA professional, and have a full or part-time job with a U.S. employer. For all eligibility requirements, look here.

  • Application: Canadian citizens can show required documentation to a U.S. Customs and Border Protection (CBP) officer. For more information, look here. Canadian citizens can also get a TN employer to fill out Form I-129, Petition for a Nonimmigrant Worker and submit it to USCIS. Once the form is approved, the individual can apply to CBP. Mexican Citizens need to apply for a TN visa at a U.S. embassy or consulate in Mexico to travel to the U.S.

  • Visa Stay: This visa has a maximum initial stay of three years. Individuals can apply for an extension with this form.

  • Spouses/Children: Eligible spouses and children under 21-years old can receive TD nonimmigrant status, which allows them to study, but not to work.

Rights As a Nonimmigrant Visa Holder

As a nonimmigrant visa holder working in the U.S, you are afforded certain rights in employment and education. The U.S. government created a pamphlet that outlines your rights and protections. This pamphlet is made available in over 45 languages. It also provides specific rights to certain visas. Here are 8 things that you should know.

  1. Fair Pay: You have the right to be paid fairly. Your employer is required to pay you minimum wage, which varies depending on what state you are in.

  2. Discrimination: It is illegal for an employer to discriminate against you because of your age, gender or sex, race, national origin and ethnicity, color, religion, genetic information, or disability.

  3. Harassment: It is illegal to be sexually harassed or sexually exploited by an employer. Harassment includes offensive sexual or gender-based comments.

  4. Safety: You are entitled to a healthy and safe workplace. If you have work-related injuries or illnesses, your employer usually has to provide you with free medical treatment and some lost wages while you cannot work. You should be provided with protective equipment and training to ensure your safety. Your employer should also make sure that your work facilities are clean and that you have access to clean drinking water and sanitation materials.

  5. Abuse: If you find yourself in an abusive employment situation, you are not required to stay in that environment. However, your visa status may become invalid. You can change your visa status or employer, but this may require you to leave the U.S. for a period of time.

  6. Health Insurance: To find out more about your rights regarding health insurance, visit localhelp.healthcare.gov or ayudalocal.cuidadodesalud.gov if you speak Spanish.

  7. Whistleblower Protection Program: The Occupational Safety and Health Administration (OSHA) started this program to protect workers who participate in different types of protected activities against retaliation. To learn more about this program and protected activities, look here.

  8. Getting help: If you run into problems or need assistance, you can contact union, immigrant, and labor rights groups. Your employer cannot penalize you for participating in unions, rallies, or other demonstrations requesting better working conditions and higher wages. You can also contact the national human trafficking hotline at 1-888-373-7888, text “HELP” to 233733, or email NHTRC@polarisproject.org.

What to do if your rights were violated

If your rights were violated at work and you want to take action, here is a list of legal resources that you can use.

  • Discrimination: If someone at work discriminated against you based on your race, color, religion, sex, pregnancy, gender identity, sexual orientation, national origin, age (40+), disability or genetic information, you can file a charge with the U.S. Equal Employment Opportunity Commission.

  • Immigration Discrimination: If your employer discriminated against you because of your immigration status, you can file a charge with the United States Department of Justice. You can contact the Immigrant and Employee Rights Section’s Worker Hotline by calling 1-800-255-7688 or (TTY) 1-800-237-2515.

  • Safety Concerns: If your workplace is unsafe, you can file a safety and health complaint to the United States Department of Labor and request an OSHA inspection of your workplace. You can contact your local OSHA office if you have further questions.

  • Missing Wages: If you have not received wages from your employer, you can go to the Wage and Hour Division (WHD) of the U.S. Department of Labor. You can search for your employer and see if you are due money. If you are, you can file a claim. If the WHD finds a violation, they can often recover unpaid wages.

  • Unfair Payment: If you believe that your employer is not paying you properly, you can file a complaint with the Wage and Hour Division of the U.S. Department of Labor. For further questions, you can call 1-866-487-9243.

  • Protection: The Wage and Hour Division of the U.S. Department of Labor also offers protection for other things, including sanitation, medical leave, migrant and seasonal agricultural worker protection, and polygraph protection. To learn more about them, file a complaint, or get assistance, look here .

  • Retaliation: If you feel as though your employer retaliated against you for voicing your concern about a violation or participating in another protected activity, you can file a Whistleblower Complaint Form .

  • Unions: If an employer penalized you for attempting to form a union where none existed, joining a union, assisting a union, or decertify one that employers no longer support, you can file a charge or petition with the National Labor Relations Board.

Form I-9

New employees in the U.S. are required to fill out Form I-9, also known as Employment Eligibility Verification, regardless of whether or not they are a citizen or immigrant.

  • What is an I-9 form: This form is used to verify an employee’s identity and their eligibility to work in the U.S.

  • How to fill out an I-9 form: Here are seven steps you need to follow to fill out Form I-9. If you still have questions, U.S. Citizenship and Immigration Services has helpful instructions on how to fill the form, which are also available in Spanish .

    1. You need to receive and accept a job offer from an employer.
    2. Fill out Section 1, Employee Information and Attestation, of Form I-9. Print out the I-9 pdf and fill it out manually. If you are located in Puerto Rico, you are allowed to fill out I-9 Spanish Version.
    3. If preparers or translators helped you complete Section 1 of Form I-9, they need to fill out the I-9 Supplement, which is also available in Spanish.
    4. Provide your employer with verification/acceptable documents.
    5. Your employer needs to fill out Section 2, Employer Review and attestation.
    6. If your authorization expires or your name changes, your employer needs to fill out Section 3, Reverification and Rehires.
    7. Employers need to store an employee’s Form I-9 for three years after they hire them or one year after they fire them.
    8. I-9 Acceptable Documents: You are required to provide your employer with documentation that verifies your identity and authorization to work. Here is a list of documents that you can use.

      1. List A: These documents verify your identity and employment authorization. They include: a U.S. passport or U.S. passport card; permanent resident card; Form I 1-551 also known as a green card; Form 1-766, Employment Authorization Document card; a foreign, FSM or RMI passport accompanied by Form I-94 or I-94A, an authorization to work, and an endorsement to work; and a foreign passport accompanied with Form I-1551 stamp or Form I-1551 printed notation.
      2. List B: These documents also verify your identity. You can use a driver’s license or identification card with a photograph and identifying information issued by a state or outlying U.S. territory. Individuals under 18 and selected individuals with disabilities can use school, medical, or daycare/nursery school records.
      3. List C: These documents verify your employment authorization. They include: an unrestricted U.S Social Security account number card; Form FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA); Form FS-545, Certification of Birth Abroad; Form DS-1350, Certificate of Report of Birth; a birth certificate with an official U.S. seal; Form I-197, U.S. Citizen ID Card; Form I-179, Identification Card; a Native American tribal document; and a Department of Homeland Security issued Employment authorization document.

Visa Fraud

There are many scammers out there that try to take advantage of people applying for visas. Here are four things to look out for.

  1. Congratulatory messages: People will send emails, letters, and call visa and green card applicants congratulating them on getting a visa or green card. These congratulatory messages are common for Diversity Immigrant Visa (DV) Applicants, also known as the green card lottery. The only way for DV applicants to know if the lottery chose their application is on the U.S. Department of State’s site.

  2. Fraudulent emails/letters: Individuals will send fake emails and letters pretending to be the U.S. government. Do not be tricked by patriotic images like the U.S. flag, White House, or Capital. An official email address from the U.S. Government should end in “.gov.” Do not wire transfer, send a check or cash to these people. Look at the U.S. Department of State’s site to learn about fees for visa services.

  3. Requests for one large payment: You cannot receive a visa or green-card for paying one large fee. If an individual says that they can provide you with a visa or green card by paying them, do not do it. Only official U.S. government entities, such as the Department of State, a U.S. embassy or consulate, or the Department of Homeland Security can provide you with a visa or green card.

  4. Requests for personal information: Do not give your personal information to people calling you on the phone or sending you emails that do not end in “.gov.” Doing so can result in identity fraud and theft.

Visa Resources

Navigating the visa process can be challenging. Here is a list of resources that will make this journey easier.

  • A-Z Index: The U.S. Department of State created this index to help individuals navigate their website. You can search for visas, forms, statistics, wait times, and more here.

  • Fee Calculator: U.S Citizenship and Immigration Services created this helpful tool that asks you questions to find out what your fee is. Many applications get rejected because of incorrect filing fees, and this calculator helps prevent this from happening. For more information on visa service fees, look here.

  • Know Your Rights Pamphlet: This pamphlet outlines the rights an individual has while working in the U.S. People should read this pamphlet before their visa interview at a U.S. Embassy or consulate abroad.

  • Visa Appointment Wait Times: The U.S. Department of State created this page to help the U.S. Department of State created this page to help individuals find out the current wait time for an interview appointment at a U.S. Embassy or Consulate. This tool allows individuals to plan ahead, which is important.

  • Visa Bulletin: The U.S Department of State releases a monthly visa bulletin that shows final action dates and dates for filing applications.

  • Visa Forms: The U.S. Department of State has a comprehensive page of nonimmigrant and immigrant visa application forms.

  • Visa Glossary: The U.S. Department of State created a visa glossary that defines over 150 terms that individuals may encounter while going through the visa application process.

  • Understanding Your Visa: The U.S. Department of State has a great guide on understanding the basics of a visa.

Ask the experts

Hendrik Pretorius

Hendrik is an immigration Lawyer at ImmiPartner and a California Bar Certified Legal Specialist in Immigration and Nationality Law. He has gained a decades worth of experience as a corporate immigration lawyer working at the highest levels. Hendrik has managed many technology company immigration programs and has helped companies attract and retain the world's top talent.

How far in advance should you start planning to get a visa?

It's hard to give a generic answer as visa processing varies so greatly from case to case and because government processing times are so hard to predict currently. In general I would suggest kicking off your application as a professional level employee or entrepreneur at least four to six months in advance. There are a lot of documents and data that you need to gather and if you are depending on an employer as a sponsor they also need to assemble paperwork and in certain cases need to complete processing with the Department of Labor even before a case can be filed with the Immigration Services (USCIS). There are also other timing issues to be concerned with such as the annual H-1B quota and very particular filing periods.

For students, I don't think it's ever too early to start planning. One great visa option to consider for graduate level students or those who have work experience in addition to a degree is the O-1 visa which is based on your proven ability in a field. If someone doesn't qualify right away and we have one or two years to work with them, we can put them on a track and guide them towards what achievements or acclaim they should try to obtain. That can include memberships in groups, speaking on panels or writing articles, things that can really bolster their case down the line.

I love talking to people who are a year or more away from graduation and want to understand what their options are. I think students tend to wait a little too long to begin understanding the process. Most of them have Optional Practical Training (OPT) period where they are allowed to work for 12 months or more depending on their degree background. Sometimes students start thinking about their next visa move too late in that OPT period. If they can start getting info and reaching out before graduation, that would be awesome.

How do you know when to see an attorney vs. getting a visa on your own?

Certain visa applications, like B-1, B-2, and student visas, are far more straightforward than others. People usually complete these on their own unless they are in unique scenarios where they need help due to issues that may make them inadmissible to enter the U.S. Beyond that, I think it is a bad idea in most cases to go at it completely alone. Under the current administration, there is a considerable increase in challenges to almost every visa type. I think that everyone should be willing to at the very least, sit down and have an in depth consultation with an immigration attorney. They can raise potential issues or red flags and help an individual decide if they want to apply on their own or not.

Applying on your own is not going to give you nearly the same chance of success as using a qualified attorney. Individuals should work with immigration attorneys who know specific trends and what the government is challenging on certain visa application types. There are a lot of different immigration attorneys with varied experiences, with varied processes, and of course with different fee structures. Some lawyers even have an additional Legal Specialization in immigration law provided by their State Bar associations based on additional testing, the number of cases and case types represented in practice, and additional educational requirements. Do your homework and ask to speak with a few different attorneys briefly to ask them about their background.

What are the most common mistakes people make while getting a visa?

One mistake is starting too late. People often wait too long to find out if any options exist or try to file a case in a month. You might have to work towards being qualified for specific visas or work remotely outside of the U.S. for a company and come in later. Applicants also underestimate the lift involved. Overall, it's not a quick little process. There are a lot of documents that you need to obtain, and it usually takes weeks if not months, to prepare an application.

Finally, people don't always understand what they are and are not allowed to do under a particular visa status. Say you are a student and have a business idea. You may not realize that there are some pretty big implications and issues if you are spending a lot of time pursuing a business idea. It might be considered a failure to maintain your current student status, which can mean you're out of your visa status, having long term implications. I've seen clients get in trouble because they do not fully recognize the importance of what their particular visa type enables them to do. Some cross the line into not maintaining that visa properly by doing things that they are not authorized to do.

What can you do to maximize your chances of getting your visa approved? If you don’t get it the first time is it worth appealing?

Start early and try to build your case. Under the current administration, the approach that we take and that most immigration attorneys take is to over-document eligibility as much as possible. Because there has been a huge increase in requests for evidence, we now provide a lot more than we used to. Erring on the side of over-documenting in an application certainly helps. There has also been an increase in denial rates overall. People should find out what their options are as soon as possible and start building a solid case, collecting documents, and bolstering their background and that of their employer or new business, depending on the visa category in play. Applying for a visa is a long process, not a week-long endeavor.

If a case is denied there are options to challenge the denial via the Administrative Appeals Office as well as motions to the Immigration Services. The two types of motions are a Motion to Reopen and a Motion to Reconsider. The Motion to Reopen a case will allow you to state new facts in challenging the denial. A Motion to Reconsider is focused on arguing that there was an incorrect application of the law. Whether utilizing any of these options is really a case specific consideration as should be discussed with an experienced attorney. Often the decision is whether to challenge a denial or whether to bolster the case with additional evidence and to re-file an application.

I will also note that another option is to challenge denials in Federal Court. Historically, people have not challenged denials in court all that much but this has started to change a bit under the current Administration. Again this option should be discussed with your immigration lawyer.

From a timing standpoint, if a denial is something that can be rectified relatively easily with additional documentation, refiling may make sense from a timing standpoint but this is a decision to be made with your attorney to understand if there is any downside to doing this and if it is even possible. If the case was denied based on a legal issue, not an evidentiary issue that can be easily solved, it might make more sense to challenge the denial. For example, appealing might make more sense if an immigration officer inaccurately denied the case based on a misapplication of the law.

What advice do you have for individuals going through this process?

Be prepared to spend time and invest resources in this process. It helps to be represented by an immigration attorney. Things go a lot more smoothly when people take the visa application process seriously. When we work with clients who are not put off by having to spend many hours of their time accumulating documents, speaking to us, and nailing their case, it makes a huge difference. You also have some people who don’t want to be bothered by the application. They know it is a big deal and that they need a visa but feel that they should be able to get one without spending much time or attention. This is a big mistake, especially under this administration.

Devon FeuerAuthor
Hendrik PretoriusInterviewed Expert

March 30, 2020