VISAS

The Sherman Law Group has a number of years experience in all types of temporary, non-immigrant visas, including B,F,H,L,O,P,R,TN, and others. A brief summary of the most common visa types is listed below.

1. H-1B Visa (Specialty Worker/Professional Level)

Description: A professional level temporary work visa available to aliens who hold the equivalent of a U.S. bachelor's degree or higher. Requires a job offer from a U.S. company in a position that normally requires that degree or higher as a minimum requirement. Issued for an initial period of three years, the H-1B can be renewed for an additional three years. In some cases, extensions beyond the standard six-year total are available.

Process: There are two steps in the H-1B application process. First, the employer must file a Labor Condition Application with the U.S. Department of Labor. This application states some of the conditions of the employment, including the rate of pay. Once this application has been certified, the employer may then file a Nonimmigrant Visa Petition and required supporting documents with the Immigration Service. Filing fee for an H-1B is $110.00 plus the mandatory employer supplemental fee of $1,000.00. Certain U.S. employers may qualify for a waiver of the $1,000.00 fee. Once approved, most individuals will need to take the approval notice to a U.S. Embassy or Consulate and obtain an H-1B visa stamp for their passports before entering the U.S. Canadian citizens and certain Canadian Landed Immigrants are not required to obtain such stamps. Rather, they may simply present their H-1B approval notice at a border point or via pre-flight inspection and gain admission to the U.S.

Processing Time: Processing now takes about 8 to 12 weeks. This processing time contracts and expands from time to time based on current backlogs at the U.S. Department of Labor and at the Immigration Service.

Restrictions: Employment is restricted to the employer and job listed on the H-1B application. It is not possible to "moonlight" or perform other work unless an application for "concurrent" H-1B visa status has been filed by the other employer.

Validity: H-1B visa status is normally valid for three years, and can be renewed for an additional three years. Extensions beyond the usual six-year limit are available to some applicants in the Green Card process. H-1B visa status always requires continuing employment. If the underlying employment ends, the H-1B visa terminates automatically.

Dependents: Spouse and children (under 21) are issued H-4 visa status. This status does not allow employment, but does allow them to attend school.

Limit on stay: Usually six years. However, if the H-1B visa holder is participating in the U.S. Green Card process and has reached the Immigrant Visa Petition stage, his/her H-1B may be extended beyond six years, in annual increments of one year, if certain requirements are met. In addition, it may be possible for Canadian and Mexican workers who reach the six-year limit and are not Green Card applicants to change visa status to TN, O-1 (exceptional ability) or other temporary work status.

Green Card: The H-1B and Green Card process do not conflict. They may be applied for simultaneously, or the Green Card process may be started either before or after the issuance of H-1B visa status.

Annual cap: There is presently an annual cap of limit of 195,000 H-1B visas per visa year (October 1 through September 30). Please note that many H-1B visas, such as H-1B renewals, are not counted toward the cap.

2. L-1A/L-1B Visas (Intracompany Transferee)

Description: The L-1A and L-1B are temporary work visas used to transfer executive, managerial and specialized knowledge workers from a foreign company to a U.S. parent, subsidiary or affiliate company. In addition, the L-1A can be used by a foreign company to send an individual to the U.S. to establish a new, affiliated company. The L-1A and L-1B are initially valid for three years (except a "new office" visa, which is initially valid for only one year), and can be renewed in increments of two years for a total of 7 years for the L-1A and 5 years for the L-1B.

Process: Canadian citizens may apply for L-1A and L-1B visa status at a U.S. border point, upon presentation of the required employer petition and supporting documents. The application is usually adjudicated at the time of application. All others must first have the employer file a petition with an Immigration Service office. Once the petition is approved, the worker will then need to apply for an L-1A or L-1B visa stamp at a U.S. Embassy or Consulate before entering the U.S. Certain Canadian Landed Immigrants may be exempt from the visa stamp requirement.

Processing Time: For Canadian citizens applying at the border, the visa is issued at the time of application. For others, Immigration Service processing of the L visa petition may take 4 to 8 weeks. Thereafter, visa stamp processing at a U.S. Embassy or Consulate may take a few hours to a few weeks, depending on the specific consular processing time there.

Restrictions: Employment is restricted to the employer and job listed on the L-1 petition.

Validity: Please see information in the description section above.

Dependents: Spouse and children under 21 are issued L-2 visa status, which does not allow them to work. They may attend school.

Limits on stay: The limit on L-1A visa status is seven years, while the limit on L-1B stay is five years. Thereafter, the alien must normally leave the U.S. for one year before being able to re-enter the U.S. in L or H visa status. However, there are exceptions, especially if the Green Card process is nearly complete. In addition, it may be possible to change to another visa status (such as TN or O-1) in order to stay in the U.S. beyond the L visa time limits.

Green Card: The L-1A and L-1B do not conflict with the Green Card process and may be applied for simultaneously. Please note that L-1A visa holders may utilize an expedited two-step Green Card process, while L-1B visa holders must utilize the standard four-step process.

3. TN Visa (NAFTA Visa) - For Canadian and Mexican Citizens Only

Description: A one-year, professional level or specialty position temporary work visa available to Canadian and Mexican citizens only. Requires a job offer from a U.S. employer, and job title must appear on the list of approved NAFTA occupations.

Process: Canadian citizens may apply for a TN visa by presenting a detailed employment letter from the U.S. employer, along with evidence of Canadian citizenship and credentials to an Immigration Service Free Trade Officer at a U.S. border point. The filing fee of $56.00 must be paid at the time of application. If the individual is already residing in the U.S. in TN visa status or in another lawful visa status, he or she may apply for a TN via mail, bypassing the border interview. Filing fee for mail filing is $110.00. Mexican citizens may not apply at a border point. Rather, the U.S. employer must apply to both the U.S. Department of Labor and to the Immigration Service by mail. Once approved, the Mexican citizen must apply for a visa stamp at a U.S. Embassy or Consulate before entering the United States.

Processing Time:

Restrictions: Employment is restricted to the employer and job listed on the TN application letter. However, it is possible for an individual to obtain "concurrent" TN visa status for other qualifying position(s) held with U.S. employers.

Validity: TN visa status is issued in one-year increments. It must be renewed on an annual basis. If the individual is residing in Canada and commuting to work in the U.S., the renewal must be filed at the border. If the individual resides in the U.S., the renewal may be filed at the border or via the mail.

Dependents: Spouse and minor children (under 21) are issued TD visa status, which does not allow them to work. They may attend school. TD status must also be renewed every year.

Limit on Stay: There are no statutory or regulatory limitations on the number of annual renewals that a TN visa holder may obtain. However, renewals may be difficult or impossible to obtain if an individual is applying for a U.S. Green Card. In such a case, we recommend switching to an H-1B visa. Please see additional comments below.

Green Card: The TN and the Green Card process conflict, due to the singular "temporary intent" required for TN visa status. Thus, once an individual has commenced the Green Card process, it may difficult or impossible for him/her to obtain renewal of the TN visa status. Accordingly, we recommend applying for an H-1B temporary work visa either before starting the Green Card process or simultaneously with it. The danger of remaining on a TN visa is that the INS officers at the border may prevent the individual's entry into the U.S. after a trip abroad if they determine that the alien is participating in the Green Card process, thus evidencing an intent to remain in the U.S. permanently.

4. B-1/B-2 and VWPP Visas (Visitor Visas)

B-1 Visa (Business Visitor)
B-2 Visa (Tourist)
VWPP (Visa Waiver)

Description: The B-1 allows aliens to visit the U.S. for business meetings, briefings, negotiation of contracts, and to train U.S. workers in the use of technology or machines sold by their foreign employer to a U.S. company. The B-2 allows aliens to enter the U.S. for pleasure travel and tourism. The VWPP or Visa Waiver Pilot Program allows citizens of certain countries (including the U.K., Germany, France) to temporarily visit the U.S. for business or pleasure for up to 90 days without obtaining an actual visa from a U.S. Consulate.

Process: The alien applies for a B-1 or B-2 visa at a U.S. Consulate abroad. The alien must present evidence of the nature and purpose of the temporary visit to the U.S., and evidence that they fully intend to return to the home country at the conclusion of their visit. The duration of the visa and the number of entries allowed is based on reciprocity. Thus, these variables are based on what the person's home country authorizes for U.S. citizens applying for that country's visas.

For VWPP, the individual simply travels to the U.S. on an approved carrier and applies for VWPP status upon arrival in the U.S.

Processing Time: As to B-1 and B-2 visas, Each U.S. Consulate has a different processing time. This can be from a few hours to a few weeks or longer. Please check with the appropriate Consulate for the latest information. As to the VWPP, this status is granted immediately upon arrival in the U.S.

Restrictions: Employment in the U.S. is strictly forbidden. The alien should maintain his/her foreign employment.

Validity: Upon arrival, aliens seeking B-1 or B-2 status are issued this status for period of six months or less, depending on the nature and objectives of their visit. It is usually possible to apply for a renewal of this status. There is, however, no guarantee that this status will be renewed.

The VWPP status is valid for 90 days only. Renewal of this status is not allowed. Alien must depart from the U.S. at the end of this status.

Dependents: Dependents are usually issued the same B-1, B-2 or VWPP status as the principal applicant. They may not work in the U.S.

Limit on stay: For B-1 and B-2, alien is usually admitted for up to six months. He/she can apply for a renewal of status, which may be granted for up to six months. It may then be possible to apply for additional renewals, which are granted at the discretion of the Immigration Service. In the alternative, alien may apply to change to another visa status (such as H-1B worker), depending on the restrictions placed on the visitor visa status. VWPP aliens are restricted to a 90-day stay, and renewals are not possible.

Green Card: The B-1, B-2, VWPP and the Green Card process conflict. Normally, if the INS determines that someone holding one of these visa statuses is applying for a Green Card, the INS may prevent him/her from re-entering the U.S. as a visitor. These visas require a strong singular intent to temporarily visit the U.S. and then return home. Thus, it is always best to change to another visa status (such as H-1B) before commencing the Green Card process. Please note that VWPP aliens are not eligible to change to another visa status. He/she would need to leave the U.S. and then re-enter on an H-1B or other visa.

5. F-1 Visas (Student Visas)

Description: The F-1 student visa is used by individuals to study at U.S. universities, colleges and other approved educational facilities including some English language schools. It is not available for secondary (high) school studies. During and/or after the alien's education, he/she may be authorized to participate in on-campus and/or off-campus temporary employment.

Process: Each F-1 visa must be sponsored by an approved U.S. university or college. The student must apply to the school for admission. Once admitted, the school issues to the student the visa sponsorship form, known as an I-20. The student presents the I-20 and other required documents to a U.S. Consulate in order to obtain an F-1 visa stamp in his/her passport. The individual then enters the U.S. Please note that Canadian citizens and certain landed-immigrants can bypass obtaining a visa stamp and may proceed directly to the border to apply for entry into the U.S. as an F-1. If the individual is already in the U.S. in a different visa status, it may be possible for him/her to change visa status to F-1 by filing an application with the INS.

Processing time: Each U.S. Consulate has a different processing time; it is recommended that you check with the pertinent consulate for this information.

For Canadian citizens/certain landed immigrants, applications for F-1 visa status are handled at the time he/she applies for F-1 status at the border.

For those individuals (Canadians and others) already in the U.S., processing of an application for F-1 visa status may take 12 weeks or more.

Restrictions: The student must continue to carry a full load of studies, normally 12 semester hours per semester during the school year, and normally must be working towards a degree of some type (not always necessary).

Validity: F-1 student status is generally valid so long as the alien holds a valid I-20 form and is fulfilling all other requirements (i.e. full load of courses, etc). It also remains valid during any period of approved post-graduation Optional Practical Training (a period of temporary work authorization). Thus, the validity period is usually listed on the I-94 card as "D/S" or "Duration of Status."

Dependents: Dependents are given F-2 status, which normally does not allow them to work. There are exceptions to the work prohibition.

Limit on Stay: Completion of degree or degrees, plus Optional Practical Training (if authorized). Alien may apply to extend his/her stay by applying to change to another visa status, such as H-1B if he/she qualifies and obtains a qualifying job offer from a U.S. employer.

Green Card: The F-1 and the Green Card process conflict. Thus, the INS will normally not admit or re-admit to the U.S. an individual in F-1 status if the officer determines that the alien is participating in the Green Card process or intends to do so.

Optional PracticalTraining: Optional Practical Training (or OPT) is a temporary period of work authorization approved by the sponsoring school and by the INS. This authorization is usually restricted to work in the alien's field of study and is usually valid for one year. Approval of OPT is evidenced by issuance of a plastic work authorization card by the INS.

Curricular PracticalTraining: Curricular Practical Training (or CPT) is a temporary period of work authorization approved by the school in cases where actual work experience is required as part of a degree program. This would apply, for instance, where a social work student must fulfill a certain number of hours of work experience in the field as part of the school's degree requirements.

Please contact us to discuss the particulars of your situation.