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Temporary Work

Temporary, also called nonimmigrant, visas are for foreign nationals who want to be in the U.S. for a limited time and a limited purpose. One of the most common reasons that temporary work visa applications are denied is that the U.S. government presumes the workers have “immigrant intent,” i.e., that they intend to stay in the United States permanently instead of departing and returning to their home countries when their jobs are over or when their visas expire.

This process generally begins with a U.S. employer who wants to hire a foreign national either performing visa-specific preliminary tasks (and then filing a visa petition package) or filing a visa petition package (which generally includes the I-129 Petition for a Nonimmigrant Worker and other forms and supporting documentation) for the foreign worker. Once that petition has been approved and a visa is available, the Petitioner/employer or Beneficiary files a visa application package (which generally includes the DS-160 Nonimmigrant Visa Application along with others forms and supporting documentation.) Typically, an interview appointment will happen, after which the Beneficiary will find out if his or her application will be approved or denied.

STEP 1

Most employer/petitioners applying for H-1B, H-2A, or H-2B visas for temporary workers must perform preliminary tasks outlined in Step 2 prior to filing a temporary work visa petition package.

Generally, however, employer/petitioners applying for other temporary work visas can skip Step 2 and start the process by filing a Form I-129 Petition for Nonimmigrant Worker (see Step 3).

It is very important to note that some categories of temporary workers have strict limits of the number of visas that may be granted each year, and often the limit is reached very soon after petitions are allowed to be filed. It is therefore extremely important for employer/petitioners and employee/beneficiaries to be aware of all applicable petition and application requirements.

Categories of temporary workers include:

  • E-1 (Treaty Trader and Employees) 
    • For foreign nationals (from countries that have trade treaties with the United States) who want to engage in specific types of international trade of a substantial nature in the U.S.
    • The trade may be in the areas of goods and services, accounting and banking, design and engineering, data processing, and other areas
    • E-1 visas are valid for up to two years and may generally be renewed indefinitely as long as all requirements are met
  • E-2 (Treaty Investor and Employees) 
    • For foreign nationals (from countries with commerce treaties with the U.S.) who want to invest money into new or already established U.S. business
    • There is no set minimum amount of money that must be invested
    • E-2 visas are valid for up to two years and may generally be renewed indefinitely as long as all requirements are met
  • E-3 (Skilled Professional from Australia)
  • H-1B (Alien in specialty occupation) 
    • For a foreign national with an offer of employment to work in a specialty occupation in the U.S.; includes fashion models of distinguished merit and ability.
    • For the job to qualify as a specialty occupation, it must meet one of the following criteria:
      • Normal minimum entry requirement for the position is a Bachelor’s or higher degree or its equivalent
      • Degree requirement for the job is common to the industry OR the job is so complex or unique that it can be performed only by an individual with a degree
      • Employer normally requires a degree or its equivalent for the position
      • Nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
      • Requires a higher education degree or its equivalent.
  • H-2A (Temporary or seasonal agricultural worker) 
    • Limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the U.S.’s interests.
  • H-2B (Temporary non-agricultural worker) 
    • Limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the U.S.’s interests.
  • H-3 (Temporary trainees) 
    • To receive training that is not available in the trainee’s home country; or to receive practical training programs in the education of children with mental, physical, or emotional disabilities; or to train staff to use and market a U.S. product outside the U.S.
  • I (Representatives of Information Media)
  • L-1A or L-1B (Intracompany Transferees) 
    • For foreign companies’ managers and executives (L-1A) and employees (L-1B) with specialized knowledge to come to the U.S. to continue performing services for the company’s U.S. counterpart
    • Specialized knowledge:
      • An advanced knowledge of the company’s products, services, research, equipment, techniques, management or other interests and its application in international markets; or
      • An advanced knowledge of the processes and procedures of the company.
    • General requirements:
      • Manager, executive, or employee with specialized knowledge;
      • Works for a company that has a parent, branch, subsidiary or affiliate in the U.S.;
      • Has worked for that company outside of the U.S. continuously for one of the past three years; and
      • The company will continue to operate in a country outside the U.S. during foreign national’s stay.
    • L-1As and L-1Bs can be granted for a period of three years.
      • If the office is new, the visa will often only be valid for one year.
      • Extensions are possible; maximum length of stay is seven years for L-1As and five years for L-1Bs.
    • There are 2 procedures for getting L-1 visas: Regular and Blanket
      • Regular L-1 visas are individual and need to be approved by USCIS individually
      • Blanket L-1 visas do not need to be approved individually and are made available for employers that meet certain criteria.
  • O-1 or O-2 (Aliens with Extraordinary Ability and Their Assistants) 
    • For persons with extraordinary ability or achievement in the sciences, arts, education, business, athletics, or with extraordinary achievements in the motion picture and television fields, to work in their field of expertise (and persons providing essential services [in support of the above individual] that are neither general nor easily performable by others)
    • Such extraordinary ability and achievement should indicate that Beneficiary is one of a small percentage of experts at the very top of his or her field, and may be demonstrated by sustained national or international acclaim (such as being nominated for or having received an Oscar, BAFTA, or Nobel Prize.
  • P-1, P-2, P-3, or P-4 (Athletes and Entertainers and Their Assistants)
  • Q-1 (International Cultural Exchange Visitors)
  • R-1 (Religious Workers)
    • General requirements:
      • Beneficiary has been a member of a religious denomination for at least two years;
      • The religious denomination has a “bona fide nonprofit religious organization in the United States”;
      • The religious organization is petitioning for you to work for them;
      • You will work in the United States as either a “minister” or a religious “vocation” or “occupation;”
    • A “bona fide nonprofit religious organization in the United States” typically means that the religious organization is tax exempt under U.S. tax laws and has an official letter from the IRS confirming the exemption.
    • A “minister” is defined as an individual who is trained and authorized to perform the duties required by the denomination (i.e. not a lay person).
    • The religious “vocation” requirement is typically met if Beneficiary has a committed practice in the religious denomination, such as taking vows (e.g., nuns, monks).
    • Religious “occupation” relates to traditional religious functions, e.g., religious instructors, workers in religious hospitals, religious translators and religious broadcasters, but not janitors, clerks or fundraisers.
    • An R-1 visa may be granted for a maximum of five years.
  • TN-1 or TN-2 (Canadians and Mexicans working under NAFTA)

STEP 2

These tasks have many requirements, are quite labor-intensive, and must be performed in specific ways for specific lengths of time. For more information, please see https://www.foreignlaborcert.doleta.gov/

  • H-1B requirements include: 
    • Offer of temporary employment
    • Advertise the job position and recruit for it
    • Valid Prevailing Wage Determination (PWD) tracking number issued by the National Prevailing Wage Center (NPWC)
    • File Labor Condition Application: http://www.doleta.gov/regions/reg05/Documents/eta-9035.pdf
    • Any applicable supporting documentation (documentation substantiating temporary need is recommended)
  • H-2A requirements include: 
    • An ETA Form 790 Agricultural and Food Processing Clearance Order filed with the State Workforce Agency in the area of intended employment between 60 and 75 days before the date of need for workers
    • Application for Temporary Employment Certification and Appendix A (ETA Form 9142A)
    • Accepted Job Order (ETA Form 790)
    • Attachments as appropriate to supplement information requested on the above forms
    • Additional documentation for H-2A Labor Contractors
  • H-2B requirements include: 
    • Application for Temporary Employment Certification (ETA Form 9142B)
    • Copy of signed Appendix B (new form)
    • Valid Prevailing Wage Determination tracking number issued by the National Prevailing Wage Center
    • Copy of the job order submitted to the SWA
    • Copies of all contracts and agreements with the employer demonstrating the authority to represent the employer (agents and/ or recruiters)
    • Contact information for all persons and entities hired by or working for recruiters or agents including any subagents or employees of such persons and entities (as applicable)
    • Migrant and Seasonal Agricultural Worker Protection Act Farm Labor Contractor Certificate of Registration (agents, as applicable)
    • Any applicable supporting documentation substantiating temporary need is recommended
    • A valid H-2B registration number

STEP 3

An I-129 petition package, which must be mailed the USCIS Service Center with jurisdiction over the place of employment, must contain many important items, generally including:

  • Form I-129 Petition for Nonimmigrant Worker
  • Copies of supporting documents: Generally, photocopies may be submitted; documents may include:
    • Beneficiary’s degrees and transcripts from educational institutions
    • Support letter from Petitioner/employer confirming job offer & explaining terms and conditions of the proposed employment.
    • Beneficiary’s passport biographic data pages
    • Beneficiary’s visa
    • Beneficiary’s I-94 Departure Record
  • Any applicable checklists or supplements (for H-1B, H-2A, H-2B, and R-1 visas)
  • Certified Labor Condition Application (if applicable)
  • Payment of appropriate processing fees, generally the visa petition fee, the American Competitiveness and Workforce Improvement Act fee, and the Fraud Prevention and Detection fee.

If USCIS needs additional information, they will mail a letter called an RFE (Request for Evidence) in which they state what they need. This request is not a rare occurrence. As with sending anything to the U.S. government, directions should be followed very carefully, and copies should be made of everything to be sent.

  • If the petition is approved, USCIS will send employer/petitioner a Form I-797 Notice of Action.
  • If the petition is denied, the notice will include the reasons for denial and inform of any rights to appeal the decision, including time frame for filing the appeal. Once appeal petitions and fees are processed, the appeal will be sent to the Board of Immigration Appeals.

STEP 4

After USCIS approves the I-129 Petition, the employer/petitioner may submit a DS-160 Nonimmigrant Visa Application online. Wait times vary by location, season, and visa category.

A DS-160 Nonimmigrant Visa Application must contain a great deal of important information about Beneficiary, generally including:

  • Current and previous names
  • Passport number, visa number
  • Mother’s Full Name, Date of Birth
  • Father’s Full Name, Date of Birth
  • Address of intended U.S. residence
  • Flight information
  • Dates of previous visits to U.S.
  • Information (name, address, email, phone number) of contact person in U.S. (to verify details)
  • Intended U.S. job information (company name, address, monthly salary, description of job duties)
  • Work information from last 5 years (names of companies, addresses and phone numbers, dates of employment, job titles & duty descriptions, supervisor names)
  • Education information (names of educational institutions, addresses and phone numbers, dates attended, degrees granted)
  • Prior criminal history
  • I-129 approval notice

A Passport-style photograph of Beneficiary must be submitted with the Application

The confirmation page must be printed and brought to Beneficiary’s interview

STEP 5

  • Beneficiary will need to schedule a Visa Interview appointment; it will generally occur at the U.S. Embassy or Consulate in the country where Beneficiary lives
    • Be sure to have the receipt number printed on the approved Form I-129
  • Pay and get a receipt for the non-refundable visa application fee (usually required to be paid before the interview)
  • Check for any special interview &/or document instructions that pertain to the U.S. Embassy or Consulate at which Beneficiary will be applying and be interviewed, and review them carefully
  • Gather supporting documents for visa interview:
    • Passport valid for travel to the United States for at least six months beyond Beneficiary’s period of stay in the United States (unless exempt by country-specific agreements)
    • Confirmation page of Form DS-160 Nonimmigrant Visa Application
    • Receipt for application fee payment, if required to pay it before your interview
    • Photograph of Beneficiary that meets format requirements if the online photo upload failed
    • Receipt Number for approved petition as it appears on the I-129 Petition or I-797 Notice of Action
    • Proof of Beneficiary’s compelling ties to his or her home country to demonstrate your intent to return after your temporary stay in the U.S. Examples of compelling ties include:
      • Residence in home country that Beneficiary does not intend to abandon
      • Beneficiary’s family relationships in home country
      • Beneficiary’s long term plans in home country
  • Attend visa Interview
    • During the visa interview, a consular officer will determine whether Beneficiary is qualified to receive the visa being applied for
    • Beneficiary must submit to biometrics collection (fingerprint, photo, and signature sample)
    • Payment of appropriate processing fees, generally the visa petition fee, will have to be paid if not already done so

STEP 6

  • If an application requires further administrative processing, the consular officer will tell Beneficiary after the visa interview.
  • If and when the visa is approved, Beneficiary may have to pay a visa issuance fee (if applicable to Beneficiary’s nationality) and will be told how his or her passport with visa will be returned or available for pick-up.
    • It is important to remember that a visa does not guarantee entry into the U.S.; government officials at the port-of-entry have the authority to permit or deny admission. If Beneficiary is allowed to enter the U.S., she or he will receive an admission stamp or paper Form I-94, Arrival/Departure Record.
  • If the visa is denied, in most cases the consular officer notifies the applicant of the applicable section of law and if the applicant may apply for a waiver of their ineligibility.
    • Common reasons for denial are belief that the applicant has an immigration inten (plans to stay in the U.S. permanently upon arrival instead of going home as required), incomplete application or supporting documentation, fraud or misrepresentation, and previous unlawful presence in the U.S.

STEP 7

  • Some nonimmigrant visa holders may petition to extend their stays or change to a different type of visa using Form I-539, but this is not an option for everyone.
  • If a nonimmigrant visa holder cannot extend the length of stay, he or she must leave prior to or on the day the visa expires.
  • People in the U.S. on temporary work visas, and every other person in the U.S., must follow all Federal, State, and local laws wherever they reside.