Experienced Work Visa Lawyer in San Jose and Silicon Valley
MJ Law, Helping Corporations and Individuals with Their Business Visa and Immigration Needs in the US.
US Work Visa Options
H1B Visa, Professional Skilled Worker
Suitable for specialty foreign professional workers
WHAT IS THE H1B VISA?
The H1B visa is available to workers in certain specialty occupations. The visa is a non-immigrant visa meaning that the applicant cannot stay indefinitely in the U.S. under a H1B. There are strict requirements to qualify for a H1B visa. Under the visa a US company can employ a foreign worker for up to six years.
QUALIFYING FOR A H1B VISA
The H1B Visa is designed for staff in specialty occupations. The USCIS requires that the job must meet one of the following criteria to qualify as a specialty occupation:
- Have a minimum entry requirement of a Bachelor’s or higher degree or its equivalent.
- The 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.
- The employer normally requires a degree or its equivalent for the position.
- The 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.
For an applicant to qualify to accept a job offer in a specialty occupation they must meet one of the following criteria:
- Have completed a US bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
- Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
APPLYING FOR AN H1B
The employer usually must submit a certification of a Labor Certification Application (LCA) from the U.S. Department of Labor. The LCA requires the employer to promise that it will pay a competitive or prevailing wage, provide decent working conditions, and that the hiring of the foreign worker does not violate any labor rights.
The employer will then file a Form I-129, Petition for a Nonimmigrant Worker. The LCA should be submitted with the Form I-129.
Only after the Form I-129 petition is approved, will the foreign worker apply for the H1B visa at a foreign embassy or consulate. The worker will then apply at a U.S. border for entry in the H1B visa classification.
If you have more questions, visit our H-1B Frequently Asked Questions or if you would like to speak with an experienced immigration lawyer about the H1B visa for professional foreign workers, contact us and schedule a time to meet via telephone or in person to discuss the situation in detail.
O1 Visas, Extraordinary Ability
At Muston & Jack, P.C., since 1985, our lawyers have helped thousands of individuals to successfully navigate the O1 visa process to obtain O1A and O-1 B nonimmigrant visas. Our experience with non-immigrant temporary visas and with all aspects of U.S. immigration law can make a difference for you. To have your qualifications for the O1 visa evaluated by an experienced lawyer, contact our law offices today.
The O1 visa is not for everyone. Generally, the O1 nonimmigrant visa is only available to individuals who possess extraordinary ability in certain fields such as business, athletics, sciences, or the arts. In addition, the visa may be available to those who have demonstrated extraordinary achievement or are nationally recognized in entertainment or other industries.
DETERMINING ELIGIBILITY FOR AN O1 VISA
The key factor to obtaining an O1 visa is showing the “extraordinary ability” in your field. Generally, you have to show that you are part of that small percentage on top of your field. For example, a professional athlete or a movie star.
Proving that you have extraordinary skills in other fields like business or education can be very difficult. In these cases, your attorney can help gather the relevant supporting documents and evidence to show that you are at the top of your field. This can include awards, press clippings, and anything else that supports your extraordinary status.
For whom is the O1A Visa appropriate?
SCIENTISTS, EDUCATORS, BUSINESSPERSONS, AND ATHLETES WHO WISH TO QUALIFY FOR THE VISA MUST SHOW THREE OF THE FOLLOWING:
- Receipt of nationally or internationally recognized prizes/awards for excellence in the field;
- Membership in associations in the field that require outstanding achievement of their members, as judged by recognized national or international experts;
- Published material in professional or major trade publications or major media about the alien;
- Participation on a panel or as a judge of the work of others in the same or an allied field of specialization;
- Original scientific, scholarly, or business-related contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Current or previous employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or,
- Past or proffered high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
O1B VISA FOR ARTISTS AND ENTERTAINERS (EXCEPT TV OR MOVIE STARS) WHO WISH TO QUALIFY FOR THE VISA MUST SHOW THREE OF THE FOLLOWING:
- Has performed/will perform services as a lead/starring participant in productions/events with distinguished reputations as shown by critical reviews, ads, publicity releases, publications, contracts, or endorsements;
- National/international recognition for achievement through critical reviews, other published materials by or about the beneficiary in major papers, trade journals/magazines, etc.;
- Has performed in a lead, starring or critical role for organizations and establishments that have a distinguished reputation evidenced by media articles, testimonials, etc.;
- Has record of major commercial or critically acclaimed success;
- Has achieved significant recognition from organizations, critics, government agencies, recognized experts;
- Has commanded or will command a high salary/other remuneration in relation to others in the field.
Spouses and children of the O1 visa holder may obtain an O3 visa to enter and remain in the US. The O3 visa holder may attend school but if he or she wishes to work, he or she must change his or her status to obtain a work visa.
APPLYING FOR AN O1 VISA
The petitioner for an O1 visa will need to file a Form I-129, Petition for Nonimmigrant Worker. Some documentation to include with your application includes:
- Consultation: This would consist of a written opinion by your peers that you actually have extraordinary ability in your field. Generally, the consultation can come from a labor union or management organization.
- Contract: This is the agreement between the sponsor and the applicant describing the services to be provided and duties performed. For example, a professional athlete will sign a contract to play basketball or baseball. Or a researcher will have an employment agreement with a university.
- Itinerary: An itinerary can help explain what you will be doing in the U.S. For example, it may describe your activities as well as provide an end date to your stay.
P1 Visas, Professional Athletes
WHAT IS THE P-1 VISA?
The P1 visa is a non-resident visa designated for entertainers, circus artists, and athletes who are coming to the US temporarily to perform at a specific competition or event. An athlete who wishes to remain in the US for a longer period of time should apply for an O1 visa.
WITHIN THE P VISA CATEGORY THERE ARE THREE DIFFERENT CLASSIFICATIONS:
P-1 Visa: A Classification are accorded to individual athletes and group entertainers, as well as their essential support personnel, who have accomplished international notoriety over a sustained period of time, (subject to the special regulatory provisions which provide a limited exception for entertainment groups that have managed to garner sustained national notoriety as opposed to international notoriety where there might be limited access to news media or consequences of geography that would make it difficult to acquire international recognition, (8 CFR §214.2(p)(4)(iii)(C)(2)).
The P-2 Visa: is issued to artists or entertainers, individually or as a group, as well as their essential support personnel, who will be performing under a reciprocal exchange program which is between an organization or organizations in the United States, which may include a management organization, and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers.
The P-3 classification may be accorded to artists or entertainers, individually or as a group, as well as their essential support personnel, coming to the United States for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance presentation.
The P-4 Classification is issued to immediate relatives of P1, P-2, and P-3 Visa holders who are accompanying or following to join the principal alien, but they are not afforded any right to be employed while in the United States while holding such visa status.
ENTERTAINERS, ARTISTS, AND ATHLETES WHO WISH TO QUALIFY FOR THE VISA MUST SHOW TWO OF THE FOLLOWING:
- A written consultation by an appropriate labor organization;
- Significant participation in a prior season with a major United States sports league;
- Participation in international competition with a national team;
- Significant participation in a prior season for a US college or university in intercollegiate competition;
- A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;
- A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;
- The individual or team is ranked, if the sport has international rankings; or
- The alien or team has received a significant honor or award in the sport.
- Spouses and children of the P1 visa holder may obtain a P4 visa to enter and remain in the US. The P4 visa holder may attend school but if he or she wishes to work, he or she must change his or her status to obtain a work visa.
FOR WHOM IS A P1 VISA APPROPRIATE?
Internationally recognized athletes or athletic teams entering the US to participate in an event of international standing
Entertainers and entertainment companies recognized internationally as outstanding to tour the US or participate in events distinguished circus artists who wish to work in the US.
TN1 Visa and TN2 Visa, Professional Workers from Canada and Mexico
The TN visa is a product of the North American Free Trade Agreement (NAFTA), entered into between the U.S.A., Canada, and Mexico on December 17, 1992. One of the aims of NAFTA was to ease the movement of business/professional persons between the three countries. The TN visa is exclusive for Canadian and Mexican professionals. The TN application process is filed if the employer is the petitioner while the foreign professional worker is the beneficiary. The foreign worker must possess at least a bachelor’s degree or the equivalent.
There’s no limit on the number of years the worker can remain in United States, but the TN visa has to be renewed every 3 years.
There is no numeric yearly quota or limitation to TN Visa holders, which does indeed provide benefits to Canadian and Mexican nationals who qualify. These nationals, with a properly prepared TN petition, can either take a TN petition to Consular Process or, if you are already in the U.S., can file a Change of Status petition without having to leave the U.S., assuming of course all requirements of eligibility are met.
Note: The process is slightly different for Mexican Citizens (TN2), who can only get the visa stamped on their passport through a Consular Interview, instead at the point of entry, as Canadians (TN1) are entitled to do.
TN VISA AND ADJUSTMENT OF STATUS (GREEN CARD)
The TN Visa is designed to allow professional workers from Canada and Mexico, to have a temporary job in the US on a specialty field. The TN Visa does not allow dual intent, like the H1B. This means, a TN visa holder cannot look to adjust status to a green card, since the professional worker must have the intent to return home after his temporary job is completed in the US.
In order to seek for permanent resident status, we encourage you to contact an immigration attorney and discuss the options available to you.
LIST OF ACCEPTED TN VISA CAREERS:
SOCIAL AND HUMAN CAREERS / ENGINEERING
- Accountant–Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A.
- Architect–Baccalaureate or Licenciatura Degree; or state/provincial license.
- Computer Systems Analyst–Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post Secondary Certificate and three years’ experience.
- Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster)–Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.
- Economist–Baccalaureate or Licenciatura Degree.
- Engineer–Baccalaureate or Licenciatura Degree; or state/provincial license
- Forester–Baccalaureate or Licenciatura Degree; or state/provincial license
- Graphic Designer–Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate and three years experience.
- Hotel Manager–Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant management and three years experience in hotel/restaurant management.
- Industrial Designer–Baccalaureate or Licenciatura Degree;or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
- Interior Designer–Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
- Land Surveyor–Baccalaureate or Licenciatura Degree or state/provincial/federal license.
- Landscape Architect–Baccalaureate or Licenciatura Degree.
- Lawyer (including Notary in the province of Quebec)—L.L.B., J.D., L.L.L., B.C.L., or Licenciatura degree (five years); or membership in a state/provincial bar.
- Librarian–M.L.S., or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite).
- Management Consultant–Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.
- Mathematician (including Statistician)–Baccalaureate or Licenciatura Degree.
- Range Manager/Range Conservationist–Baccalaureate or Licenciatura Degree.
- Research Assistant (working in a post-secondary educational institution)–Baccalaureate or Licenciatura Degree.
- Scientific Technician/Technologist –Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.
- Social Worker–Baccalaureate or Licenciatura Degree.–Sylviculturist (including Forestry Specialist)–Baccalaureate or Licenciatura Degree.
- Technical Publications Writer–Baccalaureate or Licenciatura Degree, or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
- Urban Planner (including Geographer)–Baccalaureate or Licenciatura Degree.
- Vocational Counselor–Baccalaureate or Licenciatura Degree.
- Dentist–D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or state/provincial license.
- Dietitian–Baccalaureate or Licenciatura Degree; or state/provincial license.
- Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) –Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate,and three years experience.
- Nutritionist–Baccalaureate or Licenciatura Degree.
- Occupational Therapist–Baccalaureate or Licenciatura Degree; or state/provincial license.
- Pharmacist–Baccalaureate or Licenciatura Degree; or state/provincial license.
- Physician (teaching or research only)–M.D. Doctor en Medicina; or state/provincial license.
- Physiotherapist/Physical Therapist–Baccalaureate or Licenciatura Degree; or state/provincial license.
- Psychologist–state/provincial license; or Licenciatura Degree.
- Recreational Therapist–Baccalaureate or Licenciatura Degree.
- Registered nurse–state/provincial license or Licenciatura Degree.
- Veterinarian–D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license.
- Agriculturist (including Agronomist)–Baccalaureate or Licenciatura Degree.
- Animal Breeder–Baccalaureate or Licenciatura Degree.
- Animal Scientist–Baccalaureate or Licenciatura Degree.
- Apiculturist–Baccalaureate or Licenciatura Degree.
- Astronomer–Baccalaureate or Licenciatura Degree.
- Biochemist–Baccalaureate or Licenciatura Degree.
- Biologist–Baccalaureate or Licenciatura Degree.
- Chemist–Baccalaureate or Licenciatura Degree.
- Dairy Scientist–Baccalaureate or Licenciatura Degree.
- Entomologist–Baccalaureate or Licenciatura Degree.
- Epidemiologist–Baccalaureate or Licenciatura Degree.
- Geneticist–Baccalaureate or Licenciatura Degree.
- Geochemist–Baccalaureate or Licenciatura Degree.
- Geologist–Baccalaureate or Licenciatura Degree.
- Geophysicist (including Oceanographer in Mexico and the United States)–Baccalaureate or Licenciatura Degree.
- Horticulturist–Baccalaureate or Licenciatura Degree.
- Meteorologist–Baccalaureate or Licenciatura Degree.
- Pharmacologist–Baccalaureate or Licenciatura Degree.
- Physicist (including Oceanographer in Canada)—Baccalaureate or Licenciatura Degree.
- Plant Breeder–Baccalaureate or Licenciatura Degree.
- Poultry Scientist–Baccalaureate or Licenciatura Degree.
- Soil Scientist–Baccalaureate or Licenciatura Degree.
- Zoologist–Baccalaureate or Licenciatura Degree.
- College–Baccalaureate or Licenciatura Degree.
- Seminary–Baccalaureate or Licenciatura Degree.
- University–Baccalaureate or Licenciatura Degree.
E3 Visa, Professional Workers from Australia
WHAT IS THE E3 VISA?
The E3 visa is a non-immigrant visa status that allows citizens of Australia to work in the United States for periods of 2 years in a specialty occupation, which can be renewed indefinitely. Unlike the H1B and TN visa, the E3 visa allows the spouse of the applicant to get employment.
WHO CAN APPLY FOR THE E3 VISA?
Any Australian citizen who holds a bachelor’s or higher degree (or its equivalent) and has a specialty job offer in the United States that requires that specific degree.
CAN I APPLY FOR THE E3 VISA WHILE IN THE UNITED STATES?
You cannot apply for the visa, but you can change your visa status to E3 visa while in the United States on another visa type. It is important to note that in order to change your status to E3 you must enter the United States with a Visa (it can be a Visitor Visa, Student Visa, J1, or other legal status) and not under the visa waiver program. It is also necessary to have an Australian passport.
WHAT IF I AM IN THE UNITED STATES UNDER THE VISA WAIVER PROGRAM AND WANT TO ADJUST TO THE E3 VISA BECAUSE AN EMPLOYER WANTS TO SPONSOR ME?
If you are present in the United States under the Visa Waiver Program, you must apply for the E3 visa through a foreign US Consulate. If for any reason you cannot travel back to Australia you can apply for the visa at a US Consulate in Canada, but please note that sometimes it takes several weeks to get an appointment and this process is not guaranteed.
DO I NEED A JOB OFFER FIRST?
Yes, in order to qualify for the E3 visa a US employer must file a Labor Condition Application (LCA) on your behalf. The duration of your visa is determined by the duration of the LCA. Your E3 visa status can be renewed indefinitely as long as the applicant has the intent to go back to Australia at some point.
IS THERE A LIMIT OF E3 VISAS?
Yeah, each fiscal year (starts on October 1st of each year) there’s a limited number of 10,500 E3 visas. Spouses and children of applicants do not count against the annual quota.
I HAVE A SAME-SEX PARTNER / CIVIL PARTNERSHIP. CAN HE/SHE COUNT AS MY SPOUSE?
No. Federal Laws in United States require a marriage certificate in order to apply as an E3D (Dependant). Same-sex civil partnerships or unions are not recognized as E3D and they must apply separately for their own E3 visa status.
CAN I WORK FOR MORE THAN ONE EMPLOYER?
No. The E3 visa is valid for only one employer.
CAN I CHANGE EMPLOYER WHILE I AM WORKING ON E3 STATUS?
Yes, you may change employers, but the new position must still be in the specialty occupation related to your degree. Your new employer must lodge a new Labor Condition Application (LCA), and the gap between jobs must be 10 days or less. For a change of E3 employer within the U.S., the individual does not need to reapply for a new E3 visa, but needs to submit a change of employer petition to USCIS. An E3 change of employer petition is counted against the annual E3 cap.
CAN I APPLY FOR A GREEN CARD WHILE IN E3 STATUS?
Unlike the H1B and certain other visa types, the E3 visa does not allow you to seek permanent residence. Since this status is intended for a temporary job, the applicant must prove that he/she has ties in Australia and wants to move back to Australia eventually. Note however that there may be other options available which should be discussed with an immigration attorney.
R1 Visa, Professional Religious Workers
R VISA OVERVIEW:
The R-1 visa is a non-immigrant category for a religious worker to perform temporary services on behalf of a religious organization. The individual may be employed and compensated only by the religious organization through whom the status was obtained.
R-2 visa holders are immediate family dependents of R-1 visa holders. They are authorized to attend school but they may not legally obtain employment under the this non-immigrant category.
THE FOLLOWING REQUIREMENTS ARE MADE PART OF THE R-1 VISA REGULATIONS:
- An R-1 worker need not have performed any work on behalf of the religious denomination but must have been a member of the qualifying organization for the immediately preceding two years and must be qualified to perform the duties of a religious worker.
- There are three categories of religious workers: (a) a minister, priest or rabbi, meaning an individual authorized to conduct religious worship; (b) a religious professional, meaning an individual who has at least a baccalaureate degree which is needed to perform his duties (i.e. director of religious education or a principal of parochial school); (c) a person who works in a religious occupation or vocation which relates to traditional religious functions, meaning the job needs to have religious significance (e.g. a religious instructor or a religious counselor).
- As per the new R-1 regulations, a petition to the USCIS is always required for an R-1 worker. The applicant may no longer make the application directly to the US consulate, as the R-1 visa now requires prior USCIS approval.
- The period of admission will be for an initial period of thirty months, with maximum stay not to exceed five years.
- The letter must be accompanied by a tax-exempt certificate of the organization and evidence of the applicant’s ability to perform the services indicated, such as diplomas, etc.
Spouses and children of the R-1 visa holder may obtain an R2 visa to enter and remain in the US. The R2 visa holder may attend school but if he or she wishes to work, he or she must change his or her status to obtain a work visa.
In summary, the R-1 visa category offers individuals with a religious background and others great opportunities to work and reside in the United States, but the religious occupation must relate to a traditional religious function.
EXAMPLES OF PERSONS IN RELIGIOUS OCCUPATIONS INCLUDE, BUT ARE NOT LIMITED TO:
- Liturgical workers
- Religious instructors
- Religious counselors
- Religious translators, or Religious broadcasters
This group does not include janitors, maintenance workers, clerks, fund raisers, or persons involved solely in the solicitation of donations.
The Law Offices of Muston & Jack can manage the legal process of obtaining an R-1 visa for the following organizations and individuals:
- Religious organizations in the United States that wish to bring over members from overseas branches, affiliates, or similar entities to work as Service leaders such as ministers, priests, and pastors as well as religious professionals and religious vocational workers serving a traditional religious function such as religious instructors and missionaries.
- Members of a religious group having a bona fide nonprofit, religious organization in the U.S. who wish to become employed in a traditional religious capacity by an organization of the same religious denomination in the United States.