Work Visa USA: Which Should I Apply For?

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It has undoubtedly become harder under the Trump administration for non-US citizens to get a work visa for the USA, and for companies to bring foreign employees to the US. But it’s not impossible.

Visa applications continue to be approved for employees transferring Stateside, entrepreneurs setting up enterprises in the US and highly skilled workers taking up short term positions.

 

Which Work Visa for temporary work in the USA?

To work in the US as a non-US citizen or without US permanent residence status you will need to apply for the relevant visa and work authorisation. US work visas are divided into categories for temporary or permanent work. Some of the more commonly used routes for temporary work include:

L-1 visa for transferring executives, managers, or specialized knowledge workers from a qualifying foreign affiliate of a US company. The L-1 employee must have been working for the company for a minimum of 12 months at the time of making the application.

There are two types of L visa to consider:

  • L-1A for senior managers or executives. These are granted for up to 2 years and can be renewed up to a maximum of seven years.
  • L-1B for ‘specialized knowledge’ employees. Also granted for a period of up to 2 years, with renewals possible up to a total maximum of five years.

If the L-1 visa holder will be in the US to set up a new US-based operation for the organisation, the visa would be granted for up to 12 months.

Non-US companies who regularly transfer employees under the L-1 route should consider the Blanket L. This permits the company to issue L-1 visas without the requirement to first file a petition with USCIS. To be eligible, the company must have a minimum of three global offices, one of which is a US office that has been operating for at least one year. The US office must demonstrate revenues of $25 million or have 1000 US employees or 10 individual L-1s filed within the last year.

E-1 or E-2 visas for treaty trader or for treaty investor companies or individuals (and their employees). The E visa would apply if you wanted to start a company in the US, or if you are a non-US company with substantial trade with the US. The route is only available to citizens of countries with which the US maintains a qualifying treaty, such as the UK.

H-1B visa is for specialty occupation professionals. Applicants will need to hold at least a bachelor’s degree in a specialty field required to perform the duties. The H-1B requires sponsorship from a qualifying US employer.

The H-1B is highly over-subscribed; an annual cap is in place, limiting the number that can be issued each year. So even where you do meet satisfy the eligibility criteria, your application will still be subject to a lottery system. Applications are accepted during a window at the start of April. The window closes as soon as the cap is reached.

H-2 visa is for seasonal agricultural workers allowing employment in the United States on a seasonal or temporary basis, where there is a shortage of domestic workers.

O-1 visa is for individuals who can demonstrate extraordinary ability or achievement in their field. Eligible professions include science, education, business, or athletics or motion picture or television industry. The bar is high for this category. As well as evidencing your standing and capability, youmust also demonstrate you have an itinerary of performances or events or a full-time role in the US in your field.

I visa for media professionals. If you are a member of the foreign press and you want to come to the US to work and produce content, you will need to make an application for a media visa. The application process will assess both the individual – background, experience, qualifications – and the nature of the content itself.

J visa for exchange programs usually applies to camp counselors, teachers, trainees and au pairs.

Whichever route you proceed with, you will also need to take into account the ancillary considerations and conditions of the visa classification, for example:

  • Can you bring your spouse, partner and children with you?
  • Can your spouse or partner apply for US work authorisation if they are permitted to join you in the US?
  • Can you apply to extend the visa?
  • What is the maximum permitted stay in the US?
  • Will you become eligible to apply for a US Green Card?

Taking advice will ensure you proceed with full knowledge and understanding of your chosen visa route.

 

Work visa USA for temporary business travel: B-1 visa

The B-1 business visitor visa is attractive since the application process is less onerous on the applicant than other work visa options.

It allows the holder to enter the US for up to 6 months to carry out business-related activities.

The rules on permissible activity are however strict and US border officials routinely question B-1 visitors to verify their reason for travel before granting entry.

If travelling under the B-1 visa, your activity must not benefit any US-based institution and no salary can come from a US-based source.

Examples of permissible activities under the B visa include:

  • Business venture scoping eg find business premises
  • Training
  • Sales, negotiating contracts
  • Attending business meetings, seminars, conferences, exhibitions or trade fairs
  • Independent research
  • Professional athletes

Activities which are not permissible under the B-1 visa will require an appropriate US work visa to be sought.

 

Business travel: Do you need a Work Visa for the USA?

Under the US Visa Waiver Program, nationals of participating countries are permitted to travel to the US without a visa, provided they hold valid ESTA authorisation.

For short-term business travel for nationals of qualifying countries – such as the UK – the VWP will offer the most straightforward option since travellers do not have to under the full visa application petition and interview process.

Restrictions do however apply. The visit can last no longer than 90 days and the purpose of travel must come under a permissible activity, as with the B-1 visa.  This means you cannot undertake gainful employment while in the US and you must leave by the end of the 90 day period.

If you are not eligible for VWP travel, or your ESTA application is refused, you will need to apply for the relevant visa. For business travel, this would be the B-1 visa.

 

Do you need advice on a Work Visa USA?

Contact us for guidance on your US visa options and application.

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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