The United States has several types of nonimmigrant visas that allow foreign workers to enter the US on a temporary basis to work for a US employer, or in some cases to run their own business in the US. These visas do not provide a direct path to permanent residence (green card) or citizenship, but they allow foreign workers and their families to live and work in the US for a number of years.

In some cases, a foreign worker and members of his or her immediate family (spouse and children under 21) may also acquire Legal Permanent Resident (LPR) status, or green card, through an offer of permanent full-time employment in the US. A common path is to enter the US with a nonimmigrant visa and then use the authorized period of stay allowed under the nonimmigrant visa to acquire LPR status through an offer of permanent employment with the same or different employer.

B-1 – Visitor for Business

A B-1 visa is not a work visa. It is, at best, a temporary solution.

You may be eligible to acquire a B1 visa if you are self-employed, or work for a foreign company, and are planning to come to the United States to engage in short-term business activities such as meetings, negotiations, or training. 

The process of applying for a B-1 visa is the same as applying for a B-2 Visitor for Pleasure visa. An applicant must submit an online DS-160 form and schedule a date for an interview at a US consulate.

At the interview, the applicant must be ready to explain the purpose of their travel to the US and demonstrate that they do not have “immigrant intent”, meaning that they do not intend to work in the US or stay permanently in the US. They must also be prepared to demonstrate ties to their country of residence and that they have sufficient funds to cover the expenses of their stay in the United States. 

Any family members of B-1 applicants including small children must apply for their own B-2 (visitor for pleasure) visas if they wish to accompany the B-1 visitor to the US. Such applications are likely to receive heightened scrutiny by the US consulate, since an entire family traveling on the trip may indicate immigrant intent.  

The B1 visa does not require a US employer. In fact, if a foreign worker is employed by a US company, a US consulate is almost certain to deny the B1 visa application and instruct the applicant to apply for an appropriate nonimmigrant work visa instead.

Any available supporting documents may be presented to the consular officer during the interview, but there is no guarantee that they will be considered or even reviewed. The decision to issue or deny a B1 visa is solely at the discretion of the consulate.

Having the following documents might help when applying to B1 visa:

• A letter of invitation from a US business (NOT a US employer!) explaining the reasons for the applicant’s visit.
• Scheduled meetings with business partners, clients, and investors.
• Letter of admission into a business accelerator program.
• Invitation to attend a conference.
• Any documents demonstrating ties to the country of residence – employment, family, ownership of the real estate.

Upon arrival, a B-1 visa holder may be questioned by CBP about the purpose of their visit. It is important to distinguish “business activity” from “working.” Even working for a foreign employer while in the US on a B-1 visa is not allowed.

Even when the stated purpose of the visit is relatively short-term, B-1 visa holders are often admitted to the US for a period of 6 months, the same as B-2 visitors for pleasure. They may also request a one-time extension of stay in the US for a further period of up to six months, but they must document the need for an extension well, as well as their ability to continue to cover the expenses of their stay without engaging in work in the United States.

O-1 Extraordinary Ability  

This is a visa that allows foreign workers in any field who have demonstrated “a level of expertise indicating that the person is one of the small percentages who has risen to the very top of the field of endeavor” to enter the US to work for a US employer.

General Requirements for O-1 Petition

Before an O-1 visa can be issued by a US consulate, the immigration authorities in the United States (USCIS) must approve a petition to classify the foreign worker as a person of extraordinary ability in their field.

The prospective employer (the US business entity) is required to file the petition. The foreign worker may have an ownership interest in the US business entity filing the petition on their behalf.

USCIS processing times for O-1 petitions are currently about 2-3 months. Premium Processing Service is available for an extra fee of $2,500 and guarantees a reply from the USCIS within 15 calendar days.

If the beneficiary of the petition is present in the US in another valid status such as B1/B2, the petition may include a request to change the beneficiary’s status to O-1 without them having to leave the United States to obtain an O-1 visa.

Requirements for the O-1 Petitioner in the U.S.

• Must exist as a business entity independent of the applicant, even if partially or fully owned by the applicant.
• Must be set up as a business entity (LLC, C-Corp, S-Corp).
• Must have a federal tax ID number (FEIN).
• Should be able to demonstrate sufficient funds to pay the applicant’s proposed salary.
• Should be engaged in business in the US, or ready to start business operations as soon as the applicant is able to enter the US with an O-1 visa.

Ways to Demonstrate Extraordinary Ability

• Press about the applicant.
• Publications authored by the applicant, as long as they are published in reputable media and cited by others (especially relevant for scientists).
• Prizes, awards, etc. (student achievements don’t count).
• Invitations to participate as keynote speakers in conferences, and industry events.
• Being asked to review/judge the work of others.
• Leading role in successful companies.
• Proven commercial success (especially relevant for artists).
• Demonstrated high salary.
• Other comparable evidence.

Most importantly, the evidence above must be supported and explained by letters from experts in the field describing the importance of the applicant’s achievements

O-1 Advantages

• No numerical limit on how many O-1 visas may be issued every year
• Few demands on petitioning company
• No minimum salary (although it should be reasonable for the proposed position)
• O-1 status may be granted for up to 3 years initially, and it may be extended indefinitely
• Extensions are relatively easy to get approved

O-1 Disadvantages

• High standard of proof for extraordinary ability
• The required evidence may be hard to obtain
• Cannot “freelance” (contrary to popular belief)
• Cannot self-petition – requires a US employer

O-1 May Be The Best Option For You If

• The applicant has many provable achievements in their field
• Often a good option for startup founders with a proven record of success
• Use to bring in “artist” employees like graphic designers
• US company just starting operations, but will not qualify for L-1 or E-1/E-2.

Family Members of the O-1 Principal Applicant

• Spouse and children under the age of 21 of the principal applicant will be eligible for O-3 visas to stay and study in the US. O-3 visa holders are not authorized to work in the US.

Visa Application Process After The Uscis Approves The  O-1 Petition

• File a DS-160 form online for the principal applicant for an O-1 visa
• File a DS-160 form online for spouse and children under the age of 21 of the principal applicant for O-3 visas
• Schedule an interview at a US consulate
• Everyone 14 and older must attend the interview.

L-1A/L-1B Intracompany Transfer

When a US business entity has a foreign affiliate company, it may petition the USCIS for permission to transfer an employee of the foreign affiliate company to the US company.

To qualify, the US and the foreign company must be affiliated through a parent/subsidiary relationship, or through common ownership by a third party or parties.

To be eligible for a transfer to the US company, a foreign worker must have been employed by the foreign affiliate company on a full-time basis for at least a year in the last three years before the petition is filed.

The prospective employer (the US business entity) is required to file a petition. The foreign worker (beneficiary) may have an ownership interest in the US business entity filing the petition on their behalf.

USCIS’s processing time for L-1 petitions is currently about 3-4 months. Premium Processing Service is available for an extra fee of $2,500 and guarantees a reply from the USCIS within 15 calendar days.

If the beneficiary of the petition is present in the US in another valid status such as B1/B2 or F-1, the petition may include a request to change the beneficiary’s status to L-1 without them having to leave the United States to obtain an L-1 visa.

Special provisions exist for “new office” petitions, where the US petitioner company has just been created recently and has not commenced full operations yet. In these circumstances, an L-1 may be granted for 1 year with a possibility of extension if the US company is able to demonstrate that its volume of operations has grown sufficiently in 1 year to support the beneficiary’s position.

L-1A Executive/Manager Requirement

• The beneficiary must be employed at the foreign affiliate company in an executive or managerial capacity
• Must be coming to the US to plan, organize, direct and control the US company, or a significant portion of its business activities
• Title by itself is not enough – it is necessary to demonstrate that the beneficiary oversees other managers and/or employees in professional positions (positions that require a college degree)
• L-1A status may be granted for a maximum duration of 7 years
• Often used as a stepping stone to a green card

L-1B Specialized/Advanced Knowledge Requirements

• The beneficiary’s knowledge must be specific to the company’s product or process, but not necessarily proprietary
• Very strong evidence of specialized and/or advanced knowledge required
• L-1B status may be granted for a maximum duration of 5 years

L-1B Advantages 

• No numerical limit on how many L-1 visas may be issued every year
• Suitable for new U.S. companies
• L-2 spouses are authorized to work in the U.S.
• Dual Intent – an employee may pursue a green card (intending to be a permanent immigrant) at the same time as applying for a non-immigrant L-1 visa

L-1B Disadvantages

• Requires prior qualifying employment with a foreign affiliate company
• New companies, must establish the ability to support the position after one year
• Specialized knowledge difficult to prove

L-1B May Be The Best Option For You If

• You have been employed by a foreign company with a US affiliate for at least one year in the last three years in a qualifying position (see above)
• U.S. company just starting operations
• Use it for CEO or other senior officer or manager
• If used for an employee, able to prove specialized knowledge

Family Members of the L-1B Principal Applicant

• Spouse and children under the age of  21 of the principal applicant will be eligible for L-2 visas to stay and study in the US. Spouse L-2 visa holders are authorized to work in the US.

Visa Application Process After The Uscis Approves The L-1B Petition

• File a DS-160 form online for the principal applicant for an L-1 visa
• File a DS-160 form online for spouse and children under the age of 21 of the principal applicant for L-2 visas
• Schedule an interview at a US consulate
• Everyone 14 and older must attend the interview.

H-1B Specialty Occupation

H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree in a specialized field such as computer science, engineering, architecture, marketing, etc. 

Before an H-1B visa can be issued by a US consulate, the immigration authorities in the United States (USCIS) must approve a petition to classify the proposed position as a specialty occupation position requiring a degree in a specialized field. The USCIS also must determine that the foreign worker qualifies for the position through their education or equivalent previous work experience.

The prospective employer (the US business entity) is required to file the petition. The foreign worker may sometimes have an ownership interest in the US business entity filing the petition on their behalf, but such H-1B petitions are likely to receive heightened scrutiny by the USCIS. 

USCIS processing time for H-1B petitions is about 4-6 months. Premium Processing Service is available for an extra fee of $2,500 and guarantees a reply from the USCIS within 15 calendar days.

If the beneficiary of the petition is present in the US in another valid status such as B1/B2 or F-1, the petition may include a request to change the beneficiary’s status to H-1B without them having to leave the United States to obtain an H-1B visa.

H-1B Lottery Registration

Unlike the other nonimmigrant work visas, the US Congress has set a numerical limit of 85,000 H-1B visas that can be issued every year. 20,000 of these are reserved for applicants with US Masters’ degrees. The demand for H-1B visas is much greater than the available supply.

In the last couple of years, the USCIS has instituted a lottery system for H-1B Petitioners (note, the petitioner is the US employer, not the applicant). For a period of approximately 2 weeks in March, US petitioners may register the names of any prospective employees for the H-1B lottery.

USCIS randomly picks out the number of names corresponding to the available H-1B visas and notifies the prospective US petitioners by the end of March. The petitioners then have three months to file H-1B petitions for the selected workers.

Because H-1B visas are made available at the beginning of the US fiscal year (October 1), those beneficiaries of the approved petitions may obtain H-1B visas and enter the US to begin employment starting October 1.

Based on the last few years, there’s about a 25% chance for an employee’s name to be selected in the lottery. Holders of US Masters’ degrees have somewhat better chances to be selected.

Previous relevant work experience may sometimes be used to supplement or substitute for formal education to qualify for H-1B status. 3 years of relevant experience are considered equivalent to 1 year of college-level studies.

Foreign degrees must be evaluated by a qualified evaluation service to determine if they are equivalent to a US bachelors’ degree or higher.

Once an employee’s name has been selected in the lottery and a petition filed on their behalf has been approved, they are considered “Counted” for the annual cap. This means that a different employer may file an H-1B “transfer” petition for the same employees later without having to go through the lottery again.

H-1B Eligibility Requirements

• U.S. Employer must file a petition
• The position must require a bachelor’s degree or its equivalent in a specialized field
• The employer must demonstrate the ability to pay prevailing wage and sufficient specialty occupation work available
• Candidate must have the required degree or its equivalent
• Foreign degrees, equivalent work experience are acceptable

H-1B Advantages

• Eligibility requirements are relatively easy to meet
• Dual Intent – an employee may pursue a green card (intending to be a permanent immigrant) at the same time as applying for a non-immigrant H-1B visa
• Concurrent or subsequent petitions not subject to the annual cap
• Transfer between employers is relatively easy

H-1B Disadvantages

• Annual Cap
• The position must normally require a degree in a specialized field
• The employer must pay at least the prevailing wage for the position (determined by the Department of Labor)
• H-4 spouses do not have work authorization, except in some limited circumstances

Family Members of the H-1B Principal Applicant

• Spouse and children under the age of 21 of the principal applicant will be eligible for H-4 visas to stay and study in the US. H-4 visa holders are not authorized to work in the US.

Visa Application Process After The Uscis Approves The H-1B  Petition

• File a DS-160 form online for the principal applicant for an H-1B visa
• File a DS-160 form online for spouse and children under the age of 21 of the principal applicant for H-4 visas
• Schedule an interview at a US consulate
• Everyone 14 and older must attend the interview.

E-2 Treaty Investor Visa

Investors from qualifying countries including Ukraine and Israel (but NOT Russia) may apply for an E-2 visa in order to ‘Direct and Develop’ their investment in the United States. They may also apply for E2 visas for key managerial and specialist employees. In contrast to the L-1 visa, there is no requirement that such employees have worked for the Investor for at least one year in the last three, nor is it necessary for the Investor to continue operations outside the U.S. while the Investor or his/her employees are in the U.S.

E-2 Application Process

• Varies by Consulate, but always requires a DS-160 filed online and documentary proof to satisfy the requirements listed below
• Usually, no USCIS Petition, unless the applicant is already in the United States in another valid status and does not want to leave the US to apply at a consulate.

E-2 Requirements

• Ownership and Control of the US business
• Substantial Investment – depends on the type of business, but usually must demonstrate no less than $100,000 invested from funds originating in the treaty country (Ukraine)
• Non-Marginal Investment – must demonstrate that the US business will produce substantially more revenue than will be required to support the applicant and his/her family in the US.
• Ready to Start Operations
• Investor or Essential Employee

E-2 Advantages

• It May be granted for up to 5 years at a time 
• Can be extended indefinitely
• Some consulates have streamlined the application process for employees of registered companies
• E-2 Spouses can work in the U.S.

E-2 Disadvantages

• Limited to citizens of treaty countries
• Varying, sometimes arbitrary standards set by individual consulates do not allow “Dual Intent” (applying for both non-immigrant visa and immigrant visa/green card at the same time), which makes it difficult to pursue Green Card
• “Non-marginal Investment” requirement hard to meet for startups
• Requires substantial funds

E-2 May Be The Best Option For You If

• You are a national of the Treaty country
• Available funds
• Ready to start operations
• Don’t qualify for L-1A/L-1B Intracompany Transfer
• Plan to bring in additional employees

Family Members of the E-2 Principal Applicant

• Spouse and children under the age of 21 of the principal applicant will be eligible for dependent E-2 visas to stay and study in the US. Spouse E-2 visa holders are authorized to work in the US.

E-2 Visa Application Process

• File a DS-160 form online with accompanying documents as specified by the consulate for the principal applicant for an H-1B visa
• File a DS-160 form online for spouse and children under the age of 21 of the principal applicant for H-4 visas
• Wait for the consulate to process the application and notify the principal applicant to schedule an interview date (usually about 8 weeks, but it varies by the consulate)
• Everyone 14 and older must attend the interview.

International Entrepreneur Parole

Advance Parole for International Entrepreneurs was created to allow foreign entrepreneurs regardless of their country of origin to stay in the United States for up to 30 months to develop their businesses. The Department of Homeland Security (DHS) has the authority to exercise discretion and allow certain noncitizens to temporarily enter or remain in the United States. 

Entrepreneurs must have at least a 10% interest in a qualifying US startup. To qualify, a US startup must have received in excess of $260,000 from qualifying US investors by the time an application is filed.

Furthermore, US investors are required to provide detailed information about their past investments in other companies to be considered “qualified investors.”

Although the USCIS started accepting applications for International Entrepreneur Parole last summer, no approvals have been granted yet. Therefore, this remains a very uncertain and untested option, to be used as a last resort.