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Business Immigration:

Who can Work/Study in the USA as a Nonimmigrant?

Any foreign national coming to the United States to work (for employment) requires pre-approval from U.S. Citizenship & Immigration Services and/or a U.S. Consular Post for an employment-based nonimmigrant classification. In most instances, the employer is required to file a petition with U.S. Citizenship & Immigration Services (USCIS) requesting the appropriate employment-based nonimmigrant classification. After USCIS approves the employer and foreign national for this classification, the foreign national can submit an application to a U.S. Consular Post for the appropriate nonimmigrant visa which is needed to apply to enter the United States. There are many different employment-based nonimmigrant classifications, and the particular classification often depends upon the qualifications of the foreign national as well as the proposed employment in the United States. With each employment-based nonimmigrant classification there is a limit of time the foreign national is permitted to live and work in the United States. Employment in the United States is employer-specific, job-specific, and location-specific, and USCIS does require notification of any change in the terms of employment beforehand. The spouse and child(ren) [under age 21] can accompany the foreign national to the United States; however, in most instances the spouse and child(ren) are not permitted to work in the United States, but may attend school.

Some common employment-based nonimmigrant classifications include:

Treaty Trader (E-1 Nonimmigrant): An E-1 nonimmigrant visa is for an individual Treaty Trader or the employee(s) of a Treaty Trader. The foreign national must be a citizen of the country for which there exists a Treaty with the United States, and a substantial volume of trade must flow between the U.S. entity/employer and the treaty country. A foreign national holding the Treaty Trader (E-1) classification/status can be coming to the United States to direct and manage the trade from the treaty country to the United States. The foreign national can also be an employee of a Treaty Trader entity. An employee of a Treaty Trader need not have worked previously for the company overseas; the individual need only be a national of the treaty country and can be a direct hire in the United States. The E-1 Treaty Trader nonimmigrant will be authorized to work in the United States in either an executive or a managerial capacity or in a position requiring some skills essential to the efficient operation of the U.S. enterprise or trade volume. The spouse and dependent children of the foreign national may accompany the E-1 nonimmigrant to the United States and they are also granted the E-1 nonimmigrant classification. The spouse of an E-1 Treaty Trader nonimmigrant may apply for employment authorization after arriving in the United States.

Treaty Investor (E-2 Nonimmigrant): An E-2 nonimmigrant visa is for an individual Treaty Investor or the employee(s) of a Treaty Investor. The foreign national must be a citizen of the country for which there exists a Treaty with the United States, and a substantial investment must have been and is continuing to be made from the treaty country to the entity/employer in the United States. A foreign national holding Treaty Investor (E-2) classification/status can be coming to the United States to direct and manage the investment from the treaty country to the United States. The foreign national can also be an employee of a Treaty Investor entity. An employee of a Treaty Investor need not have worked previously for the company overseas; the individual need only be a national of the treaty country and can be a direct hire in the United States. The E-2 Treaty Investor will be authorized to work in the United States in either an executive or a managerial capacity or in a position requiring some skills essential to the efficient operation of the U.S. enterprise or investment. The spouse and dependent children of the foreign national may accompany the E-2 nonimmigrant to the United States and they are also granted the E-2 nonimmigrant classification. The spouse of an E-2 Treaty Investor nonimmigrant may apply for employment authorization after arriving in the United States.

Specialty Occupation Worker (H-1B Nonimmigrant): An H-1B nonimmigrant visa is for a foreign national who will perform services in what USCIS considers to be a “specialty occupation.” A specialty occupation is one requiring the theoretical and practical application of a body of highly specialized knowledge and a U.S. bachelor’s or advanced degree (or its foreign equivalent or a combination of education and progressive professional-level work experience) in a specific field as a minimum requirement to perform the job/occupation. The H-1B employer agrees to abide by the terms and conditions of a Department of Labor, Labor Condition Application for H-1B Nonimmigrants (“LCA”). This LCA serves as an attestation by the U.S. employer that neither U.S. workers nor other foreign national employees will be adversely affected by the hiring of a foreign national in the H-1B Specialty Occupation Worker nonimmigrant classification. Additionally, the employer is required to maintain documentation supporting its compliance with the LCA requirements, and such documentation must also be available for review by employees if so requested. Further, the H-1B employer agrees to pay the costs involved to return the foreign national to his/her last place of residence outside the United States if the employer terminates the employment relationship before the time period of the H-1B petition expires. If the foreign national voluntarily terminates his or her employment prior to the expiration of the validity of the H-1B petition, the employer is not responsible for this cost. The H-1B nonimmigrant must be placed on the petitioning employer’s U.S. payroll and be entitled to participate in employee benefits packages (health insurance, pension plans, profit sharing, etc.) as other individuals similarly employed. The H-1B nonimmigrant can work full-time, part-time, or for more than one H-1B employer simultaneously, but each H-1B petition/H-1B employer must first be approved by USCIS. A limited number of H-1B petitions are approved each fiscal year (between October 1 and September 30). The spouse and dependent children of the foreign national may accompany the H-1B nonimmigrant to the United States and they are granted the H-4 nonimmigrant classification..

Trainee (H-3 Nonimmigrant): An H-3 nonimmigrant visa is for a foreign national coming temporarily to the United States to receive training that is not available in the foreign national’s home country. The foreign national may not be placed in a position of productive employment within the normal operations of the employer’s organization. “Productive employment” may be acceptable in limited situations if incidental to and necessary for the training program. The training program must be designed to benefit the foreign national's career outside the United States. The spouse and dependent children of the foreign national may accompany the H-3 nonimmigrant to the United States and they are granted the H-4 nonimmigrant classification.

Exchange Visitor (J-1 Nonimmigrant): An J-1 nonimmigrant visa is for a foreign national coming temporarily to the United States to participate in an exchange visitor program. The Exchange Visitor is limited to the specific activities of the exchange visitor program. Such programs can be for teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training. The Exchange Program Sponsor is responsible for (i) screening and selecting prospective foreign nationals for the exchange visitor program, (ii) determining the length of the exchange visitor program, (iii) defining the scope of the program, (iv) listing the Exchange Visitor in SEVIS, the Student Exchange Visitor Information System, (v) issuing the Form DS-2019 to the foreign national, (vi) coordinating changes in programs and extensions, and (vii) ending a foreign national's participation in the program if the foreign national violates the terms and conditions of program's participation. The J-1 nonimmigrant may be subject to a two-year home residence requirement requiring the J-1 nonimmigrant to spend an aggregate of two (2) years in his or her home country (using the education and training gained while in the United States) before being eligible to return to the United States in a different nonimmigrant classification (such as H-1B) or as an immigrant (Permanent Resident/Green Card holder). In limited situations, a waiver of this two-year home residence requirement can be granted. The U.S. Department of State is responsible for designating Exchange Visitor Program Sponsors, for administering the Exchange Visitor Program (J-1), and making recommendations for waivers of the two-year home residence requirement. The spouse and dependent children of the foreign national may accompany the J-1 nonimmigrant to the United States and they are granted the J-2 nonimmigrant classification. A J-2 nonimmigrant spouse may apply for employment authorization after arriving in the United States.

Intracompany Transferee (L-1 Nonimmigrant): An L-1 nonimmigrant visa is for a foreign national being transferred to the United States from his or her overseas employer (an expatriate assignment). The foreign national to be transferred must have worked as an executive of the company or as a manager or in a specialist position for one full year during the immediately proceeding three-year period. The foreign entity employing the individual must be related to the U.S. entity/employer, such as the corporate parent, subsidiary, branch or affiliate. The U.S. and its related foreign entities must continue to operate and do business internationally during the full period of the intracompany transfer. The foreign national must work as an executive, manager, or in a specialist position for the U.S. entity. A foreign national working in an executive or managerial position is given the L-1A nonimmigrant classification. A foreign national working in a specialist position is given the L-1B nonimmigrant classification. The spouse and dependent children of the foreign national may accompany the L-1 nonimmigrant to the United States and they are granted the L-2 nonimmigrant classification. The spouse of an L-1 Intracompany Transferee nonimmigrant may apply for employment authorization after arriving in the United States.

NAFTA Classification (TN Nonimmigrant): Citizens of Canada or Mexico may apply for TN Treaty NAFTA (North American Free Trade Agreement) Professional work authorization in one of the professional occupations listed in Appendix 1603.D.1 of the NAFTA. The foreign national must provide evidence of his or her qualifications for the professional occupation, typically by possessing a baccalaureate degree or license. A citizen of Canada may apply for the TN nonimmigrant classification at the Port-of-Entry when applying to enter the United States. A citizen of Mexico must apply for and be issued a TN nonimmigrant visa at a U.S. Consular Post before being eligible to apply for admission to the United States as a TN nonimmigrant. The spouse and dependent children of the foreign national may accompany the TN nonimmigrant to the United States and they are granted the TD nonimmigrant classification.

Student (F-1 Nonimmigrant): An F-1 nonimmigrant visa is for a foreign national coming to the United States to pursue a full course of study at an U.S. educational institution. The Student must be enrolled in a full course of study at the educational institution that has been approved by the Department of Homeland Security (or its designated agency) and the student must be listed in SEVIS, the Student Exchange Visitor Information System. The school will determine what a full course of study is. Should the Student fail at any time to take a full course of study, the foreign national is in violation of the Student status. The Student may be permitted to work on-campus, part-time during the school year. Employment off-campus must be authorized by the school's Designated School Official ("DSO") or Foreign Student Advisor. The spouse and dependent children of the foreign national may accompany the F-1 nonimmigrant to the United States and they are granted the F-2 nonimmigrant classification.

Alien of Extraordinary Ability or Extraordinary Achievement (O-1 Nonimmigrant): An O-1 nonimmigrant visa is for a foreign national who has achieved extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and will be coming to the United States to continue those extraordinary endeavors. Substantial documentation of the foreign national’s sustained national or international recognition, abilities and achievements is needed. The O-1 employer agrees to pay the costs involved to return the foreign national to his/her last place of residence outside the United States if the employer terminates the employment relationship before the time period of the O-1 petition expires. If the foreign national voluntarily terminates his or her employment prior to the expiration of the validity of the O-1 petition, the employer is not responsible for this cost. The spouse and dependent children of the foreign national may accompany the O-1 nonimmigrant to the United States and they are granted the O-3 nonimmigrant classification.

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A nonimmigrant is a foreign national (also referred to as an "alien") who is coming to the United States for a specific purpose for a designated length of time. A nonimmigrant typically must intend to return to his or her home country upon completion of the stay in the United States. There are several classifications defining the purpose for which the foreign national is coming to the United States. Each nonimmigrant is assigned an alphanumeric classification/code. Currently, the letters "A" through "V" are used. The classification corresponds to the specific purpose the foreign national is coming to the United States.

May my spouse apply for employment authorization?

The following nonimmigrant classifications permit a dependent spouse to apply for employment authorization:

    • E-1 Treaty Trader
    • E-2 Treaty Investor
    • J-1 Exchange Visitor
    • L-1 Intracompany Transferee