General Requirements for Temporary (Non-Immigrant) Workers
A non-immigrant is a foreign national seeking to enter the United States (U.S.) temporarily for a specific purpose. Non-immigrants enter the U.S. for a temporary period of time, and once in the U.S. are restricted to the activity or reason for which their visa was issued. They may have more than one type of non-immigrant visa but are admitted in only one status.
General requirements for foreign nationals seeking temporary admission include, but are not limited to, the following:
- The purpose of the visit must be temporary;
- The foreign national must agree to depart at the end of his/her authorized stay or extension;
- The foreign national must be in possession of a valid passport;
- A foreign residence must be maintained by the foreign national, in most instances;
- The foreign national may be required to show proof of financial support;
- The foreign national must be admissible or have obtained a waiver for any ground of inadmissibility;
- The foreign national must abide by the terms and conditions of admission.
Employers wishing to hire foreign workers to temporarily perform services or labor or to receive training may file a special sponsorship petition. This petition is mainly used for non-immigrant employment categories; thus, in most cases, workers who enter the United States under this sort of petition must depart the U.S. when their maximum period of stay has been reached.
There are many categories of temporary workers that may be sponsored by a U.S. employer. These non-immigrant categories are symbolized by letters, which generally correspond to the visas issued by the State Department of the United States
The Sponsorship Process
Sponsorship of a temporary employee involves the filing of a petition and the appropriate supplementary forms with the U.S. government accompanied by the required payment, and initial evidence or documentation. In some cases, an employer must also obtain an authorization from the United States Department of Labor prior to filing the petition.
Once the petition is approved, the employer or its agent is sent a Notice of Approval. It is important to note that approval of a sponsorship petition does not guarantee that the visa will be issued to the worker. Workers must also establish that they are admissible to the U.S. under all relevant provisions of the immigration law.
Applying for the Visa
If the prospective worker is offshore, he or she must apply for a visa either at a U.S. Consulate or (in the case of certain Canadians), at a port of entry. After the U.S. government has approved the initial sponsorship petition and sent notice to the consulate in the worker’s country, the worker must file a visa application with the appropriate consulate.
If the prospective worker is already in the U.S. and is changing from one non-immigrant status to another, an actual visa is not required as long as the worker remains in the United States. However, a visa may be required if the worker subsequently leaves the U.S. and wishes to re-enter.
Entry into the U.S.
Prospective workers should be aware that just because a consulate has issued them a visa, this does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant of admission who is inadmissible under the immigration laws or regulations, regardless of whether the applicant for admission holds a visa. Additionally, it is the CBP, not the consular officer, that determines the period for which the bearer of a temporary work visa is authorized to remain in the United States.
At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.
When to file
Sponsorship petitions should be filed as soon as possible, but no more than 6 months before the proposed employment will begin. However, please note, if the sponsorship petition is not submitted at least 45 days before the employment will begin, petition processing and subsequent visa issuance may not be completed before the prospective worker’s services are required or previous employment authorization ends.
Maximum Stay Information for Certain Temporary Employment Visas
|Visa Class||Initial Stay||Extensions|
|Treaty Trader (E-1)||Three (3) years||Up to 2 years per extension. No maximum number of extensions, with some exceptions.|
|Treaty Investor (E-2)||Three (3) years||Up to 2 years per extension. No maximum number of extensions, with some exceptions.|
|Specialty Occupation (H-1B)||Up to 3 years||Increment of up to 3 years. Total stay limited to 6 years.|
|Temporary (H-2)||Up to 1 year||Increments of up to 1 year. Total stay limited to 3 years.|
|Trainees (H-3)||Special Education Training-up to 18 months. Other Trainee-up to 2 years||Special Education Trainee-total stay limited to 18 months. Other Trainee-total stay limited to 2 years.|
|Business Expansion; Intra-company Transfers (L-1)||Coming to existing office-up to 3 years. Coming to new office-up to 1 year.||Increments of up to 2 years. Total stay limited to 7 years (executives, managers); or 5 years (specialized knowledge workers).|
|Extraordinary Ability Aliens (O-1)||Coming to existing office-up to 3 years. Coming to new office-up to 1 year.||Increments of up to 2 years. Total stay limited to 7 years (executives, managers); or 5 years (specialized knowledge workers).|
|Athletes; Entertainment Groups; Support (P-1)||Individual athlete-up to 5 years. Athletic groups and Entertainment groups-up to 1 year.||Individual athlete-Increments of up to 5 years. Total stay limited to 10 years; Athletic groups and entertainment groups-Increments of 1 year|
|Religious Workers (R-1; R-2)||Up to 3 years||Increments of up to 2 years. Total stay limited to 5 years.|
|All others||Up to 1 year||Increments of up to 1 year|
Employers wishing to sponsor temporary workers from abroad in any of the above-specified categories must often present extensive documentation detailing the nature of their business activities, the available position, the wage to be paid, the prevailing wage for the position, the qualifications of the prospective worker, and the non-immigrant intent of the prospective worker.
Ortega-Medina & Associates has more than 10 years of experience representing employers and prospective workers before all the relevant agencies of the United States government, including the State Department, the DOL, the DHS, and the CBP. We can help you determine whether the company, temporary position, and the prospective worker will be able to successfully petition the U.S. government for a temporary workers visa, and which of the above-specified visas is the most appropriate. Please contact us to discuss your particular matter.