Nonimmigrant Visas 101 for Employers

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As employers look to enhance and strengthen their workforce, nonimmigrant visas can offer opportunities for hiring foreign national employees at all levels. When employers learn that applicants will need sponsorship for work authorization during the job application process, they will need to assess if and how they can utilize nonimmigrant visas, which allow foreign nationals to lawfully enter the United States to work temporarily. Each type of nonimmigrant visa has its own requirements and applications, including the following classifications. 

H-1B Visas 

H-1B visas are for foreign national employees who work in “specialty occupations”, meaning that their positions require: (1) the theoretical and practical application of a body of highly specialized knowledge, and (2) at least a U.S. Bachelor's in a specific specialty (or its equivalent). The foreign nationals must have a job offer in a specialty occupation and satisfy the minimum educational requirement. For H-1B visas, employers also have an obligation to pay the foreign national employees either the prevailing wage (based on Department of Labor data) or the actual wage (the salary offered), whichever is higher. If the foreign nationals have dependents, they can enter the United States on H-4 visas, which allows them to study. H-4 dependents typically are not entitled to work. 

For employees to obtain H-1B visas, they must first be selected in the “H-1B lottery” that takes place each March. Employers should identify any applicants or current employees (who are typically working on Optional Practical Training (“OPT”), STEM OPT, employment authorization through a dependent nonimmigrant visa, etc.) who may qualify for H-1B visas and evaluate whether their positions satisfy the H-1B visa requirements. These foreign nationals are then entered in the lottery in March and learn of the results in April. Employers can then file H-1B visa petitions for selected foreign nationals with USCIS in the following ninety days. 

Once foreign nationals are selected in the H-1B lottery, they can extend status or change employers through additional H-1B petitions filed with USCIS. Foreign nationals can receive H-1B visas valid for up to three years. Generally, foreign nationals are limited to six years maximum in H-1B status. There are some situations that allow for H-1B extensions beyond six years, which typically involve employees who are being sponsored for immigrant visas (or “green cards”) by their employers. Additionally, foreign nationals can extend their H-1B by “recapturing” any time spent abroad during their H-1B status. 

L-1 Visas 

L-1 visas allow multinational companies to transfer qualified executives, managers, or employees with specialized knowledge from their foreign employer to an office in the United States. For an employer to file an L-1 visa petition for an employee, it must have a corporate relationship with a foreign entity. The foreign national must have worked for that foreign entity for at least one year out of the prior three years in either a managerial or executive position (for an L-1A visa) or a specialized knowledge position (for an L-1B visa). Additionally, the foreign national must work in the United States in a managerial or executive position (for an L-1A visa) or a specialized knowledge position (for an L-1B visa). If the foreign national has dependents, they can enter the United States on L-2 visas, which allow them to work and study. 

Generally, foreign nationals can receive L-1 visas valid for up to three years initially. They can receive additional visas that are valid for two years. Generally, foreign nationals are limited to seven years maximum in L-1A status and five years maximum in L-1B status. Additionally, foreign nationals can “recapture” any time they spent abroad to extend their L-1 status. 

TN Visas 

TN visas were initially created under the North American Free Trade Agreement (“NAFTA”) and continue today with the United States-Mexico-Canada Agreement (“USMCA”). With TN visas, citizens of Canada (for TN-1 visas) and Mexico (for TN-2 visas) can work in the United States as professionals in professional level business activities for American or foreign employers. The USMCA delineates which professions qualify for TN visas and sets minimum requirements that employees must meet for each of those professions. Most TN professions require at least a baccalaureate (or Bachelor's) degree. For TN visas, employees must have prearranged full-time or part-time employment with their employers. If foreign nationals with TN visas have dependents, they can enter the United States on TD visas, which allow them to study but not to work. 

Canadian and Mexican citizens can receive TN visas that are valid for up to three years. There is no maximum period of stay for TN visas. However, these foreign nationals must maintain an intent to depart the United States when their status expires. 

While H-1B, L-1, and TN nonimmigrant visas are frequently utilized, there are many others, some of which may better suit employers and their foreign national employees. For additional information or help with nonimmigrant visas and your workforce, please reach out to Maynard Nexsen’s Immigration team.