There are two basic types of visas — immigrant and nonimmigrant.

An immigrant visa, commonly known as a “green card,” permits an individual to remain permanently in the United States. Green cards convey universal work eligibility and are not tied to a specific employer.

A nonimmigrant visa, by contrast, is a temporary visa that enables an individual to remain in the United States for a specific period of time and for a specific purpose. Some nonimmigrant visas confer work eligibility; all are employer-specific.

There are a variety of nonimmigrant visa categories. Two categories of particular importance to business organizations that seek skilled workers are the H-1B visa and TN status. While the requirements of these categories are similar, Canadian nationals often opt to enter as a TN, mainly because of the relative ease involved in obtaining such status. Among the many other nonimmigrant visa categories are the L-I, E-1 and E-2, B-1 and F-1. Each category is discussed below.

H-1B — Professional Worker

The H-1B nonimmigrant visa category is available to United States employers who wish to employ a foreign professional worker in the United States on a temporary basis. The H-1B used to be a relatively straightforward way for employers to obtain lawful employment status for such individuals. Recently, however, the process has become more complex, as Congress has taken extra measures to protect U.S. workers from losing job opportunities.

The H-1B visa allows a qualified foreign professional worker, pursuant to an offer of employment, to enter the United States for up to three years, with a potential extension for an additional three years. The foreign national must have a bachelor’s degree or its equivalent, and the job must require a bachelor’s degree. In addition, under the H-1B process, an employer must file an attestation with the U.S. Department of Labor (DOL) pledging to pay the H-1B worker at least the prevailing wage rate for the industry. The employer must also give notice of the job opening to similarly employed United States workers, certify that no labor unrest or strike exists in connection with the position, and promise to pay the foreign national’s return transportation home should he or she be dismissed while the H-1B is in effect.

The DOL has recently begun to play an increasingly active role in H-1B petitions. Among other things, the DOL has implemented random investigations and assessed penalties and sanctions against H-1B employers who violate the regulations. In addition, employers who transfer H-1B workers to multiple worksites must report to the DOL and satisfy the wage and notice requirements for each worksite.

Of particular significance to the H-1B nonimmigrant visa category is the recent passage of the American Competitiveness in the Twenty-First Century Act (AC21). AC21 is particularly helpful for employees who want to change companies or who have been terminated in connection with a reduction in force at their present employment. Under AC21, an H-1B employee may accept new H-1B employment as soon as the new prospective employer files a petition. This is significant, because, before AC21 was enacted, an employee could not begin new employment until after a new H-1B petition had been approved, which could sometimes take months. AC21 applies to all pending and future H-1B petitions. No regulations interpreting AC21 have been adopted yet.

TN—Trade NAFTA

Under the North American Free Trade Agreement (NAFTA), qualified Canadian and Mexican nationals may enter in Trade NAFTA (TN) status to work in the United States.

For Canadian nationals, the TN is usually preferable to an H1-B because the INS need not process the potential employee’s petition. Rather, a Canadian may simply apply for entry at a border point of entry. To do so, he or she must show proof of Canadian citizenship, a job offer from a U.S. employer for a position on the TN list of qualifying positions (mostly technical positions), and a Canadian domicile. Although a TN visa is easier to obtain than is an H1-B, the TN visa is valid for only 12 months and must be renewed indefinitely each year by reapplying at a border point of entry. The H1-B, by contrast, is valid for three years. Further, because there is no TN application form and no clear or uniform standard followed by border inspectors, TN is a very discretionary category. As such, success in gaining TN status can be uncertain.

For Mexican nationals, obtaining TN status virtually mirrors the H1-B process, and is a more cumbersome procedure than for Canadian nationals. The prospective employer must file a labor condition application (LCA) with the DOL. When the LCA is approved, the employer must file a nonimmigrant petition with the INS. After the petition is approved, the Mexican national must apply for a nonimmigrant visa at the United States embassy or consulate in Mexico.

L-1—Intracompany Transferee

The L-1 nonimmigrant visa category is available to certain executives, managers, and specialized knowledge employees who work for foreign multinational corporations that have corporate affiliates in the United States. These employees must have worked in a similar position abroad for at least one of the three years immediately preceding their entry into the United States.

One advantage to the L-1 is that it does not involve the DOL. Another advantage, especially for large foreign companies that regularly transfer qualified L-1 employees to a U.S. affiliate, is the ability to use what is called a blanket L-1 visa petition. This enables a company to file just once with the INS, attaching a schedule of all its U.S. affiliates. After the company receives blanket approval, a qualified employee may obtain an L-1 visa simply by appearing at an embassy and presenting evidence of a job offer and a copy of the L-1 blanket approval.

E-1 and E-2—Treaty Traders and Investors

The E nonimmigrant visa category allows a trader or investor to temporarily enter and work in the United States. An individual entering the U.S. on an E visa (as opposed to an H1-B, TN, or L-1) need not be associated in any way with a U.S. employer. Rather, the trader or investor is associated with a foreign company and enters the United States to trade with U.S. companies or invest in the U.S. economy.

The E-1 visa category applies to a so-called “treaty trader,” who enters the United States primarily to carry on trade between the United States and a foreign country that has signed a treaty of commerce and navigation (or its equivalent) with the United States. The treaty trader must carry a passport from the country represented. The initial period of admission is one year, but indefinite extensions of stay are possible.

B-1—Business Visitor

The popular B-1 nonimmigrant visa category allows a foreign business visitor to temporarily visit the United States to conduct business on his or her employer’s behalf. A B-1 visa is typically issued so that an employee of a foreign company can come to the United States to, for example, sell products, conduct business meetings, or attend conferences.

To obtain a B-1 visa, an applicant must apply to a United States consulate and, in so doing, demonstrate an ability to support himself or herself in the U.S., document the purpose of the trip, and prove an intent to return to his or her foreign residence. Increasingly, the U.S. State Department is leery of foreign visitors using the B-1 category to circumvent other visa categories.

B-1 visas are usually “multiple entry” visas for up to 10 years. This means that a person may repeatedly enter the United States in B-1 status during the permitted time without having to obtain a new visa. The duration of stay in B-1 status may be anywhere from three weeks to six months upon initial entry. Once a person is in the United States, a B-1 business visa can be extended through the INS for up to 18 months on one trip.

F-1—Foreign Student

The F-1 nonimmigrant visa category applies to foreign students who are pursuing a degree or non-degree academic program in the United States. F-1 visas are issued for indefinite periods of time; the duration of each stay is recorded on a student status document. A foreign student must have a foreign residence and proof of ability to meet tuition and expenses in the United States.

The F-1 regulations provide for several categories of employment authorization. The first type is “campus employment.” This employment is incident to F-1 status and requires no prior INS approval. As long as the student maintains status, he or she can work up to 20 hours per week while school is in session and on a full-time basis during school breaks. Campus employment can be for the school itself or for an outside employer that provides on-campus services.

The regulations permit F-1 off-campus employment, but only in situations where the student is suffering “economic hardship” due to unforeseen circumstances beyond his or her control. The student must receive approval from the INS before beginning such employment.

Employees who enter the United States on a temporary nonimmigrant visa often end up remaining in the United States on a long-term basis. This can occur, for example, when an employer determines that an employee’s continued employment is crucial to the employer’s financial success. In such a case, the employer will sponsor the permanent residence process through which the employee eventually obtains a green card. (Employment-based green cards are only one type of green card.)