On June 22nd, 2020, President Trump extended his original travel ban and suspended entry for H-1B, H-2B, J-1 and L-1 temporary workers. The ban is in effect now through December 31st, 2020, and can be continued beyond this time.
The following are a few visas options for temporary workers that are NOT subject to the ban:
- E Visas (E-1, E,2, and E-3);
- O Visas (O-1A and O-1B);
- TN NAFTA Professionals; and
- R-1 Nonimmigrant Religious Workers
E Visas (E-1, E-2, And E-3) For Temporary Workers
The E visa category includes treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which the treaty trader or investor is a citizen or national. This category also includes Australian specialty occupation workers, which mirrors almost precisely the H1B category.
Who Is Eligible?
Before entering the United States, treaty traders or investors and Australian specialty occupation workers must apply and receive an E-1, E-2, E-3 visa from a U.S. consulate or embassy overseas. However, a U.S. company may also request a change of status to E-1, E-2, or E-3 for a nonimmigrant that is already in the United States. USCIS processes change of status and extensions of stay requests for nonimmigrants whose companies have filed such petitions.
- Treaty traders (E-1) carry on substantial trade in goods, including but not limited to services and technology, principally between the United States and the foreign country of which they are citizens or nationals.
- Treaty investors (E-2) direct the operations of an enterprise in which they have invested, or are actively investing, a substantial amount of money.
- Australian Citizen specialty occupation workers (E-3) perform services in a specialty occupation.
See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.
General Eligibility for E-1 Classification:
To qualify for E-1 classification, the general requirements for a treaty trader are:
- You are a national of a country with which the United States maintains a treaty of commerce and navigation;
- You carry on substantial trade; and
- You carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.
Note: Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time.
General Eligibility for E-2 Classification:
To qualify for E-2 classification, the general requirements for a treaty investor are:
- You are a national of a country with which the United States maintains a treaty of commerce and navigation;
- You have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
- You are seeking to enter the United States solely to develop and direct the investment enterprise
General Eligibility for E-3 Classification:
To qualify for E-3 classification, the general requirements for a specialty occupation professional from Australia are:
- You are a national of Australia;
- You have a legitimate offer of employment in the United States;
- You possess the necessary academic or other qualifying credentials; and
- You will fill a position that qualifies as a specialty occupation.
E-1 or E-2 Classification as an Employee of a Treaty Trader or Treaty Investor:
To qualify for E-1 or E-2 classification as an employee of a treaty trader or treaty investor, the general requirements are:
- You are the same nationality as the principal alien employer (who must have the nationality of the treaty country);
- You meet the definition of “employee” under relevant law; and
- You are either engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
O Visas (O-1A and O-1B) For Temporary Workers
To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means 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.
Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement in motion picture and television productions, which means a very high level of accomplishment in the motion picture or television industry as evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
Evidentiary Criteria for O-1A
-
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;
- Published material in professional or major trade publications or major media about the beneficiary related to the beneficiary’s work in the field for which classification is sought;
- Original scientific, scholarly, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
- A high salary or other remuneration for services or that the beneficiary will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; and
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.
Evidentiary Criteria for O-1B
-
- Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
- Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
- Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
- Demonstrated a record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
- Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
- Commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidenceEvidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:
If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this comparable evidence exception does not apply to the motion picture or television industry).
TN NAFTA Professionals
Note: Effective July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) will replace the North American Free Trade Agreement (NAFTA).
NAFTA created special economic and trade relationships for the United States, Canada, and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.
The types of professionals who are eligible to seek admission as TN nonimmigrants include, but are not limited to, accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status if:
- You are a citizen of Canada or Mexico;
- Your profession qualifies under the regulations;
- The position in the United States requires a NAFTA professional;
- You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment); and
- You have the qualifications to engage in the profession in question.
Canadian citizens do not need a visa in order to seek admission to the United States as a TN nonimmigrant. Mexican citizens will require a TN visa to seek admission to the United States as a TN nonimmigrant. NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying TN profession. The criteria for TN admission under the new USMCA is the same as NAFTA.
R-1 Nonimmigrant Religious Workers
- A non-profit religious organization in the United States;
- A religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or
- A non-profit religious organization that is affiliated with a religious denomination in the United States.
This visa program is intended for religious workers whose lives are dedicated to religious practices and functions, as distinguished from secular members of the religion.
To qualify, the alien must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before the filing of the petition.
Religious occupations are defined as occupations whose duties must:
- Primarily relate to a traditional religious function;
- Be recognized as a religious occupation within the denomination; and
- Be primarily related to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.
Religious occupations do not include primarily administrative or support positions such as janitors, maintenance workers, clerical employees, or fund-raisers or similar positions solely involved in soliciting donations. Limited administrative duties that are only incidental to religious functions are permissible.
Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incidental to R-1 status.
Ministers are defined as individuals who are duly authorized by the religious denomination to which they belong, and who are fully trained according to the denomination’s standards to conduct religious worship and other duties usually performed by the clergy. The regulations do not define a uniform type of training for religious denominations. When signing the petition, the petitioner must attest that the beneficiary is qualified to perform the proposed duties of the religious occupation to be performed in the United States.
The definition of denominational membership is premised on a shared faith and worship practices, and not on formal affiliation. Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the U.S. religious organization where the beneficiary will work. (See 8 CFR 214.2(r)(3) emphasis added).
The term “religious denomination” applies to a religious group or community of believers governed or administered under a common type of ecclesiastical government. A religious group or community of believers may demonstrate that they are a religious denomination by showing one or more of the following:
- A recognized common creed or statement of faith shared among the denomination’s members;
- A common form of worship;
- A common formal code of doctrine and discipline;
- Common religious services and ceremonies;
- Common established places of religious worship or religious congregations; or
- Comparable evidence of a bona fide religious denomination.
For more information on these various types of temporary worker visas, please visit the relevant section of our website, or call our office at 800-223-2814 to speak with an immigration lawyer about your options.
