US Work Visas:

Which One Should I Apply For?

Introduction

There are many types of work permits, each with specific requirements as to type of position, type of employer, duration, etc. One of the most important steps in the visa application process is to determine what category/ies may be the most suitable, considering the nature of the position, your background and goals, and other factors. Given below are some common positions and the appropriate visa categories for those positions.

  • Chefs and Hospitality Management positions
  • Chefs and Cooks
  • Hospitality Management
  • Nurses
  • Medical Doctors
  • Computer Positions
  • Marketing Positions
  • Translators
  • Designers
  • Fashion Models
  • Athletes and Entertainers
  • Accountant and Taxation consultants
  • Agricultural workers
  • Architect
  • Au pair or Nanny
  • Chemists
  • Economists
  • Hockey Instructor / Football Coach / Ski Instructor
  • Lawyers
  • Teacher / Professor / Research Assistant / Scientist
  • Religious Workers
OR
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Chefs And Hospitality Management Positions

The USCIS is inconsistent in classifying chef and hospitality management positions and workers as specialist or professional. Some visas are approved for foreign nationals to work in large restaurants and hotels that would be denied for their counterparts in smaller establishments.

For example, an H-1B visa may be approved for a chef to work at a five-star restaurant but not for an upcoming restaurant with a two star rating. As a result, these professionals often must use B-1, E-2, H-2B, H-3, J-1, L-1, O-1, Q-1, or TN visas or permanent resident status to work in the U.S.

Chefs and hospitality management professionals can, depending on the specific facts, use almost all of the nonimmigrant work visas. This distinguishes these occupations from others that are more limited to specific visa categories.


Chefs And Cooks

It is important for petitioners to accurately describe cook and chef positions, as the Department of Labor (DOL) publications distinguish between the two positions. In general, chefs have more managerial responsibilities than do cooks, who primarily prepare food.

E-2 visa: Chefs holding managerial or specialist positions may be issued E-2 visas to work for a qualified E-2 enterprise. For example, a large Japanese-owned restaurant chain such as Benihana may employ a number of Japanese chefs using E-2 visas. A small E-2 qualified restaurant also may justify employment of a chef in a managerial or specialist position. Chefs who start their own restaurants are often eligible for E-2 status as principal investors.

H-1B visa: In the past, the USCIS has held that chefs were not professionals or specialists. However, practice shows chefs employed by large hotels and prestigious restaurants may be granted H-1B visas. Usually, the foreign national must be primarily engaged in management duties as opposed to working in front of a stove. Expert testimony from a culinary professor or hospitality management academician is often needed to prove that the position is so complex that it requires a person degreed in culinary arts.

H-2B visa: Chefs may qualify for temporary positions during a busy season—for example, the employer is a ski resort and the position is for the winter season. Once the employer proves the position is temporary or seasonal the employer will be barred from sponsoring the foreign national for a permanent labor certification for that position.

J-1 visa: A young cook seeking exposure to how a restaurant operates in the U.S. may obtain a J-1 industrial trainee visa for up to 18 months. Many organizations have J-1 programs specifically accredited for training in the culinary arts.

L-1 visa: Chefs with management responsibilities employed by multinational companies should be eligible for L-1A visas. It is also possible that a specialized knowledge chef or cook could obtain an L-1B visa. For example, an international airline catering company may have unique processes, technologies, and procedures for preparing their food and delivering it to airplanes such that an employee with specialized knowledge is necessary.

O-1 visa: O-1 visas are available for chefs of extraordinary ability. Extensive evidence is required to show that the chef is a culinary artist of ‘distinction’ who is ‘renowned, leading, or well-known’ in the field.

TN visa: Chefs are not included in the NAFTA Schedule of Professionals. Some chefs, however, may work from time to time as management consultants to advise on the design, building, opening, and advertising of new restaurants, as well as the menu planning. In this situation, a management consultant TN visa may be granted to a Canadian or Mexican chef.


Hospitality Management

E-2 visa: Assuming that the company qualifies as an E-2 enterprise, managers and persons with specialized knowledge may be granted E-2 visas. These visas usually will be granted for experienced personnel who will manage the organization. Specialized knowledge employees may be familiar with the company’s accounting systems, security measures, human resources methods and policies, or computer systems.

H-1B visa: The USCIS will sometimes grant H-1B visa petitions for hotel managers, assistant managers, night managers, food and beverage managers, stewards, and other related positions. Extensive evidence is needed to prove why the job needs a degreed worker.

L-1 visa: Multinational hotel management companies and hotel chains may transfer their managerial employees to the U.S. with L-1A visas. It must be demonstrated that the individual will have managerial responsibility by overseeing tiers of employees or professionals, or that the individual will be a functional manager, such as in running the hotel at night with a skeleton staff. Similarly, L-1B specialized knowledge petitions may be approved for people who are familiar with a hotel’s computer systems, accounting methods, and so forth.

O-1 visa: With articles about the individual and the hotels managed, awards won, and so forth, a distinguished hotel manager may qualify for an O-1 extraordinary ability visa. Unlike chefs, who as artists must satisfy the ‘prominent’ standard, a hotel or restaurant manager must show he or she is ‘one of the small per cent who have risen to the top of the field of endeavor.’

TN visa: Hotel managers are listed in the NAFTA Schedule of Professionals. To qualify for a hotel management TN visa, the position must be a managerial one. The regulations regarding the foreign worker require that he or she have a ‘baccalaureate or licenciatura degree in hotel/restaurant management; or post-secondary diploma or post-secondary certificate in hotel/restaurant management and three years’ experience in hotel/restaurant management.’

J-1 visa: Many J-1 programs sponsor hotel management training for young foreign nationals to gain work experience in American management systems.


Nurses

The Immigration and Nationality Act, DOL regulations, and USCIS policies on visas for nurses are curious; unlike for other occupations, there are specific favorable provisions for permanent resident status but severe restrictions on temporary visas except for Canadians and Mexicans. Here is a summary of the visas available to nurses.

The USCIS has abandoned its holding that nursing is a professional occupation and that a person with a three-year degree may qualify. ImmAct 90 provided the H-1A temporary visa for nurses, but this statute has been repealed.

Nurses, as foreign health care workers, are inadmissible unless they are certified by the Commission on Graduates of Foreign Nursing Schools (CGFNS) and pass the English Testing Service (ETS) exam or the Michigan English Language Assessment Battery (MELAB) test. Certain nurses are exempt from this requirement.

Green Card: The DOL regulations for Schedule A provide that nurses are exempt from the labor certification requirement. Thus, a U.S. employer (usually a hospital, nurse registry, or convalescent facility) may file a Green Card petition under the skilled worker category, followed by an immigrant visa application or adjustment of status.

H-1B visa: Nurses may qualify for H-1B visas only if the position they will fill requires at least a bachelor’s degree. Only high-level nursing positions such as administrators, nurse practitioners, midwives, and other positions requiring advanced degrees or equivalent work experience will qualify for H-1B visas, as will nurse positions in the state of Montana, which require a bachelor’s degree in nursing.

TN visa: The NAFTA Schedule of Professionals includes nurse as a TN qualifying profession for Canadian and Mexican citizens. Applicants must have a state or provincial license or licenciatura degree.

H-1C visa: This special program permits the admission of 500 registered nurses per year to work exclusively in temporary positions in hospitals located in health professional shortage areas. Very few employers were able to qualify for this program and it ended in 2003.


Medical Doctors

H-1B visa: Before ImmAct 90, graduates of foreign medical schools were excluded from H-1B classification unless they were to perform services ‘pursuant to an invitation from a public or nonprofit private educational or research institution or agency in the U.S. to teach or conduct research, or both, at or for such institution or agency.’ Patient care had to be incidental to the physician’s teaching or research.

Later, in 1991, the prohibitions against a foreign medical graduate engaging in patient care were removed, but like all other H-1B nonimmigrants, foreign physicians are subject to the LCA and other requirements. Foreign medical graduates must also pass all three parts of the USMLE and be licensed in the state where they will practice to qualify for the H-1B.

A physician entering the U.S. to perform direct patient care is exempt from the examinations requirement if the physician can demonstrate he or she is a physician of national or international renown. Doctors of national or international renown do not fall under the definition of foreign medical graduates and are thus not subject to the examination requirement.

J-1 visa: Nonimmigrant physicians who were coming to the U.S. to obtain medical education and training and thereby perform patient care are required to obtain a J exchange visitor visa through the Educational Council for Foreign Medical Graduates (ECFMG). Their website, www.ecfmg.org, is very informative and answers many questions regarding qualification, certification, and the application process.

TN visa: Canadian and Mexican medical and allied personnel including dentists, dietitians, laboratory technologists, nutritionist, pharmacist, physical therapist, psychologist, registered nurses and veterinarians may work in the U.S. on a TN visa.


Computer Positions

H-1B visa: The USCIS recognizes that software engineers, system analysts, systems engineers, database administrators, and other computer/information technology (IT) positions are professional/specialty occupations.

One computer occupation remains questionably a professional/specialty occupation. According to the USCIS and DOS, a computer programmer may be a professional/specialty occupation depending on the application of the computer program. Those working with scientific and engineering programs are considered professionals/specialists, whereas those working on programs with business applications may not be. The distinction between business and scientific programmers is artificial and not always followed by the USCIS service centers. The better rule is that technicians and programmers using off-the-shelf prepackaged programs will not be considered engaged in a specialty occupation. Those designing systems, or whose work involves theoretical knowledge or overseeing other programmers, should be deemed professionals/specialists regardless of the program’s application.

L-1 visa: Multinational software companies may transfer their foreign national executives or managers on L-1A visa to manage a subsidiary or a major function or division of a subsidiary. IT professionals with specialized knowledge such as, company products, research methods and marketing techniques may be transferred under the L-1B category.

E visa: IT professionals from treaty countries may be granted both E-1 and E-2 visa as managers and persons with specialized knowledge.

TN visa: Canadian and Mexican software professional have a couple of TN options. The most common of them is a Computer Systems Analyst – which is very broadly defined and covers most IT areas. A second option is that of an Engineer – USCIS now recognizes computer and software engineers as engineers for TN purposes. However, they do look for a degree in engineering or related field (mathematics, computer science) for engineers. A third option is that of a Management Consultant. As a management consultant you have to have a BS degree or 5 years experience in the field. You have to be coming to work for a consulting company or to fill a ‘supernumary’ position with a company in the US.


Fashion Models

H-1B visa: Fashion models are retained under the H-1B category if they can demonstrate they are of distinguished merit and ability. The applicable standard requires the model to show that he or she is prominent in his/her field and that the position requires prominence. Prominence means a ‘high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered… The person must be renowned, leading or well known.’ This category does not include support occupations such as hair stylists and make-up artists who may apply through O-1 or H-2B categories.


Athletes And Entertainers

O and P visas: Athletes and entertainers have been removed from the H-1B category and placed in new categories as O and P nonimmigrants. Athletes entering in the P-1 category must do so in conjunction with a specific athletic competition and thus cannot enter primarily to teach or coach, in contrast to P-3 culturally unique performers who explicitly may do so. In general, all principal P aliens must be entering for the purpose of engaging in the skill, art, or activity for which they achieved recognition.


Accountant And Taxation Consultants

H-1B visa: An organization could file an H-1B for the job position of Accountant if the job duties don’t involve simple record keeping, accounting and some internal auditing.

TN visa: Canadian and Mexican citizens seeking to enter the U.S. as Accountants may do so with a TN visa if the job duties don’t involve simple book keeping.


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Agricultural Workers

H-2A visa: The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

H-1B visa: Certain management and technical/professional positions can qualify for H-1B status.


Architect

H-1B visa: The USCIS has recognized that unlicensed architects who work under the ‘aegis’ of a licensed senior or supervisor architect may be classified as H-1B professionals. It is likely that a petition may be approved if the foreign national under supervision can fully perform the duties of the occupation. Thus, a license requirement in itself is not determinative of whether the position is a specialty occupation. Because it is the requirement of the degree, and not the license, that identifies a specialty occupation, not all licensed positions are ‘specialty occupations.’

TN visa: Canadian and Mexican architects may work in the U.S. on a TN visa. In certain circumstances, although a profession may generally require licensing, there may be duties within the occupation that do not require licensing. For example, an architect must be licensed to sign architectural plans, etc. but not all professional-level duties of an architect require licensure (an architect can work on development of plans but be precluded from signing the plans).


Au Pair Or Nanny

J-1 visa: The Au Pair Program permits 22,720 youths from abroad to be placed with U.S. families seeking child care under the J-1 category. DOS has now developed a second au pair program called EduCare that provides for less child care work and a greater academic component. Under EduCare an Au Pair will provide child care services only for 30 hours (instead of 45 hours) per week and will take no less than 12 (instead of 6) semester hours of academic credit or its equivalent per year.

B-1 visa: Personal domestic employees, including chefs and cooks, employed by Americans temporarily returning to the U.S. from a foreign assignment may be employed by the family in the U.S. with a B-1 visa. Similarly, domestic employees, chefs and cooks may be issued B-1 visas for employment by foreign nationals with nonimmigrant employment visas including H-1B and L-1.There are many types of work permits, each with specific requirements as to type of position, type of employer, duration, etc. One of the most important steps in the visa application process is to determine what category/ies may be the most suitable, considering the nature of the position, your background and goals, and other factors. Given below are some common positions and the appropriate visa categories for those positions.


Chemists

(this category is not limited just to organic chemistry – it covers all branches of chemistry)

H-1B visa: The USCIS has recognized that organic and other physical chemists may be classified as H-1B professionals.

L-1 visa: Multinational companies may transfer their foreign national executives or managers on L-1A visa to manage a subsidiary or a major function or division of a subsidiary. Professionals with specialized knowledge such as, company products, research methods and marketing techniques may be transferred under the L-1B specialized knowledge category.

O-1 visa: An extraordinary Chemist who is developing new drug technology and has received major prizes or awards or other recognition for outstanding achievements and with a job offer from a U.S. company may work in the U.S. on O-1 visa.

TN visa: Canadian and Mexican chemists with Baccalaureate or Licenciatura degree may work in the U.S. on a TN visa.


Economists

H-1B visa: Since ‘profession’ as defined in the Immigration and Nationality Act, contemplates knowledge or learning — not merely skill — of an advanced type in a given field gained by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor, and since a financial economist is a member of the professions within the meaning of that section, a foreign national economist may be eligible for an H-1B visa.

TN visa: Canadian and Mexican economists with Baccalaureate or Licenciatura Degree may work in the U.S. on a TN visa.

O-1 visa: Foreign national economists who have received major prizes or awards or other recognition for outstanding achievements and are considered people with extraordinary ability and have achieved a level of expertise indicating that they are among the few individuals who have risen to the very top of the field of endeavor may work in the U.S. with an O-1 visa.


Hockey Instructor / Football Coach / Ski Instructor

H-2B visa: U.S. employers may hire foreign workers to come to the U.S. and perform temporary one-time, seasonal, peak load or intermittent work. Ski, Football and Hockey Instructor positions fall under the recurring seasonal job category and qualify for the H-2B visa.

O-1 visa: The USCIS has approved O-1 petitions for professionals like NBA players and Speed Skating Coaches as they are considered people with extraordinary ability and have achieved a level of expertise indicating that they are among the few individuals who have risen to the very top of the field of endeavor.


Lawyers

H-1B visa: The USCIS recognizes legal professions as specialty occupations and U.S. employers may file H-1B petitions for foreign nationals to work in the U.S.

TN visa: Canadian and Mexican legal professionals (including Notaries in the province of Quebec) with L.L.B., J.D., L.L.L., B.C.L., or Licenciatura degree (five years); or membership in a state/provincial bar may work in the U.S. on a TN visa.


Teacher / Professor / Research Assistant / Scientist

H-1B visa: A foreign national may enter the U.S. on an H-1B visa to work as a university professor, school teacher, research assistant or scientist.

J visa: A foreign national scholar, trainee, teacher, professor, research assistant, specialist or scientist coming temporarily to the U.S. as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training may do so with a J-1 visa.

O visa: Foreign national professors, researchers or scientists recognized internationally as outstanding in the academic field may work in the U.S. with an O-1 visa.

TN visa: Canadian and Mexican citizens may work in the U.S. as college, seminary and university teachers, research assistants in a post-secondary educational institution and scientists with a TN visa.


Religious Workers

R-1 visa: The R-1 visa category allows foreign nationals to enter the U.S. in order to continue or develop a religious vocation. It is also very useful in assisting religious organizations in the U.S. that desire the infusion of new energy into their faith through the importation of members from overseas branches, affiliates, or similar entities. The R category allows foreign nationals engaged in a broad range of religious occupations to enter the U.S. to perform services related to their religious calling or vocation and receive direct compensation for their work. Examples include minister, nuns, monks, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. The regulations exclude from this group janitors, maintenance workers, clerks, fundraisers, persons involved solely in the solicitation of donations, or similar occupations.

H-1B visa: Certain religious professionals may enter the US in H-1B status to perform their religious duties.


Conclusion

Choosing the right visa category from multiple options may often require the services of an expert. VisaPro attorneys have extensive experience in handling work visa cases under varying circumstances and situations. Please contact VisaPro to help you understand which visa category is most suitable for you and your requirement.


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