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What Are Some Visa Options for Foreign Nationals?
The following article is not a criminal law article per se, but we find that if one practices criminal law long enough, it is helpful to have a working knowledge of what certain visas are for and their limitations in speaking with any foreign national charged with a crime. It is also helpful in negotiating with prosecutors and discussing the case facts with a judge.
The following list of various visas potentially available for foreign nationals is presented to help the criminal defense practitioner as much as it also constitutes options for any foreign national with certain qualifications in need of legal status in the United States.
- B-1 Visitor visa. A B-1 is issued by the U.S. Embassy or U.S. Consulate abroad and be used when an ETSA (see below) is not an option. A B-1 is usually good for up to ten years. One can stay for a few weeks or meetings, trade shows, etc. The B-1 holder cannot work or be paid in the U.S. They must also demonstrate ties to their home country at the consular interview.
- B-1 Nanny visa. In some cases, a domestic worker or nanny can enter the U.S. on a B-1 visitor visa. There are strict requirements for this visa including a U.S. contract, prior work with the employer, etc.
- ETSA visa waiver. ETSA stands for Electronic System for Travel Authorization (ETSA) is good for an employee visiting the U.S. for up to 90 days for meetings, trade shows, etc. However, only certain countries qualify for ETSA.
- E-2 Investor visa. The E-2 visa requires a treaty between the U.S. and the client’s country of nationality. It allows investors, managers, and highly skilled employees to work in the U.S. The investor must have made a substantial investment in the U.S. and have a business plan to hire U.S. workers over time. The visa applicant must be a citizen of the country with an E-2 Treaty.
- E-3 Australian visa. The E-3 allows Australian nationals to work for a U.S. employer if they have a college degree that is related to the job offer. The visa is valid for two years and there is no limit on renewals.
- F-1 Student visa. International students may attend college or graduate school in the U.S. and are eligible for a 1-year work permit called Optional Practical Training (OPT) after graduation. If they have a U.S. STEM (science, technology, engineering or mathematics) degree, they are eligible for a STEM OPT extension for an additional two years.
- H-1B Professional visa. This visa usually requires submitting the worker into an annual H-1B lottery in March each year. This past year (2022), there was a 25% chance of being accepted. The foreign national must have a college degree that is related to the job offer. University employers and non-profit entities that have an affiliation agreement with a university are exempt from the lottery.
- H-1B1 Singapore Chile visa. This allows nationals from Singapore and Chile to work for a U.S. employer. The foreign national must have a college degree that is related to the job offer. Admission is for one year at a time and there is no limit to renewals.
- J-1 Trainee visa. The J-1 Trainee visa is good for up to 18 months if the foreign national has a non-U.S. college degree. Some J-1’s are required to return to their home country for two years before changing status.
- L-1 Transfer from Overseas Parent of Affiliate visa. This is an intra-country transfer visa from the foreign parent or affiliate to the U.S. entity. The employer can send executives and managers out on an L-1A visa and highly specialized workers on an L-1B visa. The employee must have worked for the foreign affiliate for one year during the past three years.
- O-1 Extraordinary Ability visa. The applicant must be well known in their field and demonstrate other criteria evidencing their extraordinary talent. This is frequently used by top executives, scientists, athletes, and performing artists who can document their accomplishments.
- TN for Canadians and Mexicans visa. The foreign national’s occupation must be listed in the U.S. – Mexico Canada Agreement (USMCA), previously known as NAFTA. Common occupations from the list are engineers, scientists, medical professionals, computer system analysts and management consultants.
This article summarizes “What Your Foreign National Client Needs to Know About Visas,” an article by Greg Berk and Christine Doyle of Sheppard Mullin appearing on page 7 of the Daily Journal on September 28, 2023.
