The Visa Series Part 3: E3s, TNs and O1s

This is the third part in a 3-part series about work visas. In the past two pieces, we’ve covered the H1B and the L1 visas, which are two of the most common types of work visas. The last two pieces went into a lot of detail about how to apply for these visas and even what we’d recommend in terms of applying.

In this last piece we’ll give a shorter overview of multiple visas that might apply to your hire in particular. As we mentioned in a previous piece, there are 20 work visas available but most of them have highly specific conditions like, such as athletic competitions or cultural exchange programs. Today, we’ll discuss the E3, TN and O1 visas. For an overview of all available work visas, take a look at USCIS site and see if there are any others that may apply to your particular hire.

The E3 Visa

Let’s call this the Aussie visa. The E3 applies exclusively to Australian nationals and was established in 2005 as part of a larger trade agreement between the US and Australia.

The E3 is most like the H1B, but we’d say it’s an extra-nice H1B. It’s similar to the H1B in that it requires that the worker have a job offer in the US and be in a specialty occupation, which means an occupation that requires a college degree or higher. The advantages over the H1B include a more expedited application process, no cap, no restrictions on renewals and a spousal visa that allows the E3 applicants to work in the US with a similar E3 visa, regardless of their nationality. 

The biggest advantage over the H1B is that there are no restrictions on renewals. With the H1B, you are limited to a 6 year total visa with the potential for a one year extension. With the E3 visa, the visa itself can only be 2 years long, but the applicant can keep renewing it indefinitely, meaning they could work at your company for a long time on an E3 visa.

The other advantage is that there is no annual limit on the number of E3s granted. While the H1B has a cap, or limit on the total number of visas granted, there is an unlimited number of E3s granted every year.

As with all other visas, the E3 requires that you file Form I-129. Similarly to the H1B, you’ll also have to file a Labor Condition Application to prove that your hire is not adversely affecting the wages and employment of US workers. The form is in fact the same as an H1B, but you’ll need to ask your lawyer to annotate it to apply for the E3 visa. Once the petition is approved, all your worker needs to do is file for the visa in their local consulate and then travel to the US for work.

TN Status and Visa

More likely than not, you will find yourself in the situation where you’d like to hire a Canadian or Mexican designer/programmer/marketer/etc. As the closest countries, Canada and Mexico also have some of the higher rates of foreign workers and luckily getting work authorization for them can be equally easy to the E3.

TN stands for Treaty NAFTA (North American Free Trade Agreement) and was negotiated as part of the NAFTA agreement of 1994. TN status or visa is granted in 3 year increments and can be renewed indefinitely. Like the E3, it is similar to the H1B in that only specialty occupations qualify, but the TN is actually more restrictive than the H1B positions.

In order to qualify for TN status, the applicant needs to:

1. Be of Mexican or Canadian nationality.

2. Practice one of these jobs and have the qualifications to practice the job.

3. Have a full-time or part-time job offer in the US (no self-employment as per usual).

This is probably a good time to do a refresher on petitions vs. visas. The petition is the actual application the employer will send to the United States Citizenship and Immigration Services (USCIS). This is where you make your case for why your future employee fits the bill for this visa and why your company needs them. Your petition can be approved or denied depending on whether the USCIS thinks your worker is eligible for it.

If your application is approved, your future employee then has to seek out a visa. The visa is a travel document. It is a piece of paper that is issued for your employee to be able to travel to the US and work at your company. The word visa is used colloquially to mean both the approval and the travel document, but you cannot seek out the travel document until you have the petition approval.

This is important in the TN case because Canadian citizens do not need a visa, while Mexican citizens do. However, both of them still need to send in a petition and get it approved. In the case of Canadian citizens, once they’re petition is approved, they just need to present their approved application and proof of Canadian citizenship to travel to the US. 

For Mexican citizens, once they’re petition is approved, they need to seek out the consulate to issue a travel visa. This is the same procedure as someone procuring an H1B, L1 or E3 visa would go through. They need to schedule an appointment at a consulate in their country, fill out form DS-160 and bring their petition. The consulate will then grant them a work visa in increments of 3 years. 

The O1 Visa

The O1 visa is the awesome person visa. It is granted to anyone with an extraordinary ability in the sciences, arts, business, athletics or movie industry. In other to prove extraordinary ability (since not just anyone can claim they have that for the purposes of this visa), the O1 visa relies on national and international acclaim.

The O1 visa is initially granted for three years and can be extended for one year at a time indefinitely. Like the E3 and the TN, there are no limits to when an O1 visa can be extended. Unlike the E3 and TN, the O1 visa is not restricted to any one nationality.

We left the O1 for last because it is actually a hard visa to seek. Like all other visas, it is contingent on an offer of employment in the US. But unlike all other visas, a lot of documentation is required to prove the workers extraordinary ability. Specifically, you will need to provide:

• Form I-129, as per usual

• Consultation with a relevant peer advisory group attesting this person’s skill or, evidence that there is no relevant advisory group in the stated area.

• Employment contract

• Itinerary and activities, showing what the O1 worker will be doing in the US.

• And proof of extraordinary ability, which means 3 evidences from the list below:

1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

2. 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

3. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought

4. Original scientific, scholarly, or business-related contributions of major significance in the field

5. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought

6. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence

7. 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

8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

The reasons we even bring up the O1 status is that it can be one of the more flexible visas out there. Although establishing proof is hard, it is not as impossible as the list above makes it seem. This is also the most appropriate visa if you are looking to hire an employee in a creative capacity, as a designer, musician or creative director. It is also an easier visa to turn into a permanent worker visa (Greencard), since it already does a large part of the work of establishing extraordinary ability needed for some Greencards.

This brings our visa series to an end. Here we’ve chosen to highlight the visas that most frequently apply to startup and small business employers but, as we mentioned, there are tons of other temporary worker visas one can pursue. To see a full list, check out the USCIS’s website. If you’re a Justworks user, don’t hesitate to reach out to us directly with any questions you might have. Although we are not lawyers, our HR Concierge service can help answer any questions you might have about the process.