Work Visas

 

 

Foreign nationals are allowed to engage in employment in the United States under many temporary immigration categories. It is generally necessary to have a specific employment offer through a U.S. employer or sponsor. The United States does not have a generic work visa for individuals who wish to come to the U.S. to find jobs. Foreign nationals generally need to obtain a visa at a consulate abroad, based upon a petition filed by a U.S. employer. Those who are already in the United States may be able to change their statuses to employment-based categories, with appropriate employer support. Employment-based, nonimmigrant categories include, among others, H1B (specialty occupation), L1A/B (intra-company transferee) and J-1 (exchange visitors).

For more information, please see below:

WORK

VISA TYPE

Australian professional specialty

E-3

Specialty occupations in fields requiring highly specialized knowledge

H-1B

Free Trade Agreement (FTA) Professionals: Chile/Singapore

H-1B1

Temporary agricultural workers

H-2A

Temporary workers performing other services/labor of a temporary or seasonal nature

H-2B

Intra-company transferees

L-1

Religious workers

R-1

NAFTA professional workers: Mexico/Canada

TN

E3 Visa Classification

This visa is for Australian specialty occupation workers performing services in a specialty occupation. The definition of specialty occupation is one that requires a theoretical and practical application of a body of specialized knowledge; AND the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the United States. There is no limit to the number of E3 visas that an applicant may hold over the course of their life.

H-1B Visa Classification

H-1B is a non-immigrant visa category for foreign workers. The occupation they engage in should be a “specialty occupation.” A "specialty occupation" is one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The category is also applicable for fashion models of “distinguished merit and ability.” 

H-1B visas are subject to a numerical cap of 85,000 per fiscal year.  20,000 are for H-1B workers who have a master's degree or higher from a U.S. institution of higher learning. Certain H-1Bs are cap-exempt. H-1B visas are typically given with a validity period of 3 years initially. It can be extended for an additional 3 years for a period not to exceed a total of six years.

The procedure for filing H1-B includes determining a prevailing wage and employer then seeking the approval of the Labor Condition Application (LCA).  With an LCA, the employer assures that hiring a foreign worker would not be detrimental to similarly situated U.S. workers (particularly ensuring that employer is not paying less than prevailing wages).  LCA is then submitted to U.S. Citizenship and Immigration Services (USCIS) along with the necessary forms and supporting documentation including H-1B support letter from employer and evidence of foreign worker’s qualifications.

H1-B transfers are allowed for foreign workers. The employer has to comply with I-9 requirements upon hiring H-1B foreign worker under portability provisions.  The employer is also not allowed to “bench” the foreign worker and will be required to pay the foreign worker the required wage for bench time.

A foreign worker under H1-B is allowed to exhibit a non-immigrant and immigrant intent (Dual Intent) and therefore may apply for permanent residency. The foreign worker does not have to maintain a foreign residence during their period of stay in the United States. If the employer were to terminate the foreign worker during H-1B classification status, the employer could be liable (continues only during the H-1B status i.e. the change of status to permanent residence or any other status which then absolves the employer of this liability) to pay the return fare to the foreign worker’s last place of foreign residence.

The foreign worker is allowed extension beyond the six-year limit on H1B as long as the worker has a labor certification application that has been filed and is pending for at least 365 days (in such case, only one year extension is permitted) or if an I-140 has been approved on behalf of the worker (in such case three-year extensions are permitted). Such extensions are permitted until a decision is made on the immigrant visa application or petition.

Foreign workers family members (spouse and unmarried children under 21 years old) are admitted to the United States in the H-4 category for the same period of time for which the H-1B foreign worker is admitted or may alternatively be admitted in other nonimmigrant categories for which they qualify. The H-4 dependents may undertake studies during their stay while remaining in the H-4 category.

H1-B1 Visa Classification

This category is for foreign workers from Chile and Singapore engaging in specialty occupation.

The position must be a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources.

The worker must have a post-secondary degree involving at least four year of study in your field of specialization. Worker cannot be self-employed or an independent contractor. Also, the period of employment in the U.S. must be temporary, so the worker must demonstrate non-immigrant intent.

H1B1 visas are multiple-entry and valid for a maximum of 18 months. Extensions and renewals are allowed.

H2A Visa Classification

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf and submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor.  A limited exception to this requirement exists in certain “emergent circumstances.” 

To qualify for H-2A nonimmigrant classification, the petitioner must offer a job that is of a temporary or seasonal nature besides demonstrating that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work. Employer must also show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

H2B Visa Classification

The H-2B program allows U.S. employers or U.S. agents meeting specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. There is a statutory numerical limit, or “cap,” on the total number of foreign nationals who may receive H-2B nonimmigrant classification during a fiscal year.

H-2B petitions may only be approved for nationals of certain countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

To qualify for H-2B nonimmigrant classification, the petitioner must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and its need for the prospective worker’s services or labor is temporary. An employer’s need is considered temporary if it is a(n) one-time occurrence or seasonal/peakload/intermittent need.

A U.S. employer or U.S. agent must file Form I-129, Petition for Nonimmigrant Worker on a prospective worker’s behalf and must provide a single valid temporary labor certification from the U.S. Department of Labor (DOL). 

The H-2B classification is usually granted for up to the period of time authorized on the temporary labor certification which may be extended for qualifying employment in increments of up to 1 year each for which a new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years. A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

The H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. They are not eligible for employment in the United States while in H-4 status.

L-1A Visa Classification

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge (either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures) relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. L1-A also enables a foreign company which does not yet have an affiliated U.S. office to send the professional / specialized employee to the United States with the purpose of establishing one.

The named employee for L1-A must generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and enters the United States to provide service in an executive capacity (ability to make decisions of wide latitude without much oversight) or managerial capacity (ability of employee to supervise and control the work of professional employees and to manage the functions and components of the organization without direct supervision of others) for a branch of the same employer or one of its qualifying organizations.

Form I-129 (Petition for Non-immigrant Worker) is filed with the USCIS with required fee. To qualify for L-1 classification, employer must: (1) have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and (2) currently be, or will be, doing business (regular, systematic, and continuous provision of goods and/or services by a qualifying organization) as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States on L-1 visa.  It does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. There is no requirement that employer must be engaged in international trade. However, the business of employer must be a viable one.

L-1B Visa Classification

For L1-B, the employee should seek to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. For an employee to qualify for L-1B classification the employer must show that the employee will not be principally controlled or supervised by such an unaffiliated employer; and the work being provided by employee is not considered to be labor for hire by such an unaffiliated employer.

For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that the employer has secured sufficient physical premises to house the new office and it has the financial ability to compensate the employee and begin doing business in the United States.

For establishing a new office, the employer must show that it has secured sufficient physical premises to house the new office; employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and the intended U.S. office will support an executive or managerial position within one year of petition being approved.

An L1-A or an L-1B employee entering United States to establish a new office is allowed only a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For an L-1A employee, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

The employee’s family members (spouse and unmarried children who are under 21 years of age) may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.  The spouse may apply for work authorization by filing a Form I-765, Application for Employment Authorization with fee. If approved, there is no specific restriction as to where the L-2 spouse may work.

L-1 Blanket Petitions

Certain organizations may establish the required intra-company relationship in advance of filing individual L-1 petitions by filing a blanket petition. For this, the employer and each of the qualifying organizations should be engaged in commercial trade or services. It should have an office in the United States which has been doing business for one year or more and have three or more domestic and foreign branches, subsidiaries, and affiliates. Further, the employer along with other qualifying organizations meet one of the following criteria: (1) have obtained at least 10 L-1 approvals during the previous 12-month period; (2) have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or (3) have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition provides employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition.  In most cases, once the blanket petition has been approved, the employer need only complete Form, I-129S, Non-immigrant Petition Based on Blanket L Petition and send it to the employee along with a copy of the blanket petition Approval Notice and other required evidence. The employee may present it to a consular officer in connection with an application for an L-1 visa. Canadian citizens, who are exempt from the L-1 visa requirement, may present the completed Form I-129S and supporting documentation to a U.S. Customs and Border Protection (CBP) Officer at any U.S. Port of Entry (POE), in connection with an application for admission in L-1 status. If any prospective L-1 employee is visa-exempt, the employer may file the Form I-129S and supporting documentation with the USCIS that approved the blanket petition, instead of submitting the form and supporting documentation directly with CBP.

R Visa Classification

The Religious Worker (R) visa classification is for persons seeking to enter the United States to work in a religious capacity on a temporary basis. Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation. The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S. The religious denomination and its affiliate, if applicable, must be either exempt from taxation or qualifies for tax-exempt status.

The applicant should show that he has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant should be planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that applicants applying for "R" visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary.

The applicant should reside and be physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.

The applicant's prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS) with evidence that includes proof of tax-exempt status or eligibility for tax-exempt status, and a letter from an authorized official of the specific unit of the employing organization certifying:

o    That, if the applicant's religious membership was maintained, in whole or in part, outside the U.S., the foreign and U.S. religious organizations belong to the same religious denomination;

o    That, immediately prior to the application for the R visa, the applicant has been a member of the religious denomination for the required two- year period;

o    If the applicant is a minister, he or she is authorized to conduct religious worship for that denomination. The duties should be described in detail; or

o    If the applicant is a religious professional, he or she has at least a baccalaureate degree or its equivalent, and that such a degree is required for entry into the religious profession; or

o    If the applicant is to work in a nonprofessional vocation or occupation, he or she is qualified if the type of work to be done relates to a traditional religious function;

o    The arrangements for remuneration, including the amount and source of salary, other types of compensation such as food and housing, and any other benefits to which a monetary value may be affixed, and a statement whether such remuneration shall be in exchange for services rendered;

o   The name and location of the specific organizational unit of the religious denomination or affiliate for which the applicant will be providing services;

o    If the alien is to work for an organization that is affiliated with a religious denomination, a description of the nature of the relationship between the two organizations;

o   Evidence of the religious organization's assets and methods of operation; and

o    The organization's papers of incorporation under applicable state law.

Family members of a religious worker like spouse and unmarried children under 21 years of age is issued an R-2 visa. They may study, but may not accept employment in the U.S. Therefore, evidence of their financial support while in the U.S. will be necessary at the visa interview.

 

TN Visa Classification

TN category was created as part of economic and trade relationships for the United States, Canada and Mexico under The North American Free Trade Agreement (NAFTA). TN category provides a general exemption from the visa requirement. It allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The professionals include accountants, engineers, lawyers, pharmacists, scientists, and teachers. The Canadian or Mexican citizen should have a prearranged full-time or part-time job with a U.S. employer (no self-employment is allowed) and also have the qualifications to practice in the profession in question. NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying profession.

The initial period of stay allowed under TN is 3 years. A citizen may seek an extension of stay if they are in the United States through their employer by filing Form I-129, Petition for Nonimmigrant Worker. Alternatively, the citizen may depart from the United States before the date of expiration of status. Once abroad, he or she may apply at a CBP-designated U.S. port of entry or at a designated pre-clearance/pre-flight inspection station using the same application and documentation submitted initially for admission as a TN nonimmigrant.

Canadian Citizens

Canadian citizens (not Mexican citizens) are generally eligible for admission (without visa) as nonimmigrants and are not required to apply for a TN visa at a U.S. consulate. The eligibility for TN classification is sought at the time of admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. Canadian citizens must provide to the CBP officer proof of Canadian citizenship, letter from  prospective employer detailing items such as the professional capacity in which the citizen will work in the United States, the purpose of employment, length of stay, educational qualifications, and credentials evaluation (if applicable), together with any applicable fees.

A prospective TN employer alternatively may choose to file with USCIS Form I-129, Petition for Nonimmigrant Worker on behalf of a Canadian citizen who is outside the United States. Upon approval the citizen may apply to CBP for admission to the United States as a TN nonimmigrant by providing to the CBP officer proof of Canadian citizenship and Approval Notice from USCIS for Form I-129. In addition, a copy of the Form I-129, and all supporting documentation that was submitted to USCIS and any applicable inspection fees at the time of admission should be in possession of the citizen.

Mexican Citizens

Mexican citizens are required to obtain a visa to enter the United States as a TN nonimmigrant for which the citizen should apply directly at a U.S. embassy or consulate in Mexico. Upon approval the citizen may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.

The citizen’s spouse and children under the age of 21 may be eligible for TD nonimmigrant status. Spouses and children are not permitted to work while in the United States, but they are permitted to study. The TD status is not granted for no longer than the period of time granted to the principal TN nonimmigrant.