There are primarily three broad categories, or classifications, under which foreign-born persons can be legally present in the United States: They may be U.S. citizens through naturalization or birth abroad to U.S. parents, permanent residents (or "green card" holders), or nonimmigrants. Permanent residents have the legal ability to reside and work in the U.S. permanently and have generally obtained their status through employment- or family-based sponsorships. Nonimmigrant aliens hold temporary visa status, which may be obtained for various purposes (travel for pleasure, travel for business, student visas, work visas, etc.). Only a few of these categories of nonimmigrant visas authorize employment in the U.S.
Congress created the employment related immigration laws with certain principles in mind. Primary among these were that aliens in the workforce not displace U.S. workers, and that the use of alien workers not facilitate a decline in wages or working conditions.
Work Visas and Requirements
The most common nonimmigrant workvisa is the H-1B "specialty occupation" visa. The H-1B visa is employer-specific and allows U.S. companies to hire foreign professionals who hold at least a bachelor's degree or its equivalent. Foreign degrees must be evaluated to prove that they are equivalent to a degree obtained in the United States. H-1B visas require an offer of employment from an U.S. employer. That employer must make certain attestations to the Department of Labor in the form of a Labor Condition Application (for instance, that the foreign employee will be paid within a range of the prevailing wage for that occupation in the employer's specific geographical area). A petition and supporting documentation are subsequently filed with the INS. Employees holding H-1B visas may work in the U.S. for an initial period of three years, renewable for a maximum of six years total. It is possible to apply for permanent residence while in the U.S. on H-1B status (dual intent is permitted). Dependent family members of H-1B visa holders can be admitted in the H-4 visa category, but may not engage in employment in the U.S.
H-1B visas are subject to annual numerical limitations imposed by Congress, or a "visa cap." Accordingly, receipt of an approval for this category is not a guarantee of immediate entry into the country or change of status if the alien is already in the U.S. Because of this classification's popularity, the visa cap is frequently reached early in the fiscal year, resulting in backlogs and complicated strategy decisions for employers and employees alike.
The strong economy in recent years has created a large demand for highly specialized employees. This has also created certain difficulties for employers and aliens. New industries have created jobs with titles and
duties that do not fit into the historic job classifications relied upon by INS to determine whether a position may qualify as a specialty occupation. Jobs like doctor, lawyer, or engineer are easily identified as specialty occupations. But many new jobs involving computer data, images, and operation may be less clear to the INS. In such cases, the employer will need to prove that the duties involved in the position require a college degree because of their complexity, or that it is the norm to require a degree for such a position.
The fast-paced economy, in which employees often change jobs, and whole companies are bought or sold, can also create trouble for H-1B visa holders. Since the visa is employer-specific, the new employer must secure an H-1B covering the employee. The employee cannot simply quit the first job and accept the second. If the employer for whom the alien works is bought out or merges with another company, a new or amended petition may be required. Further complications are caused by the delays in permanent residency processing, since employees must maintain their underlying nonimmigrant work authorization until the final stage of the process. Employees may not switch jobs during while their permanent residency is pending, which may take several years.
Several other visa categories also permit aliens to work temporarily in the United States. The L-1 visa allows international organizations to bring foreign employees to the U.S. The L-1A category is reserved for executives and managers, while the L-1B classification is for workers with specialized knowledge.An alien coming from the home office to establish a new U.S. office of the company may also use the L-1 visa. Employees on L visas may stay in the United States for an initial period of three years, renewable up to a maximum of either five (L-1B) or seven (L-1A) years total. It is possible to apply for permanent residence while in the U.S. on L-1 status (dual intent is permitted). Dependent family members of L-1 visa-holders can be admitted in the L-2 visa category, but may not engage in employment in the U.S.
To qualify for an L-1 visa, the employee must have worked abroad for the foreign employer for an uninterrupted period of one year within the preceding three years in an executive/managerial or specialized knowledge capacity and must be coming to the U.S. to fill an executive/managerial or specialized knowledge position. The person must be qualified for the position in the U.S. by virtue of his/her experience abroad. The foreign company must be related to the U.S. company in a specific manner defined by law (such as a parent, subsidiary, or affiliate), and the U.S. company must be a qualifying organization under the law-one that is doing business in the U.S. and another country during the entire period of the transfer.
O, P, and R visa categories also allow temporary employment in the U.S. The O visa applies to aliens of extraordinary ability in the arts, sciences, athletics, business and education who have received national or international acclaim in their field. The P visa applies to outstanding athletes, athletic teams, and entertainment groups of sustained international recognition--for example a prominent soccer team. The R visa covers religious workers coming to the U.S. to work for an affiliate of the foreign religious denomination.
There are additional visas that permit some level of employment in the United States, including those granted pursuant to NAFTA or another treaty involving the U.S., and those for alien entrepreneurs who make a large capital investment to start a company in the U.S.
Temporary work visas serve important purposes, allowing foreign nationals with valuable skills and knowledge to come to the U.S. to work, perform, entertain, and teach. The award of these visas depends on both the skills and education of the alien, as well as the position the alien is to fill in this country. Typically, the employer will have to show that the use of alien employees will not cause a decline in wages or working conditions for U.S. workers. Because the procedures and documentation required to secure a visa can be complicated and burdensome, it is often helpful to consult an immigration attorney with experience handling the particular visa desired. Legal counsel can also assist with decisions among various visa options, as well as with extensions and applications to change status to permanent residency.
Law Offices of Alice Davis Irani and Employment Visas
Alice Davis Irani has been representing clients on work visa petitions for over 20 years. Our experienced staff can help individuals and employers understand the complex requirements for securing visas, as well as the procedures for extending visas and pursuing changes of status and we pride ourselves in prompt and personal service. We have represented a wide variety of industries including information technology companies and major universities.
If you need help bringing in an essential worker, or with another work-related immigration matter, please contact our offices at (734) 995-4900 or e-mail us at A2Dawn@aol.com.