Foreign nationals who are not citizens, permanent residents or refugees/asylees of the U.S. must first obtain authorization to work in the United States pursuant to non-immigrant (temporary) or immigrant visas. Non-immigrant visas confer temporary work authorization; while immigrant visas grant permanent residency status.
TYPES OF NON-IMMIGRANT (TEMPORARY) VISAS
There are numerous types of non-immigrant visas, designated by letter/number sequences. The appropriate visa depends on a number factors, such as nationality, intended activities while in the U.S., and length of stay. The following is a brief description of the more commonly held business-related temporary visas.
B-1 Business Visitor
The B-1 visa may be appropriate for a foreign national who is coming to the U.S. for limited business activities – not employment. No petition needs to be filed with the U.S. Citizen and Immigration Services (USCIS) and the foreign national may apply for the visa at a U.S. embassy abroad. However, a B-1 business visitor is permitted to stay in the U.S. for only brief periods of time (typically less than six months).
Visa Waiver Program (VWP)
Certain nationals do not need a visitor's visa to enter the U.S., so instead of applying for the B-1 visa at a U.S. embassy, visa waiver nationals may travel directly to the U.S. as business visitors. These VWP business visitors can stay in the country for up to 90 days. However, VWP entrants may not be granted extensions or change of status; they must leave before the end of their lawful period of stay. A list of VWP countries can be found online.
H-1B Specialty Occupation Worker
Except in narrow circumstances, most business activities in the U.S. are considered employment, and pretravel application must be made with the USCIS. The H-1B visa is the most commonly held visa for professional workers. The H-1B classification applies to "specialty occupations" – at minimum, the job position must require a theoretical and practical application of a body of highly specialized knowledge (i.e., bachelor's degree). Employers sponsoring a job candidate requiring a new H-1B will have to contend with the annual cap on such visas. Currently, the annual cap on the H-1B category is 65,000 per year.
TN-1 NAFTA Professional
In order to avoid the H-1B cap limits, the feasibility of alternative non-immigrant visas should be determined. TN-1 classification is advantageous in that there is no cap and no prior application need be made with the USCIS. However, the TN-1 status is only granted to Canadian or Mexican professionals, pursuant to the North American Free Trade Agreement (NAFTA). In order to apply for the TN-1, the Canadian or Mexican citizen must have the degree, experience, or licensing requirements designated for each eligible profession.
L-1 Intracompany Transferee
If the candidate is already working for a foreign affiliate of the U.S. sponsoring company, the L-1 visa may be an option. Like the TN-1, the L-1 visas are not subject to a cap. The L-1 classification is for intracompany transferees who, within three years prior to filing, were employed abroad for at least one year by an affiliate, subsidiary, parent or branch of the U.S. company in a managerial, executive or specialized knowledge position. An added benefit of the L-1 visa is that spouses of these visa holders may also work in the U.S.
E-1/E-2 Treaty Traders and Investors
Another type of non-immigrant category that permits employment is the E-1/E-2 treaty trader or investor classification. The E-1 treaty trader may engage in international trade based in the U.S. The E-2 treaty investor can enter the U.S. for the purpose of actively investing a substantial amount in an enterprise. The trader or investor must have the nationality of a treaty country, and at least 50 percent of the U.S. entity created for trade/investment must be owned by non-U.S. resident nationals of a treaty country. Employees of E-1/E-2 holders who are executives, supervisors or "essential workers" may also obtain E-1/E-2 visas. These employees must have the same nationality as the employer. Spouses of E-1/E-2 visa holders are also eligible to apply for employment authorization.
O-1 Aliens with Extraordinary Ability
Foreign nationals who are highly regarded and recognized in their field may qualify for the O-1 visa. The O-1 is for individuals with extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated by sustained national or international acclaim. Unless the candidate has won a highly recognized award such as a Nobel Prize, extraordinary ability must be documented with evidence of lesser awards, published material in major media, and the like.
PREFERENCE CATEGORIES FOR EMPLOYMENTBASED IMMIGRANT VISAS (PERMANENT RESIDENCY)
A job candidate, or an employee who may already have temporary visa status, can be sponsored for permanent residency (immigrant visa) by an employer. There are different types, or "preferences," of petitions for immigrant visas. The three most common in the employment context is the First Preference (EB-1), Second Preference (EB-2), and Third Preference (EB-3). The EB-5 category is reserved for investors. Due to the per country and per preference quotas (designated by "priority dates"), nationals of certain countries applying for EB-2 or EB-3 classification may have to wait years for final processing of their permanent residency.
Employment First Preference (EB-1)
EB-1, the highest preference, is designated for the following types of workers: 1) Extraordinary Ability Workers; 2) Outstanding Researchers and Professors; and 3) Multinational Managers/Executives. These types of professionals, irrespective of nationality, have historically enjoyed faster priority dates.
Employment Second Preference (EB-2)
There are two subcategories of the EB-2 Second Preference: (1) workers who are members of a profession holding advanced degrees or equivalent; and (2) workers who, because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural, educational interests or welfare of the U.S. Unless a national interest waiver is granted by USCIS, the applicant must have a job offer and labor certification from the Department of Labor. The certification is based on the employer's attestations that (1) there is not a sufficient number of U.S. workers who are available and qualified for the position that the foreign worker seeks to fill; and (2) the employment of the foreign worker will not adversely impact the wages and working conditions of U.S. workers.
Employment Third Preference (EB-3)
The third preference category of immigrant filing also requires a job offer from a sponsoring employer and labor certification from the Department of Labor. There are three subgroups within this category: (1) professionals with a bachelor's degree for positions requiring at least a bachelor's degree; (2) skilled workers for positions that require at least two years' experience; and (3) other workers for positions that require less than two years' experience.
Employment Fifth Preference (EB-5)
The EB-5 is for foreign investors who wish to live and work in the U.S. The minimum dollar amount to invest is $1 million dollars ($500,000 if the investment is in an area of high unemployment). The investor must also create 10 full-time jobs for U.S. workers, and the investment must be in a new enterprise that benefits the U.S. The EB-5 investor is initially given conditional permanent residency status for two years. Prior to the two year anniversary of obtaining residency, a petition must be filed showing the investment was made and jobs were created.
There are myriad ways foreign nationals can work in the U.S., both as temporary or permanent workers. While finding the right visa or immigrant preference may be daunting, a creative exploration of all lawful options should lead to the successful and prompt placement of the candidate in the U.S.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
