There are several types of petitions and applications that may
be filed to obtain legal status to reside and work in the United
States on a temporary basis or to live/work as a permanent
resident. Once approved, these petitions and applications grant a
particular status. Although, popularly referred to as a visa,
there is a distinction. Many, if not most, applications for work
visas are first filed within the United States with the USCIS (
which was formerly known as the INS) which is now a branch of the
Department of Homeland Security (formerly, Department of Justice).
This is first the approval of a Status. Once this is approved an
individual, if outside the U.S., applies for a visa at the U.S.
Consulate in his/her place of residence. A visa is always given by
the Department of State, stamped in the individual's passport, for
a definite duration. A visa is a required document (with certain
exceptions) in order to obtain entry into the United States.
Once a person presents a visa at an entry point, the USCIS
admits on the particular status and duration for which the visa is
granted. The Immigration laws and procedures of the United States
have undergone several changes over the years, and particularly
recently, in response to threats of internal security. One of the
most important aspects of going through the immigration process is
to understand that these changes affect the outcome of a case, its
timing, and the results obtained. Therefore, patience with the
system, realistic expectations and full cooperation with the
attorney are prerequisites to the successful achievement of one's
goals.
Visas are normally designated alphabetically and there are many
depending upon the purpose for which it is granted. The various
types of visas arranged alphabetically are generally non-
immigrant visas. This means that they are given for a specific
purpose and for a specific duration. Once the purpose is
accomplished and the validity period of the visa expires the visa
holder is supposed to return home. Of course, this is a simple
explanation of the non-immigrant status. We present here a brief
description of the types of non-immigrant visas that provide permission to work in the United States. This is not meant as legal advice nor does
it say anything about the application process or qualifications of
the applicant. Each client must discuss their own circumstances
with the attorney to determine the appropriate visa.
E-1/E-2 - Treaty Trader/ Treaty Investor -
This visa is given to nationals of countries with which the United
States has entered into bi-lateral agreements or Treaties of
Friendship and Commerce. It allows a national of a treaty country
(and his/her dependents) who has been engaged in substantial trade
with the U.S., or invested a substantial sum of money in a
commercial enterprise, to live and work in the U.S. in order to
develop and direct the enterprise. This visa is granted for two to
five years and can be extended indefinitely as long as the visa
holder maintains the status. Spouses of E visa holders may also
apply for and obtain work authorization.
H-1B - filed by a U.S. employer on behalf of a
prospective employee who is a national of a foreign country and
who intends to reside and work in the U.S. on a temporary basis.
An H-1B visa is granted to someone who will work in a "specialty
occupation", defined as an occupation that requires highly
specialized knowledge and requires the attainment of at least a
Bachelor's degree or its equivalent in the specific specialty.
There are specific requirements to be fulfilled by both the
employer and employee to qualify for this visa. An H-1B is granted
for a total period of six years. Spouses and dependents of H visa
holders are not eligible to apply for work authorization unless
they qualify for a work visa on their own. The H visa covers the
H-1B, H- 2A, H-2B and H-3 categories.Presently, there is a cap of 65,000 visas that may be granted in each fiscal year which includes a certain number of H-1B Visas allotted under the U.S.-Chile and U.S.-Singapore free trade agreement.
The H-1C Visa is granted for registered nurses.
The H-2A Visa is granted for temporary agricultural workers.
The H-2B is granted for temporary workers in non-agricultural positions in which the employer has to obtain a labor certification for an employee. There is currently a cap of 66,000 H-2B’s for each year.
The H-3 Visa is a Trainee Visa.
L-1A/L-1B - Intracompany transferee - used to
transfer company personnel from a foreign entity to a related U.S.
entity. This visa enables a foreign business to transfer key
personnel to its business in the U.S. In the case of an
established company, the petition is filed on behalf of an
employee of a foreign company that is related to the U.S. company.
In the case of a new company, the petition is filed by the
principal wishing to establish a company in the U.S. that is
related to a foreign company. Three types of personnel may be
transferred on this type of visa: Managerial, Executive and
"Specialized Knowledge." Persons transferred as
managers/executives are given L-1A status and those on the basis
of specialized knowledge are given the L-1B status. The L-1A visa
is granted for a total of 7 years and the L-1B for a total of 5
years. Spouses of L visa holders may apply for and obtain work
authorization.
O-1 - Extraordinary Ability - used for persons
who have extraordinary ability in the arts, sciences, education,
business or athletics or who has a demonstrated record of
extraordinary achievement in the motion picture or television
industry. Persons who are coming temporarily and solely to assist
in the artistic or athletic performance of the principal O-1
applicant are also admitted under the O-2 category. Spouses and
children of th O-1 or O-2 applicant are admitted in the O-3
category.
P-1 - AArtists, Athletes and Entertainers -
used for international recognized athletes, individually or as
part of a group or team or a member of an internationally
recognized entertainment group. The P-2 is given to an artist or
entertainer coming to perform under a reciprocal exchange program;
and, the P-3 to one who is coming solely to perform, teach or
coach under a program that is culturally unique. Dependents are
classified as P-4.
TN - filed by a U.S. employer on behalf of a
prospective employee who is a national of Canada or Mexico and who
is coming to work in the U.S. on a temporary basis. The TN
category is granted for those occupations that are listed on a
Schedule in the Appendix to the North American Free Trade
Agreement (NAFTA).
The above list of visas is by no means exhaustive. There are
other categories such as the J, K (fiancée) visa etc. which allows
work authorization incidental to their status in the United
States.
THE IMMIGRANT VISA
Many people come to the United States with the hope of a new
life, better economic conditions or even to flee persecution in
their country of origin. Whatever the reason, every person has to
obtain an immigrant visa in order to reside permanently in this
country. This permanent residence is what is popularly known as
the "green card." The two main methods of obtaining permanent
residence are dependent on employment-based qualifications and
family-based qualifications
Each of these are further categorized under a Preference system
with a certain number of visas allocated annually to each of the
Preferences. There are other methods outside of the preference
system such as applying for Asylum and the Diversity Visa Lottery.
Most employment-based petitions (there are
exceptions) require obtaining an "Alien Employment Certification"
(or popularly call the Labor Certificate) from the U.S. Department
of Labor. This basically involves an employer showing that
qualified U.S. workers are not readily available to fill a
position. The labor certification process is long and complex and
in certain areas may take several years to complete.
Family-based petitions are generally filed by
an immediate relative of a foreign national on the latter's behalf
as part of the process of obtaining legal permanent resident
status for the relative. The category of relatives is restricted
to parents, children (over 21), spouses, and siblings of the
foreign national. Thus, uncles, aunts, grandparents, cousins, etc.
are not eligible to apply for a relative. A sponsor of a family based immigrant is required to file an Affidavit of Support to show that the sponsored immigrant will be supported at 125% of the poverty level for ten years, forty quarters, or until the immigrant obtains U.S. Citizenship.
In addition to filling into the above categories, there are other important considerations to be taken into account before a foreign born person can obtain a visa. Particularly questions of admissibility, previous entries into the U.S., ability to support one’s self, etc. These need to be thoroughly discussed with an attorney prior to embarking on a self-navigated journey through the current maze of U.S. Immigration Laws.
Further information can be obtained by accessing the following
websites:
www.travel.state.gov/visa
http://www.uscis.gov/
