More and more companies within the US are hiring foreign personnel on work visas. As a result, it is vital that any organization wishing to hire a person from a different country must fully understand the laws behind the process of sponsoring an alien to work for their business. Obtaining work visas can be complicated and, more importantly, time-consuming processes. It is therefore vital that business objectives be clearly established and that visa planning occurs as early as possible to ensure a smooth process of employment. There are many ways that foreign citizens can apply for residence to the United States; however, the focus of this research paper is on obtaining a work visa through organizational sponsorship and does not outline immigration-visas or ‘green cards’.
There are many different classes of visas that organizations can process for the employment of foreign personnel. All visa and immigration procedures are governed federal laws enacted by Congress and administered by departments and agencies of the Federal government, including the following:
- The Department of State: Principally through its foreign consulates and embassies
- The Department of Labor: Concerned with foreign subjects being paid the “prevailing wage’ and determine permanent labor certificates.
- The Department of Justice: Especially the Immigration and Naturalization Service
Aliens may come to the United States as either a non-immigrant or immigrant. Nonimmigrants are aliens coming to the United States only for a temporary stated period of time. Immigrants are those coming to the United States to reside permanently. Non-immigrants tend to come in under a certain work visa depending on the nature of business they will be involved with. Immigrants fall under the ‘Green Card’ category whereby they obtain a permanent residence status within the United States. In order to prepare for either of these two types of visas, employers should gather the following information and copies of documents prior to application:
- Alien’s passport and resume, as well as the passport of each family member.
- All available papers relating to any prior US work visas held by the alien.
- Job description, title, and salary for the proposed position.
- Company’s recent available annual report, federal tax return, or financial statement.
- Brochures and other printed material detailing the company and its business activities.
These will enable legal counsel to access eligibilities and to prepare the visa materials quickly. The most common forms of non-immigration visas will be outlined and discussed throughout the rest of this research paper.
In general, aliens must be in possession of a nonimmigrant or immigrant visa in order to come to the United States.
Applicants for temporary work visas should generally apply at the U.S. embassy or consulate with jurisdiction over their place of permanent residence.
The following list includes the most common types of visas issued to non-immigrants for different working categories:
- Temporary Business Visitor (B-1)
- Treaty Trader or Investor (E-1 or E-2)
- Temporary Worker or Trainee (H-1B, H-2 or H-3)
- NAFTA Professional (TN)
- Intracompany Transferee (L-1)
TEMPORARY BUSINESS VISITOR (B-1)
A foreign national who has a permanent residence in another country and who does not intend to abandon his/her home country, may enter the United States for a brief specified period in order to conduct limited business activities.
The B-1 Business Visitor visa allows an alien to conduct limited and temporary activities in the United States involving international trade or commerce, usually on behalf of a foreign employer. The principal place of business for the company and actual accrual of profits must be predominantly in a foreign country. Therefore, the B-1 nonimmigrant may not receive income from a source in the United States, except for reimbursement of expenses with regard to travel and stay within the United States. The initial period of a B1 visa can be up to 1 year, with possible extensions in increments of up to 6 months. To obtain a B-1 visa, the individual may apply directly to an American consulate abroad for issuance of the B-1 visa. Application for a B-1 can be made using Optional Form (OF) 156, the standard nonimmigrant visa application. In addition, the applicant usually has to submit a supporting letter from the employer, which explains the purpose of the trip.
TREATY, TRADER, OR INVESTOR (E-1 or E-2)
The next type of non-immigration visa is the treaty, trader, or investor visa (E1 or E2), which applies mainly to those seeking to trade with, or invest their business within the US. Since this type of visa does not normally apply to organizations employing individuals from other countries, this area will not be looked at in-depth. E visas are available only to nationals of countries that have a Treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. The “E-1” treaty trader is an alien coming solely to carry on “substantial trade” principally between the United States and his or her home country. The “E-2” treaty investor is an alien coming solely to develop and direct the operations of an enterprise in which he or she has made, or is in the process of making, a “substantial investment.” The investor must have “control” of the business. (Fifty-fifty joint ventures or minority ownership in some situations may be sufficient to establish control.)
TEMPORARY WORKER OR TRAINEE (H-1B, H-2 or H-3)
H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.
One of the most common employment visas is the ‘Specialty Occupation’ temporary worker, or trainee permit. The H-1B category is available to any employer in the United States to hire foreign specialty workers for a temporary assignment. Aliens are eligible for H-1B classification if they qualify as members of a specialty occupation. This basically means that the occupation requires theoretical and practical application of highly specialized knowledge and must possess at least a bachelor’s degree in the specific specialty as an industry minimum for an entry-level position. To qualify, individuals must show that they have the requisite four-year U.S. college degree, a foreign equivalent degree, or a combination of education and experience equivalent to a bachelor’s degree. The occupation in which he or she intends to work in the United States must also generally require at least a bachelor’s degree for entry-level positions and the employer’s intent must be to hire the alien for only a temporary period.
The H-1B can be admitted usually for an initial period of 3 years, with extensions available up to a maximum consecutive stay of 6 years. To obtain H-1B classification, the U.S. employer first must submit a nonimmigrant visa petition to the INS for its decision regarding the alien’s eligibility for H-1B classification, followed by the individual applying to an American embassy or consulate abroad for issuance of an H-1B visa with which to enter the United States.
The H-2, ‘Temporary Worker Performing Temporary Services In Short Supply’, is the category that applies to those aliens coming temporarily to perform temporary services or labor, where U.S. workers are unavailable for such work. Under H-2, the employee may not exceed 1 year. Extensions may be obtained in very limited circumstances up to a maximum stay of 3 years. The H-3 trainee is an alien coming temporarily to the United States to receive training at the invitation of an individual, organization, firm or other trainer in any field of endeavor, including agriculture, commerce, communication, finance, government, transportation, and the professions. The H-3 employee’s initial period of admission may not exceed 1 year. Extensions are available in limited circumstances. Spouse and minor dependent children of the employee will be eligible to apply for H-4 visas with which to accompany the principal H Class worker in the United States.
NAFTA PROFESSIONAL (TN)
The category “Professionals Under the North American Free Trade Agreement” is available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work in a professional occupation in another NAFTA country
A closely related nonimmigrant work permit to the H status described above is the TN professional, which is available only to citizens of Canada and Mexico. The TN professional work permit was created under the immigration provisions of the North American Free Trade Agreement – the “TN” standing for ‘Trade-NAFTA’. Not only is the TN category available only to Canadian and Mexican citizens, it applies as well only to those professions specifically listed in a Schedule under NAFTA. The current TN Schedule includes such occupations as accountants, many scientific and engineering occupations, computer systems analysts, college teachers, and management consultants. TN professionals are admitted in 1-year increments of authorized stay, which can be renewed virtually indefinitely. Spouses and minor children of TN aliens likewise can be admitted for renewable 1-year periods under the TD category.
Although there are many other ways to obtain residence within the US or to obtain legal work visas, the bulk of this paper has concentrated on the non-immigration methods, which are by far the most common. If a foreign employee works for a company within the United States, and they wish to stay permanently in the country, this would be done through other procedures involving Immigration-Visas or (Green Card). There are 5 different preference groups for the immigration-visas which are beyond the scope of this research paper, but employees generally at the stage of applying for one of these types of visa has already undergone one of the non-immigration methods previously discussed.
There will always be a need for diversity within the modern business environment involving people from different parts of the world, and it is necessary that businesses involved with this type of employment stay up to date on the ever-changing rules and regulations outlined by the law.
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- Student Visa Resource – F1 Visa Information – http://www.centerforimmigration.com/
- Tanc Inc – Immigration Law Firm – http://www.usavisacenter.net/
- My Counsel – http://www.mycounsel.com
- US Immigration – http://www.us-immigration.com/
- US Employment Specialist – http://www.usjoboffer.com
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- US Green Cards & Work Visas – http://www.green-cards.com/
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- US Visas for Temporary Workers – http://travel.state.gov/visa;tempwkr.html
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-  My Counsel
-  American Immigration Network
-  US Visas for Temporary Workers
-  TN Visas and NAFTA Law Guide