Visas

TYPES OF VISAS
SUGGESTIONS FOR OBTAINING VARIOUS IMMIGRATION PAPERS

Immigration Law has been characterized as the second most complex area of United States Law, second only to Tax Law. It is little wonder that it has frequently been given only cursory attention or ignored completely by employers. Many employers feel that the law is too complicated to understand and hope that they will be able to "just blunder through successfully" or, if they do not do anything, "it will go away." Unfortunately, it will not go away. This page will acquaint you with the various visa categories used to legally employ aliens.

Nonimmigrant Visa Categories Which Allow "Work" in the U.S.
Contrary to a belief held by many, there is no such thing as a "work visa," that is, a visa which will allow a person to come to the United States, seek employment and begin working here. There are, however, certain visa categories which allow aliens who fit within these categories to work in the United States. Each of these categories has very definite limitations. It is, therefore, important to know the requirements of each category and the attendant limitations to determine whether the category will be of benefit to you.
There are twenty nonimmigrant visa classifications but only six normally allow persons to work in the United States:

1. B-1 Visitors for Business (For more on this type of visa, click here; pdf file)
2. E-1/E-2 (Treaty Traders or Treaty Investors and E-2 spouse (For more, click here; pdf file)
3. F-1 (Students with work authorization (For more on this type of visa, click here; pdf file)
4. H-1, 2, and 3 Temporary Workers and Trainees (For more, click here, pdf file; To fill out H-1 Application click here; pdf file)
5. J-1 Practical Trainees/Exchange Visitor (For more on this type of visa, click here; pdf file)
6. L-1Intracompany Transferees and L-2 (spouse of L-1) (For more, click here; pdf file)

*Change Of Status
An alien in legal nonimmigrant status in the United States may be eligible to change to any other nonimmigrant status for which he or she is qualified, including a status that allows employment. The alien does not need to leave the United States to do so. However, once an alien changes his or her status, upon leaving the United States, it will be necessary to obtain a visa under the new status at an American Consulate in order to reenter the United States.

In employment situations, the application to change status is usually initiated by the employer. However, the alien will be heavily involved, providing necessary information and documentation since the employer normally must submit documentation concerning the alien's eligibility for the new status.

*Extensions Of Stay
Any alien in legal nonimmigrant status in the United States is eligible to apply for an extension of temporary stay and work authorization. A legitimate reason must be given for requesting the additional time. An employer's desire for continuing the alien's employment is a sufficient reason. Persons in H-1 status may remain for up to six years (and in certain limited circumstances for a seventh year). Persons who are executives and managers in L-1 status may remain up to seven years. An alien in L-1 status with specialized knowledge can remain for five years. An alien who has been in the United States for the maximum amount of time must leave and remain outside the United States for one year in order to be eligible to start the 5-7 year cycle all over again.

*Permanent Residence Through Employment
Although there are some extraordinary procedures which a relatively few number of people use every year in order to become permanent residents, the general procedure for obtaining permanent residence is based either on a close family relationship (relative visa petition) or on employment. A person who fails to qualify under one of these two categories will generally not be able to come to or remain in the United States on a permanent basis.

The Immigration Act of 1990 provides for three employment-based immigrant preferences relevant to the general work force:
First Preference: Aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. No labor certification is needed here.
Second Preference: Members of the professions with advanced degrees and aliens of exceptional ability. A labor certification is usually required but can be waived if a "National Interest" is involved.
Third Preference: Skilled workers, professionals (and other workers requiring less than 2 years of education, training or experience.) A labor certification is always required. There are two other less used employment preferences: religious workers and investors of $1,000,000 or more. The labor certification process used in Second and Third preference cases tends to be extremely time consuming and detailed. Essentially, three things must be established in order to successfully obtain a labor certification:

1. There are not "able, willing, qualified and available" U.S. workers who can perform the job in question. The foundation of this requirement is an advertising campaign as prescribed by Department of Labor regulations.
2. The alien for whom a labor certification is being filed is receiving or will receive the "prevailing wage." The Department of Labor does not want any "cheap labor" undermining the marketplace for U.S. workers.
3. All the regulations of the Department of Labor have been followed. It may be possible to establish that there are no U.S. workers available and that the alien is being paid the prevailing wage, however, if all of the proper steps are not followed correctly, a labor certification can be denied.

TO FILL OUT A LABOR CERTIFICATION QUESTIONNAIRE, CLICK HERE (pdf file)

Numerical Limitations
Simply because a person has been issued a labor certification and classified under one of the appropriate immigrant preferences, does not mean that the person will be able to immigrate to the United States immediately. Since there are more people eligible to immigrate to the United States than there are numbers available in any given year, it may be necessary for the prospective immigrant to wait awhile before actually being able to apply for permanent residence. The alien cannot apply until reaching the "top of the visa waiting list." In other words, the alien is in a mythical queue and until he or she gets to the front of the line, he or she is not eligible to immigrate. At this time, May, 2003, all employment categories are current. Note, however, that this is expected to change.