US Work Visas - Advocates Atlantic LLP

US WORK VISAS

A lot of us want to make that fresh start in the US and begin living The American Dream. Unfortunately, in many cases the mammoth Department of Homeland Security and also the Department of State appear to do what they can to stop the dream even before it begins by not granting that crucial immigration application. In fact, in most cases, to be able to live in the US the would-be immigrant must be sponsored by either a close US citizen or legal permanent resident relative or by a US employer.

The US immigration system can be a huge obstacle to those wishing to live and work in America. It is not possible to simply enter the country and start working. The US lacks a point based system, instead having various work visa categories and paths leading to permanent residence status (green card).

It is important to recognize the difference between work authorization and visa. A work authorization document allows the bearer to engage in regular employment while in the US. It may be general – any type of work for any type of employer – or specific, where only certain activities can be undertaken for one particular employer.

A visa is a travel document. Issued by a US Embassy or Consulate, it allows the holder to travel to the US and formally apply for admission into the country. It does not guarantee entry – an immigration inspector at the port of entry will make this decision. The type of visa issued and its validity will usually depend on the type of work authorization granted. In other cases, the visa is issued without separate work authorization.

The US has many work visa categories that allow holders to work and reside in the US. Some of the most commonly used are listed below. The L-1, H-1B, O and P visas can all potentially lead to green cards. The E1 or E2 can be renewed or extended an unlimited number of times, but does not normally lead to a green card. The B-1 in lieu of H-1 is a relatively short term work visa only.

a. L-1 Intracompany Transfer Visa

The L-1 visa is designed for the transfer of certain employees between two or more related entities in the US and another country. It may also be suitable where a non-US company wants to establish a subsidiary or branch in the US (New Office). The petitioning entity (either the US or the foreign company) must meet the definition under immigration rules of a parent, branch, subsidiary or affiliate. In addition, both the foreign and the US operations must be doing business for the entire time that the L-1 employee is working in the US.

Only three types of employees may be transferred to the US on an L-1 visa:

Executives
Managers
Specialized Knowledge Employees

The employee to be transferred must have worked in one or more of these capacities for the foreign company for at least one year out of the last three, and must be going to the US to work for the US company as an Executive, Manager or Specialized Knowledge Employee. Executives and Managers (L-1A) may remain in the US for up to seven years. Specialized Knowledge Employees (L-1B) may remain in the US for up to five years.

All L-1 employees could potentially become US legal permanent residents (green card holders). However, for green card purposes there are marked procedural differences between the L-1A and the L-1B categories.

The first step towards L classification is to file a petition with the Citizenship and Immigration Services at the relevant Service Center. The next step is normally to obtain an L-1 visa from the applicable US Consulate or Embassy. Dependents of the L-1 holder (spouses and children) may obtain L-2 visas. L-2 spouses may later apply for a general work authorization in the US.

b. H-1B Specialty Occupation Visa

Generally, the H-1B1 (mostly referred to as the H-1B) visa is designed to enable US employers hire foreign workers in specialty occupations on a temporary basis. A specialty occupation is one that requires (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the US.

The US employer must sponsor or file the H-1B application and therefore needs to document that the position is a specialty occupation. Further, the employer must maintain wage and hour records and information concerning working conditions.

The potential H-1B employee must show that s/he is qualified for the specialty occupation and that his or her degree or work experience is equivalent to a US bachelor degree. This can normally be demonstrated by obtaining a credentials evaluation from a credentials evaluation agency.

The H-1B visa can initially be issued for 3 years and be extended for another 3 years (total 6 years). One problem affecting the H-1B visas is that they are capped and over the past few years, the cap (or quota) has been met relatively early in the fiscal year (the US immigration system operates on Fiscal Years which start October 1 and ends September 30). In fact, this year, the H-1B cap for FY 2008 was reached on the first day of filing. This means that no new H-1B unless exempted from the cap can be issued until October 1 next year.

The employer’s first step is to obtain an approved Labor Condition Application from the Department of Labor, which describes the position and the salary and also contains various attestations by the US employer. The employer then files a petition with the Department of Homeland Security at one of the four regional Service Centers in the US.

Once this is approved, the next step is normally for the candidate to obtain an H-1B visa from the applicable US Consulate or Embassy. Dependents of the H-1B holder (spouses and children) may obtain H-4 visas that will allow them to stay in the US with the H-1B visa holder. The H-4 spouse will not be authorized to work in the US unless independently sponsored.

c. E1 or E2 Treaty Visas

The US has entered into various treaties with many countries

Certain treaties entered into by the US and other countries allow nationals of those countries to use the E treaty scheme. The UK has entered into such a treaty with the US covering both the E-1 and E-2 categories.

A person could be issued an E-1 visa if:

The individual or the company has the nationality of the treaty country
There is substantial trade – more than 50 percent of the company’s trade – between the US and the treaty country. Trade involves the commercial exchange of goods or services in the international market place.
The trade must be continuous and ongoing.
The individual must be the principal trader, an executive, manager or an essential employee.

A person could be issued an E-2 visa if

The individual or the company has the nationality of the treaty country
The individual or the company has made or is in the process of making a substantial investment in a business in the US ·
The individual must be either the principal investor, an executive, manager or an essential employee ·
The investment must have the capacity to generate more than enough income to provide minimal living for the investor (and his/her family) or the capacity to make a significant economic contribution.

E visas may be issued for up to five years but is commonly issued for two years at a time. There is no limit on the number of extensions. These can be granted as long as eligibility continues and the relevant treaty remains in force. The relevant US Embassy or Consulate will normally adjudicate the initial E application. Subsequent extensions are processed by a Citizenship and Immigration Services Service Center. Dependents of the E-1/E-2 holder (spouses and children) may also obtain E visas. E spouses may later apply for a general work authorization in the US.