The focus of this chapter is primarily to describe work visas for immigrants. These visas are divided into two main categories, temporary and permanent2. Although there is another classification of visas called exchange visas, they are generally also considered as part of the temporary visas. Another more common term for the general classification is immigrant and non-immigrant work visas.
The United States is a country with protected borders. US immigration laws obtain their legality from this situation. Immigration to United States has no parallel in the modern history of the world. United States is a land of Immigrants and opportunities, which means that the opportunities are not only for its citizens, but for all those who want to come here legally and try to fulfill their American dreams. Anyone in the world can come to the United States, provided they receive permission from the United States government. After living here for a required number of years, they can go through the legal immigration process and become a United States citizen and thereby enjoy the same rights and privileges enjoyed by those citizens who were born within the Country3. A person who wants to enter the United States needs a visa4, which is “an official mark or stamp on a passport that allows someone to enter or leave a country usually for a particular reason”5. Generally, United States Citizens who were born outside the US and became citizens through a specific immigration process are called Naturalized Citizens6, because they became citizens, not by birth within the United States, but by becoming citizens through a process of naturalization.
Foreigners can enter United States legally, either as immigrants or nonimmigrants. When they enter as immigrants, generally their rights to live and work are almost similar to those of the United States Citizens and Permanent Residents. On the other hand, when someone enters United States as a non-immigrant, they have very limited rights regarding living and working within the US. Every year, thousands of foreign workers enter United States to work. Some enter the US as permanent workers7, while others enter as temporary workers8. The distinction between the two, to a large extent, is based on the needs and requirements of the employers who sponsor them. There are different kinds of visas available for this purpose. These visas are classified into different categories, which will be discussed below. The main differences between the categories are based on the unique requirements and restrictions associated with each. Therefore, a prospective employer needs to be well aware of certain basic details regarding each visa, preferably with the help of an immigration attorney, in order to know which kind of visa will be more compatible with his needs.
For example, if an employer wants to hire a computer programmer from South Africa, and he needs the computer programmer to work for him for a couple of years, his best option generally would be the “specialty occupation worker”9 visa, in other words an H1B Visa. To qualify for this visa, the applicant must have an educational degree and/or work experience equivalent to a US bachelor’s degree in the field which is related to that specific job for which the applicant is applying; which, in this example would be the field of computer sciences. This visa is usually valid for three years, and can be extended only once by the employer for an additional three years. After working for six years, the term of the visa ends and the foreign worker must leave the country. During the employment period, if the foreign worker quits or is dismissed from him his job, he will lose his nonimmigrant legal status because his status is dependent on the terms and conditions of the specific H1B Visa. In other words, if there is no job, then there is no legal nonimmigrant status. However, if another employer files a new H1B for him, and it is approved, then he can legally stay in the US but must work for the new employer with different terms and conditions. There are many visas similar to H1B, which come packaged with similar conditions and restrictions. For certain visas, there is a yearly cap, which means that only a certain number of visas are available during each fiscal year, which starts on October 1st and ends on September 30th. For example, the yearly cap for H1B is 65,00010. But there can be an exception, if the applicant has a master’s degree, not just the required bachelor’s degree, then another 20,000 H1B visas are available, but it must be remembered that H1B is a nonimmigrant visa.
If a US business wants to hire a foreign worker, then they have to be very clear and specific regarding their own wants and needs in order to prove to the Immigration Department the necessity of hiring a foreign worker. If they can’t prove this necessity to the Immigration Department, it is likely the visa will not be approved. Businesses usually hire foreign workers when they are growing or when they need someone with a specific skill, which may be hard to find within the existing US labor pool. Some of the most basic questions for a prospective employer before they can start the process of hiring a foreign worker are as follows:
What kind of work is required of the foreign worker?
What special skills and qualifications are required for that work?
Can the employer not find a local worker with the same skills and or experience?
How soon does the employer need the foreign worker to start working?
For how long will the foreign worker work for the employer?
There are many options and routes available for an employer who wants to hire a foreign worker. Based on the answers to the above questions, he can decide which route to take, preferably after consulting an immigration attorney. It’s very important for a prospective employer of a foreign worker to have a basic understanding of different work visas and the related conditions. Immigration is a very technical and complicated process. Sometimes an employer, while doing research regarding the different immigration options available for hiring and bringing in a foreign worker from outside the US, may seem to think that the process is simple and straight forward. This kind of thinking will usually encourage a business owner to proceed with the immigration process on his own, without hiring an immigration attorney. This can be huge mistake. The result can be the denial of an immigration application, and it may take much more time and money to complete the process, provided that the process is still possible. It can even be a bigger loss, if the business requirements of the employer are such that it needs the foreign worker to start working as soon as possible.
For example, an entrepreneur wants to open a specialty Indian restaurant, needs a highly skilled Indian chef for the restaurant, and decides to take care of the immigration paperwork himself. He may end up in a long and costly process of bringing in the chef. As a worst case scenario, the application may get denied, which means no chef and no restaurant, unless the entrepreneur can find someone locally. In other words, it’s back to square one. Another easier option available for the Entrepreneur is to hire an Indian chef from a country with which US may have signed a treaty such as NAFTA (North American Free Trade Agreement), making the movement of skilled workforce easier between the two countries. Canada is a perfect example for this case, but that may not solve the problem, because it may be hard to find a Canadian Chef who is skilled in Indian cooking and is willing to move to the US and accept the salary package offered for that specific job by the entrepreneur.
This means that even the backup plan may fall flat. If the entrepreneur decides to hire someone who is already in the US and is either out of his legal immigration status, or still has his legal immigration status, but no work authorization, the entrepreneur may end up in violation of Federal Immigration Laws. Had the entrepreneur hired an immigration attorney in the first place, most likely, the situation would have been much better for him.
Some of the most common types of nonimmigrant visas are listed below:
H1A Registered nurses for temporary employment
H1B Persons in specialty occupations that require a college or advanced degree; artists, entertainers, athletes and fashion models of distinguished merit and ability (may include persons assisting in their performances)
H2A Temporary or seasonal agricultural workers
H2B Persons filling temporary jobs that cannot be filled by US citizens or residents
H3 Professional job trainees in an American company or in the US office of a foreign Company
I Representatives of foreign information media, representatives of a foreign tourist bureau, or film crew members holding professional journalism credentials and intending to work on news or non-commercial documentaries
L Managers or executives of multinational corporations, transferred to the company’s US office, that have a minimum of one year experience with the company
Persons of sustained national or international acclaim in the sciences, arts, education, business or athletics, coming to the US to work or perform in their field of achievement
Entertainers and athletes coming for specific competitions or performances, or who are participating in a reciprocal exchange program between the US and their country, this also includes those performing in culturally unique programs
Participants in an international cultural exchange program for the purpose of explaining or sharing their country’s culture
Member of a religious denomination having a bona fide nonprofit, religious organization in the United States
TN Professional workers from Canada or Mexico11
There are many nonimmigrant visa categories, which allow the visa status holder to apply for an employment authorization document. These visas include, but are not limited to, visas such as F113, V114 and J215. These kinds of visas are not generally based on employment, but they give permission to work, which means no specific employer and no specific job. As long as the visa holder has an unexpired Employment Authorization card, he can work almost anywhere. There are some restrictions, such as an employment authorization for foreign students in the US. For example, if school is in session and the student is on an F1 student visa, he can only work for 20 hours or less during that time, and If he works more, then he will be in violation of the immigration laws. If an employer wants to hire someone who lives in United States, and is not a US citizen or permanent resident, then before hiring him, the employer must check his Employment Authorization card. If the card is valid and unexpired, then the employer can hire him.
Employment Authorization Document or an EAD16 is the most important proof of permission to work granted by the United States government. The employment authorization document must be checked by the employer before hiring a worker. Generally, an EAD is granted for one year. There are three broad categories of non-nonimmigrant workers who can qualify for this card, and they can apply for it by submitting the form I-76517, which is available for downloading at the United States Citizenship and Immigration Services official website.
The form is not only used for a new EAD, but is also used to replace a lost EAD, and also to renew an expired EAD.
The three categories of qualifying workers are listed below:
A worker may have authorization to work in the United States as a result of his nonimmigrant status.
A worker may have authorization to work for a specific employer as a result of his nonimmigrant status.
A worker may be in a category which requires him to file for permission to work.18
There are approximately 140,000 immigrant visas available every fiscal year for foreign workers and their spouses and children.19 If an employer wants to hire a foreign worker for a longer period of time, without the restrictions and conditions of a visa such as an H1B, then he can sponsor the foreign worker as a permanent worker, by filing a petition for him with the Immigration Department. In some cases, before an employer can file the petition, he must get the approval of the Labor Department, by obtaining an approved labor certification. This provides verification that the hiring of the foreign worker will not adversely affect the wages and working conditions of similarly employed
U.S. workers, and that U.S. workers willing to work or qualified to work that specific job, are not readily available.
The Immigrant Visas listed below are classified into five categories, based on their level of preference.
First Preference EB-1:20 This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.
Second Preference EB-2:21 This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
Third Preference EB-3:22 This preference is reserved for professionals, skilled workers, and other workers.
Fourth Preference EB-4:23 This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.
Fifth Preference EB-5:24 This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Immigration is a highly technical and complicated process. It is true that almost all the relevant information is available at the Department of Homeland Security website for Immigration (USCIS.GOV), and the plain language of the relevant laws and procedures, may make the whole process of hiring a foreign worker seem very simple, easy and straight forward. However, it is strongly recommended that the business hire an immigration attorney to take care of this process. Any mistake during the immigration process can be costly as well as time consuming and frustrating.
A business must have clear answers to some of the questions asked at the beginning of this chapter. If a business is not sure about its wants and needs regarding a foreign worker, they may end up opting for the wrong kind of immigration status for the worker, especially, if they are doing the immigration paperwork without the help of an immigration attorney.
All lawyers are not equal, so it’s always better to do some research before hiring a specific attorney. A good attorney may cost a little more than others, but more experience and a better work ethic will be of great help during the immigration process. It does not mean that any attorney who is charging less for the same amount of work will be less competent, but the difference between the attorney fees, may be due to the location and the kind of cases the attorney deals with. It is always a safe bet to do the relevant research and then make the right decisions.