Understanding and Obtaining U.S. Employment Visas

January 8, 2021
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Editor's Note: U.S. Citizenship and Immigration Services (USCIS) issued a final rule Jan. 8 replacing the annual H-1B visa lottery that randomly selects foreign professionals with a process that prioritizes those offered the highest salaries for their occupation and geographic area. The rule is slated to take effect March 9, and is now delayed to December 31, as its future in the Biden administration remains uncertain. For more information, see USCIS Replaces H-1B Lottery with Salary-Based Selection.

Overview

There are a variety of circumstances under which employers can engage foreign nationals to work in the United States on a temporary or permanent basis. Foreign nationals who are not citizens, permanent residents or refugees/asylees to the U.S. must first obtain authorization to work in the U.S. pursuant to nonimmigrant or immigrant visas. Nonimmigrant visas confer temporary status and work authorization; immigrant visas grant permanent residency status.

Nonimmigrant visas

Most employment-based nonimmigrant visas require employer sponsorship. That is, the employer, on behalf of the prospective employee, files for a specific type of nonimmigrant visa with the U.S. Citizenship and Immigration Services (USCIS). In some circumstances, U.S. Department of Labor (DOL) approval is also required to demonstrate that the foreign national will not displace U.S. workers. Upon approval by the USCIS, the foreign national either is granted change of status if lawfully in the U.S. or may obtain the visa at a U.S. embassy.

Immigrant visas

Immigrant visas for individuals seeking to immigrate to the U.S. and seeking permanent residence may be available for job offers in identified occupations in which U.S. workers are in short supply or in other specific categories. These employment-sponsored visas are divided by preference categories with specific quotas, skill requirements and per-country caps. See Immigration 101: Inside the U.S. Employment-Based Immigration System.

HR's Role

HR professionals are expected to understand the staffing needs of organizations and the methods necessary to recruit and retain qualified employees. In an increasingly globalized economy, this means that HR professionals should be familiar with the process for obtaining U.S. work visas. See HR Needs to Know Immigration Basics to Recruit, Retain Global Talent  and Know the Essentials of Employment-Based Immigration.

Relevant Law and Administering Agencies

Several government agencies are involved with granting permission for foreign workers to work in the United States. It can be challenging to understand the different roles and responsibilities of the various government agencies involved. Broadly speaking, this is the breakdown:

  • Employers must seek certification through the U.S. DOL.
  • Once the application is certified/approved, the employer must petition the USCIS for a visa. Applicants must establish that they are legally admissible to the U.S.
  • After the petition for a visa is granted, the U.S. Department of State (DOS) issues the visa pursuant to proper application.

Obtaining labor certification

The U.S. DOL Office of Foreign Labor Certification administers the Labor Certification Process for Permanent Employment of Aliens in the United States, under regulations codified in 20 C.F.R. §656. The DOL also certifies Labor Condition Applications that must be filed with the USCIS for certain nonimmigrant petitions under 20 C.F.R. §655. See Foreign Labor and Visas: Labor Certification: What is the foreign labor certification process for hiring foreign workers?

Petitioning for a visa

The Immigration and Nationality Act (INA) is the basic body of U.S. immigration law, supplemented by Title 8 of the Code of Federal Regulations (Aliens & Nationality), that have the force of law.

The USCIS administers the immigration and naturalization adjudication functions and establishes policies and priorities for immigration services.

The USCIS is responsible for approving all immigrant and nonimmigrant petitions, authorizing permission to work in the U.S., issuing extensions of stay, and changing or adjusting an applicant's status while the applicant is in the U.S.

Obtaining a visa

The U.S. DOS issues U.S. visas. A citizen of a foreign country who wishes to enter the U.S. generally must first apply for and obtain a visa—either a nonimmigrant visa for temporary stay or an immigrant visa for permanent residence. Having a U.S. visa allows an individual to travel to a port of entry and request permission of a Customs Border Protection immigration officer to enter the U.S. A visa is a permission—but not a guarantee—for entry to the U.S.

The Office of Visa Services, in the Bureau of Consular Affairs, performs various functions:

  • Serves as liaison to the U.S. Department of Homeland Security.
  • Serves as liaison between the DOS and embassies and consulates abroad on visa matters.
  • Interprets visa laws and regulations, and acts as a point of contact for the public on matters such as applications for visas, the status of visa processing and visa denial.

Nonimmigrant Visas

Except for certain limited circumstances described below, most business activities in the U.S. are considered "employment," and application must be made to the USCIS for a visa.

There are numerous types of nonimmigrant visas, designated by letter and number sequences, for example, "H-1B." The appropriate visa for employment purposes depends primarily on the position sought to be filled and on the job candidate's qualifications. Following are descriptions of the more commonly held employment-based temporary visas.

Visa waiver program

Pursuant to the Visa Waiver Program (VWP), nationals of 38 participating countries may travel to the U.S. as tourists or business visitors for stays of 90 days or less without obtaining a visa. VWP business visitors should be prepared to be interviewed and present documents at the port of entry into the U.S. Travelers under the VWP must have a valid Electronic System for Travel Authorization (ESTA) approval prior to their travel to the U.S.

VWP entrants may not be granted extensions or changes of status, and they must leave before the end of their lawful period of stay.

B-1 visa (business visitor)

Most foreign nationals coming to the United States to conduct business must obtain B-1 visas. Tourists obtain B-2 visas. B-1 visitors cannot engage in productive employment nor receive remuneration in the United States, but they can do the following:

  • Meet with colleagues or clients.
  • Attend conferences.
  • Engage in similar activities.

B-1s are admitted for the period of time necessary to complete their work, usually less than three or six months. Persons from certain countries with which the United States has a close relationship are exempt from this visa requirement and can enter under the VWP instead of a B visa. See U.S. Visas: Business.

H-1B visa (specialty occupation)

The H-1B visa is the most commonly sought visa for professional workers. The H-1B classification applies to "specialty occupations." The job position must require theoretical and practical application of a body of highly specialized knowledge, such as a bachelor's degree or equivalent experience. Examples of H-1B positions are accountants and computer engineers. See, H-1B Specialty Occupations.

Process. Employers are required to pay the prevailing wage for the offered position and file for labor condition approval (LCA) from the U.S. DOL attesting that the prevailing wage will be paid, along with other attestations. Candidates already working on H-1B status may "port" to another employer and begin working when the H-1B extension is filed by the new employer. See, How to Sponsor an Individual for an H-1B Visa for detailed guidance.

Quota. Employers sponsoring a job candidate who requires a new H-1B will have to contend with the quota, or "cap" as it is commonly referred to. Currently, the annual cap on H-1B is 65,000 per year with an additional 20,000 for applicants holding advanced U.S. degrees. There is an annual lottery system to randomly select who may file an H-1B petition.

Exemptions from quota. Certain higher education institutions and nonprofit or government research organizations are exempt from the cap. 

Duration of stay. H-1B petitions may be approved for up to three years and can be extended for up to a total of six years. The six-year maximum can be extended if the H-1B visa holder is the beneficiary of a labor certification or a Form I-140 (Petition for Immigrant Worker) filing pending one year or more. Trips outside the U.S. while on H-1B status can also be recaptured to extend the maximum stay on H-1B status.

See:

H-2B visa (nonagricultural seasonal/intermittent worker)

For seasonal, intermittent or one-time only positions, the H-2B visa may be appropriate. The H-2B nonimmigrant program permits employers to hire foreign national workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent.

Process. The sponsoring employer files for certification with the DOL. As of December 16, 2019, the employer no longer must post job advertisements in newspapers or online before filing for certification; rather, the DOL will now do it for them on SeasonalJobs.dol.gov to determine that there are no available U.S. workers for the position. After obtaining DOL certification, the employer files the H-2B petition with the USCIS. Due to the recruitment and filing requirements with the DOL, in addition to USCIS processing times, processing the H-2B visa can be lengthy—the initial DOL filing should take place at least four to six months in advance of the proposed start date.

Quota. There also is a quota on H-2B visas: 66,000 per fiscal year—33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 - Mar. 31) and 33,000 for workers who begin employment in the second half of the fiscal year (Apr. 1 - Sept. 30). See H-2B Temporary Non-Agricultural Workers.

TN visa (USMCA (formerly NAFTA) professional worker)

Pursuant to the U.S.-Mexico-Canada Trade Agreement (USMCA), which replaced the North American Free Trade Agreement effective July 1, 2020, the nonimmigrant TN visa allows citizens of Canada and Mexico, who work in certain professions, to work in the U.S. See Visas for Canadian and Mexican NAFTA Professional Workers

Process. TN classification is advantageous in that there is no quota, and it requires no prior application with the USCIS. To be eligible for the TN, the Canadian or Mexican citizen must have the degree, experience or licensing requirements designated for each profession.

Canadian nationals may apply for the TN directly at any port of entry; Mexican nationals must apply at a U.S. embassy in Mexico. Citizens of both countries must maintain a home-country residence that they have no intention of abandoning.

Duration. The TN status is granted in up to three-year increments and can be renewed indefinitely.

L-1 visa (intracompany transferee)

A candidate already working for a foreign affiliate, subsidiary, parent or branch of a U.S. company may be eligible for the L-1 visa. The L classification is for intracompany transferees who, within the three years before filing, have been continuously employed outside the U.S. for at least one year by an affiliate, subsidiary, parent or branch of the U.S. company in a managerial, executive or specialized knowledge position. See L-1 Visa.

"Specialized knowledge" has been defined by the regulations to mean special or advanced knowledge possessed by an individual of the petitioning organization's products, services, processes or procedures.

The L-1 visa is split into two categories:

  • L-1A (intracompany executives and managers): allows a U.S. organization to transfer an executive or a manager from a parent company, subsidiary or other affiliate abroad to the United States. See L-1A Intracompany Transferee Executive or Manager.
  • L-1B (intracompany specialized knowledge professional): allows a U.S. organization to transfer workers with special knowledge of the employer's business, products or services from an overseas parent company, subsidiary or other affiliate to the United States. See L-1B Intracompany Transferee Specialized Knowledge.

An added benefit is that the spouses of L-1 visa holders may work in the U.S. A job candidate may be eligible for employment authorization as an L-2 spouse or a spouse of an investor/trader as described below.

Process. Unless the petitioning company is the beneficiary of a Blanket L Petition, L-1 visa applications are first made on behalf of the foreign employee with the USCIS. Processing times vary and can be from one to three months. Premium processing is also available for quicker adjudication.

Quota. L-1 visas are not subject to a quota.

Duration. Initial L-1 visa status generally may be approved for up to three years and can be extended for a maximum of seven years for an L-1A or five years for an L-1B.

E-1/E-2 visa (treaty traders and treaty investors)

Another type of nonimmigrant category that permits employment is the E-1/E-2 treaty trader or investor classification. The E-1 treaty trader visa allows a foreign national to engage in substantial international trade in the U.S. The E-2 treaty investor visa allows an individual to enter the U.S. for the purpose of actively investing a substantial amount in an enterprise. See Treaty Traders and Treaty Investors.

The trader/investor must have the nationality of a treaty country. At least 50 percent of the U.S. entity for E-1 trader or E-2 investor visas must be owned by non-U.S. resident nationals of a treaty country. See List of Treaty Countries.

Employees of traders and investors who are executives, supervisors or "essential workers" also may obtain E-1/E-2 visas. These employees must have the same nationality as the employer. In addition, spouses of E-1/E-2 visa holders are eligible to apply for employment authorization.

F-1 visa (student work authorization)

Job candidates who are currently students may be able to work pursuant to their student visas. While primarily for the purpose of studying in the U.S., the F-1 visa also entitles the holder to seek employment relating to his or her field of study. Typically, students work with the international student adviser at their school to obtain F-1 employment authorization.

For internships or work/study positions during the school year, students can apply for Curricular Practical Training. The program must be offered by sponsoring employers through cooperative agreements with schools.

For students who wish to work outside of their academic program, Optional Practical Training (OPT) may be granted. F-1 students may engage in up to 12 months of OPT pre- and/or post-graduation. However, certain F-1 students who have earned a degree in a science, technology, engineering or math (STEM) field are eligible to apply for a 24-month extension of their post-completion OPT employment authorization if they meet certain requirements. See Optional Practical Training for F-1 Students and Practical Training.

H-3 visa (trainee)

An H-3 trainee is a nonimmigrant who will receive training (not academic or medical) in any field at the request of a sponsoring U.S. organization or individual. An H-3 trainee cannot engage in productive employment in the United States. The training must also not be available in the applicant's home country, and applicants must show that they have a foreign residence they have no intention of abandoning. H-3 status is granted for a maximum of two years.

J-1 visa (exchange visitor)

Similarly, the J-1 exchange visitor category includes a variety of exchange visitor programs and activities that are approved by the U.S. DOS to promote intercultural exchange and public diplomacy. For more information on the trainee, intern and other types of J-1 visas, see Department of State Information About Exchange Visitor Program.

For individuals in the U.S. on a J-1 visa, employment is authorized only under the terms of the specific exchange program; visa holders should check with their designated sponsor for more information on any restrictions that may apply to working in the United States.

The permitted duration period of a J-1 visa varies by category, so visa holders should check with the specific designated sponsor. Moreover, J-1 visa holders may be required to return to their home countries for two years if they are deemed subject and do not receive an approved waiver. See Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement.

O-1 visa (extraordinary ability)

For job candidates who are highly regarded and recognized in their field, the O-1 visa may be an option. The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by sustained national or international acclaim. See O-1 Visa: Individuals with Extraordinary Ability or Achievement.

Process. Unless the candidate has won a highly recognized award such as the Nobel Peace Prize, extraordinary ability must be documented with evidence of awards received, published material in major media and the like. A list of documentation requirements for the O-1 can be found in Form I-129 Instructions.

Prior to filing with the USCIS, consultation from a labor or peer group is required, if such group exists. After filing with the USCIS, the petition will take two to three months to be adjudicated, but premium processing may be available.

Duration. O-1 status may be granted for a maximum of three years at a time and may be extended indefinitely in one-year increments.

Preference Categories for Employment-Based Immigrant Visas

A job candidate or an employee who may already have temporary nonimmigrant visa status can be sponsored for permanent residency (immigrant visa) by an employer. There are different preferences of petitions for immigrant visas. The three most common in the employment context are:

  • First preference (EB-1).
  • Second preference (EB-2).
  • Third preference (EB-3).

Generally, the higher the preference category, the shorter the wait time for obtaining an immigrant visa. Due to the per-country quotas, nationals of certain countries or those applying for the lower preferences have to wait years for final processing of their immigrant visas, as they wait for priority dates to become current. For a current list of priority dates, see the U.S. Department of State's current Visa Bulletin. Once a priority date is current as to the date of filing with the USCIS or DOL, the beneficiary worker can apply concurrently for adjustment of status if lawfully in the U.S. or complete the processing at a U.S. embassy. See Simple Filing Missteps Can Lead to Losing Foreign Talent.

Employment first preference (EB-1)

Certain professionals, irrespective of nationality, historically have enjoyed up-to-date priority dates under the EB-1 category. The following are categories of EB-1 professionals. See Employment Based Immigration: First Preference EB-1.

Extraordinary ability workers. Those who are petitioning in this category must demonstrate sustained national or international acclaim for expertise in the sciences, arts, education, business or athletics. No employer sponsorship or job offer is required. However, the extraordinary ability applicant must show the following:

  • Sustained national or international recognition as evidenced through extensive documentation.
  • Intention to enter the U.S. to continue work in the area of extraordinary ability.
  • The way in which the prospective work will substantially benefit the U.S.

Outstanding professors and researchers. Applicants for the EB-1 outstanding professor or researcher category must demonstrate that they have at least three years of experience in teaching or research and are recognized internationally as experts in their field. The professors or researchers must have a job offer and sponsoring employer to qualify. They must be entering the U.S. to pursue tenure or tenure track teaching or a comparable research position at a university or other institution of higher education.

Multinational executives/managers. Like the L-1A temporary visa, the EB-1 category is appropriate for executives and managers who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary or branch of the U.S. employer. The employment abroad must have been within the three-year period before the EB-1 filing or the applicant's entry into the U.S. as a nonimmigrant. The applicant must be coming to continue work in a managerial or executive capacity. The employment must have been outside the U.S. in a managerial or executive capacity and with the same employer, an affiliate or a subsidiary of the petitioning employer.

Employment second preference (EB-2)

There are three subcategories of the EB-2 second preference:

  • Workers who hold an advanced degree or equivalent.
  • Workers who demonstrate exceptional ability in the sciences, arts or business.
  • Workers who have been granted a National Interest Waiver and whose employment would greatly benefit the U.S.

Unless a National Interest Waiver has been granted, the applicant must have a job offer and labor certification from the DOL. See Employment Based Immigration: Second Preference, EB-2 and USCIS Issues More-Flexible Standard for National Interest Waivers.

Before filing most EB-2 visa applications with the USCIS, the petitioning employer must first seek certification from the DOL. The certification is based on the attestation by the employer that:

  • There are not sufficient U.S. workers who are available and qualified for the position that the foreign worker seeks to fill.
  • The employment of the foreign worker will not adversely impact the wages and working conditions of U.S. workers.

The DOL makes a determination via its Foreign Labor Certification Permanent Online System (PERM), in which employers provide information such as recruitment steps taken, description of the proposed employment and the candidate's job history.

Employment third preference (EB-3)

The third preference category of immigrant filing also requires a job offer from a sponsoring employer and labor certification from the DOL. See Employment Based Immigration: Third Preference, EB-3.

There are three subgroups within this category:

  • Professionals with a bachelor's degree for positions requiring at least a bachelor's degree.
  • Skilled workers for positions that require at least two years' experience.
  • Other workers for positions that require less than two years' experience.

The EB-3 preference has significant wait times for final immigrant visa processing. While the applicant is waiting for final permanent residency processing, he or she must be either outside the U.S. (see Consular Processing) or in the U.S. pursuant to a valid nonimmigrant visa.

Templates and Tools

USCIS Processing Time Information

USCIS: How Do I Hire a Foreign National for Short-Term Employment in the United States?  

USCIS: How Do I Sponsor an Employee for U.S. Permanent Resident Status?

USCIS: Forms

U.S. Department of State: Forms

U.S. Department of State: Employment

SHRM's Council for Global Immigration










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