Temporary Visas: Employment
There are a variety of temporary visas that authorize employment in the United States.
This visa is for aliens who have worked for a full year in the three year period immediately preceding the application in a position which is executive, managerial or involves specialized knowledge, and who will be doing the same type of work in the U.S. for the same employer or one under common control. Good news: 30-day processing is mandated. The definition of managerial capacity includes individuals who manage a function or component of the organization and who do not actually directly supervise other employees, but "function at a senior level within the organizational hierarchy or with respect to the function managed."† The person's "specialized knowledge" must be of the company product and its application in international markets or of processes and procedures of the company. Maximum period seven years for executives and managers, five for specialized knowledge employees.
Available to individuals who in a "specialty occupation" (requiring the theoretical and practical application of a body of highly specialized knowledge) for which a bachelor's degree or its equivalent in experience is required in the U.S. Maximum period of stay generally six years (may be extended for a seventh year in certain circumstances).
Good news: no longer required to prove they have a home abroad they do not intend to abandon.
Bad news: a labor department filing procedure is required, which is not onerous but adds to the time, and only 65,000 can be issued in Fiscal Year 2006, which begins on October 1, 2005. (Effective in the current 2005 Fiscal year, an additional 20,000 visas, which are exempt from the annual cap, are available for holders of Master's degrees granted by U.S. universities).
If the employee is dismissed by the employer before the end of the period of authorized admission, the employer is technically liable for the reasonable costs of return transportation abroad. While not required to recruit U.S. workers or establish that there are no suitable U.S. workers for the position, employers will be required to file an attestation with the Secretary of Labor that the wage level is not below the actual wage level at the place of employment or the prevailing wage level in the area of employment, whichever is greater, that there is no strike or lockout in progress, that employment of the alien will not adversely affect the working conditions of other workers, and that notice of the application (including the wage offered) has been given to its employees or their union.
Complaints can be filed alleging that there has been a misrepresentation in the application or a failure of compliance, and the Secretary of Labor, after notice and hearing, can require back pay and impose a fine up to $1,000 per violation. After a violation, no new petitions by that employer to hire alien employees may be approved for at least a year. Since a complaint may be filed any time up to 12 months after the misrepresentation or failure of compliance alleged, employers will have a hard time knowing when they have passed the finish line, since an allegation of adverse effect on working conditions could be made as much as a year after the alien's employment terminates.
Business visitors (B-1)
The State Department has long permitted not only brief business visits on this visa, but also longer stays in what would otherwise be a professional (H-1B) or trainee (H-3) capacity, so long as the worker continued to be paid only by the foreign employer and not on a U.S. payroll. However, the work done by the foreign person must be for the benefit of the foreign employer; the B-1 cannot be used to "lease" employees to U.S. companies to perform work for the U.S. company.
Temporary job visas (H-2)
The visa, generally available only for a year, requires proof that the job itself is expected to terminate, and a finding by the U.S. Dept. of Labor that there are no qualified U.S. workers after recruitment by the employer. It can take 2 months to get one of these approved.† No more than 66,000 visas a year.
These visas are for those participating in an actual training program, not just "learning by doing," and they must not displace a U.S. worker. The program must not be designed primarily to provide productive employment. It helps if you can establish that the person needs the training to perform his job in his home country. The briefer the training, the more likely the approval. Classroom training is generally required to be part of the training.
Treaty NAFTA (TN)
These visas are freely available for certain types of professional workers who are citizens of Canada, and a bit less freely available for professional workers who are citizens of Mexico, as both Canada and Mexico are signatories to the NAFTA treaty. The three countries have agreed on a list of professions and the credentials which prove the person is a member of the profession, and those with the necessary documents can be admitted to work in the U.S. for a U.S. employer for up to a year. Renewals are freely granted without limitation.† Self-employment, however is not permitted, except for consultants. Canadians present their papers at the border and usually enter the same day; for Mexicans the employer must file a petition with the Bureau of Citizenship and Immigration Services, which can take 4 to 6 weeks.
Treaty Visas (E-1 and E-2)
Treaty visas are available to traders (E-1) and investors (E-2) who are citizens of countries with which the U.S. has treaties of trade and commerce, such as Japan, Germany, the U.K., etc. The list of countries is being expanded rapidly to include many former Soviet Union and African countries. Trade with the U.S. may include trade in services as well as tangible products. The trade with the U.S. or the investment in the U.S. must be "substantial". The person must be either managerial or possess essential skills.
Exchange Visitors (J or Q)
These visas are not issued individually, but
only in connection with approved programs designed to promote international
friendship. An alien who fits the criteria for one of the programs can receive
an individual visa to work in the U.S., usually for up to 18 months, longer
for some university research positions.
Visas for Aliens with Outstanding Ability (O-1)
The O-1 visa is for individuals who are leaders in their field, as proven by sustained national or international acclaim and achievement. This can include leaders in scientific fields, as well as those in the arts, education, business or athletics.† The definition for each field varies slightly, but most candidates must prove they have risen to "the very top of the field," as evidenced by important awards, publications, and recognition by experts. The visa petition must also be supported by an advisory opinion from one of the unions in the field, if one exists, describing the alien's achievements and the duties they will perform in the US. O-2 visas are for people who work in support of O-1 holders, and O-3 visas are for dependents. Most O visa are intially granted for three years, and can be extended annually.
Students who are studying pursuant to a student visa are allowed to work under certain conditions. In most instances, the students are allowed to work either on campus or off-campus during vacation after the end of the first academic year. In addition, some students may be accorded a designation of post-curricular practical training, permitting them to work for up to one year following graduation. F visas are not available for public school students below college level.
Pathways to Temporary Residence