Work Permits and Employment Authorization

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EMPLOYMENT-BASED TEMPORARY WORKING VISAS

There are several categories of temporary nonimmigrant visas which provide for employment authorization.  The most frequently used business visa is the B-1 visitor for business.  Although admitted into the United States for business, B-1 holders do not have employment authorization and cannot receive a salary or other remuneration in the United States.

Recent changes in the law have affected several non-immigrant categories, including visas for persons with professional credentials, intra-company transferee executives, manages and specialized personnel, persons with extraordinary ability, athletes and entertainers, nurses and prominent business persons.

The H-1B visa is for aliens who have college degrees or the equivalent of a college degree based on their formal education and experience.  They must have a job offer from an American employer who needs their professional services.  Some of the professions that qualify are engineers, scientists, computer programmers and health care providers.  H-1B’s may obtain permission to work for up to 6 years in the U.S.  However, there is a numerical limit of 65,000 H-1B non-immigrants who may enter each year.  There are also H-2 temporary visa’s for skilled and semi-skilled workers and H-3 visas for trainees who can prove they will not be taking employment from American workers.

Distinguished artists, actors, athletes, musicians, and other performers as well as individuals with exceptional ability in business may qualify for O or P visas, provided they have a job offer that requires a person of that caliber and the appropriate trade union or peer group association provide a favorable consultation letter.

The L-1 Intra-company transferees must be coming to the United States temporarily to continue to render services in a capacity that is managerial, executive, or involves specialized knowledge.

The intended affiliate employment must be for the same employer or a subsidiary or affiliate of the employer for whom the individual has been continuously employed for one of the last three years outside the U.S.  Executives and managers are eligible for up to 7 years, specialized knowledge employees are eligible for up to 5 years.

Other non-immigrant categories for workers include crewman, foreign journalist, exchange visitors on certain government authorized programs and investors or those engaged in international trade from countries which have treaties with the U.S.  Employment in each category is authorized for a specific job with a specific employer.

If the applicant is in the United States and is still in legal status it is possible to apply for a change of status while remaining in the United States.  Although there are exceptions, applicants who have overstayed the permission to remain in the U.S. or who are not currently in the U.S. must apply for a nonimmigrant visa at an American Consulate abroad.  Also, the wife or husband of the applicant and any unmarried children under 21 years of age are eligible for dependent visas.

“WORK PERMITS” and EMPLOYMENT AUTHORIZATION

Every employer must have proof that every employee is authorized to be employed in the United States at the time the employee is hired.  This means that you must be able to provide documents to the employer proving your eligibility for employment even if you are a U.S. citizen by birth.

Since November of 1989, the Immigration and Naturalization Service has a formal procedure for applying for employment authorization by foreign nationals who qualify under the law.  Some aliens have employment authorization based on their immigration status.  This includes permanent residents, and aliens in certain non-immigration visa categories such as E, H, J, L, and Trade NAFTA visas, even though such authorization may only be valid for a specific employer.

Other categories of aliens eligible to apply for employment authorization documents include:  asylum applicants, certain F-1 and M-1 students on practical training or F-1 students with changed economic conditions, and applicants eligible for adjustment of status to permanent residents.  Under several pending court cases, aliens who would have qualified for “amnesty” by having come here before 1982, and certain El Salvadoran and Guatemalan citizens are also eligible.  After approval, the foreign national eventually will be given an employment authorization document or EAD with his or her photograph on it.

This is a very complex and changing area of the law.  Employment authorization for each category is based on very specific criteria.

NONIMMIGRANT “WORKING” VISAS 

Specialty Occupation (H-1B) Visa

Professional positions (i.e. computer specialist, engineers, health professionals, etc…) can be filled for a temporary period by a person who has a bachelor degree or the equivalent experience.  Visas are issued for 3 years and can be extended for an additional 3 years for a maximum period of 6 years.  In some situations H-1B status can be extended beyond 6 years in one-year increments.  The Citizenship & Immigration Service reviews the petition from the sponsoring employer after a Labor Condition Application has been approved by the Department of Labor.  In the Labor Condition Application the employer indicates that it has met the conditions of offering the prevailing wage and working conditions.  A limit of 65,000 individuals can apply for the H-1B visa each year.  This limit does not include individuals who have already obtained H-1B status and are extending their stay in the United States or changing employers.  Spouses and unmarried children under 21 years of age of the principal applicant may be granted H-4 visas to remain in the United States.  Due to the high demand for this visa category it is important that application are prepared early in the fiscal year (October through April).  If the limit on visas is close to being reached, alternative working visas must be considered.  A professional who is already in H-1 status can usually begin working at a new sponsoring employer as soon as a new petition has been filed with the Citizenship & Immigration Service.

Intracompany Transferee (L-1) Visas

Multinational businesses can transfer an executive, manager or employee with specialized knowledge to a parent, branch, subsidiary or affiliate office in the United States.   These definitions are very precise and require analysis of the ownership of the American and foreign company as well as the past and future responsibilities of the person being transferred.  The American and foreign company must be actively engaged in business.  There are provisions in the law to allow an individual to be transferred to open a new office in the United States providing certain conditions are met.  The person being transferred to the United States must have been continuously employed abroad by the a qualifying foreign employer for one year within the three years preceding the time the visa petition is submitted.  Initial petitions may be granted for a 3 year period and renewed in 2 year increments up to the maximum stay of 7 years for an executive or manager; 5 years for an employee with specialized knowledge.  Petitions for transfers to new offices are approved for a one-year period.  Spouses and unmarried children under 21 years of age of the principal may be granted L-2 visas to remain in the United States.  If structured carefully, the intracompany transferee petition may allow easy transition to permanent resident status.

Aliens of Exceptional Ability in the Arts, Sciences and Business (O-1)

The O-1 category requires that “extraordinary ability” be demonstrated by sustained national or international acclaim.  Case law has clearly announced that this category is open to business persons and “non professional” workers, including performers and artists, who can demonstrate that they have reached the a high level of achievement in their field.

“Extraordinary ability” in practice is a broad definition that may include many individuals who can show that their skills, experience or education have given them a special advantage over others in their field.  The key is defining the “field of endeavor”  (e.g.:  financial analyst specializing in corporate mergers vs. banker or businessman).  There are special criteria for performing artist and movie and television performers.  The visa can be issued in three year increments.  There is no limit on the number of extensions that can be granted.  It is a good alternative visa for aliens who may not have a formal college degree are affected by quota backlogs or subject to the 6 year limits on H-1B visas.

Treaty (E) Visas

E visas are available to individuals or companies from certain countries with which the United States has a treaty to encourage trade and investment.  E visas are usually issued for five years.  Extensions of stay in the United States may be obtained as long as eligibility continues.  The applicant must be the nationality of the treaty country (or for a company, more than 50% owned by national of the treaty country).  (You may call Tasoff and Tasoff for current information on treaty countries.) For the Treaty Trader Visas (E-1) there must be substantial trade conducted between the United States and the treaty country.  Trade includes the exchange, purchase or sale of goods or services or the transfer of technology.  Individual applicants must be the principal trader or an executive, manager or employee with special skills essential to the company.  The Treaty Investor Visas (E-2) requires that the individual or company makes a substantial at risk investment in a business in the United States.  The amount of the minimum investment depends on the nature of the enterprise.  The investor must show additional income derived from other sources than the investment.  The individual must be the principal, or an executive, manager or employee with special skills essential to the company.  Spouses and unmarried children under 21 years of age of the principal may be granted status to remain in the United States and can also qualify for employment authorization.

Exchange Visitor (J-1) Visas

An American company can offer on-the-job training to a foreign individual through the J-1 international exchange program.  Although the individual can train with the American company for up to 18 months, the visa is obtained through sponsorship by an organization approved by the Department of State.  This visa could be used to train an employee of a foreign affiliate at an American office.  One draw back of the J-1 visa is that it might require the individual to return to his or her country of nationality for two years before becoming eligible for other types of temporary visas or permanent resident status.  Spouses and unmarried children under 21 years of age of the principal may be granted J-2 visas to remain in the United States.  However, they may be subject to the two years foreign residence requirement before obtaining other immigration benefits.