Employer’s Guide to Working in the US
There are 5 main ways an individual can obtain residency and work authorization in the United States:
1. Sponsorship Visa by an Employer
2. Investment Visa
3. Sponsorship by a close Family Member in the United States
4. The Diversity Visa Lottery Program
5. Asylum & Refugee Status
This article will discuss, in layman’s terms, numbers 1 & 2 above, as they apply to our clients, who are European and Canadian companies who have operations in the United States. (Please note that this is for general informational purposes only. Companies should consult with a US based Immigration firm for more precise information or to initiate a visa application).
DSML Executive Search understands the US “work authorization” requirements very well. In fact, every single member of our executive search firm was born in another country and found their way to employment in the US in some legal form or fashion.
In this posting, we’re providing information on some of the traditional visa classification that are utilized for obtaining work authorization in the United States. It’s not difficult, if you have the right credentials and follow the rules, for an employer to sponsor someone to launch a business in the US. However, on the other hand, it’s not entirely easy either … employers need to understand the various classifications and how they may, or may not, apply to their business. In addition, there is a need to know the “time” required to obtain approvals. Various Immigration firms have confirmed to us that the time periods for approval have increased significantly over the past few years.
Here are some of the common “employment related” visa classifications:
H-1B – for temporary workers
H-2A – for seasonal workers
H-3 – for training (usually for US employers to bring over foreign staff – up to two years)
H-4 – for spouses and children, under 21, of the above
As a H¬1B visa application requirement, a specialty occupation requires practical application of specialized knowledge. Examples of specialty occupations include engineers, nurses, professors, researchers, computer programmers, technicians, and other professionals. Foreign workers must possess at least a bachelor’s degree or its equivalent, and this equivalent requirement can usually be met by having a 3-year degree and 3 years of relevant post¬graduate experience.
There is a quota for the number of H-1B visa approvals per year and a specific application date, usually at the beginning of April.
If the applicant was awarded the degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. bachelor’s degree or its equivalent, then no prior employment experience is required. An U.S. employer seeking the services of an H¬1B alien could be a person, firm, corporation, contractor, or other association or organization in the United States with an IRS tax identification number.
There must be an employer-¬employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee. The employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). An employer filed LCA attests that the H¬1B visa worker is being paid the prevailing wage for the work being performed, and that employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.
As opposed to many other non-immigrant visas, the major advantage of the H¬1B visa is that it is a dual intent visa. In other words, under the terms of the H¬1B visa, the alien employee can also apply for a U.S. Green Card and become a permanent resident of United States, and the H¬1B visa application or H¬1B visa extension will not be denied or invalidated because of the Green Card application. If an employer is willing, the employer can sponsor a foreign employee in H-1B status for a Green Card application.
The L¬1 visa includes the L¬1A visa and L¬1B visa. The L¬1 intracompany transferee visa allows managers, executives, and especially knowledgeable employees who work outside the U.S. for a company that has an affiliated entity inside the U.S. to come to the U.S. and perform services for that entity. There are no limits on how many people can get L¬1 visas every year.
The L¬1 visa is primarily used to assist multinational companies that experienced difficulties in bringing to the United States critical personnel temporarily from abroad.
To be eligible for an L¬1 visa, a foreign national normally must have been employed by the foreign company continuously for at least one year during the preceding three years in a managerial or executive position, or in a position where the individual gained specialized knowledge.
The individual must be coming to the United States to provide services to the same employer or a branch office, subsidiary or affiliate. For this reason, L¬1 visa holders are known as intracompany transferees. Executives and managers enter the United States on an L¬1A visa. Employees with specialized knowledge enter the United States on an L¬1B visa.
The L2 visa is a non-immigrant US visa issued to dependents of L1 visa holders. Immediate family members of L1 visa holders may enter and stay in the United States by obtaining L2 visas. Eligible family members for an L2 visa include spouses and children (under age 21) of L1 visa holders.
The B-1 business visitor visa is used by foreign business people to conduct meetings, attend conferences, perform market research or undertake training in the US. It is used for people entering the US for a limited duration and who intend on departing at the expiration of their stay. They must maintain a foreign address which they have no intention of abandoning.
The individual must not engage in any productive employment in the US. This includes salaried work for an employer and services for hire on a contractual basis. The person must remain on a foreign payroll. The B-1 visa is not to be used by someone who is waiting for another non-immigrant visa.
Nationals of some countries can enter the US for up to 90 days as a B-1 business visitor without needing a visa stamp on their passport.
Permanent Resident Visas https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
E-1 Treaty Visa
The E-1 treaty trader visa is a non-immigrant visa which allows foreign nationals of a treaty nation to enter the U.S. and carry out substantial trade. A treaty trader belongs to a nation that maintains a treaty of commerce and navigation or a bilateral agreement with the U.S.
You may qualify for E-1 visa if:
• You are an executive, manager or specialist in a treaty nation company operating in the U.S., or you own 50 per cent of the company
• The nationals of your country own at least 50 per cent of the stock of the company, i.e., the firm has the nationality of the treaty country
• You are a citizen of a treaty trade country, and are involved in international trade
• You are the immediate family members of a principle E-1 visa holder
On an E-1 visa, you may:
• Work legally in the U.S. for a U.S. company where more than 50 per cent of the business is trade between the U.S. and your home country
• Stay in the U.S. on a prolonged basis with unlimited two-year extensions as long as you maintain E-1 qualifications
• The limitations of E-1 visa are:
• You are restricted to working only for the specific employer or self-owned business that acted as your E-1 visa sponsor
• Authorized stay is granted for two years at a time which makes the application or extension process cumbersome
E-2 Treaty Visa
The E-2 non-immigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
To qualify for E-2 classification, the treaty investor must:
• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
• Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Family of E-2 Treaty Investors:
The spouse and children of the E-2 investor may obtain E-2 visas for dependent family members to reside in the US. These family members may apply at the same time as the E-2 investor or after the investor has been issued the visa. Children must be under 21 years old to qualify for the dependent E-2 visa. Generally speaking, the spouse may work for any employer and in any job in the US, except for certain positions that require citizenship.
The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.
You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:
• Religious Workers
• Special Immigrant Juveniles
• G-4 International Organization or NATO-6 Employees and Their Family Members
• International Employees of the U.S. Government Abroad
• Armed Forces Members
• Panama Canal Zone Employees
• Certain Physicians
• Afghan and Iraqi Translators
• Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations
EB-5 is available for people born in any country around the world. The quota is based on country of birth, not country of citizenship … the E-2 is based on country of citizenship. Since there is no investment treaty between the U.S. and China, people born in China are not eligible for the E-2 visa unless they obtain citizenship in a country that has an investment treaty with the U.S. The only country in which citizenship can be obtained relatively quickly (usually within 4 months) based on investment, and which has an investment treaty with the U.S., is Grenada.
|E-2 work visa Advantages||EB-5 green card Disadvantages|
|1. Quick processing times – a few months||1. Slow processing time – two years or as many as seven or eight for backlog applicants e.g. Chinese.|
|2. Investment – perhaps $200,000 U.S. or even less, depending on business involved.||2. Investment – $500,000 U.S. for regional center projects, $ 1 million for direct investment option.|
|3. Control of Funds in investor’s business – less stringent “due diligence” required.||3. No control of funds invested in third-party project if regional center – heavy “due diligence” required, risk of loss required.|
|4. Travel flexibility – less concern about maintaining domicile and physical presence.||4. Need to maintain “domicile” and rigid enforcement of residence rules|
|5. Immediate permission to work in the USA, spouse can work anywhere, children can go to school and college at internal resident tuition rates.||5. Waiting abroad for approval from Immigration – two plus years and as much as seven or eight if in the backlog.|
|6. Low legal Cost – Roughly $10,000 – $20,000 U.S.||6. High legal cost approximately – $50,000 – $ 70,000 or more in fees|
|7. Possible tax advantages – as a non immigrant resident if principal resident stays in USA not more than 122 days per year no tax on worldwide income (seek advice).||7. Possible clouded judgment of promoters and advisers due to considerable financial rewards for finding EB-5 investors. Taxation on worldwide income of investor.|
|8. Less paperwork- more flexible treatment of investor on compliance with rules||8. More paperwork – severe enforcement of rules|
|E-2 Disadvantages||EB-5 Advantages|
|1. Must work the business – passive investment not enough.||1. Permanent resident status|
|2. The immigrant investor’s U.S. presence is tied to the business success – must work.||2. No work requirement|
|3. Must renew the visa every 5 years or so.||3. Renewal of permanent residence cards every ten years.|
|4. No clear route to green card/ U.S. citizenship||4. Long term certainty. Path to citizenship.|
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN non-immigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry, (up to three years), into the United States to engage in business activities at a professional level.
Among the types of professionals who are eligible to seek admission as TN non-immigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers.
You may be eligible for TN non-immigrant status, if:
• You are a citizen of Canada or Mexico;
• Your profession qualifies under the regulations: (https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-21051.html)
• The position in the United States requires a NAFTA professional;
• You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment); and
• You have the qualifications to practice in the profession in question.
Unlike Mexican citizens, Canadian citizens are generally eligible for admission as non-immigrants without a visa. The TN category, a non-immigrant classification, simply reflects this general exemption from the visa requirement. NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying profession.
>>> Canadian Citizens
If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.
You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. You must provide the following documentation to the CBP officer:
• Proof of Canadian citizenship;
• Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and
• Credentials evaluation (if applicable), together with any applicable fees.
If a CBP officer finds you eligible for admission, you will be admitted as a TN non-immigrant.
Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting a petition, Form 1-129 for non-immigrant worker.
If USCIS approves Form I-129, you, the prospective worker, may then apply to CBP for admission to the United States as a TN non-immigrant by providing the following documentation to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station:
• Proof of Canadian citizenship; and
• Approval Notice from USCIS for Form I-129.
If a CBP officer finds you eligible for admission, you will be admitted as a TN non-immigrant.
>>> Mexican Citizens
If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN non-immigrant. You should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.
Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. If a CBP officer finds you eligible for admission, then you will be admitted as a TN non-immigrant.
The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 non-immigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange or persons, knowledge, and skills, in the fields of education, arts, and science.
J1 visitors have the opportunity to visit the US for a short duration to continue their education or receive hands-on training in the professional workplace, and then implement their new skills upon returning to their home country.
All J1 applicants are required to meet strict eligibility criteria, including proficiency in the English language, and be sponsored through a university, private organization, or government program. Depending on the specific type of work or educational program you choose, along with the organization that sponsors your visa, your dependents may have the ability to accompany you to the US. The dependents of a J1 visa holder (spouses and non-married children under the age of 21) are issued a J2 visa and are required to follow the same application process as their sponsor.
An O¬1 visa is available to foreign nationals who have extraordinary ability in science, art, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation. The extraordinary ability for O¬1 visa category is a high level of expertise and indicates that the person is one of a small percentage who has risen to the very top of the field. To qualify for an O¬1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
The extraordinary ability for O¬1 visa in the field of arts (O¬1B Visa) means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill, and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. To qualify for an O¬1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill, and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture or television field.
The G-1 diplomatic visa is a non-immigrant Visa which allows designated principal resident representatives of foreign governments recognized by the United States to enter the U.S. to work for an international organization and not for personal business or pleasure.
When a US employer wants to retain the services of a particular foreign national on a long term or indefinite basis, it generally must assist the individual in obtaining lawful US permanent resident status. Attainment of this status is done on a case-by-case basis and the procedures vary depending on the individual’s background, employment history, etc.
For an extremely detailed list of the visa policy – visitor, immigrant, non-immigrant – of the United States, including requirements, length of stay, etc. visit the following Wikipedia page:
(Please note that DSML Executive Search has created this post for general informational purposes only. Companies should consult with a US based Immigration firm for more precise information or to initiate a visa application).