What Type of Visa is Needed?

Immigrant Visas versus Non-Immigrant Visas

There are two distinct types of Visas: non-immigrant and immigrant Visas.

Non-immigrant Visas are granted to persons who enter the United States for a limited period of time, and usually for a limited purpose that does not include the intent to become a permanent resident.

Non-immigrant Visas are relatively easy to obtain. There is no numerical limitation on non-immigrant Visas with the exception of a recently imposed cap of 66,000 H-2B Visas per year. H-2B Visas are issued for seasonal, temporary non-immigrant workers. Most employers are familiar with non-immigrant Visas, and the INS uses a lettering system from "A" to "TN" to differentiate between the various non-immigrant Visas.
Immigrant Visas are granted to persons who enter the United States with the intent of becoming permanent residents. The government's presumption regarding all Visas is that aliens who desire to enter the country are doing so with the intent of becoming permanent residents. Aliens who do not wish to become permanent residents must demonstrate their intent in order to obtain a non-immigrant Visa.

Temporary Visitors - B Visas

B-1 Visas cover visitors who enter the country for business purposes. B-1 Visa holders are commonly sales personnel, employed by a foreign company, who enter the United States to market goods and services to American businesses. B-2 Visas are for visitors who enter the country for pleasure or recreation, such as tourists. B Visas are generally valid for one year and are renewable in six-month increments. Neither B-1 nor B-2 Visa holders may accept employment in the United States.

Treaty Traders and Investors - E Visas

E-1 Visas are for treaty traders and their spouses and children. These non-immigrant Visa holders are entitled to enter the United States to conduct business under treaties of commerce existing between the United States and the alien's country.

E-2 Visas are for treaty investors and their spouses and children. These non-immigrants may engage only in business activities consistent with the specific treaty involved.

Certain managers, executives or employees who possess essential skills and who work for an organization, individual investor / trader, or company may also be admitted as E-1 and E-2 Visa holders, with their families. They must be entering the United States either to engage in substantial trade in goods or services (E-1) including trade in services or trade in technology, or to develop an enterprise involving substantial amounts of capital. E-1 and E-2 Visa holders are permitted employment authorization consistent with the purposes for which they were admitted. Both E-1 and E-2 Visas are valid for one year and are renewable indefinitely, as long as the alien continues in the same capacity for which the Visa was granted.

Academic Students - F Visas

The F-1 Visa is for the academic student who enters the United States temporarily solely to pursue a full course of study at an established academic high school, college, university, seminary, conservatory, or language school. F-2 Visas are for the spouse and children of the student. Both Visas are normally granted for the duration of status as a student or for the time necessary to complete the course of study.

Two types of on-campus employment of no more than 20 hours per week are permissible for F-1 Visas without specific INS approval:

• Employment that will not displace a U.S. resident, or
  
• Pursuant to the terms of scholarship, fellowship, etc.

F-1's also can work in curricular practical training off campus, as long as the work is a requirement. Schools provide work authorization documents.

After completion of requirements for graduation, F-1's can work in curricular practical training for a total period of 12 months, which must be completed within 14 months following completion of study.

Temporary Workers - H Visas

H class non-immigrant Visas are designed principally to help employers meet an immediate and temporary need for labor. They are divided into 3 categories.

H-1 Visa

H-1 Visa holders must be temporary workers, but the employment position they are filling need not be temporary. Aliens entering the United States temporarily to perform services as registered nurses are classified as H-1A non-immigrants. The H-1B classification was redefined in 1990 to include aliens working in "specialty occupations."

To qualify as a member of a specialty occupation, the alien's job must require theoretical and practical application of a highly specialized body of knowledge. In addition, an alien seeking an H-1B non-immigrant Visa must either:

1. Obtain a state license to practice in the occupation, if such a license is required;
   
2. Have attained a bachelor's or higher degree in the specific specialty; or
   
3. Have attained experience in the specialty equivalent to the completion of the bachelor's degree.

H-1 Visas also require that a Labor Condition Attestation is filed with the Secretary of Labor by the proposed employer.

H-2 Visa

The H-2A non-immigrant Visa classification is for temporary agricultural workers. H-2B covers non-immigrants for non-agricultural employment. In either case, there are two conditions connected with the H-2 Visa: 1) the alien holding this Visa must be entering the country temporarily, and 2) the position of employment also must be temporary. H-2 Visa applications require Labor Certification by the U.S. Department of Labor.

H-3 Visa

H-3 Visas cover trainees coming to the United States for up to two years to receive training not available in their own country.

H-4 Visa

H-4 Visas are issued to the spouse and children of H-1, H-2 and H-3 Visa holders.

Intra-Company Transferees - L Visas

Visas are intended to help multi-national corporations facilitate employee transfers. This Visa allows companies to transfer employees temporarily to the United States in order to aid or initiate business operations in the United States. To obtain an L Visa the employer is required to submit a petition for an I-129L to the INS district office where the employment position exists. The alien must have been employed for at least one year by the firm outside the United States, and must be employed in a managerial or executive capacity, or have specialized knowledge of the company's product or procedures in international business markets.

The alien who qualifies receives an L-1 Visa that is valid during the period petitioned for, up to a maximum of five years. Employers may file a blanket petition for intended employees rather than filing individual petitions. The L Visa is renewable. The spouse and children of L Visa holders may be granted L-2 Visas.

NAFTA Visas

The North American Free Trade Agreement (NAFTA) broadened the scope of activities that Canadian and Mexican B-1 and B-2 visitors may engage in under their Visas.
A new NAFTA classification -- TN Visas -- has been established to allow qualifying Canadian or Mexican professionals of U.S. corporations to work for their employer in the United States. TN Visa holders also may work for U.S. corporations on behalf of a Canadian or Mexican employer.

Labor Condition Attestation (LCA)

In cases where an employer must file a labor condition attestation (LCA), the employer must complete an ETA 9035 form and file it with the Department of Labor Employment & Training Administration (ETA) at the regional office that has jurisdiction over the job site. The form requires the employer to attest to the following:

1. It will pay H-1B non-immigrants the prevailing wage or actual wage for the occupation, whichever is greater;

2. It will provide working conditions that will not adversely affect the working conditions of similarly-employed U.S. workers;

3. There is no strike or lock-out in the relevant occupational classification at the place of employment; and

4. The employer has provided notice and a copy of the LCA to the local bargaining representative if the employer's workplace is unionized. If the workplace is not unionized, the employer has posted the notice at the facility.

Persons who wish to challenge an attestation may file a complaint with the Department of Labor's Wage and Hour Division. If the Wage and Hour Division finds that an employer has not complied with the attestation requirement or has made a material misrepresentation of fact or made other mistakes, the employer can be fined and/or be required to pay back wages. Employers found to be willful LCA violators will be barred from filing some other kinds of work-related Visas for at least one year.

Labor Certification Process

A permanent labor certification, which is issued by the Department of Labor (DOL), allows an employer to hire an alien to work permanently in the United States. Before the DOL can approve an employer's request for a permanent labor certification, it is required to test the job market for availability of U.S. workers. This is done by completing and filing Form 750.

Prevailing Wage

Any employer filling a position with a foreign national pursuant to the issuance of a labor certification must pay a wage that meets or exceeds the prevailing wage for that position in the area of intended employment.

Job Restrictions Must Meet Business Necessity Test

Any restriction in the job, such as experience, education or training, must meet a business necessity test. An employer cannot simply look at the resume of the foreign national and devise the job requirements based on the skills of the foreign national. Rather, the skills required to perform the job must be shown to be necessary in order to meet a business necessity test.

Recruitment

There are two ways in which to proceed in reference to recruitment. The first is to conduct recruitment activities prior to filing the application for approval of the permanent labor certification with the Department of Labor. The second is to file the application first, along with a proposed advertisement, and then conduct the recruitment.

Advertisement

Generally, the more specialized the job duties, the more specialized the place of advertisement. If the job is a highly-paid position, then the likelihood is that the advertisement will be placed in a national publication such as The Wall Street Journal. The job description should be posted at the job site for 10 consecutive working days, and the results of any in-house recruitment should be reported as well as any referrals through advertisements.

Advertising after Filing Application with State Employment Service

After Form 750A&B are filed with the state employment service along with the proposed advertisement, the state employment service will review the application as to prevailing wage and business necessity restrictions. If the wording of the job description, the restrictions on the job and the prevailing wage meet standards, a blind order number will be assigned to the state employment service, where the job will be posted.

Regional Office of Department of Labor

After the state employment service finishes its screening process with the application, the application is forwarded to the regional office for the Department of Labor for final approval.

Screening of Applicants

Care should be given in instructing the person in charge of screening that this is an approved process by the Department of Labor. Any applicant must have his or her application reviewed in the normal process by the company. All considerations should be objective and not subjective. Criminal prosecutions have resulted from a failure to honestly assess American applicants for the position sought by an alien pursuant to the Labor Certification process.