Working in USA

Working in the U.S. is a sought-after goal for people from across the globe.  In most cases, foreign nationals wishing to work in the U.S. will be required to apply for a U.S. work visa. There are a number of U.S. work visas available, and applicants must determine for which ones they are eligible, and how to properly apply and prepare documentation.

Any foreign national can apply for a U.S. work visa.  Depending on the kind of work, there are a number of different options for individuals seeking temporary employment in the States.

H-1B Visa

The H1B visa is a non-immigrant visa. It is designed to allow U.S. employers to recruit & employ foreign professionals in specialty occupations within the USA for a specified period of time. The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the US for a total of 6 consecutive years, and entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on an H-4 visa. However, the spouse and children have to obtain their own work visa for working.

Under h1b visa requirements, the company, organization or the employer is the petitioner, it has to file h-1b petition for hiring the employee, while the foreign worker is the beneficiary. Foreign individuals themselves cannot apply for an H-1B visa to allow themselves to work in the US.

Foreign workers must possess at least a bachelor’s degree or its equivalent (this requirement can usually be met by having a 3-year degree and 3 years of relevant post-graduate experience). Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field of human endeavour.

The initial H-1B visa may be issued for up to three years. It may then be extended in the first instance for up to two years, and later on for one year, for a maximum of 6 consecutive years. In some cases, the H-1B visa can be extended beyond the 6 year limit.

H1B visa for working as well as green card

One of the privileges of the H-1B visa, as opposed to many other non-immigrant visas, is that it is a ‘dual intent’ visa. In other words, under the terms of the H1B visa, the alien employee can also apply for a Green Card and become a permanent resident, and the H-1B visa will not be denied or invalidated. If an employer is willing, the employer can sponsor a foreign employee in H1b status for a green card application. The h-1b status has the advantage of applying for permanent citizenship as well. This visa is advantageous for any highly specialized employees who are willing to work in the US.

If a foreign worker in H1B status resigns or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status; find another employer (subject to application for change of visa); or leave the United States.

L-1 Visa

The L-1 visa is a temporary non-immigrant visa which allows companies to relocate foreign qualified employees to its U.S. subsidiary or parent company. The qualified employee must have worked for a subsidiary, parent, affiliate or branch office of the company for at least one year out of the last three years. The U.S. company must be a parent company, child company, or sister company to the foreign company. The L1 visa may also include non-profit, religious, or charitable organizations.

The L1 visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because it allows for the transfer of a highly proficient manager or executive who has direct knowledge of operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office. However, since the USCIS will scrutinize L visa petitions filed by lesser-known companies more closely, professional consultation with an experienced immigration lawyer is strongly recommended for these types of small businesses.
L1A visas are designed for intra-company executive transferees coming to work in the United States. The L1A visa holders must have been employed in an executive or managerial capacity for the foreign company at an overseas location continuously for at least one year out of the past three years. In addition, the L1A visa allows a company which does not currently have a U.S. office to send an executive or manager to the United States in order to establish one. L1A visa is granted initially for one year for a new company in the US or three years for a US company with more than one year in existence, with extensions available in two-year increments, with a total stay not to exceed seven years.

 

L-1B visas – Intracompany Transferee Specialized Knowledge

L1B are designed for professional employees with specialized knowledge. An example of specialized knowledge personnel would be an individual who possesses proprietary knowledge about a company’s product and who travels to the U.S. to impart his or her specialized knowledge to new U.S. employees. In addition, companies who currently do not have an office in the United States can use the L1B visa to send over an employee with specialized knowledge to help establish one. An L1B visa is issued initially for three years with one two-year extension for a maximum of five years stay.

In both cases, the U.S. company and foreign company must be related in a specific way such through a parent/subsidiary relationship or through an affiliated employer.

 

L-1 Blanket Visa

The USCIS has provided a special set of procedures to be used by companies that are frequent users of the L1 visa category and are large multi-national organizations. This is called the “L-1 Blanket Petition Program”. Under this program, the approved company need only receive one approval from the USCIS to transfer a certain number of managerial, executive and professional employees.

On completing the maximum allowable period, the L1 holder must leave the United States for minimum of one year and must work for foreign operation of the U.S. Company before becoming eligible to reapply for an L visa.

Spouses of L-1 visa holders may apply for work authorization with USCIS to work in US without restriction.

One of the privileges of the L1 visa, as opposed to many other non-immigrant visas, is that it is a ‘dual intent’ visa. In other words, under the terms of the L-1 visa, the L-1 visa holder may apply for a Green Card and become a permanent resident without jeopardizing his/her L-1 visa status or their visa applications from a U.S. consular office abroad. Another advantage is that visa numbers are almost always current if apply for Green card through EB-1C category. This means that the L1 visa holder will not have to wait for visa numbers to become available before applying Adjustment of Status (I-485) and receiving a Green Card.

PERM Labor Certification

Program Electronic Review Management (PERM) is the system used for obtaining labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (“green card”). This is also known as PERM labor certification. The employment-based preference categories that require PERM labor certification are EB-2 (other than a National Interest Waiver) and EB-3. Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS) in most EB-2 and EB-3 positions, the employer must first obtain an approved labor certification from the Department of Labor (DOL). An application for labor certification is submitted to the DOL by using ETA Form 9089. The DOL must certify to the USCIS both that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job offered the alien at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market before filing the application. If sufficient able, qualified, and willing applicants (U.S. citizen or Permanent Resident) are not found for a position through the recruitment process, the employer can submit a PERM labor certification application.

Requirements for PERM Labor Certification

The PERM Labor Certification application imposes specific requirements (listed below) both on the employer and the prospective employee. The employer must comply with the PERM process requirements and adhere to the PERM Regulation.

Employer Requirements

The employer who files the application on behalf of the alien must attest to the following:

  • The position should be a full-time job offer located within the U.S.;
  • The position should be a bona fide job offer available to U.S. workers;
  • Job requirements should not be tailored to the alien worker’s qualifications. In other words, the employer must establish that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity;
  • The offered wage must prevailing wage requirements. The wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment, as the 5% deviation is no longer acceptable;
  • There are no qualified U.S. workers able, willing, qualified and available to accept the job offer through the specific recruitment processes; and
  • Employment of the alien will not adversely affect the wages and working conditions of U.S. workers.

 

Prospective Employee Requirements
The prospective employee who benefits from the application must attest to the following:

  • He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed;
  • He/she maintains a valid U.S. status if living within the U.S.