The United States is seen by many as their dreamland, a place where hopes can come true. Many have the same question: how can they move to the US and have a job here? How to get a US Work Visa? To start with, in the US a person is authorized to work if he/she has a status allowing engaging in employment such as a green card, asylum or refugee status, H1b, O, P or E, R, etc. or if a person receives an employment authorization in connection for example with an application for asylum, adjustment of status, as a dependent of H1B, E or L status holder, etc.
The U.S. Work Visa Types And Requirements
The truth is that the work visa options in the U.S. are limited. One has to meet specific qualifications before he/she can come to work in the US. At the law office of Alena Shautsova, NYC Immigration firm, we help clients to evaluate their credentials and determine which visa may be suitable for them. For most work-related visas, a person would need to have a job offer and an employer. Most visas are job-specific: it means that they are valid as long as the person works for that particular employer. All work-related visas in the U.S. are divided into Immigrant and Non-Immigrant visas.
Overview Of H1B Visa And Status
The most common type of a work visa in the United States is an H1B visa: this visa is reserved for professionals for whom the employer has obtained an approved labor condition application from the Department of Labor (DOL). It is suitable for those who can be employed in positions that qualify as a “profession” and/or specialty occupation. By the way, this visa category is often used by fashion models who have “distinguishing merit or ability.” The main qualification for job seekers here would be education and/or experience. There is an education requirement of a U.S. Bachelor’s degree or higher degree or its foreign equivalent; and at times, a person has to hold an unrestricted state license or “education, specialized training, and/or progressively responsible experience that is equivalent to completion of a US Bachelor’s degree or higher degree in the specialty occupation, and have recognition in the specialty through progressively responsible positions directly related to the specialty.” 8CFR214.2(h)(4)(iii)(C ).
E-3 visa and status are like H1B but for citizens of Australia. However, unlike H1B, E-3 may be valid for two years initially and may be extended indefinitely. Dependents of E-3 are eligible for employment authorization. It is possible to work part-time on E3, but a person would have to show that he/she has enough US income and/or possess enough assets to support him/herself and not become a public charge. Labor condition application is required here as well.
The United States is a country that prides itself on protecting certain inalienable rights regardless of a person’s demographics. One of the human rights the US protects fiercely and refers to sometimes as liberty, is the freedom of religion.
The first step in analyzing whether or not a person is “qualified” for a religious visa according to USCIS, is to determine if a person has been a member of the denomination or religious organization for the last (2) two years. If the religion is new and less than (2) years old, the R-1 visa may not be the right choice. The second step is to find out if the person seeking the visa will be working for the religious organization as a minister or in a religious vocational capacity. In other words, it will be challenging to argue that the religious organization needs a person for an R-1 visa to perform janitorial services because this is a job duty that does not require any specialized theological training or knowledge.
In order for a religious organization to be eligible to sponsor an immigrant for an R-1 visa, it must be recognized as a 501(c)(3) tax-exempt organization. Moreover, the religious organization must demonstrate that they have the funds to compensate the candidate and that the work the candidate is involved in will be mostly religiously orientated and not a form of secular work. IRS documentation provides the best proof that an organization has the means to compensate for a religious worker’s salary. If IRS documentation is unavailable, an audited financial statement from the religious organization can be used as proof of available funds.
Non-salaried compensation is a regular occurrence to offset the salaried compensation requirements of an R-1 visa applicant. Non-salaried compensation includes room and board, housing allowances, health insurance, travel expenses, and paid time off.
The religious worker must demonstrate that they are fully authorized and trained to the standards of the religious organization to perform all duties performed by members of the clergy. Lay preachers, for example, do not qualify for R-1 visas as they are not authorized to conduct some worship activities that are reserved for members of the clergy. In addition to the criteria above, the religious worker must work solely as a minister and not perform administrative duties unless they are associated with the responsibilities of a minister. The most common example of this is being a minister on a Sunday and a bookkeeper during the week.
Next, the candidate must establish that they have made a formal lifetime commitment to the religious organization or denomination, which separates them from secular members of the religious organization. Lastly, the religious worker must demonstrate that the job duties will amount to at least 20 hours a week. It means that part-time employment on R visa is acceptable. If the petition for an R-1 visa is approved, the religious worker may choose to volunteer at another religious organization nearby with their spare time.
For Canadians and Mexicans, there are separate, special visas/status reserved if they will perform in the US professional assignments. For Canadian citizens, it is possible to request TN status right at the border or to apply for it at a US consulate. Citizens of Mexico should apply for it at a consulate. The occupations suitable for this visa/status are specified by the North American Free Trade Agreement (NAFTA). A TN petition/admission may be valid for up to three years. The TN classification may be used for a part-time position. Examples of positions suitable for TN classifications are accountant, economist, social worker, lawyer, interior designer, hotel manager, pharmacist, university teacher, etc. Self-employment is not allowed. There is no maximum time limit to hold TN classification, unlike H1B, L, or E.
The US government officials will scrutinize the TN applications to make sure that they are not used instead of H1B… For that reason, for example, a computer system analyst may be employed under the TN category, but a programmer may not be.
These visas are reserved for citizens of certain countries in connection with temporary, seasonal assignments not related to the agricultural work. The employment must be a full time one, and an employer has to obtain a temporary labor certification. The job may be professional, skilled, or unskilled. Typically, an H2B visa can be valid for up to 1 year; may be extended in increments of one year up to three years. To be legible for another three years, the H2b beneficiary must remain outside the US for three months. This category is typically used by hotels to attract seasonal employees, resorts, golf clubs, etc. But H2b may be used for a one-time length project as well. The key qualification here is that the job, the position has to be temporary as defined by the need of the employer, not customers. In practice, the H2b assignments will be counted in months. Interestingly, in certain limited circumstances, an H2B visa may be granted to domestic workers. (B visa may be suitable for accompanying non-immigrants domestic workers as well!)
O visa and status are for those who can demonstrate extraordinary ability in science, education, business, athletics, arts, motion picture, or television industries. Unlike for the EB1 category, here an employment offer is required, and O visa is employer-specific. O visa allows for unlimited extensions. The petition may be filed by a US employer, agent, or even a foreign employer through an agent, but not by the person seeking status. Drawbacks of this choice are that it requires a very detailed itinerary (timeline of what and where the beneficiary will be doing in the US), and a letter-consultation from the appropriate professional organization if such exists. O1 visa may be a good option for one subject to J1 2 year- residency requirement. For a successful O petition, one would have to present:
P classification is typically used by internationally recognized athletes and entertainers, it is available for established entertainment groups, individual athletes, and athletic teams. Initial P-1 petitions for individual athletes may be valid for up to five years. P-1 for teams, not to exceed one year. P-1 is an employer-specific visa. Here, a detailed itinerary will also be required. Under the COMPETE Act, coaches can be eligible for P-1 classification, but this category is limited to coaches of teams or franchises located in the U.S. that are part of an international league or association of 15 or more amateur sports teams. If the applicant will be working at the same time for multiple employers, separate petitions will have to be filed for him/her. A solution here would be to use an established agent that will need only a single petition to be filed for the person. A foreign employer likewise has to use the services of an agent in order to file a petition for a P worker.
Those from countries with special agreements with the U.S. may qualify for a treaty investor, treaty trader or as an employee of a qualifying entity.
Nationality: a person has to be the national of the country which has a treaty/agreement with the U.S. Department of State maintains the list of the countries with which the qualifying agreements exist. If a treaty trader or investor is a business or an employing company, then the nationality of the company is determined by the nationality of the individual owners of that business. The person has been to a citizen, not a permanent resident for determining the nationality. A company can be incorporated in the U.S., but as long as 50% of the owners are nationals of the qualifying foreign country, the requirements on nationality will be met. In most cases, only one qualifying nationality should be present, and that nationality must be held by owners and the employees we well.
For citizens of Australia who will engage in professional “specialty occupation” assignments in the U.S. an E-3 status may be appropriate. Dependents of E-3 visa holders may qualify for employment authorization. A person has to be a citizen or national of Australia; should possess a bachelor’s degree; professional license, if required by federal, state or local law, and must be engaging in a professional assignment in the U.S.
L visa: L visa requires an employer in the United States which can be one’s own company under certain circumstances. It is suitable for those who open a branch or subsidiary of their overseas business in the United States. The L visa serves as a transfer opportunity for executives or managers from overseas companies to the U.S. branch/ subsidiary/qualifying business.
In short, an L1 visa can be a great tool for one to transfer managers/executives and specialized knowledge employees from overseas to the US companies.
These visas lead directly to a green card or status of a lawful permanent resident. The visas discussed below allow for a self-petition or do not require a Labor Certification (proof that no U.S. workers were found for the employment position).
There are following categories within the EB1 qualification:
EB 1A
Aliens of extraordinary ability in the science, arts, education, business, and athletics: No specific employer is required, just an intent to engage in the announced occupation in which classification is sought. An applicant will have to demonstrate that he/she meets 3 out 10 requirements and generally enjoys a reputation of an outstanding specialist in the field and that her/his work in the U.S. will be beneficial for the U.S.
EB 1B
Outstanding professors and researchers: if a person has at least three years of experience in teaching and/or research in the academic field, a qualifying offer of employment from a U.S. university, institute of higher education or a private employer and he/she is recognized internationally as outstanding in a specific academic area, he/she may qualify for the EB1B employment category in the US. Here, the petition must be filed by an employer, a scholar cannot file for herself/himself. Experience in teaching or research while working on an advanced degree will only be accepted if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding.
EB 1C
Multinational managers and executives: these visas are reserved for those who can demonstrate that they worked as a manager or an executive for a qualifying foreign corporation for at least one continuous year on a full-time basis; and that a US company has been actively doing business for at least one year.
EB2 National Interest Waiver Visa
EB2 category is reserved for professionals with high education or persons of exceptional abilities. Do not confuse this category with the extraordinary ability.
Advanced Degree
Persons with an advanced degree (Master’s or higher) or baccalaureate degree with a minimum of five years of progressive experience in the specialty field may qualify for this category.
EB2 Exceptional Ability
If an applicant does not possess or cannot prove that he/she has an advanced degree, he/she may still qualify for EB2 category can demonstrate that possess a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
EB5 Investment Visa
This route is for those who have the required funds and is willing either to control the investment himself/herself directly into enterprise or invest into a regional center. The funds required are currently: $1M for regular investment, or $500,000 for a regional center (which are often in target employment areas)/targeted employment area investment.
If you have questions regarding US business immigration, please contact us and our business attorneys will be happy to consult you! Call (615) 530-5360