Many employers are reluctant to hire foreign national workers because they are intimidated by the difficult and uncertain nature of immigration law. Our clients often find that with proper strategic direction from counsel and the selection of a suitable visa category, hiring foreign national workers can be a relatively smooth process. Selecting the appropriate visa classification for a potential hire is crucial, and it can be a formidable task. A variety of visa options are available to foreign national workers and their potential employers. We provide a summary of the most frequently utilized temporary work visa categories to assist corporate counsel in evaluating a potential new hire’s visa eligibility before undertaking immigration sponsorship. We will not discuss permanent residence options in this article.
- H-1B visa for individuals working in specialty occupations: The H-1B visa is available for professional positions that require at least a Bachelor’s Degree in a specialty field. Before filing the H-1B application, employers are required to obtain a certified Labor Condition Application from the Department of Labor. Recruitment for U.S. workers is not required. However, employers must certify that the foreign national worker will be paid at least the minimum wage appropriate for the particular occupation in the area of intended employment. A limited number of H-1B visas are available annually and are typically exhausted as soon as the filing period begins on April 1 of each year. It is imperative for employers to begin working on the H-1B filing at least a couple of months in advance of the April 1 date. Certain employers are not subject to the H-1B limitation and can file at any time – for example, institutions of higher education, non-profits affiliated with institutions of higher education, non-profit research organizations and government research organizations.
- L-1 Intracompany Transferee: The L-1 visa is for employees of multinational corporations who wish to come to the U.S. to work for a U.S. parent, branch or subsidiary corporation. In order to obtain an L-1 visa, the employee must either be coming to the U.S. in a managerial or executive capacity or have specialized knowledge about the company. The employee must also have worked abroad for the employer corporation continuously for one year out of the past three years prior to coming to the U.S.
- E-1/E-2 Treaty Trader/Investor: The E-1 and E-2 categories are for treaty traders and investors, respectively. The E visa is only available to nationals of countries that have commercial treaties with the U.S. and are engaged in substantial trade or have made a substantial investment.
- E-3 Australian Specialty Worker: The E-3 is very similar to the H-1B because it is available to individuals who will fill professional positions with U.S. employers. Unlike the H-1B visa, there is no limit on the number of E-3 visas that can be issued per year. The E-3 is available to Australian nationals only.
- TN Professionals: This option is available exclusively to professionals from Canada and Mexico who will be working in specific occupations, listed in Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA). There is no limit on the number of TN applications that can be approved per year.
- H-1B1 Visa for Singaporean or Chilean Citizens: The H-1B1 is very similar to the H-1B, but it is not subject to the general limit on H-1B visas. Instead, 1,400 H-1B1 visa are available for Chileans, while 5,400 are set aside for Singaporean nationals. Those limitations are rarely exhausted.
- O-1 Visa: This option is for individuals who have extraordinary abilities in certain fields, including the arts, business, education and sciences, as evidenced by meeting a set number of regulatory criteria, and who will be working for a U.S. employer or agent. This visa is reserved for individuals who have garnered very significant accomplishments in their field of endeavor.
- P-1, P-2 and P-3 Visas: These visas are appropriate for outstanding internationally-recognized athletes, athletic teams, entertainment companies and their support personnel who will be working for a U.S. employer or agent.
- OPT and STEM Extension: Certain foreign national students qualify for a one-year work permit upon graduating from certain educational programs. This permit, referred to as Optional Practical Training (OPT), is renewable for an additional 17-month period if the foreign national has a degree in a Science, Technology, Engineering and Mathematics (STEM) field and will be working for an employer enrolled in E-Verify. There are other, limited employment options available to foreign national students.
- J-1 Visa: This visa is appropriate for work or training in the U.S. for certain occupations – for example, interns, teachers, professors, researchers, post-doctoral fellows, au pairs and others. Note that certain individuals in J-1 status become subject to a two-year home residency requirement before they may subsequently obtain H-1B status or permanent residence.
- R-1 Visa: This visa is appropriate for religious workers who seek to work at a non-profit religious organization. Religious workers must have at least two years of membership in the particular religious denomination and must seek to fill a ministerial position or another, non-ministerial religious occupation.
- H-2A and H-2B Visa: The H-2A visa is for temporary agricultural workers, and the H-2B visa is for non-agricultural workers who will fill temporary employment needs. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need or an intermittent need. Both visas require the employer to conduct recruitment to locate able, willing, qualified and available U.S. workers before the foreign national workers can be hired.
The above list is a non-exhaustive overview of some of the most popular visa types. Each option comes with certain challenges that can be overcome with a suitable legal strategy. Employers should not feel intimidated by the immigration process, but should seek experienced legal assistance to secure visas for their foreign national workers and ensure proper staffing for continued business success.