In an increasingly globalized economy, it is important for United States businesses to obtain the best talent available at competitive compensation rates, whether from within or outside the United States. Accordingly, employers must be adept at dealing with United States employment visa requirements to recruit and retain talent on a global scale. At Shestopalko law we have the necessary skill set to develop effective immigration solutions for business of all sizes and needs. As Shestopalko Law we are passionate about helping immigrants obtain employment-based visas. We are immigrants ourselves and understand what drives people to want to live and work here and contribute to this great country. We can put our skill, experience and resources to work for you in making the visa process go as smoothly and efficiently as possible.
Non-Immigrant (Temporary) Work Visas
H-1B Visa (Specialty Occupation Workers)
The H-1B visa is the most commonly sought visa for professional workers. The H-1B visa is a non-immigrant visa that allows United States companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in engineering, IT, finance, accounting, medicine, mathematics, architect and others. The job position offered by United States employer must require theoretical and practical application of a body of highly specialized knowledge, such as a bachelor’s degree or equivalent experience.
To be eligible for sponsoring an H1-B visa, the employer must prove that:
The United States employers are required to pay the prevailing wage for the offered position and therefore have to file for Labor Certification approval by the Department of Labor attesting that the prevailing wage will be paid to the alien worker. After obtaining Labor Certification approval, application for the H-1B visa is made with the United States Citizenship and Immigration Services. Processing times for an H-1B visa generally ranges from two to six months. *Candidates already working on H-1B status may “port” to another employer and begin working when petition to transfer is filed by the new employer.
Employers sponsoring a job candidate who requires a new H-1B will have to contend with the annual quota of 65,000 visas available per year with an additional 20,000 for applicants holding advanced United States degrees. The cap is reached very quickly, so employers have to file petitions by early April for an October 1 employment start date. Certain higher education institutions and nonprofit or government research organizations are exempt from the cap.
H-1B petitions may be approved for up to three years and can be extended for up to a total of six years. The six-year maximum can be extended if the H-1B visa holder is the beneficiary of a labor certification filing pending one year or more. Trips outside the United States while on H-1B status can also be “recaptured” to extend the maximum stay on H-1B status.
Benefits for H-1B visa holders:
H-2B Visas (Temporary Non-Agricultural Workers)
The H-2B visa is a non-immigrant visa that allows United States companies to employ to hire foreign national workers to come to the United States and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. The H-2B visa covers unskilled or job-trained workers in a variety of non-agricultural industries
To be eligible for sponsoring an H2-B visa, the employer must prove that:
The United States employers are required to pay the prevailing wage for the offered position and therefore have to file for Labor Certification approval by the Department of Labor attesting that the prevailing wage will be paid to the alien worker. After obtaining Labor Certification approval, application for the H-2B visa is made with the United States Citizenship and Immigration Services. Processing times for an H-2B visa generally ranges from two to four months.
Employers sponsoring a job candidate who requires a new H-2B will have to contend with the annual quota of 66,000 —33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – Mar. 31) and 33,000 for workers who begin employment in the second half of the fiscal year (Apr. 1 – Sept. 30). The cap is reached very quickly, so employers have to file petitions months in advance.
The United States employer’s need may generally be only for one year therefore the H2-B visas are generally issued for a one year period. However, the need, under the ‘extraordinary circumstances’ provision, may ultimately be longer than one year if the extended need could not be anticipated at the time of application. The H-2B visa can be extended by the employer who applies for re-certification for an additional two years with one year extensions, but on each new application, the employer must justify the reason for the H-2B extension request. The visa may also extend by changing to a new employer who had completed the temporary Labor Certification.
Benefits for H-2B visa holders:
TN Visas (NAFTA Professional Workers)
Pursuant to the NAFTA agreement, the non-immigrant TN visa permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to work in certain professional fields.
To be eligible for a TN visa, the alien must prove that:
Canadian nationals may apply for the TN directly at any port of entry. Mexican nationals must apply for a TN visa at a United States embassy in Mexico. Citizens of both countries must maintain a home country residence and citizens of both countries must prove that they have no intention of abandoning their home country residences.
There is NO annual quota or cap on the number of TN visas issued each year.
The TN visa status is granted in one-year increments and can be extended indefinitely.
Benefits of a TN Visa:
L-1 Visas (Intracompany Transferees)
An alien working for an affiliate, subsidiary, parent or branch of a United States company located outside of the United States may be eligible for the L-1 visa. Internal (intracompany) transferees who have been employed outside the United States by an affiliate, subsidiary, parent or branch of the United States company in a in certain positions may come to work for the same company in the United States. The L-1 visa is split into two categories:
To be eligible for sponsoring an L-1 visa, the employer must prove that:
L-1 visa applications are first made on behalf of the foreign employee with the United States Citizenship and Immigration Services. Processing times vary and can be from two weeks to six months. Premium processing is also available for quicker adjudication.
There is NO annual quota or cap on the number of L-1 visas issues each year.
Initial L-1 visa status is generally issued for up to three years and can be extended for a maximum of seven years for an L-1A or five years for an L-1B.
Benefits of a L-1 Visa:
The L-1 visa is one of the options available to employees of international companies to transfer and establish a new office in the United States
These categories only touch upon some of the most common Temporary Non-Immigrant Work visas and the descriptions are general. Employment Immigration is a complicated area of immigration law and the attorneys at Shestopalko Law are happy to discuss your particular skill set and unique situation to fit your particular immigration needs.
Other Temporary Non-Immigrant Work Visas
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study that he or she studied in the United States. Eligible students can apply to receive up to 12 months of OPT employment authorization after he or she completed the education in the United States. Since 2016, the Department of Homeland Security allows certain F-1 students who received science, technology, engineering, and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-month extension of their post-education (completion) OPTs.
The O-1 visa may be used by aliens with extraordinary ability in the sciences, arts, education, business or athletics. This extraordinary ability must be demonstrated by national or international acclaim. Extraordinary ability must be documented with evidence of awards received, published material in major media and publishings in scholarly journals. O-1 status may be granted for a maximum of three years at a time and may be extended indefinitely in one-year increments.
H-3 visa allows aliens to receive training in a field that is not academic or medical at the request of a sponsoring United States organization or individual. An H-3 trainee cannot engage in productive employment in the United States. The training must not be available in the applicant’s home country. The applicant must show that he or she has a foreign residence he or she has no intention of abandoning. H-3 status is granted for a maximum of two years.
A job candidate or an employee (who may already have temporary non-immigrant visa status) can be sponsored for permanent residency (green card) by an employer. There are different types (preferences) of petitions for immigrant work visas. There are four most common types of (permanent) employment visas:
Generally, applicants and their employers must follow a three step process to receive an Immigrant Work Visa:
The United States employer must run three kinds of advertisements to receive a PERM from the Department of Labor:
The Department of Labor performs two kinds of audits: random audits designed to maintain program integrity and targeted audits to stop employers from taking advantage of the system. Targeted audits can be triggered by incomplete or inconsistent information on the advertising report. It can also occur if the Department of Labor determines that the report does not match what was predicted for employer’s industry and geographic location.
The employment petition usually takes an average of six months to be processed, though it depends on the service center that is processing the petition. In many cases, the I-140 can be expedited to 15 calendar days if the immigrant or employer chooses to use the optional premium processing service for an additional fee. However, petitions submitted for the EB-1C and EB-2 NIW are unavailable for the premium processing service. It is also important to note that premium processing does not increase chances for approval and cannot be used to expedite any other step in the employment-based green card process.
Benefits of an Immigrant (Permanent) Work Visa:
Employment First Preference (EB-1)
The EB-1 visa (category/preference) is an immigrant visa which allows foreign nationals who are the top in their professional field to obtain permanent residency in the United States. Within the EB-1 category/preference there are three sub-groups:
EB-1A: Extraordinary ability workers must demonstrate sustained national or international acclaim for expertise in the arts, education, athletics, or business. No United States employer sponsorship or job offer is required. The extraordinary ability applicant must demonstrate the following:
The yearly quota or cap of EB-1 visas issued each year is 40,000 visas (subject further to per-country limits).
The EB-1 is a highly popular option because it does not require a PERM labor certification. The Labor Certification is typically an extensive and costly filing process in order to determine if the requirements of the available position are able to be filled by a United States worker. Additionally, EB-1A (Extraordinary Ability) workers do not require a permanent job offer from a United States employer. Thus, the applicant has the ability to apply for the petition on his/her own behalf (self-petition). Another advantage in obtaining an EB-1 Green Card is that the visas are usually current. This means that the applicant does not have to wait an extended period of time before the application is reviewed and can receive a Department of State immigrant visa number. This puts the applicant on a faster track to file an adjustment of status and initialize the green card process.
Employment Second Preference (EB-2)
The EB-2 visa (category/preference) is an immigrant visa which allows foreign nationals holding an advanced degree or its equivalent, or foreign national who have exceptional ability to obtain permanent residency in the United States. Within the EB-2 category/preference there are three sub-groups:
EB-2A: Advanced Degree foreign workers must:
Immigrants seeking an EB-2 visa/green card under the Exceptional Ability or National Interest Waiver categories must additionally meet at least three of the following requirements:
The yearly quota or cap of EB-2 visas issued each year is 40,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-2 Work Visa the alien may:
Employment Third Preference (EB-3)
The EB-3 visa (category/preference) is an immigrant visa which allows foreign nationals who are either professionals with a bachelor’s degree, skilled workers, or “other” workers to obtain permanent residency in the United States. Within the EB-3 category/preference there are three sub-groups:
EB-3A: Professionals foreign workers must:
The yearly quota or cap of EB-3 visas issued each year is 40,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-3 Work Visa the alien may:
Employment Fourth Preference (EB-4)
The EB-4 visas are usually allocated to special immigrant religious workers. However, the category can cover a broad range of other applicants. These occupations include:
EB-4: Religious Workers must demonstrate:
The yearly quota or cap of EB-4 visas issued each year is 10,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-4 Work Visa the alien may:
Employment Fifth Preference (EB-5)
The EB-5 program was established by the United States Congress in 1990 to facilitate increased investment in the United States economy. The EB-5 visa is a way to get a green card and permanent residency through investment. The investment allows the investor to permanently live and work in the United States with their spouse and unmarried children under the age of 21. The yearly quota or cap of EB-5 visas issued each year is 10,000 visas (subject further to per-country limits). For more detailed information please visit our Investor Immigration Page.