Working for An American Firm: Choosing the Correct Visa

Very few types of visas issued by the U.S. government allow a person to work. Tourist visas, student visas, even business visitor visas do not permit a person to work in the U.S. Among the few visas that do allow a person to work here are visas for International Journalists (I-1 visa), International Organization Employees (A-1 diplomats, G-1 U.N. or mission employees), Treaty Traders (E-1), Treaty Investors (E-2), Australian Professionals (E-3), Exchange Program Visitors (J-1 for research or cultural activities), Performers, Athletes, Models, and Religious Workers (O, P, and R visa). But what about people who want to work in the U.S. and who do not qualify for any of these visas? Let's talk about H visas, L visas, TN visas, and Practical Training for students.

The H-1B Visa: The Professional's Pass to the Commercial World

The H-1B visa allows a professional employee to fill a professional job with a U.S. firm. "Professional" refers to a person who has at least a bachelors level degree in a field where the normal requirement to enter the field is at least a bachelors degree. Some of the obvious professions include accountants, college professors, technical computer systems positions, lawyers, engineers, architects, and economists. Outside the category would be most business management positions, basic computer programming jobs, and others where a college degree is not usually required.

The professional must be coming to fill a professional position. If an architect is to fill a position as a drafter, the visa would not be approved since drafting is not a "professional" position. The professional must hold a license if needed to carry out the duties. For example, in New York architects and engineers must have a license to carry out certain duties. The visa cannot be approved unless the professional worker already holds the proper local license but if the person will be working under the direct supervision of another licensed professional then the person does not need a license and the H-1B visa can be approved.

No experience in the profession is required and no search need be made for qualified U.S. workers. The employer must agree to pay the prevailing wage and to pay for return transport of the worker if the job is terminated early. Under some circumstances, a person in the U.S. with another visa (student F-1, or visitor B-1/B-2, as examples) can have the non-working visa changed to an H-1B visa. The person who entered with a visa waived cannot change to another visa category while in the U.S. An H-1 visa can be issued for up to three years then extended for a total of 6 years. The family of an H-1 visa holder can apply for H-4 status which allow them to travel and to attend school but not to work.

The H-1B visa category is so popular with US employers that the limited number of H-1B visas can be used up on the first days they become available in each fiscal year. Consult with an attorney for the details of H-1B visas.

The L-1 Visa: Transfer to a U.S. Affiliate Company

A person who has worked as a manager with an overseas firm, should consider the L-1 intra-company transfer visa. This visa allows a person who has been a manager, executive, or a person with specialized knowledge to transfer to a U.S. affiliate or subsidiary of the overseas company. Let's look at the requirements one at a time.

The person must have been a manager or executive. In simple terms, a person who directs a function of a company or who manages a staff of people would probably qualify. The person must have held the management position for at least one year during the three years before applying for the visa. If the person was a manager for 15 months and at least 12 of the 15 months were during the three years before asking for the visa, it will satisfy the visa requirements. (Better let the lawyer figure this one out.)

The overseas company must have an affiliate or subsidiary company in the U.S. If there is no U.S. affiliate, a company can be formed at the time the application for the visa is made and this will satisfy the visa requirement. There are other requirements such as sufficient assets to fund the U.S. company and a premises for offices. The L-1 visa is issued for up to three years initially and can be extended up to 6 years. The family can apply for L-2 visas.

If a person was not a manager but has specialized knowledge of a company's products, research, equipment, or techniques, the person may qualify for an L-1 visa similar to that for managers. The major difference is that a manager can qualify for a permanent residence green card easier than a person with specialized knowledge.

Practical Training: The Student's First Job

When completing a college or advanced degree course of study, a student can ask for permission to accept a position related to the studies. The permission to work can be taken care of by the foreign Student Advisor at the school. A new visa is not issued. The authorization can be made with the Student Visa F-1. The work authorization has limits: the practical training (work) must be completed within 14 months of the end of the course studies and the employment cannot exceed 12 months.

If a student is a member of the professions, then it may be possible to apply for an H-1 visa during the time of the practical training. Since this involves a different visa from the F-1, it may be advisable to consult an attorney.

TN Trade NAFTA Visas

Citizens of Canada and Mexico who are in professions designated the NAFTA (North American Free Trade) treaty and who have the specified education or training, may qualify for a TN work visa.

Canada citizens can apply at a US border point while Mexico citizens apply at a US consulate. A TN visa allows work for a specific US employer for one year renewable in additional one year periods.

Working Visas

This has been a quick look at a few visas that allow a person to accept employment in the U.S. Actually, if the application and change to working status is made while in the U.S., a visa is not actually issued. The USCIS changes the person's status from F-1 to H-1, as an example. If the person leaves the U.S., then an application must be made to a U.S. consul to have a new visa issued.

The rules for working visas are quite complicated and no two situations are the same. It is advisable to consult an attorney experienced in immigration matters before making any commitments or applications. Immigration law is complex and unhappy surprises are common.

Send e-mail to rmadison@lawcom.com


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© Richard Madison 2007

Last edit 15 May 07

Law Office of Richard Madison