Immigration Law: Temporary Work Visas

Immigration Law: Temporary Work Visas

Introduction

Visas may be divided into two general categories, those that permit employment and those that do not. Temporary work visas, that is, visas offering a limited stay of employment in this country, come in various types and apply to various occupations. Some may be pursued by the alien, and some are obtained through a petition by an employer on behalf of an alien. Congress created the immigration laws with certain goals in mind. Primary among these were that aliens in the workforce not displace U.S. workers, and that the use of alien workers not facilitate a decline in wages or working conditions. Visa processing is typically quicker for highly skilled workers than for those with less education and skills. Work visas can often be extended, and the H-1B, applying to professionals, can be converted into an immigrant visa.

Work Visas and Requirements

The visa most commonly thought of as the temporary work visa is the H, which has several classifications. The H-1A applies to registered nurses and responds to a current shortage of persons in this field. The H-1B covers specialty occupations, sometimes called professions. To qualify for an H-1B, an alien must possess highly specialized knowledge. A baseline requirement for this showing is a bachelor's, or 4-year college, degree. In addition to the alien's qualifications, the position itself must require a bachelor's degree. In other words, it's a two-sided analysis--the alien must possess highly specialized knowledge, and the position for which the employer seeks the alien must demand application of that knowledge. The H-2 visa applies to jobs in agriculture and other areas for which there are insufficient U.S. workers. All H visas require an offer of employment from an U.S. employer, and proof that the wage to be paid is comparable to other positions in that occupation in that area. The H-2 visa also requires a showing by the employer that there were no qualified U.S. workers available and willing to fill the position.

Temporary visas in the H classification are subject to numerical limitations imposed by Congress. What this means is that receipt of a visa is not a guarantee of immediate entry into the country. If the annual limit is reached, an alien may have to wait until a later period to be eligible for entry, even though he or she has been granted a visa. In addition, the different classes of H visa have different processing times; an H-1B will be processed more quickly by the Immigration Service than an H-2B. Visas in the H class may be extended; H-1s may be extended for a total stay of not longer than six years, while H-2s may be extended for a maximum stay of three years.

The strong economy in recent years has created a large demand for highly specialized employees. This has also created certain difficulties for employers and aliens. New industries have created jobs with titles and duties that do not fit into the historic job classifications relied upon to determine whether a position requires highly specialized knowledge. Jobs like doctor, lawyer, or engineer, are easily identified as such professions. But many new jobs involving computer data, images, and operation may be less clear. In such cases, the employer will need to prove that the duties involved in the position require a college degree.

The fast-paced economy, in which employees often change jobs, and whole companies are bought or sold, can also create trouble for H-1B visa holders. The visa is employer specific, granting the alien permission to perform a particular job for a particular employer. If the alien wishes to change jobs, the new employer must secure a new H-1B covering the employee. The employee cannot simply quit the first job and accept the second. If the employer for whom the alien works is bought out or merges with another company, a new or amended petition may be required.

Several other visas also permit aliens to work temporarily in the United States. The L-1 visa applies to intra-company transferees, specifically, employees of a foreign company coming to work in an U.S. office of the company. Typical circumstances in which an L-1 visa is appropriate involve an executive, manager or employee with specialized knowledge who comes from the home office to assist with operations in the U.S. office. An alien coming from the home office to establish a new U.S. office of the company may also use the L-1 visa. Like an H-1B, the L-1 can be extended and the H-1B or L-1 holder can pursue permanent residency. O, P, and R visas also allow temporary employment in the U.S. The O visa applies to aliens of extraordinary ability in the arts, sciences, athletics, business and education, who have received national or international acclaim in their field. The P visa applies to outstanding athletes, athletic teams and entertainment groups of sustained international recognition--for example a prominent soccer team. The R visa covers religious workers coming to the U.S. to work for an affiliate of the foreign religious denomination.

There are additional visas that permit some level of employment in the United States, including those granted pursuant to NAFTA or another treaty involving the U.S., and those for alien entrepreneurs who make a large capital investment to start a company in the U.S.

Spouses and children can usually accompany an alien coming to work temporarily in this country. They will not be allowed to work, however, unless they secure their own work visa, such as an H-1B. Therefore, the alien must be able to support any family members who accompany him or her during the course of employment in the U.S.

Conclusion

Temporary work visas serve important purposes, allowing foreign nationals with valuable skills and knowledge to come to the U.S. to work, perform, entertain, and teach. The award of these visas depends on both the skills and education of the alien, as well as the position the alien is to fill in this country. Typically, the employer will have to show that the use of alien employees will not cause a decline in wages or working conditions for U.S. workers. Because the procedures and documentation required to secure a visa can be complicated and burdensome, it is often helpful to consult an immigration attorney with experience handling the particular visa desired. Legal counsel can also assist with decisions among various visa options, as well as with extensions and applications to change status to permanent residence.

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