Nonimmigrant Visas: H-1, H-2, L, J, E, O, P
Most foreign nationals who seek to work in the United States initially will do so under one of several types of temporary, or "nonimmigrant," visas.
The most useful of these for prospective U.S. employers include:
H-1B temporary specialty occupation worker. The classification of H-1B temporary worker in a "specialty occupation" is available to any employer in the United States to hire foreign professionals. Foreign nationals are eligible for H-1B classification if they qualify as members of a professional occupation. This includes engineers, scientists, systems analysts, financial experts, journalists, teachers, marketing specialists, etc. in essence, any occupational field in which attainment of at least a 4-year university degree or its equivalent is the usual minimum requirement for entry into the occupation. While employers do not need to demonstrate difficulty finding qualified American workers in order to undertake H-1B sponsorship of a foreign professional, they must show they will be paying a salary which is at least average (or “prevailing”) for their community in that type of job, and must comply with various specific procedures in filing paperwork with both the U.S. Department of Labor and the Immigration and Naturalization Service.
H-1A registered nurses; H-2 temporary seasonal/intermittent workers who are in short supply in the U.S. labor force;
L-1 Intra-company Transferee This nonimmigrant classification generally is available to facilitate the international transfer of key personnel within the same or related corporate organization. The foreign national transferring to the United States as an L-1 must have been employed abroad continuously for at least 1 year and be coming to work in this country for a branch, parent, affiliate or subsidiary office of the foreign employer. In addition, both the foreign national's position abroad and the prospective U.S. position must be executive, managerial or involve “specialized knowledge.”
E-1 Treaty Trader and E-2 Treaty Investor E visas are available only to nationals of countries which have a particular type of treaty with the United States authorizing these visas. Most typically, E-l/E-2 visas are used by U.S. enterprises owned by foreign companies or individuals who are nationals of a country having the required treaty with the United States. These visas allow companies to bring foreign nationals of that same country to work here in managerial or "essential skills" positions. Other aspects of eligibility include the existence of "substantial trade" between the U.S. enterprise and the specific foreign country or the existence of a "substantial investment" by the foreign owners in the U.S. operation. Other Nonimmigrant Categories While the above nonimmigrant working visa categories are the most important and frequently used classifications under U.S. law, other potentially applicable nonimmigrant working visa classifications include:
O visas for aliens having outstanding ability in science, education, business, athletics, the arts and/or entertainment industry;
P visa for performing athletes, internationally renowned entertainment groups, and certain other performing artists and entertainers;
I-9/Employer Sanctions Compliance Congress enacted the Immigration Reform and Control Act (“IRCA”) in 1986 to diminish the lure of American jobs for foreign workers by penalizing employers who knowingly hire “unauthorized aliens” – that is, non-U.S. citizens who are not authorized to work in this country. To ensure compliance with the employment ban for unauthorized aliens, IRCA established new paperwork and recordkeeping requirements that apply to the employment of all persons, including U.S. citizens.
Accordingly, it is unlawful for employers to hire any individual without complying with IRCA's verification and recordkeeping procedures. This verification process is conducted by means of completion of the INS Form I-9, Employment Eligibility Verification form, for which all employees must provide documentation to prove both their identity and authorization to work in the United States.
The INS has designated several documents from which an employee may select to prove identity and work authorization, and must attest on the Form I-9 that the employee is not an unauthorized alien and that the documents presented are genuine. The employer's obligation is to complete its portion of the I-9 and confirm that it has examined certain original documentation presented by the employee, that such documentation appears to be genuine on its face and relates to the named individual, and that to the best of the employer's knowledge the employee is authorized to work in this country. IRCA contains a variety of provisions regulating when and how to complete the I-9 forms, where the I-9s must be retained in an employer’s personnel records, how long they must be retained, how and whether photocopies of verification documents are kept, etc.
For a first-time violation, the law imposes fines of up to $1000 per individual for a mere "paperwork" violation, and up to $2000 for knowingly employing an unauthorized alien. Separate provisions create potential violations for employers who discriminate in their employment practices under the employer sanctions rules against persons on account of their national origin or citizenship status. Suffice it to say, the employer sanctions provisions under IRCA have changed forever the way U.S. employers hire their employees.
Our attorneys regularly work with human resources professionals and in-house counsel to offer guidance in the many intricate issues that can arise in the I-9 employer sanctions compliance procedures. In the event of a formal INS audit, our attorneys will assist in preparing for the audit and negotiate with INS officials to minimize fine liability and, as necessary, defend the client in any related administrative hearings. As many employers today have experienced first-hand, U.S. immigration laws, while complex, can provide U.S. businesses with the ability to employ the best available workers – regardless of their place of origin.
Prior planning with an attorney from our Immigration Group will maximize the possibility of obtaining the appropriate work visa with a minimum of inconvenience, delay and expense, and likewise can help avoid the pitfalls and potential fines of I-9 “employer sanctions” violations.
Extensions and Employment Authorization Document
Labor Certification: RIR
Visa Revalidation
Immigrant Visas: Employment & Family Based
Citizenship and Naturalization
Advance Parole and Reentry Permit, Asylum
Relief from Removal, Administrative/Federal Judicial Reviews