A visa is a permit for a person to apply to enter the United States. Most citizens of foreign countries need visas to enter the United States. Under U.S. law the Department of State has responsibility for issuing visas, and most visas are issued at one of the Department of State embassies and consulates abroad.
A visa does not authorize entry to the U.S., however. A visa simply indicates that an individual’s application has been reviewed by a U.S. consular officer at an American embassy or consulate, and that the officer has determined that the individual is eligible to travel to the port-of-entry for a specific purpose. At the port-of-entry and admission to the U.S., an immigration officer decides whether to allow that person to enter.
The immigration officer informs the individual of how long they can stay for any particular visit, and records this on the Arrival/Departure Record, I-94 (white card), as a date or D/S, (duration of status). Only the Department of Homeland Security, through the immigration officer, has the authority to permit individuals to enter the United States.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).
Employment First Preference (E1)
The First Preference category (also known as Priority Workers) receives 28.6 percent of the yearly visa total, and must have an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with the USCIS. Within this preference there are three sub-groups:
- Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Applicants can file their own petition with the USCIS, rather than through an employer;
- Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS; and
- Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant's employment outside the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
Employment Second Preference (E2)
Professionals holding advanced degrees or persons of exceptional ability in the arts, sciences, or business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas.
All Second Preference applicants must generally have a labor certification approved by the DOL. A job offer is required, and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest.
There are two subgroups within this category:
- Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
- Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.
Employment Third Preference (E3)
Skilled workers, professionals holding baccalaureate degrees and unskilled workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers generally require a labor certification approved by the Department of Labor. There are three subgroups within this category:
- Skilled workers are persons whose jobs require a minimum of two years training or work experience that are not temporary or seasonal;
- Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
- Unskilled workers (also known as “other workers”) are those persons capable of filling positions requiring less than two years’ training or experience that are not temporary or seasonal.
Employment Fourth Preference (E4)
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except certain employees or former employees of the U.S. government abroad (number 3 below). There are many subgroups in this category.
- Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization.
- Ministers of religion
- Certain employees or former employees of the U.S. government abroad (these individuals must use Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) As An Employee Or Former Employee of the U.S. Government Abroad
- Certain former employees of the Panama Canal Company or Canal Zone Government
- Certain former employees of the U.S. Government in the Panama Canal Zone
- Certain former employees of the Panama Canal Company or Canal Zone Government on April 1st, 1979
- Iraqi an Afghan interpreters/translators who have worked directly with the United States armed forces or under Chief of Mission authority as a translator/interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 50 visas.
- Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year on or after March 20th, 2003 and prior to September 30, 2013, or in Afghanistan for not less than one year after October 7th, 2001, and have experienced an ongoing serious threat as a consequence of that employment.
- Certain Foreign Medical Graduates (Adjustments Only)
- Certain retired international organization employees
- Certain unmarried sons and daughters of International Organization Employees
- Certain surviving spouses of deceased International Organization Employees
- Special immigrant juveniles (no family member derivatives; Adjustments Only)
- Persons recruited outside of the United States who have served or are enlisted to serve in the U.S. Armed Forces
- Certain retired NATO-6 civilians
- Certain unmarried sons and daughters of NATO-6 civilians
- Certain surviving spouses of deceased NATO-6 civilian employees
- Persons who are beneficiaries of petitions or labor certification applications filed prior to September 11th, 2001, if the petition or application was rendered void due to a terrorist act on September 11th, 2001
- Certain Religious Workers
Employment Fifth Preference (E5)
Also known as immigrant investor visas, this category is for capital investment by foreign investors in new commercial enterprises in the U.S. which provide job creation. E5 investors receive up to 7.1 percent of the yearly worldwide visa limit. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the geographical area of investment, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the USCIS, but labor certification is not required for immigrant investors.
Types of foreign nationals
Organizations that employ foreign nationals likely will have two different types of employees: immigrants and non-immigrants.
Immigrant workers have obtained lawful permanent residency, commonly referred to as a “green card.”
Non-immigrant workers usually have an H-1B, L, E or TN temporary status and are in the U.S. temporarily. Types of visas include:
- H-1B, workers employed in a “specialty occupation” or as a fashion model - The Immigration Act of 1990, as amended, The Immigration and Nationality Act ;
- H-2A, workers employed in temporary agricultural jobs - Section 216 of the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986 (IRCA);
- H-2B, nonagricultural seasonal, intermittent, peak load, or one-time occurrence employment; and
- L-1A, transferees from foreign affiliates to the U.S. to perform managerial or executive work.
- L-1B, transferees from foreign affiliates to perform work requiring specialized knowledge.
- E, manager, executive, or employee with specialized knowledge representing foreign owner of a U.S. employer.
The H1-B, the most common non-immigrant employment visa, is used for an “alien who is coming to perform services in a specialty occupation.” L visas are used for intra-company transferees that enter this country to render services “in a capacity that is managerial, executive or involves specialized knowledge,” while E visas are used for “treaty traders and investors.”
“TN” status – The basics
The category “Professionals under the North American Free Trade Agreement” is available only to citizens of Mexico and Canada. Under NAFTA, citizens of these countries may work in a professional occupation in another NAFTA country provided that the:
- Profession is on the NAFTA list,
- Alien possesses the specific criteria for that profession,
- Prospective position requires someone in that professional capacity, and
- Alien is going to work for a U.S. employer.
The “TN” status will only be granted if the period of stay is temporary. The spouse and unmarried minor children of the principal alien are entitled to the derivative status, but they are unable to accept employment in the United States. Aliens entering under this classification are considered non-immigrants.
To obtain “TN” status Canadian citizens must provide the following at the port of entry:
- A request for “TN” status;
- A copy of the applicant’s college degree and employment records which establish qualification for the prospective job;
- A letter from the alien’s prospective U.S.-based employer offering him or her a job in the United States, which is included on the professional job series (NAFTA list); and
- A fee of U.S. $50.00
The requirements for Mexican citizens are as follows:
- First, the prospective employer must file a labor condition application;
- Then, the applicant’s prospective employer must file an I-129 “Petition For Non-Immigrant Workers” with the USCIS; and
- After the petition has been approved, the alien must apply for a non-immigrant visa at a U.S. Embassy or Consulate in Mexico.
Requirements for Canadians and Mexicans wishing to renew their “TN” status are not the same. Applications for extension of stay are processed by the USCIS.
Canadian citizens have two options. First, they may have their employer file an I-129 form at the closest regional USCIS office. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application.
Mexican citizens must have their employers renew their labor condition application and file another I-129 with their regional USCIS office in order to extend their stay.
Aliens ineligible to receive visas
Section 212(a) of the Immigration and Nationality Act makes aliens inadmissible for the following reasons:
- Health-related grounds;
- Criminal and related grounds;
- Security and related grounds;
- Aliens who are at risk of becoming a public charge;
- Workers who will adversely affect wages and working conditions in the U.S.;
- Illegal entrants and immigration violators;
- Aliens who have obtained entrance under false pretenses;
- Aliens who are permanently ineligible for citizenship;
- Aliens previously removed;
- Aliens who have evaded the draft;
- Aliens who have falsely claimed citizenship;
- Unlawful voting; and
- International child abduction.
Obtaining permanent residence (green cards) for employees
Obtaining permanent residence for employees generally requires approval from several government agencies. First, employees must seek approval of a Labor Certification Application through the U.S. Labor Department (DOL). Once the Labor Certificate Application is approved the employer must petition the U.S. Citizenship and Immigration Services (USCIS). Approval by the DOL of the Labor Certification Application does not guarantee approval by the USCIS. Both the Labor Certification Application and the petition to USCIS must be filed by the employer.
Once the USCIS has approved the petition there are two options that the employee has available to complete the permanent residence process. The employee may make application to a U.S. Consulate, generally in the employee’s home country, to issue a permanent residence visa to the employee. The second option is to file an application for Adjustment of Status with the USCIS. The choice of processing through a U.S. Consulate or the USCIS will depend upon the weighing of numerous factors such as processing times, costs, etc.
Hiring foreign workers
Although each foreign labor certification program is unique, there are similar requirements that the employer must complete prior to the issuance of a labor certification. In general, the employer will be required to complete these basic steps to obtain a labor certification:
- The employer must ensure that the qualifications for the position are clearly stated and within business norms.
- The employer must complete the ETA form designated for the requested program.
- The employer must follow a certain pattern of recruitment that is required by the DOL.
- The employer must ensure that the wage offered equals or exceeds the prevailing wage for the occupation in the area of intended employment.
- The employer must ensure that the compliance issues effected upon receipt of a foreign labor certification are completely understood.
- The completed ETA form is submitted to the designated Department of Labor office for the requested program.
- The employer is notified of the determination of the Department of Labor.
Terminating alien workers
Under immigration law, an employer that downsizes alien workers holding most types of visas need not notify the government of the layoff. However, if an employee is working on a nonimmigrant work visa, these are generally issued for the specific employment with a particular employer, and the employer must notify the USCIS when employment ends.
This is the case with an H-1B visa, for example. If an H-1B employee is terminated, the employer must notify the government that the employment relation has ended, and the employer must cover the cost of returning the worker to their home country or face continuing wage obligations. The employer’s financial obligation to the employee ends when the company notifies the government of the termination of employment, the H-1B petition is canceled, and the employee is returned home.