USA Work Visas

USA work visas are divided into two categories: temporary and permanent.


Employment based temporary USA visas

H-1B Visa

The H-1B visa is issued to professionals and specialists to work in the United States. It is issued to persons in speciality occupations, fashion models of distinguished merit and ability and persons providing services related to the Department of Defence cooperative research and development project or co-production project.

It is initially granted for a period of three years, but can be extended for a further three years. A maximum 65,000 visas are issued annually.

It has become general knowledge that the annual limit for this classification of US visas is reached very quickly. It is, thus, in the prospective employer and alien’s interest to submit the petition for the year as early as possible.

As is the case for most employment based USA visas, there must be an offer of employment from a US source.

A petition and approved labour condition application must be submitted by the prospective employer and they must be approved before an application can be made for the visa. This process consists of proving that the foreign national is a professional or specialist who is qualified for the offered employment.

There is also a requirement for a prevailing wage to be determined for the particular profession and in the area of prospective employment. This means that the employer must pledge to pay the alien worker at least the average salary for those who work at the same level in the same profession in the same area. The pledge is evidenced in the labour condition application.

Educational and professional qualifications of prospective alien workers have to be assessed as being equivalent to at least a US baccalaureate degree for the purpose of acquiring H-1B USA Visas.

Beneficiaries of H-1B status may eventually apply for USA permanent residence. This should be done in good time as it can take many years for the approval of permanent USA visas in any category, family or employment, to come through.

In applying for employment based permanent USA visas through the H-1B visa status, it must be borne in mind that if the status expires prior to the completion of the processing of applications for permanent residence, H-1B visa beneficiaries will lose their rights to remain in the US which will completely jeopardise the application for permanent residence.

The spouse and unmarried children under 21 may apply for derivative H-4 visas and may accompany or join the principal beneficiary in the US on such status. They, however, are not afforded the right to work. They are also afforded permanent residence in the states if the principal beneficiary has changed status to become a legal permanent resident.

H-1C Visa

The H-1C category of USA visas allows registered foreign nurses to work temporarily at US hospitals in health professional shortage areas.

The nurse must be (or will be) authorised by a state board of nursing to engage in registered nurse practice in a state or U.S territory or possession and must be (or will be) practising at a facility which provides health care services.

A maximum of 500 visas are issued annually for a maximum duration of three years. Extensions on this type of visa are prohibited.

USA immigration laws require beneficiary nurses to maintain an unrestricted license in their home countries or have acquired their education in the states. In addition, they must possess licenses in the state of intended employment or pass a CGFNS exam authorised by the HHS. They must also provide proof of eligibility to practice as registered nurses in the state of intended employment.

The pertinent employer hospital has to attest that it qualifies as a health care facility, the employment of foreign nurses will not adversely affect the wages or working conditions of similarly employed nurses, it will pay the nurse the facility wage rate, the facility is taking timely and significant steps to employ and retain U.S nurses, there is no strike or lockout at the facility, that no more than 33% of nurses at the facility can be H-1C nurses and that the facility will not authorise H-1C nurses to work at sites not under its control.

H-2A and H-2B USA Visas

The H-2 visa is issued to temporary workers engaged in agricultural services or labour of a temporary or seasonal nature whilst the H-2B visa is afforded to foreign workers performing other temporary services or labour.

The main similarity between these two USA visas is that the work performed is of a temporary nature. It is nearly impossible to adjust the H-2 visa to that of permanent residency. In other words, beneficiaries generally may not apply for USA green cards.

To qualify for H-2B visa status, the employer must establish that there are no U.S citizens or legal permanent residents willing and capable of performing the work.

Under the H-2A visa program, there is a 50% rule which requires employers to hire qualified U.S farm workers who apply for the job until 50% of the period of the fees or contract has been completed. The employer must make committed recruitment efforts including the use of electronic banks. Thus, Labour certifications are required for both visa categories.

The H-2B visa lasts for a maximum of three years in one year instalments. There is a maximum limit of 66,000 of these USA visas issued each year.

Please do not hesitate to contact our US immigration lawyers to arrange a consultation for detailed discussions on the H visas. Consultations are available for in depth discussions on US immigration and the preparation of US visas.

USA Immigration
 

Employment based Permanent USA work Visas: Green Cards

The beneficiaries of employment based permanent USA visas acquire the right to live and work in the USA and are therefore issued green cards. There are five categories of these visas, however, this section will concentrate on four as the fifth category, the EB-5 investor visa, is better classified as a business visa.

Priority Workers – EB-1:

There are three types of priority workers: 1.Persons of extraordinary ability 2.Outstanding professors and researchers and 3.Multinational executives and managers. The most distinguishing and beneficial characteristic in petitioning for EB-1 status is that the beneficiary does not require a US employer to petition on his/her behalf. In other words, the beneficiary and petitioner are synonymous.

Alien of Extraordinary Ability

Aliens of extraordinary ability are classified as EB-1 priority workers. They are foreign workers who possess the highest level of achievement within the fields of arts, science, education, business and athletics. The achievement is demonstrated by national and/or international acclaim which must be proven when filing a petition for this status.

The alien must be entering the United States to continue in the area of extraordinary ability and the field of endeavour must be of benefit to the United States economy.

Extraordinary ability can be demonstrated by the receipt and possession of a major internationally recognised award such as the Nobel Prize or the Academy Award for motion pictures. Otherwise, the alien must submit at least three of the following types of documentary evidence:
 

• A lesser national or international award or accolade for excellence in the area of endeavour

• Published material in professional journals, major trade publications or the major media pertaining to the person’s achievements in the area of specialisation. The material must encompass the title, date, author and must be translated into English

• Evidence of membership in associations which require excellent accomplishments from their members. The achievements must have been judged by nationally or internationally recognised experts in the particular field

• Original scientific, scholarly or artistic contributions of major significance in the area of endeavour

• Commercial success in the performing arts as evidenced by box office sales or record, cassette, compact disc or video sales

• Evidence showing that the alien commands a high salary or other significantly high remuneration in the field of endeavour in comparison to others

• Evidence of the display of the alien’s work at artistic exhibitions in more than one country

• Proof that the alien participated on a panel or individually as a judge of the work of others in the same or allied field of endeavour

• Evidence of authorship of scholarly articles in the area of achievement in professional journals or other major media

• Other evidence comparable to those outlined if those detailed above do not apply to the field of endeavour

The pertinent USA Immigration authority must be persuaded by the totality of the evidence submitted, notwithstanding the submission of the minimum amount of evidence.

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Outstanding professor or researcher

Foreign professors and researchers may acquire USA green cards if they can demonstrate that they have achieved international acclaim and recognition in their field of endeavour, possess a minimum of three years experience in teaching or research in their specialist area and intend to enter the United States for tenured or tenure-track teaching or research employment. The prospective employer must employ at least three other full time staff.

Evidence to establish outstanding achievement must be submitted to the relevant USA immigration department. At least two of the following types of evidence must be provided:
 

• The possession of major international awards or accolades for outstanding achievement in the field of endeavour

• Proof of membership in academic associations requiring outstanding achievement

• Published materials and professional publications written by others about the alien’s work

• Evidence of original/scholarly research contribution

• Participation on a panel or as an individual judging work of others

• Authorship of scholarly books or articles

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Multinational Executives and Managers

The priority worker category also encompasses multinational executives and managers. The alien must have been employed for at least one year within the last three years in a foreign entity of the prospective US employer company. The foreign and US companies must therefore be the same firm simply operating on an international level or the two companies must have an affiliate relationship.

USA immigration regulations define executive and managerial capacity for these purposes as follows:


Executive capacity:
 

• The alien must manage an organisation or major component or function

• Has the authority to establish goals and policies

• Has wide latitude and discretionary decision making authority

• Receives only general supervision or direction from higher executives, the board of directors or stockholders of the organization.

• Manage a corporation, department, subdivision or function

• Supervise and control the work of other supervisory, professional or managerial employees or otherwise manage an essential function

• Have the authority to make personnel decisions as to hiring and termination of employment or otherwise function at a senior level

• Exercise discretion over the day to day operations of the activity or function for which he or she has authority. First line supervisors are not included within the definition of manager for these purposes unless the employees supervised are professional.

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Aliens of exceptional ability – EB-2

Foreign persons with exceptional ability in the sciences, arts or business and who have an advanced degree can apply for employment based USA permanent residence.

The alien must provide evidence to establish extraordinary ability in the sciences, arts or business. The alien must provide at least three of the following:
 

• Evidence of an academic history establishing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution relating to the area of exceptional ability.

• Reference letters from former and current employers showing the alien has at least ten years of full time experience in the area of exceptional ability

• Proof of membership in a professional association

• Evidence that the alien has commanded a high salary or other remuneration for services evidencing exceptional ability

• A license to practise the profession or certification for a particular profession or occupation

• Evidence of recognition for accomplishments and significant contributions to the industry or field by peers, governmental entities or professional or business organisations

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Skilled and unskilled workers – EB3

USA visas may be afforded to both skilled and unskilled workers who wish to live and work in the states. There is a maximum of 40,000 visas issued per year for this visa category.

A job offer and labour certification are required prior to the petitioning for this visa status.

Skilled workers are defined as aliens capable of performing a job which requires at least two years of training or experience. This can also include professionals with a bachelor’s degree.

Unskilled workers are those who are capable of executing duties requiring less than two years of training or experience.

As the category is oversubscribed processing times for USA visas of this type currently culminate in years of delay and waiting before an approval for both the petition and visa application is issued.

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Special Immigrants – EB4

10,000 USA visas are issued annually to foreign ministers of religion, former employees of the U.S government abroad and certain juveniles.

In order to qualify for green cards and thus acquire permanent residence in the US, religious ministers must have been members and employees of the religious organisation for at least two years. They must also be seeking to enter the United States to work as ministers of religion.

Former employees of the U.S government must have given at least fifteen years service to qualify for a visa on this basis. They must have resided in the United States for a period totalling at least one and half years within the last seven years prior to the date of the visa application or adjustment of status to qualify.

Juveniles who have been declared dependant on a juvenile court and for whom a court has decided that it is not in their best interest to return to their countries may qualify for USA green cards under this premise.


Please do not hesitate to contact our US immigration lawyers for advice on employment based US green cards.

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