This article is written by Pratap Alexander Muthalaly, a student of Government Law College, Trivandrum. It looks at the different types of work visas available to foreign nationals looking to work in the USA, with a special emphasis on H-1B, H-2B, and L visas.
Table of Contents
Introduction
According to the passport index, ‘a visa is an official document that allows the bearer to legally enter a foreign country. The visa is usually stamped or glued into the bearer’s passport’. There are a number of different types of visas, each giving the bearer different rights and privileges when they are in the host country. The area of focus here is work visas, specifically those issued by the United States of America. Individuals who wish to take on employment or engage in business activities in the host country make up the vast majority of those who apply for work visas. There are several types of work visas that depend on the nature of the work and length of stay.
H-1B Visa
What is it
The H1B visa is an employment-based, non-immigrant visa meant for temporary workers. To secure this visa, one must first get a job offer from an employer in the US and then apply for his/her H1B visa petition with the US Immigration Department. Once the aforementioned has been approved, it will also act as a work permit which allows the bearer to obtain a visa stamp and work in the U.S. for the said employer.
Eligibility
The H1B visa is issued for what is referred to as a speciality occupation, basically, this refers to jobs which require theoretical and practical application of a body of specialized knowledge. furthermore, the visa holder is required to have at least a Bachelor’s degree or any other equivalent of it.
Quota system
- Each year, the United States Citizenship and Immigration Services sets a stipulated limit on how many H1B visas are issued.
- While these numbers can vary as per government regulations. Historically, the cap is set at around 65,000.
- In addition to this 20,000 H1B visas are issued to those who come under the category of qualified people (individuals who have completed a Master’s degree from the USA). This quota is independent and considered in addition to the aforementioned 65,000 quota.
- Furthermore, there is a deadline placed in every calendar year within which employers are expected to have filed all of their H1B visa petitions meant for the next financial year.
- After this date, no more petitions are considered.
- As a result of the limits placed on the number of H1B visas issued, all the seats are filled up and the cap is met within a few days of the deadline.
- However, if the cap were to remain unmet, USCIS would continue accepting applications until the number is met.
What is the USCIS fee for filing the H1B petition
The filing fee for H1B petition is paid by the employer, alternatively called the H1B Sponsor. The stipulated fee is often in the range of $1570 to $2320.This may also be inclusive of a lawyer’s fee at times.
Limit of H1B visa
The total stay period is limited to 6 years. Meanwhile, initial approval is for 3 years, which can be extended in increments for up to 3 years in total.
H1B- Re-Stamping
A re-stamping can be done at any American consulate in any foreign country, other than of course the home country. That is, however, subject to whether the applicant has received a H1B extension approval.
Multiple employers
H1B visa holders are allowed to work for more than one U.S. employer, but must have to receive approval through a form called the I-129 petition that has to be approved by each of the employers. However, in the regular course of business, these forms are rarely issued.
Travel
H1B visa can also serve the function of a multiple entry visa, which for all purposes allows an individual to travel in and out of the USA as many times as they may wish, this, of course, is subject to the specified period when the visa is held to be valid.
Vacation
An H1B holder is allowed to go on vacations and can also avail of sickness/ maternity/ paternity leave or even go on strike. There is no issue provided that the holder is certified as an employee under an employer.
Family Status
By law, the spouse and unmarried children (under the age of 21) of H1B holders are allowed to stay in the United States under the classification of what is called a dependent category or the H4 visa for as long as the holder’s H1B visa is valid.
Permanent Residence (Green Card)
Moreover, an H1B holder is also eligible to seek permanent residency in the USA. This is processed through what is called a change of status via an I-485 form.
H-2B Visa
What is it
H2B Visas are primarily meant for temporary workers, it must be noted however that they do not apply to those who work in the agriculture sector. To qualify for an H-2B visa, businesses must first and foremost have a need for temporary employees and must also be able to show that there aren’t enough U.S. workers who are willing and able to fulfil this need.
Businesses are also required to show that the positions they’re filling are temporary in nature. This infers that the job needs to qualify into one of the following four specific classes:
- Recurrent seasonal requirement, this essentially means that the businesses are having a busy season or a period each year wherein they need to employ additional labour for the rest of the year,
- Intermittent requirement, this basically means that the business has tasks or rather work that isn’t covered by permanent workers and also there is an occasionally need for additional help in the form of temporary labour,
- Peak-load requirement, this is in reference to the busy periods where the workload of businesses exceeds what they’re able to take on with their permanent workers,
- One-time situations, there are certain situations where businesses have a solitary time or unique situation where temporary labour is needed.
There is also a limit on the number of H2B Visas awarded each year. At present, the U.S. issues roughly 66,000 visas each year, with these usually being half reserved for the first six months of each fiscal year and the other half reserved for the final six months.
What type of employees are covered under H2B Visas
Basically, the H2B Visas are meant for businesses that hire workers on a seasonal or peak-season basis.
These visas are primarily used by ski resort workers in Colorado and those who are staffed in amusement parks particularly in Florida. Other business undertakings that could potentially use this program include golf courses, cruise ships, luxury resorts, various seasonal and recreational forums and other tourism centric businesses.
These positions can be for both skilled and unskilled workers. So there isn’t a requirement that the job be for those with a college degree or equivalent, as is the case for the H1B Visa program. However, these various business organisations need to be able to show or at least sufficiently explain why they have a requirement to hire foreigners.
What do the changes to H-2B Visas mean for businesses
In 2015, the U.S. Citizenship and Immigration Services, Department of Homeland Security, Employment and Training Administration and Wage and Hour Division, Labor introduced a slew of changes to the H2B Visa program. These changes were aimed at strengthening protections for workers and increasing transparency.
In the future, businesses might also have to deal with more variations to the visa program. While nothing has been proposed as of yet. If the suggested changes to other temporary work visas are anything to suggest, future changes might include stronger controls on the number of visas awarded to businesses and workers or a more integrated application and interview process.
L-Visa
What is it
The option of the L-1 visa is available for employers who wish to transfer employees from a foreign branch, subsidiary, affiliate, parent or related corporate entity to work at a connected office or branch.
One consideration of a visa for nature is that the foreign national must have been employed with the organization outside of the U.S. for a continuous period of at least one year and also a preceding three-year period at a foreign body that qualifies.
There are two specifications under the L-1 visa:
- L-1A: Intracompany Transferee for Executives or Managers.
- L-1B: Intracompany Transferee for Employees with Specialized Knowledge.
Both of the aforementioned categories have their own specific eligibility criteria.
L-1A Visa
The L-1A visa is meant for individuals who have worked aboard at a foreign affiliate of a U.S. entity in an executive or managerial position. Additional criteria for the L-1A visa include the following:
- Candidates must have worked at a related entity abroad for at least 12 months at a stretch of the last three years at the time of application.
- The employment must, however, be in what is classified as an executive, managerial or specialized knowledge capacity for either a parent company, branch, subsidiary or affiliate of the same company or organisation.
- There must be a valid relationship with a foreign company in the ambit of something like a parent company, branch, subsidiary or affiliate.
How long does the L-1A Visa last
The L-1A visa grants the holder an initial period of stay of three years. Individuals can then apply for renewals and can also receive two extensions granted in the form of two-year increments. This essentially means that individuals on an L-1A visa are allowed to stay in the U.S. for a total time span of seven years.
An important point that has to be noted is that an L-1A could have a number of extensions (more than one, that is two or three extensions) this is of course only if the L-1A visa holder travels outside of the United States.
L-1A Visa Petition and Filing Fees
- Filing fee for petition: $9609 (approx).
- Premium processing: Employers can pay a premium processing fee of $2,500 when available. That is the United States Citizenship and Immigration Services will adjudicate the L-1A petition within 15 calendar days. With premium processing, it is required that the USCIS approve and then issue requesting evidence or otherwise denying the visa petition within the aforementioned15 calendar days.
L-1B Visa
In the case of the L-1B visa, a U.S. employer is allowed to move an employee with specialized knowledge to his/her US base of operations from one of its affiliated foreign offices to a U.S. parent company, subsidiary, affiliate or branch. However, this only works if the employee qualifies under the requirements listed below in order to meet the bar for the L-1B visa:
- The person in question must have worked in the organization in question for at least 12 months at a stretch within the last three years leading up to transfer which is, of course, an executive, managerial or specialized nature.
- The person in question must have specialized skills on the basis of employment with the foreign employer that is of use in the United States.
How long does the L-1B last
The L-1B visa has an initial stay period of three years. Individuals can then further apply for renewals and can then opt for the option of one extension granted in a base\ two-year increment. This essentially means that individuals on the L-1B visa can potentially reside in the U.S. for five years in total.
An important thing to note is that an L-1B could have more than one, two or three extensions if the L-1B visa holder travels outside America. They have the option of recapturing the lost time. Simply put the individual in question could potentially stay in the U.S for an even longer period of time that stipulated. This basically to make up for any lost time due to them travelling abroad or temporarily leaving the country.
L-1B Visa Petition and filing fees
- Fee for filing the petition: $960 (approx).
- Premium processing: Employers can pay the $1,440 premium processing fee when available. This basically means USCIS will adjudicate the L-1B petition within 15 calendar days. With premium processing, the USCIS must first approve and then issue a request for evidence or deny the visa petition within the prior stated 15 calendar day period.
Other Work Visas
O-1
The O-1 non-immigrant visa is especially for Individuals with extraordinary ability who are coming to the U.S. to work in their field of expertise. To obtain an O-1 visa, one must first and foremost have an offer of employment from a U.S. employer and then proceed to prove that they are truly special in their field.
The process involved in proving excellence, requires the individual to fulfil 3 out of 6 categories. These are:
- Earning a high salary (remuneration),
- Making novel contributions in their field of expertise,
- Having received achievements/awards, and performance in a lead/starring/critical role in their area of expertise.
In addition to all this, the U.S. employer must also file an I-129 petition on the person’s behalf, which must include a letter from the industry’s labour union that person belongs to, explicitly detailing that the union doesn’t object in any way to the proposed employment in America.
E-1
The E-1 non-immigrant visa essentially is a means for nationals of certain specified countries to come to the U.S. in order to carry out trade activities. One can get the E-1 visa as a Treaty Trader or as a Treaty Investor. It is important however that the person in question must be a national of a country that maintains a trade treaty with the U.S., it must be established that the person is coming to the U.S. to carry on substantial trade, keeping in mind the spirit of the treaty.
Moreover, if one aspires to come as a Treaty Investor, said person has to invest a substantial sum in a U.S. business, and also substantiate that they are coming to the U.S. to develop the aforementioned investment. Normally, when you apply for an E-1 visa at the U.S. consulate in your nation of origin, you do not need to file any documents with USCIS.
TN
The TN visa was brought about through NAFTA (the North American Free Trade Agreement). The TN visa is available only to Canadian and Mexican citizens and allows them to come to the U.S. to work for a U.S. employer.
To be considered for a TN visa, one must first show proof that they are a citizen of Canada or Mexico, then there must be an active job offer available with a U.S. employer. Furthermore, all this must meet with the NAFTA provisions.
Conclusion
A clear understanding of the US visa system is a must for Indian professionals, especially those working abroad or co-ordinating with foriegn partners. It is also important to keep an eye on this space given the ever-changing political climate in the USA.
References
- https://www.passportindex.org/visa.php
- https://www.path2usa.com/what-is-h1b-visa
- https://smallbiztrends.com/2017/02/what-is-an-h2b-visa.html
- https://resources.envoyglobal.com/blog/what-is-the-l-1-visa
- https://www.alllaw.com/articles/nolo/us-immigration/types-work-visas.html
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