Figuring out what type of work visa you need can be a difficult task. There are a number of work visas that are available to foreign citizens who wish to work in the United States. The visa that an individual may be eligible for depends on the nature of the work that is to be conducted. Most employment visas are non-immigrant visas that give foreign citizens the ability to temporarily live and work in the United States. The process of obtaining a visa can be long and complicated, which is why consulting a qualified immigration attorney who understands the nuances of work visas is a good starting point.
EB-1 Visa for Priority Workers
An EB-1 visa is given to persons of extraordinary ability, outstanding professors, researchers, and multinational executives. This type of visa is set aside for the brightest and most talented individuals in their fields. The person applying for an EB-1 must demonstrate sustained national or international recognition in his or her field through detailed documentation. Additionally, the applicant must carry on working in the same field of extraordinary ability when admitted to the United States.
H-1B Non-Immigrant Visa for Professional Workers
An H-1B is a non-immigrant visa that allows a foreign national professional to live and work in the U.S. for a term of three years, which can be renewed for another three years at the end of that period. An H-1B is normally used by businesses to employ foreign citizen workers in certain specialty professions. The responsibility to petition for the entry of the foreign employee through an H-1B application rests with the employer. The USCIS limits the total number of H-1B visa applications it will accept annually. When this numerical cap is reached, USCIS will stop accepting H-1B petitions until the next year.
L-1 Visa Non-Immigrant Visa for Professional Workers
An L-1 visa is for persons working for a company outside the U.S. for one year in a related business entity in an executive, managerial, or specialized role. An L-1 visa petition can only be filed by the company or subsidiary of the foreign company where the foreign national has been employed for a minimum period of 12 months within the last three years in the role of a manager, executive, or special knowledge work.
TN Visas for Citizens of Canada & Mexico (NAFTA)
Under NAFTA, Canadian and Mexican citizens may temporarily enter the U.S. to engage in business activities with a TN visa. For Canadian citizens, the type of employment an individual is seeking must be listed on the NAFTA approved professions list. Mexican citizens must have pre-arranged employment situations in certain approved professions.
It is important to note that the visa types listed above are only a few examples of the total number of employment visas available for foreign nationals. Processing times for work visas vary depending on a number of factors. When an individual gains entry to the U.S. on a work visa, they must be careful to stay in compliance with work visa requirements.
Grace Periods for Non-Immigrant Visa Holders
Sometimes the employment of a foreign national in the U.S. will end before the authorized term of their non-immigrant visa expires. When this happens, foreign nationals with E, H-1B, L-1, O-1, and TN visas will have a grace period of up to 60 days, during which their status remains in effect. Foreign nationals with E, L-1, and TN visas may have an additional grace period of 10 days before and after their visa is valid. However, a foreign national is not authorized to work during any of these grace periods, except for certain H-1B visa holders who are transitioning to new jobs.
Loss of Employer Sponsor
A foreign national who pursues an immigrant visa based on employment faces the risk that their U.S. employer may revoke or withdraw their petition, or may go out of business. Under USCIS regulations, foreign nationals have certain protections when this happens. If their petition has been approved for at least 180 days, it will not be automatically revoked if the sponsor withdraws the petition or goes out of business. Furthermore, a foreign national generally can retain the same priority date for a future employment-based immigrant visa application if the sponsor revokes the petition. There are exceptions if the petition was revoked based on a material error, fraud, an intentional misrepresentation, or the invalidation of a labor certificate.
Transitioning from Non-Immigrant to Immigrant Employment Visas
Certain foreign nationals who currently have a non-immigrant visa in the E-3, H-1B, H-1B1, L-1, or O-1 category may be able to get an employment authorization document while they wait for the priority date on an immigrant visa application to become current. They would need to show that compelling circumstances justify issuing the employment authorization document. It can be renewed in one-year terms.