Business immigration and visas are complex; navigating the system can seem like going through a labyrinth. We have talked about immigration a few times here at Texas Labor Law Blog- discussing immigration and the midterm elections (including DACA, increases in Notices of Inspection, and what businesses should do in an ICE raid).
Ultimately, immigration is an issue that HR cannot ignore. “There were a record 44.4 million immigrants living in the U.S. in 2017, making up 13.6% of the nation’s population” A Supreme Court case next year will determine the fate of DACA recipients. Over 700,000 DACA recipients will be affected by the decision.
Of course, there are certain industries and areas where more workers are going to be foreign workers. For example, the over 300,000 estimated L-1 visa workers only work for companies that have foreign affiliates, subsidiaries, or parent companies. Many tech positions are frequently held by H-1B visa holders.
While many HR representatives and businesses will not have to deal with visa holders, there are many that will have to do so, so it is an important element for HR to understand. Each visa has its own unique standards to qualify, and potential to lead to a green card or residency status. By knowing the in’s and out’s of each visa, HR reps can figure out the best route for their potential employee.
The Many Different Visas
If any company is looking to bring a foreign worker to the business, then there are a number of different options that companies have.
F-1 Opt (Student or Recent Graduate)
This option is available for students (on an F-1 student visa) to work in the area of their study for 1 to 3 years before or after they complete their studies.
USCIS outlines the requirements in full here:
Pre-completion OPT: You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.
If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.
Pre-Completion OPT is a chance for students to work before their degree is complete.
USCIS outlines the requirements in full here for Post-completion OPT (after graduation).
Post-completion OPT: You may apply to participate in post-completion OPT after completing your studies. If you are authorized for post-completion OPT, you may work part time (20 hours or less per week) or full time.
OPT can be extended for an extra 24 months if a student earned a degree in certain science, technology, engineering, or math fields. The student must have received one of the STEM Designated Degrees STEM Designated Degree Program List (PDF), the employer must be enrolled in and using E-Verify, and the student must have received an initial post-completion OPT employment authorization based on the STEM degree.
The school of the individual is responsible for filing the paperwork and maintaining the visa. Hiring someone on OPT is a great way to find a qualified candidate, see if they fit your culture, and eventually hire them under an H-1B visa.
H-1B Visa (Specialized Occupation)
H-1B visas are unique. There are only 85,000 visas awarded every year through a lottery system (65,000 for those who have a bachelor’s degree and 20,000 for those that have a master’s degree or higher. Typically, around a third of first-time applicants will receive a visa.
The general requirements are listed here:
The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting. For more information about the H-1B program, visit the H-1B Specialty Occupations Web page.
H-1B visas are an option to get specialized workers for a company. The worker can eventually obtain a green card. These visas are frequently used by companies in the tech sector and elsewhere to fill jobs with needed skills. Restrictions on the H-1B program and higher standards have been found to push jobs outside the US and increase investment in other countries rather than in the US.
L visa (Intra-company Transfer)
May bring managers/executives or workers with specialized knowledge that work in a related foreign company (parent, subsidiary, or affiliate) to the US.
L-1A Classification (Manager or Executive)
To qualify for the L-1A Intracompany Transferee Executive or Manager, you must:
Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.
The L-1A visa is essentially a way to bring executives or managers of a foreign affiliate to the US to serve as an executive officer or manager of the US affiliate.
Here are the requirements for the L-1B visa (specialized knowledge):
L-1B classification (Specialized Knowledge Classification)
To qualify for the L-1B Intracompany Transferee Specialized Knowledge classification, you must:
Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
Specialized knowledgemeans either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).
Workers with specialized knowledge are often individuals that have understand of a system or set of methods that is not common in the US, understand proprietary processes or software that the company has, or has experience in a field with limited availability in the US.
L-1 visas are great options for companies with a foreign presence to bring workers to the US. They have a big advantage over the H-1B visa because there is no set quota on these visas and the visa holders may start at any time after their visa is approved.
TN Visa (NAFTA/USMCA . Only Canadians and Mexicans in certain jobs are eligible)
For Mexicans and Canadians this one of the easiest visas to obtain. There are a few important restrictions that apply.
It is only available for certain positions such as accountants, medical professionals, engineers and other positions on the approved list (available here).
You are a citizen of Canada or Mexico;
Your profession qualifies under the regulations;
The position in the United States requires a NAFTA professional;
You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
You have the qualifications to practice in the profession in question.
TN visas are good as they can generally be renewed continuously and almost without limit. However, TN visa holders cannot be sponsored by their employers for a green card.
J-1 visa (Exchange Visitor)
Here are the requirements for the J visa:
The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 nonimmigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange or persons, knowledge, and skills, in the fields of education, arts, and science.
Examples of exchange visitors include, but are not limited to:
Professors or scholars
Research assistants
Students
Trainees
Teachers
Specialists
Au Pairs
Camp counselors
Many doctors are J-1 visa holders and it can be a great way to get doctors and other individuals to the US.
O visa (Extraordinary Ability)
This is a visa for the best of the best in their field. Very few individuals qualify.
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
There are no quotas on visas. They are great options for anyone who qualifies to get a green card as O visa holders may qualify for EB-1 (extraordinary ability categories).
H-2A (Agricultural Worker)
To qualify for H-2A nonimmigrant classification, the petitioner must:
Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)
The H-2A program is available for temporary agriculture workers and is critical for our nation’s food supply.
H-2B (Seasonal Worker)
Here are the requirements for the H-2B visa:
The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.
One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;
OR
Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature.
There is an annual cap of visas available that varies every year. Here are the visa caps by year. Golf clubs, resorts, crab pickers, landscapers, seafood processors, and other temporary seasonal jobs rely on the program every year to fill the need for temporary workers.
Conclusion
There are many different visa options that companies can consider for bringing workers to the US. By understanding the basic options, HR and upper management can better determine how they can fill needs within their workforce.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.