• Employment Visas
  • May 19, 2010
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Employment-Based Visas
     
    There are a variety of employment visasavailable to individuals seeking to come to the United States to work. Thesevisas can be temporary or permanent in nature. At The Law Offices of Grinberg& Segal, P.L.L.C., we strive to provide comprehensive legal services to those wishing to obtain employment visas. The following is a brief descriptionof the types of employment visas our firm can assist you in obtaining:
     
    B-1 Visas: Temporary Business Visitor Visas
    While nottechnically an employment visa, the B-1 visa temporarily permits visitors fromforeign countries to come to the United States for variety of legitimatebusiness and economic activities. Although the B-1 visa is available tobusiness visitors, it is important to remember that this visa does notauthorize employment in the United States. Business visitors may attendmeetings, conventions, conferences, short-term training, or negotiations onbehalf of a foreign employer.  A B-1 visa may also be used by a foreignnational ho needs to travel to the United States to settle an estate. However,performing productive work in the United States is strictly prohibited, andreceiving payment from a United States entity is also generally prohibited.
     
    The B-1 visa isgranted for an initial period of one to six months depending upon the purposeof the trip. However, the B-1 visa can be extended for up to six months.Generally, the maximum amount of time a foreign national is permitted in B-1status on any one trip is one year.

    H-1B Visas: Professionals in Specialty Occupations
    The H-1B visa allows professionals to come to theUnited States temporarily to work in a field that requires a specialization ora special skill. In order to be granted an H-1B visa, the foreign national musthave the at least the equivalent of a United States Bachelor’s degree in afield related to the intended employment, andthe position that the foreign national is applying for must require atleast a Bachelor’s degree or its equivalent. The sponsoring United States employermust be willing to pay the foreign national the prevailing wage, provide propernotice to its work force, not be involved in a strike or lockout, and file apetition on behalf of the foreign national with the Bureau of U.S. Citizenship &Immigration Services.

    Specialtyoccupations can be found in a wide variety of fields, including, but notlimited to, architecture, engineering, mathematics, physical sciences, socialsciences, medicine and health, education, business specialties, accounting, law,theology, and the arts may be considered to be specialty occupations. A“specialty occupation” is an occupation that requires a Bachelor’s degree in aspecific field as a minimum requirement for entry into that occupation. Aforeign national can hold the equivalent of a United States Bachelor’s degreein a related field through education in the United States or overseas, orthrough a combination of education and experience. However, foreign degreesmust be evaluated by a professional evaluation service before the H-1B petitioncan be filed with the Bureau U.S. Citizenship & Immigration Services.

    The H-1B status is granted for an initial period of up to three years. Thisstatus can be extended for another three years. The maximum amount of time aforeign national can remain in the United States in H-1B status is six years.Once the foreign national meets the six year cap, he or she must remain physicallyoutside the United States for one whole year before he or she can return to theUnited States in either H-1B or L-1 status. However, in limited circumstances, theH-1B status can be extended beyond six year cap. It is important to rememberthat the H-1B visa allows the foreign national to work for the petitioningemployer only. A foreign national can only change employers after a newemployer has obtained an approved H-1B petition from the Bureau of U.S. Citizenship& Immigration Services. 

    An H-1B worker’s spouse and unmarried dependent children under 21 years of agemay accompany the H-1B worker to the United States. These spouses and children aregranted H-4 classification, which allows them to attend school. Thoseindividuals with H-4 status are not authorized to work unless they changestatus to some nonimmigrant classification that permits employment.
     
    H-2AVisas: Seasonal Agricultural Workers
    TheH-2A visa permits a foreign national to enter the United States to work inagriculture. A foreign national cannot self-petition for an H-2A. The UnitedStates employer can be self-employed, a partnership, corporation, oragricultural association. The law also allows for an agent to apply on behalfof the United States employer.
     
    Like an H-1B, the H-2A worker’sspouse and unmarried dependent children under 21 years of age may accompany theH-2B worker to the United States. These spouses and children are granted H-4classification, which allows them to attend school. Those individuals with H-4status are not authorized to work unless they are independently eligible for awork visa.
     
    H-2B Visas: Seasonal Non-Agricultural Workers
    The H-2B visapermits business owners to hire foreign workers to perform seasonal, peak-load,intermittent, or one-time only work that is non-agricultural. These visas arefor foreign non-professionals Business owners and employers must demonstratethat there are no unemployed United States workers willing or able to do thejob. The foreign national must be sponsored by a United States employer. Thisemployer must be willing to pay the foreign national the prevailing wage.
     
    Like an H-2A, the H-2B worker’sspouse and unmarried dependent children under 21 years of age may accompany theH-2B worker to the United States. These spouses and children are granted H-4classification, which allows them to attend school. Those individuals with H-4status are not authorized to work unless they are independently eligible for awork visa.
     
    L Visas: Intra-Company Transfers
    The L visaallows foreign-based executives, managers, and employees with a specializedskill to be transferred temporarily to a division, branch, affiliate,subsidiary, or parent of an international company in the United States. Thisvisa is also available to owners and/or employees of smaller businesses but,the transferring company must continue to do business overseas during theentire period of the foreign national's stay in the United States with L-1 status.In order to demonstrate eligibility, the company and the foreign national mustsatisfy the following criteria must be established: (1) the foreign nationalmust be employed at the overseas company as a manager, executive, or employeewith a specialized knowledge; (2) the foreign national must have been employedat the overseas company for at least one of the previous three years before theL visa application is filed with the Bureau of U.S. Immigration & CitizenshipServices; (3) the petitioning United States company must be affiliated with theoverseas company, as a division, branch, subsidiary, affiliate or joint venturepartner; (4) the overseas company must continue to do business overseas for theduration of the foreign national’s L visa status; and (5) the foreign national employeemust be coming to the United States company to work as a manager, executive, orspecialized knowledge employee.
     
    The L visa isvery popular for many reasons. The L visa allows foreign nationals to legallylive and work in the United States as well as travel in and out of the UnitedStates as long as the L visa valid. This visa also grants the foreignnational’s spouse and children under the age of 21 L-2 visa status, whichallows them to remain in the United States for the duration of L-1 visa holder’sstatus. A spouse in L-2 status may apply for work authorization. Children inL-2 status are allowed to attend school, but are currently not eligible foremployment authorization.
     
    O Visas: Persons of Extraordinary Ability
    The O visa isissued to foreign artists, athletes, entertainers, scientists, educators, andbusiness people of extraordinary ability who wish to come to the United Statesto work temporarily in their specific field of achievement. To beconsidered a person of extraordinary ability, the foreign national should berecognized nationally or internationally for his or her achievements. The O-1Avisa is issued to scientists, business people, educators, or athletes while theO-1B visa is issued to visual, performing, and literary artists, such asmusicians, writers, singers, actors, artists, directors, photographers etc. TheO-2 visa is available for individuals who will assist an O-1, using criticalskills or experience not of a general nature.
     
    The O-1 visa status can be initially granted for a period of up to three years.This period varies depending upon the length of the employment event thatrequires the foreign national’s services.  The O-1 visa status can beextended, but extensions are typically granted in one-year increments only.
     
    This visa alsogrants the foreign national’s spouse and children under the age of 21 to jointhe O-1 foreign national in the United States under O-3 visa status. Those withO-3 visa status may not work in the United States, but are allowed to attendschool in the United States during the duration of their status.
     
    P Visas: Professional Artists, Athletes, and Entertainers
    The P-1 visa allows artists, circus entertainers, athletes, and entertainers whowish to temporarily perform or compete—either solo or on a team—in the UnitedStates at a specific event.  Exceptional athletes may apply for this visain order to compete in the United States in an individual event, competition,or performance in which the athlete is internationally recognized with a highlevel of achievement. An athlete may also receive a P visa as part of a teamcoming to the United States to participate in team events in which the teammust have achieved significant international recognition in the sport.
     
    Inaddition, entertainment groups with an outstanding and sustained internationalreputation can be granted P-1 classification as a group. Unfortunately,individual entertainers within these cannot apply for P-1 visas to performseparate from the group. It is the reputation of the group as a whole and notindividual achievement of its members or the acclaim of a particular productionthat is essential.
     
    The P-2 visa allowsartists and entertainers who are coming to the United States to participate ina reciprocal exchange program between an organization in the United States andan organization in another country. This visa allows a foreign nationaleither individually or as part of a group. The P-3 visa allows artists andentertainers, whether individually or as part of a group, who wish to perform, develop,interpret, share, coach, represent, or teach their unique talents in a culturalprogram.
     
    R Visas: Religious Workers
    The R visa allowsforeign religious workers who wish to come to the United States temporarily towork in a professional capacity for a religious organization or do other workfor a religious organization. A person is considered a religious worker if heor she who continually engages in an activity that is related to a traditionalreligious function, such as ministers, rabbis, imams, priests, nuns, monks,cantors, liturgical workers, brothers, religious translators, missionaries,catechists, workers in religious hospitals, and religious broadcasters.
     
    The spouseand/or unmarried children under 21 years of age of the foreign religious workermay be granted derivative status to enter the United States. However, they arenot authorized to work while in the United States, but may attend school.
     
    TN Visas:
    TN visas areavailable to skilled workers from Canada and Mexico under the North AmericanFree Trade Agreement (NAFTA).  The TN visa allows Canadian and Mexicancitizens to temporarily enter the United States to work in a NAFTA-approvedoccupation.  Canadian or Mexican nationals often seek TN visas to bypass capson H1-B visas and other difficulties associated with obtaining an H1-B visa.
     
    TheTN visa can be granted for a period of one year and can be renewed annually if theCanadian or Mexican citizen can demonstrate the proposed stay continues to beof a temporary nature.
     
    To be eligible for a TN visa, the Canadian or Mexicancitizen must establish the following: (1) the profession is on the NAFTA list; (2)the foreign national possesses the necessary education or training for thatprofession; (3) the proposed position must be classified as a professionalposition; and (4) the foreign national must work for a United States employer.
     
    Thespouse and/or unmarried children under the age of 21 of the TN visa holder maybe granted derivative status to enter the United States and are eligible toremain in the United States for the duration of the TN visa holder's stay.