South Carolina BAR Journal
SC Lawyer, May 2012, #1.
The U.S. Work Visa System-An Overview
South Carolina LawyerMay 2012 The U.S. Work Visa System-An OverviewAllen C. Ladd, AttorneyThis article is an introduction for attorneys with a general business practice. It is intended to provide a very broad outline of U.S. immigration law as it relates to work visas-that is, the options and the limitations with respect to employment of foreign nationals. With this basic briefing on the subject, I hope to help my colleagues get a sense of the scope of business immigration and to be able to spot potential issues and to seek assistance from an immigration practitioner when warranted.
Overview and hierarchy of the U.S. immigration system
As a starting point, imagine a pyramid (see illustration on page_). At its apex is U.S. citizenship, down one level is permanent residence, below that temporary visas for work and study-the focus of this article-then visitor visas, and the lowest level for "undocumented" status. The legal parameters for the overall immigration system and for these levels of immigration "status" are prescribed by federal statute, see Immigration and Nationality Act, 8 U.S.C. 1101-1537, and regulation and further refined by internal agency rules, policy memorandums and case law, both administrative and judicial.
U.S. citizenship is available to two privileged classes: Individuals born in the United States or of a U.S. citizen parent and individuals who acquire citizenship through a process called naturalization. There is no annual limitation or "quota" for naturalization cases.
Permanent residence, commonly referred to as "the Green Card" (as early versions of the deification card for permanent residence had a green background) confers the right to live and work indefinitely in the United States. There are five basic paths to permanent residence. In most cases, the individual must have a sponsor (job offer or qualifying family relationship) and already have temporary or "nonimmigrant" legal status. If the individual is inside the United States, the "upgrade" process is called "adjustment of status"; overseas, the process is known as "consular processing" or "immigrant visa processing." In either case, the individual and his or her close family members-spouses and unmarried children under age 21-will be eligible to apply for permanent residence.
After a period of several years as a permanent resident, an individual may apply for naturalization. The actual waiting period varies depending on the basis for acquiring permanent residence.
The most common paths to permanent residence are through a job offer by a U.S. employer (employment-based) and through sponsorship by a U.S. citizen or permanent resident family member (family-based). The "employment-based" and "family-based" categories each are defined by roughly a half-dozen sub-categories "preferences," with annual numerical restrictions. Each foreign country also has an annual allotment for each "preference." An exception is for permanent residence through marriage or other close relationship to a U.S. citizen, which is termed the "immediate relative" or "non-preference" category and has no numerical limitations.
* Permanent residence-employment-based (140,000 visas per fiscal year)
Permanent residence through a job offer is generally a slow, expensive process and is available to only a limited number of individuals each year. Backlogs in the two primary "preference" categories are commonly several years long. The employer must document, to the satisfaction of the USDOL, its unsuccessful efforts to find qualified U.S. workers and then prove to USCIS that it is able to pay a fair wage for the position.
There are exceptional cases that are exempt from these requirements and limitations, generally for the following: individuals who have attained national or international prominence; ministers and other religious workers; multinational management-level transferees; and high-level investors. The subject is beyond the scope of this short article.
* Permanent residence-family-based (480,000 visas per fiscal year)
In these cases, a family member who is a U.S. citizen or permanent resident may sponsor the individual for permanent residence. If based on marriage, the couple must overcome a presumption that the marriage is not bona-fide. The sponsor must agree to provide financial support for the sponsored individual until he or she acquires U.S. citizenship.
Nonimmigrant visa status
The work visas that are the focus of this article are all within the temporary, or "nonimmigrant," visa (NIV) level. All require an offer of employment by a U.S. employer. The exceptions are...