SC Lawyer, May 2012, #1. The U.S. Work Visa System-An Overview.

• Author: Allen C. Ladd, Attorney

South Carolina BAR Journal

2012.

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

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

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 limited, and a thorough discussion is beyond the scope of this short article. Significantly, most NIV categories allow an eligible individual to "adjust" to permanent residence.

* Nonimmigrant "work" (employment) visas

Work visas allow a U.S. business to employ qualified foreign individuals. Work visas generally require a job offer, but there is no USDOL recruitment process as with employment-based permanent residence. An eligible individual already in the United States, in legal NIV status, may often be eligible to "change" or "extend" status. Eligible individuals outside the United States must, as a rule, apply for a "visa"-a stamp in one's passport-in order to apply to be lawfully "admitted" to the United States in the particular visa category. Family members (spouse and minor unmarried children) may join the individual. Most but not all of these categories allow a transition to permanent residence through an offer of continued employment.

* E-1 andE-2 "treaty" visas

The United States has "Treaties of Navigation and Commerce" with several dozen countries -for the most part, our trading partners and other stable, developed nations. These treaties provide that qualified "Treaty Traders" (E-1), "Treaty Investors" (E-2) and selected key employees-who are nationals of these "treaty" countries-may apply for work visas, which are renewable.

* H-1B "specialty occupation" visas (65,000 + 20,000 visas per fiscal year)

As this visa serves as an all-purpose work visa for high-quality personnel, it has been described as the "Toyota Camry" of work visas, although in reality it is fairly expensive, in limited supply and requires relatively high maintenance. It is, however, for better or worse, the most widely available work visa within the U.S. immigration law system.

The H-1B visa is reserved to qualified individuals to be employed in positions that are termed "specialty occupations." "Specialty occupations" require at least a bachelor's degree in a particular field of study as an entry-level requirement. The individual must present a U.S. degree or a record of education and experience that is the functional equivalent of the degree. There is no USDOL requirement of prior recruitment by the employer, but employers must comply with numerous other USDOL rules, including paying a fair wage, maintaining public records and paying up to $2,000 in filing fees. The maximum term of an H-1B visa is three years, renewable for an overall six years. In connection with an employer's "EB" case, it can be extended further.

* H-2A agricultural andH-2B non-agricultural seasonal or "peakload" work

These work visa classes are unique in that an employer is subject to a USDOL-mandated recruitment process; the H-2A agricultural work visa, in particular, is fraught with many other USDOL restrictions. Many agricultural employers avoid it; the H-2A is used to fill only 75,000 positions out of about 1.2 million in the industry. H-2B visas are subject to an annual cap of 66,000.

Both the H-2A and H-2B visas are limited to seasonal or one-time special-needs or "peakload" employment. The H-2 visa process is not in any sense a "guest worker program " for skilled and unskilled workers-such a program simply does not exist in the current immigration system. Unlike the H-1B visa, which requires a four-year university degree, there is no educational or experience requirement for H-2 visas. The maximum stay is generally less than one year, but it can be re-filed to meet a recurring seasonal or "peakload" need.

* H-3 (alien trainee)

This visa is available, without limit, to allow individuals to receive U.S. training that is available only in the United States for purposes of advancing their careers overseas upon completion of the training program. The maximum stay is two years.

* L-1 multinational transferees

The L-1 visa category is available for transfers of employees from overseas companies to U.S. parent, subsidiary or affiliates.

* L-1A (multinational executive or manager) visa

The L-1A visa category is related to the "employment-based" (EB-1) permanent residence counterpart. The allotment within EB-1 is very generous, and backlogs are rare. An L-1A visa can thus be an ideal first-step towards permanent residence. The maximum period of stay is seven years.

* L-1B (specialized knowledge)

The L-1B visa is reserved for transferees with advanced knowledge of an organization's products or services. It has no EB-1 counterpart. An employer may, however, undergo the traditional USDOL-mandated recruitment procedures to test the labor market. Processing times will vary. The maximum stay in L-1B status is five years.

* O-1 and O-2 (extraordinary ability)

These visas are available for individuals of "extraordinary ability," similar to the EB-1 category, with the added requirements of a job offer and a written advisory opinion from a U.S. peer group or trade union. Maximum stay is unlimited.

* P-1 and P-2 athletes and performers of international recognition

These are reserved for professional athletes and team members of international recognition. Maximum is 10 years, with further five-year extension possible.

* R-1 religious workers

The R-1 visa class is limited to employment for "ministers of religion" and various other religious workers. It is related to the EB-4 preference category. Maximum is five years.

* TN - NAFTA (North American Free Trade Agreement)

Under NAFTA, U.S. employers may sponsor citizens of Canada and Mexico for employment in three-year, renewable periods for prescribed occupational categories that are listed in an appendix to NAFTA. There is no maximum period of stay.

* F-1 academic students and J-1 exchange visitors

As a baseline requirement, the individual must prove that he or she has no intention of remaining in the United States after completion of the study or exchange program, but will return to the home country thereafter. This is called demonstrating "nonimmigrant intent." F-1 (academic student) and J-1 (exchange visitor) programs can last anywhere from a few weeks to several years. J-1 programs are registered with the State Department. They include programs for graduate study, teaching and medical residency. An F-1 student attending university may often qualify, on graduating, for a 12-month work permit. A U.S. employer may like the student's work, and an offer of employment through the H-1B visa may be possible, provided the annual allotment hasn't run out and the position otherwise meets the H-1B requirements.

* B-1/B-2 visitors

These visas also require proof of "nonimmigrant intent" and are difficult to obtain, particularly in poorer countries, as the economic disincentive to return is strong. Visitor visas are for two permissible purposes, "business" and "pleasure." Neither of these allows employment, except in extremely limited circumstances.

A visitor visa stamp is not required for Canadians or for participants in the Visa Waiver Program (VWP). The VWP allows entry for up to 90 days and is available to nationals of most developed nations. Mexican nationals who are commuters or who cross the border often for business or social visits may apply for a visa card.

* "Business visitors"

"Business visitor" status generally allows for short visits on behalf of a foreign employer to attend meetings and trade shows and conduct limited business. It does not permit either self-employment or employment by a U.S. entity, except in extremely limited circumstances that are beyond the scope of this short article.

* "Visitors for pleasure "

This status allows an individual to visit family and friends and to sightsee, but not to engage in any business activity.

Other legal statuses and benefits apart from work visas and employment-based permanent residence

* Asylee/refugee

The law of asylum is extremely complex. It derives from a United Nations convention and offers protection to individuals who can demonstrate a "well-founded fear" that they will be "persecuted" based on one or more "protected grounds" if they are forced to return to their home country. Individuals with approved asylum or refugee applications will receive "blanket" work authorization, allowing them to work for any U.S. employer. After one year of asylee or refugee status, individuals may apply for permanent residence.

* Temporary Protected Status (TPS)

TPS is a program created by Congress to afford temporary, renewable protection from removal (i.e., deportation) for individuals from a handful of designated countries with recognized national or natural catastrophes-such as Haiti and several Central American countries. Typically, TPS designation is based on dates of entry and proof of hardship. It is renewable at the discretion of Congress. Individuals who are approved for TPS receive work authorization cards. As an example, the Honduran TPS program has recently been extended to July 2013, and the TPS program for El Salvadorans has been extended to September 2013.

* Diversity visa lottery (50,000 visas per year)

This is an actual lottery run by the State Department for natives of countries that have underused their allotment of employment-based and family-based "green cards" in the previous year.

* Permanent residence through immigration court proceedings (5,000 visas per year)

In limited circumstances, individuals who have been placed in removal proceedings, for violations of immigration status may apply for permanent residence. This is conducted before an immigration judge in an adversarial procedure called "Cancellation of Removal" (COR). The basic requirements are: 10 years' continuous physical presence in the United States, no serious criminal convictions, proof of good moral character and proof of extreme hardship to a close family member in legal status, if COR is denied.

Allen C. Ladd practices with Allen C. Ladd, P.C. in Greenville.

SIDEBAR:

Observations About the Work Visa System

What? No year-round employment for skilled and unskilled workers?!

Apart from a relatively low number of visas through NAFTA (see below) and the "E" and "L" visa classifications discussed above, the system does not offer work visas for year-round temporary employment of skilled and unskilled workers. This puts many American employers at a disadvantage, unable to employ the best-qualified individuals on their shop floors, or to operate machinery, or to lay brick or manage their farms.

The problem has a domino effect on employment-based permanent residence. Theoretically, an employer may sponsor an individual for permanent residence for skilled and unskilled labor positions. In practice, however, because the system does not offer work visas for year-round skilled and unskilledlabor positions, it follows that no workable procedure exists for the employer to legally hire the individual during the lengthy "backlog" waiting period. The foreign national must, therefore, wait outside the United States during this period.

This raises questions that underline the challenges facing an employer who wishes to go through the permanent residence process: (1) How to identify a qualified candidate for permanent employment in the first place? (2) Does it make sense for an employer to keep a position open during the long waiting period, not knowing if the individual will still be available at the end of the process?

The problem begs a solution, which has been termed Comprehensive Immigration Reform. No definitive proposal has been agreed upon, but among the options discussed, the H-2 seasonal worker model, of reasonable recruitment and reasonable-wage standards, seems sensible. It could be readily adopted for year-round work. This mechanism is fair to American workers because it requires the employer to advertise the position and receive USDOL approval, thus ensuring that no qualified, interested and available U.S. citizen will be overlooked. It could draw potentially hundreds of thousands of willing workers from out of the shadows of undocumented status. And it would help "plug the gap" for American employers with an immediate need for qualified skilled and unskilled labor. This would all seem to be in our nation's economic interests.

Only Congress can change the immigration laws. There is so much inertia to overcome. If American employers want to see improved access to skilled and unskilled labor, they must let their elected representatives know. Trade associations, chambers of commerce, civic organizations and even churches can coordinate a grassroots campaign to bring the message to Washington. Reform will not happen on its own.

Work visas for professional positions are overly restricted.

Because of the limitations of the H-1B work visa discussed above, it has proven difficult for the United States to retain the foreign nationals our universities are educating. As stated, only 65,000 H-1B "slots" are reserved each fiscal year for new bachelors degree positions; a paltry 20,000 more are available to individuals with U.S. advanced degrees. These numbers are simply not enough to meet employers' demands. The expensive filing fees that employers must pay serve to create a further barrier to employing these highly qualified scientists, IT personnel and would-be entrepreneurs. As a result of these factors, for the first time in history, the United States is facing a "brain drain"-and it is one of our own making.

NAFTA is helpful for employment of Canadian and Mexican workers.

Contrary to popular myth, Canadian citizens cannot freely come to work in the United States. Like all other foreign nationals, they must receive prior approval. NAFTA does, however, open up several skilled worker and technician occupations for employment-such as hotel managers, scientific technicians/technologists and several allied health field occupations-that would not ordinarily qualify for the H-1B visa. Moreover, for "specialty occupation" positions, if the H-1B numerical "cap" has been reached, NAFTA can provide an alternative work visa for university-educated Mexicans and Canadians.

Self-employment is an option, but in extremely limited circumstances.

As a general rule, work visas and permanent residence are only available through job offers by third-party U.S. employers. There are some very limited circumstances in which an individual may work legally in the United States without a job offer: EB-1 Extraordinary Ability and EB-2 NIW (permanent residence), described above; ownership and management of "E" or "L" U.S. businesses; and contract work on behalf of a foreign employer. This will be a mere handful of "green cards" and work visas. If, instead, self-employment were encouraged, it could stimulate investment and entrepreneurial activity, and thus help our economy to grow.

Professional legal services are essential to successful cases and planning.

The immigration system is difficult to navigate. The law is a patchwork of arcane and at times contradictory statutes, amendments, regulations, internal guidelines and processing procedures, all managed by employees of varying levels of experience and judgment. I have attempted to outline the features of the work visa system and employment-based permanent residence requirements in this short article. It is not intended as legal advice. Space has not afforded the opportunity to discuss issues that can further complicate these matters. It can take years of training and experience for a lawyer to develop an overall competence in this field.

It is axiomatic that one pays well for quality and that it is worthwhile in the long run. The truth of this statement is evident in the field of immigration law. Work visa cases, in particular, represent a valuable investment for the American employer. Our business clients are well-advised to seek out quality advice from an experienced practitioner who can review the possible options and serve as a guide to short-term and long-term solutions.

The immigration Pyramid