The popular H-1B visa is for foreign professionals coming temporarily to work in the United States. The foreign professional must not only have a bachelor's degree or its equivalent, but also the position which he is seeking to fill must be one in which his degree is typically required (i.e., it must be a professional position).
The petitioning process requires that the employer file an attestation with the U.S. Department of Labor (DOL) pledging to (1) pay the H-1B worker the higher of the prevailing wage or actual wage at the workplace; (2) give notice to U.S. workers similarly employed; (3) promise that no labor unrest or strike exists in the position; and (4) promise to pay the foreign national's return transportation home should he or she be fired within the validity period of the visa.
Due to the popularity of these visas, the numerical annual limit has been exhausted more rapidly with every passing year.
An H-1B visa can be extended once for a second three year period, for a total of six years.
This category of visa is available to foreign nationals who have worked abroad for at least one out of the three years immediately prior to entry to the United States as a manager, executive, or specialized knowledge employee of a foreign affiliate of a U.S. company and who will be transferred to the U.S. affiliate to work in a similar position.
If someone is eligible for this category, it is probably the best employment visa to use, as the DOL is not brought into the process.
One attractive option frequently used by large companies is the "blanket L-1." This allows the transfer of foreign national managers, executives or specialized knowledge personnel via the filing of a single petition. If approved, the petition allows for an extremely expedited process for obtaining visas for such employees.
Mexican and Canadian nationals in a number of specific (mostly technical) positions are potentially eligible for this category, one of the benefits of the North American Free Trade Agreement. Canadians TN visa applicants undergo much easier process -- an application is made at the border, whereby the applicant demonstrates Canadian citizenship, a job offer from a U.S. employer for one of the approved positions, proof of an unrelinquished foreign domicile in Canada, and the application fee. Mexican nationals have to comply with H-1B procedures, as explained below.
Valid for 12 months at a time, the TN visa may be renewed indefinitely by making a new application at the border or by filing an application for extension with the INS. Obtaining TN approval largely depends upon the discretion of the individual border officer. Because this is a relatively new visa category, there are not many guidelines, and success is therefore very uncertain.
There are many other types of work visas, each with specific requirements as to type of position, type of employer, duration, etc. The E-1 (Treaty Trader) and E-2 Visas (Treaty Investor) allow nationals of countries having commercial treaties with the U.S. to engage in trade or business investment activities. The H2B Visa allows for entry of certain short-term, temporary workers. The O Visa is for persons of extraordinary ability in the arts, sciences, education, business, or athletics. The P-1, P-2, and P-3 Visas are for certain types of performers and athletes. The R Visa is for religious workers. There are other special categories, as well.
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Byrley Law Firm, LLC
10015 Old Columbia Road Suite B215
Columbia MD 21046