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Understanding Work Visa Programs in the U.S.

Understanding Work Visa Programs in the U.S.

Several nonimmigrant visa categories are available to U.S. businesses, and if you know how they work, they can be a big benefit if you need to staff up. Read more for a review of current U.S. policies that can work for you.

It is no secret that the United States is in the midst of a labor crisis. Finding, attracting, and retaining workers is difficult, and the result is that there are more open positions than there are workers who are willing and able to fill them. 

Below is an overview of five nonimmigrant visa programs business leaders should be aware of.

H-1B, H-1B1 and E-3 visas — specialty occupation

A "specialty occupation" is defined as a position for which a U.S. bachelor's degree in a related field is the minimum educational requirement. An employer must show that the potential worker possesses a U.S. bachelor's degree (or higher) from an accredited university in the specific specialty occupation or the foreign equivalent thereof. Examples of specialty occupations include, but are not limited to, software developers, electrical engineers, computer network architects, information security analysts and electronics engineers.

The annual quota of H-1B visas is 65,000. An additional 20,000 H-1B visas are available annually for individuals who have graduated from a U.S. college or university with a master's degree or higher.

Employers seeking to hire an H-1B, an H-1B1 or an E-3 worker must also submit a Labor Condition Application to the Department of Labor. These applications require employers to document the wages they will offer the worker, the working conditions that will be provided and the notice the company provided to its employees about the potential hiring of an H-1B or an E-3 worker. Additional requirements include:

The required wages paid to an H-1B or an E-3 worker must be the higher of the two between the prevailing wage or the employer's actual wage paid to similarly employed workers. This wage must be reported to the DOL in the LCA.
The employer must notify U.S. workers of the intent to hire a foreign national for these types of positions.
Businesses interested in employing a new H-1B worker must create an account with U.S. Citizenship and Immigration Services in order to apply for an approved registration under USCIS's electronic registration system for the annual H-1B lottery. Once a company account is created, employers must then apply for registration to determine whether their company can file a completed H-1B petition for the worker it seeks to hire.

E-3 visas are only available for Australian nationals; the annual quota is 10,500.

The H-1B1 program provides for the temporary employment of nonimmigrant aliens in specialty occupations from Chile and Singapore. The quotas are 1,400 nationals of Chile and 5,400 nationals of Singapore.

Treaty trader E-1 and E-2 visas

E-1 and E-2 visas, which have no annual quota, help facilitate international trade and foreign direct investment between the U.S. and countries that have entered into treaties with the U.S. Prospective workers must be nationals of a treaty country, and the individual's nationality must be the same as the majority owner(s) of the company hiring him or her.

E-1 and E-2 visas may be obtained by the principal treaty trader/investor. In addition, prospective workers at the firm are eligible for an E visa if they will be a key employee who is an executive, a manager, or an individual with specialized/essential skills or knowledge of the company, which must be conducting substantial trade (E-1) or have a substantial investment (E-2) in the U.S.

H-2A and H-2B visas — seasonal workers

The H-2 visa programs are designed for companies seeking to fill temporary, seasonal labor needs. The H-2A program is for agricultural employment, and the H-2B program is for non-agricultural employment. The H-2A program does not have an annual fixed quota, while the H-2B program has an annual quota of 66,000 visas. A worker's length of stay on an H-2 visa will never be more than 3 years, but the length of stay is determined by the labor department's certification, which may be less than a year.

Both programs have stringent recruitment and prevailing wage requirements, including:

Businesses must show they actively recruit Americans for the job but are unable to fill their open positions. Applicant companies must obtain a temporary employment certification from the Department of Labor showing that they actively recruited American workers and were unable to find enough American workers to meet their needs.
The federal government makes an annual determination as to which country's nationals are eligible for these visas.
L-1A and L-1B visas — intracompany transferees

These visas allow U.S. businesses to transfer an employee from an overseas office to the U.S. The L-1A is for employees who qualify as executives or managers, and L-1B visas are for  "specialized knowledge" employees. The maximum duration of stay in the U.S. is 7 years for L-1A workers and 5 years for L-1B workers.

Prior to an employer being able to bring an L-1 worker to the U.S., the individual must:  

Have worked abroad for a qualifying entity for one continuous year within the preceding 3 years in a "managerial," "executive" or "specialized knowledge" position.  
Fill an open job position in the U.S. in a "managerial," "executive," or "specialized knowledge" capacity.
Employers may obtain a "blanket designation" by applying to the Department of Homeland Security to approve their corporate relationships (i.e., subsidiaries, affiliates) as qualifying for L-1 treatment. Once approved, the company no longer needs to file individual petitions, and its employees can apply directly to a U.S. Consulate abroad for an L-1 visa.

TN visas — Mexican and Canadian professional workers

The TN visa classification allows U.S. companies to employ qualified Canadian and Mexican professionals on a temporary basis. Companies must seek to employ an individual in a capacity listed in the U.S.-Mexico-Canada Agreement that replaced the North American Free Trade Agreement. Recipients of this visa are generally provided with status in three-year increments, with the option to extend. There is no annual quota.

The positions employers can seek TN workers for include, but are not limited to, accountants, engineers, lawyers, pharmacists  and scientists. Foreign nationals must have a job offer to perform temporary services for a U.S. employer and must also prove they have the relevant educational training and/or work experience to meet the job requirements.

This is just a summary of a series of complex provisions. The rules may change over time, so work closely with experts to make sure you're hiring properly authorized employees.

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