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For work purposes, American visas can be divided into two general categories: those that allow employment and those that do not allow it. Temporary work visas, that is, those that offer a limited stay in this country for work reasons, are of various types and apply to various professions. Some are requested by the foreign employee himself, while others are obtained by the employer through a petition on behalf of the employee.
Congress created immigration laws with certain principles in mind. One of these fundamental principles is that foreigners in the labor force do not displace American workers and that the use of foreign workers does not encourage a decrease in wages or a detriment of working conditions. Visa processing is usually faster in the case of extremely specialized workers than in those with less education and skills.
The visa that is most commonly associated with a temporary work visa is the “H” type visa, which has several classifications:
- The H-1B visa covers specialty occupations, sometimes called “professional” occupations. To qualify for an H-1B visa, a foreigner must have very specialized knowledge. A basic requirement for this visa is to show a university degree or the equivalent of 4 years of university education. In addition to the skills of the foreigner, the position itself must require a university degree.
- The H-2 visa applies to jobs in the agriculture sector and other areas in which there are not enough American workers.
All H visas require an offer of employment by a US employer and proof that the salary to be paid is compared to that of other positions in that occupation. In addition to these requirements, the H-2 visa requires evidence (from the employer) that there were no qualified US workers available and willing to fill the position.
Limitations and possible problems of the “H” visa
Temporary class H visas are subject to a vacancy limit imposed by Congress. This means that obtaining a visa does not guarantee immediate entry into the country. If the annual limit is reached, a foreigner may have to wait to enter, even if the visa has been granted. In addition, different classes of H visa have different processing times; the United States Citizenship and Immigration Service (USCIS) will process an H-1B visa faster than an H-2B visa. Class H visas can be extended: H-1 visas can be extended to a total stay of no more than six years, while H-2 visas can be extended to a maximum stay of three years.
A dizzying economy in which employees change jobs frequently and buy and sell entire companies can also create problems for H-1B visa holders. The visa is specific to the employer and gives the foreigner permission to perform a particular job for a particular employer. If the foreigner wishes to change jobs, the new employer must obtain a new H-1B visa that covers the employee. If the employer for whom the foreigner works, sells his company or merges with another company, it may be necessary to submit a new petition or modify the current one.
Employer Obligations: Department of Labor
An employer must file a petition with the Department of Labor to obtain a labor certification before a foreign citizen can apply for a temporary work visa. The employer must demonstrate that there are no US workers available to fill the position and that the salary and working conditions comply with regional standards. Normally, it is individual employers who file this petition. An exception is made for associations of agricultural producers, who are allowed to file the petition as joint employers.
Other types of temporary work visas
There are many other visas that also allow foreigners to work temporarily in the United States:
- The L-1 visa applies to people who are transferred within the same company, specifically, employees of a foreign company who come to work in one of the United States of that company. One of the typical circumstances in which an L-1 visa is adequate occurs when an executive, a manager or an employee with specialized knowledge comes from the headquarters to provide assistance with operations in the United States office.
- The O, P and R visas also allow temporary work in the United States. The O visa applies to foreigners with extraordinary skills in the field of arts, science, sports, business and education, and who have received national or international recognition in their field. The P visa applies to athletes, sports teams and outstanding entertainment groups with continuous international recognition, such as an outstanding football team. The R visa covers religious workers who come to the United States to work for a franchise or subsidiary of the foreign religion.