Moving beyond “short-term” into “temporary” employment
For employers who have selected a candidate for a position, but find out that the candidate is not a U.S. Citizen or permanent resident, we assist clients with obtaining the necessary visas to bring the candidate on board for a temporary period, including:
H-1B visas are the most common method for employers to hire skilled foreign national workers. On a basic level, the H-1B is reserved for “specialty occupations” within an organization. This necessitates that the position being offered to the individual requires, as a minimum for entry into that position, a Bachelor’s Degree in a specific field and the individual undertaking the position possesses a Bachelor’s Degree, or its equivalent, in that field or a closely related field.
The H-1B visa is a dual intent visa, meaning the visa holder can live and work in the US while also seeking lawful permanent resident status. This is a very popular visa because of this dual intent property and because of the avenues that have been established to transition from H-1B to US Lawful Permanent Resident. The major drawback of H-1B visas is the annual cap on the number issued, and each year’s quota of visas is used up very quickly.
E-1 and E-2 Visas:
Qualification for the E-1 and E-2 visas is focused on an applicant’s trade and economic involvement in the US. To obtain an E-1 visa, an individual must be seeking to enter the United States for the purpose of engaging in the substantial trade of goods and services. An E-2 visa is for individuals who are seeking to make a significant investment in the United States. Employees of E visa holders may also be eligible to come to the United States. To obtain either visa, an individual must be a member of a recognized treaty country, though it is important to note that the treaty countries that qualify for one visa do not necessarily qualify for the other. E visas have a term of five years, but there is generally no limit on how many times they can be renewed.
L-1 visas are critical for companies that have an international presence, as the visas give employers the opportunity to bring overseas employees to the United States. The L-1 employee must have been employed by an overseas affiliate for at least 1 year within the last 3 years and must be coming to an affiliated company in the U.S. to occupy a managerial, executive or specialized knowledge position. There are two levels of the L-1 visa; the L-1A is for executives and managers, and the L-1B is for employees who have “specialized knowledge.” When considering the use of an L-1B visa, it is important to note that there is not a clear definition of “specialized knowledge,” making the decision to grant the visa subject to interpretation. L visas are dual intent, so the visa holder can live and work in the US while also seeking lawful permanent resident status.
We represent clients who are navigating the Treaty NAFTA (TN) visa process. Citizens of Mexico and Canada may be able to utilize the TN visa if they possess the requisite skills or education, and their position is listed within the NAFTA Appendix for TN occupations. The TN is generally a viable option for Canadian and Mexican professionals who cannot secure an H-1B due to “cap out” scenarios. TN visas allow specific categories of professionals such as accountants, attorneys, scientists, and engineers to temporarily enter the United States and work for your business. The TN program is relatively easy to qualify for, and employees may remain in the United States for an initial period of three years, with the potential for a three year extension.
To obtain an O-1 visa, an individual must demonstrate extraordinary ability in the sciences, arts, business, education, or athletics. While difficult to obtain, the O-1 visa can be worth applying for if other options are not viable, as its qualifying categories can be broadly interpreted. Additionally, while there are eight regulatory categories for demonstrating extraordinary ability, the requirements for this visa also state that “if the criteria do not apply, the petitioner may submit comparable evidence to establish eligibility.” The initial O-1 is valid for a three-year term and may be extended in one-year increments.