I am often approached by businesses in need of an employee with a special skill set that is not readily available in the existing local workforce. The business usually has found a person that is already fit to fill this specialized position but is not a U.S. citizen. The business, or employer, needs to not only hire the foreign national but also must find a way to bring this potential skilled employee into the United States with the appropriate work authorization.
The federal immigration laws can be an intricate maze when looking for the right path that will enable the foreign national to enter and work in the United States. Depending on the job description the business has to fill, several options are available to employers wishing to give a job offer to a foreign national prospect.
It is required for those foreign nationals without permanent resident status to obtain a visa or a travel document granted by the United States showing that they are authorized to enter the U.S. If the prospective employee already has a visa, he or she may need to adjust his or her visa status from one form of permissible entry into the U.S. to another. Not all visas are created equal.
The most common visa sought after by employers is the famous H-1B, as it allows a foreign national to enter and work in the United States temporarily. An employer applies for the foreign national worker to fill a permanent position of the business. The H-1B is only used for a specialty occupation, meaning a profession with a skill set acquired through a college degree or higher, and is given up to six years. The drawback of an H-1B is that only 65,000 visas are offered each year by the United States (an additional 20,000 visas are available for workers with a masters degree or higher), meaning employers must scramble to apply for employees before the capped amount of visas are used up. The open date for each new batch of H-1B visas is April 1st of every year. An employer must think far ahead to make sure his application is prepared in time to capture one of those visas.
An L-1 visa may be helpful to a business with multinational locations. L-1 visas are available to employees of an international company with offices in both the United States and abroad. The L-1 permits foreign employees to relocate to the corporation’s U.S. office after having worked abroad for the business for at least one year prior to applying for the L-1. The position in the United States must be an executive or managerial position, and the visa can be given for up to seven years.
Canadian or Mexican workers may obtain TN (Trade NAFTA) status to work in the U.S. in certain professional occupations. TN status may be renewed indefinitely in three year increments; yet it is not permanent.
For an individual with remarkable skills, an O-1 visa is the perfect option. It is given to those who possess extraordinary ability in the sciences, arts, education, business, or athletics. A foreign national looking to qualify for an O-1 visa must demonstrate extraordinary ability by national or international acclaim and must be coming temporarily to the U.S. to continue work in the area of exceptional ability. For example: a concert pianist or cardiovascular surgeon may qualify. Believe it or not, certain employers need an extraordinary skill set for their business.
The visas discussed are those most commonly used by businesses in applying for a foreign national worker; however many more variants of visas do exist depending on a business’s requirements for the position to be filled. Employers should not hesitate to talk over the needs of their business and the qualifications of a prospective foreign national with a qualified attorney when looking to hire internationally.