WOULD YOU LIKE TO WORK IN THE UNITED STATES?

Introduction

Many people have thought of working in the United States on a long or short term basis. Unfortunately, the U.S. government does not issue "work permits" to everyone who would like to work in this country. In order to work in the United States, a person must qualify for a visa which allows him or her to do so. Each "work" visa, however, has its limitations. It is important to understand the requirements for each type of visa and its limitations. If after reading this you feel you are qualified to work in the United States, you should contact an attorney who specializes in Immigration Law or the closest Immigration Service office, U.S. Embassy or U.S. Consulate

Visas Which Do Not Allow A Person to Work in the United States

B visas - Visitors for business (B-1) and pleasure (B-2)

Persons who are in the United States on B visas are not allowed to be employed in the United States. Under certain circumstances, a person on a B-1 (visitor for business) visa is allowed to do business on behalf of an overseas employer. For example, persons in the United States on B-1 visas may engage in commercial transactions, consult with business associates, and visit companies which are subsidiaries or are affiliated with their employer. This, however, is not the same as being employed in the United States by a United States employer. If a salary is received for services rendered in the United States, it must be paid by an overseas employer.

Visas Which Allow Persons to Work in the United States

E visas - Treaty Traders and Treaty Investors

The United States has entered into treaties with various countries in the world. Nationals of those countries may come to the United States to open businesses which will carry on trade between the United States and their country of nationality (Treaty Trader: E-1) or open businesses in which they will invest (Treaty Investors: E-2), or to be employed by such businesses. A Treaty Trader must operate a business that has substantial trade primarily between the United States and their country of nationality (no set amount of investment or even trade is required, however, enough trade must take place to provide an adequate living for the investor and his or her family.) Treaty Investors may come and remain in the United States for indefinite periods of time if they invest a substantial amount of money (as a general rule, this would be at least U.S. $100,000). Persons may work for such a "treaty company" in an executive, managerial, or supervisory capacities, or in a position where the person has special qualifications which makes his or her services essential to the efficient operation of the enterprise.

E-3 Visa

The E-3 is a new visa for Australian nationals to work in specialty occupations in the United States similar to the H1B specialty worker. An E-3 visa applicant must be coming to the U.S. to perform services in a specialty occupation. In order to qualify for this category four things are required:

1) a U.S. employer;
2) a college degree or its equivalent related to the position;
3) a position within the employing company that requires the degree; and
4) payment of the prevailing wage for the position.

The law permits spouses of E-3 recipients to apply for work authorization

F Visas - Students

Under normal circumstances, a person on a student visa is not allowed to work in the United States. In fact, in order to obtain a student visa, a person must demonstrate that he or she has sufficient funds to live and attend school in the United States without working. There are a few exceptions which allow students to work that are explained below.

F visa - Students

Persons who are in student status are only authorized to work in the United States in three situations:

1. Unforeseen, severe, economic necessity. Permission is granted by the Immigration Service to obtain part-time employment due to unforeseen economic circumstances. Such circumstances may include the death or illness of a financial sponsor, unanticipated costs to the student, a change in schools where the tuition or living costs may be higher, etc. Such work authorization can only be requested after one year of studies in the United States.
2. On-campus employment. A person who is maintaining student status may work on the school's premises for up to 20 hours per week while the school is in session and full-time during vacation periods. Such employment usually takes the form of grants for research assistants, teaching assistants, etc., but may also include many other on-campus positions. Normally, such employment should not displace a U.S. worker.
3. Practical Training. A student may apply for two types of practical training. Curricular Practical Training is authorized by the school only if the training is an integral part of the curriculum. Students who receive one or more years of full-time curricular practical training may not receive optional practical training. Optional Practical Training must be directly related to the student's major area of study. It is limited to a maximum of one year and may be used either before or after graduation, although most students prefer to use it after graduation.

H visas - Temporary Workers

The Hcategory of visas is one of the most widely used classifications that allows persons to work in the United States. This classification requires that a person not only have a United States employer, but meet additional requirements. There are three sub-categories of H visas with their own specific requirements:

H-1 Temporary Professionals. This is the most popular category used to work in the United States. However, it is limited to people with college degrees or, under certain circumstances, to persons who have many years of experience in their particular field. In order to qualify for this category, four things are required:

1. an employer;
2. a college degree;
3. a position within the employing company that requires that specific degree; and
4. the payment of the prevailing wage for that position.

It is important to note that a person must not only have a college degree, but the position for which he or she is applying must also require that specific degree. Persons who qualify for this category are normally referred to as "professionals." Such persons would be engineers, architects, teachers, and numerous others.

H-2 Visas - Temporary Workers. This category is limited to situations where both the job being offered and the employer's need for the specific person are temporary. For example, a restaurant may bring a "Chef Trainer" to the United States to train some of the kitchen personnel. Once the kitchen personnel have been properly trained, there is no further need for the position of "Chef Trainer," hence no further need for the person. Unfortunately, most applications filed under this category are denied since the employer cannot furnish enough proof that there is only a temporary need for such a person. An employer may attempt to show a temporary need based on one of four circumstances:

1. a one-time occurrence;
2. a seasonal need;
3. a peak-load need; or
4. an intermittent need.

H-1B1 category for Chilean and Singaporean Nationals

The Chile and Singapore Free Trade Agreements, which became effective on January 1, 2004, created a new H-1B1 visa category for Chilean and Singaporean professionals in specialty occupations. Six thousand eight hundred visas are allocated for H-1B1 admissions (1400 to Chilean citizens and 5400 to Singaporean citizens). To qualify for H-1B1 status, the following requirements must be met: (1) the Chilean or Singaporean national must be engaged in a specialty occupation which requires a related post-secondary 4 year degree(2) the foreign national's employment in the United States must be temporary and the visa holder must maintain nonimmigrant intent; and (3) an H-1B1 visa number must be available under the annual cap. H-1B1 visas are multiple-entry and valid for a maximum of 18 months. Extensions and renewals are allowed.

H-3 visas - Temporary Trainees. These are persons who seek to enter the United States at the invitation of an employer for the purpose of being trained. A detailed training program must be submitted to the Immigration Service along with proof that the proposed training is not available in the person's own country, that the person will not engage in productive employment, that the person will not perform a job in which U.S. citizens and resident workers are regularly employed, and that the training will benefit the person outside the United States. The advantage of qualifying for an H-3 is that the person can be paid a salary in the United States while being trained. The disadvantage of this category is that the Immigration Service makes it very difficult for employers to be successful in establishing a valid training program.

I Visas - International Correspondents This visa is useful to only a small group of people who are international correspondents working as reporters for newspapers, magazines, radio, or television. The employer must be a foreign entity

J-1 Visas - Exchange Visitors The J-1 category includes many types of people who may work in the U.S. and receive a salary while they are here. This category includes teachers, professors, research scholars or specialists, professional trainees and other trainees. Sometimes, a person who cannot qualify for the one of the H visas may qualify for a J visa as a trainee. This visa is only issued pursuant to a program that has been registered with the Department of State. A person who obtains a J-1 visa is required by law to return home for two years before they can apply for other types of U.S. visas or for permanent residence.

L Visas - Intracompany Transferees A person may work in the United States who is an employee of a multinational corporation, if that corporation will transfer him or her to a subsidiary or affiliate here in the United States. Such a transfer can only take place if the person is a manager, executive, or a person with specialized knowledge.

A Manager is defined as someone who manages a company or a department, function, or component of the company; supervises and controls the work of other supervisory, professional, or managerial employees; or manages an essential function within the company or a department or subdivision of the company. If other employees are directly supervised, the person must have the authority to hire and fire or recommend those as well as other personnel actions. If no other employees are directly supervised, the manager must function at a senior level within the business hierarchy, and exercise discretion over day-to-day operations of the activity or function. A first line supervisor is not considered to be acting in a managerial capacity.

A person in an Executive capacity directs the management of a company or a major component of a company, establishes goals and policies of the company, exercises a wide latitude of discretionary decision making, and receives only general supervision from higher level executives, the board of directors, or shareholders

A person with Specialized Knowledge must have special knowledge of the company's products, services, techniques or other interests, and its application in international markets or must have an advanced level of knowledge of the processes and procedures of the company.

In order to qualify for L-1 status, a person must have worked for at least one out of the last three years with the company abroad, must have been employed and be coming to the United States to work in a managerial or executive capacity or a capacity which involves specialized knowledge, and must be coming to the United States to work for an affiliate, subsidiary, or branch office of the overseas employer.

Certain managers and executives can use L-1 status as a stepping stone to obtain U.S. permanent residence.

O Visas - Aliens of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics. In order to qualify for this limited visa, a person must have extraordinary ability demonstrated by sustained national or international acclaim. This category is normally reserved for television and motion picture stars and well-known athletes. However, it can also apply to scientists, educators, businessmen, and others who have a level of expertise indicating that they are one of a small percentage who have arisen to the very top of their field of endeavor. In order to qualify for this visa, a person must have received major, internationally recognized award (such as a Nobel Prize) or, alternatively, must meet various criteria set forth by the Immigration Service which demonstrate extraordinary or outstanding ability.

P Visas - Performing Entertainers and Athletes There are three groups of people who can qualify under this category:

1. Internationally known athletes, individually or as part of a group or team
2. Entertainment groups (not individuals), and persons who are performing artists under the auspices of a reciprocal exchange program.
3. Culturally unique entertainers

R Visas - Religious Workers Three categories of religious workers may be able to come to the United States:

1. Ministers
2. Religious professionals
3. Other religious workers.

To qualify, a person must have been a member of a religious denomination or organization for at least 2 years.

TN Visas

Under the North American Free Trade Agreement, certain Canadian and Mexican professionals may enter the United States in TN status. In order to qualify, an alien must qualify for one of the occupations agreed to by Canada, Mexico, and the United States. Most of the occupations require a minimum of at least a Bachelor's degree. (For a complete summary of the types of visa categories which allow a person to work, see "Employability of Persons in Commonly Encountered Visa Classifications" by Edward R. Litwin.)

There are twenty nonimmigrant visa classifications but only a few of them allow persons to work in the United States, such as:
B-1 Visitors for Business
E-1/E-2 (Treaty Traders or Treaty Investors
E-3 Australian National Professionals
F-1 (Students with work authorization
H-1, 2, and 3 Temporary Workers and Trainees
J-1 Practical Trainees/Exchange Visitor
L-1 Intracompany Transferees
R-1 Religious Worker
TN Professionals from Canada and Mexico

Other Visas There are other visas which allow persons to work in the United States, but they are so limited that they will only be listed and not explained. A Visas - Ambassadors, Consular officers; G Visas - International agency workers; K Visas - Fiance(é)s of United States citizens; M Visas - Non-academic students; and Q Visas - Cultural exchange visitors. The above are the only visa categories which allow persons to work in the United States legally. As can be seen, work authorization can only be given in limited circumstances under strict rules and requirements.

Disclaimer : Nothing on this or associated pages should be taken as legal advice for any individual case or situation. the information is intended to be general and should not be relied upon for any specific situation.

© 2001 All Rights Reserved

Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.