Visas for Foreign Workers Entering or Immigrating to the United States

Visas for Foreign Workers Entering or Immigrating to the United States

For many years, immigration into the United States has been a hotly debated topic. During the 2016 presidential election, immigration issues gained even more scrutiny. Much of the controversy involves illegal immigrants who are working in fields or factories, doing jobs that most American citizens do not want. Nevertheless, illegal immigrants are thought by many to be taking jobs from Americans.

US immigration law has a comprehensive system for determining which workers may enter the United States. We will present the ways foreigners can gain visas to work in the United States. First, we will discuss the impact of legal immigration on the United States and how it has developed. Then, we’ll turn to the various types of visas for foreign workers, as well as the different classifications for different workers.

Legal Immigration & Nonimmigration Workers in Numbers

The current political situation has highlighted the fact that within the last two decades, the number of people legally immigrating to the United States has increased dramatically.  After the Immigration Act of 1990[1] was implemented, the annual intake of legal immigrants steadily increased.  By the 21^st century, it nearly doubled from below 600,000 in the 1980s to over a 1,000,000 annually.[2] 

Over 10 million nonimmigrant worker visas were issued in 2016, which means more than two thirds of foreign workers who sought temporary work visas were issued a work-related visa.[3]  This was up from less than 6 million in 1997.[4]  Legal foreign workers in the U.S. have recently become controversial, partially for this reason. Dramatic increases in immigration breed fear and uncertainty that foreigners are “taking” jobs from Americans. 

A 550-page study published by the National Academies of Sciences, Engineering, and Medicine in 2016 asserts the contrary: that with a few exceptions, illegal immigrants don’t take jobs from American citizens and lawful residents.[5]  In fact, the same study found that immigration, legal and illegal, is integral to the nation’s economic growth.

Types of Visas for Foreign Workers

The type of visa a foreign worker requires depends on the purpose or type of employment the worker seeks to perform while in the United States.  There are four primary worker categories: (1) non-immigrant temporary worker; (2) immigrant permanent worker; (3) international students; and (4) temporary business visitors.  Each worker category is unique with its own qualifications, limitations, and specifications.

Under each of these four categories, there are several visas available for foreign workers.

Temporary Nonimmigrant Worker Visas

The process to obtain a temporary nonimmigrant foreign worker visa is straightforward. A nonimmigrant’s employer or prospective employer, known as the “sponsor,” must file a Petition for a Nonimmigrant Worker (Form I-129)[6] on the worker’s behalf with United States Citizenship and Immigration Services (USCIS).  Once the petition is approved, the worker applies for the appropriate work visa through the U.S. Embassy or consulate in his country. 

Because the purposes of visas within the same category vary, it is important to know the exact qualifications for each so that the foreign worker applies for the proper visa.  The most popular and most applied for temporary nonimmigrant foreign worker visas are:  

H-1B-Person in Specialty Occupation: This visa requires a prospective employee coming to the U.S. to have a higher education degree and the visa must be applied to work in a specialty occupation.  This visa type is frequently used by technology companies and the United States government for research and development projects.

H-2A-Temporary Agricultural Worker: This visa is for seasonal agricultural work. It is restricted to citizens of certain designated countries, though the list includes almost half the countries in the world and includes most Central and South American countries.[1] To successfully apply for this visa, one must prove that the job is of a temporary or seasonal nature, that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, and that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed American workers.

H-2B-Temporary Non-Agricultural Worker:  This visa allows U.S. employers who meet certain regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. There is a numerical cap on the total number of foreign nationals who may be issued H-2B visas. Currently, the cap for H-2B visas is set at 66,000 per year.[2]

L-1A-Intracompany Transferee:  This visa allows company managers or executives to transfer to a branch, parent, affiliate or subsidiary of the same employer located in the United States. To qualify for this category, the employee must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

L-1B-Intracompany Transferee:  This visa enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. Similar employment requirements to those of the L-1A, including length of employment and purpose of entry, apply as well.

O1-Individual with Extraordinary Ability or Achievement:  This visa allows entry to exceptional persons in the sciences, arts, education, business, athletics or motion picture/television fields.  The visa applicant must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of the extraordinary ability.

P-1A-Individual or Team Athlete or Member of an Entertainment Group: This visa allows entry to foreign persons coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance. The event must be distinguished and require the participation of athletic teams of international recognition.

P-1B-Artist or Entertainer:  The P-1B classification is available to foreign-based entertainment groups, or to foreign individuals performing as a member of a U.S.-based entertainment group.  In the case of foreign-based groups, the group must consist of at least two people entering solely to perform or entertain with the group. The person who receives the visa may not perform services separate and apart from the entertainment group.

P-3-Artist of Entertainer (Individual or Group):  This visa applies to individuals coming to the United States either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, the applicant must be coming to the United States to participate in a cultural event or events which will further the understanding or development of his art form.

Q-1-Participant in an International Cultural Exchange Program: This visa allows people to participate in an Exchange Visitor program in the United States. The purpose of the Q nonimmigrant visa is to facilitate the sharing of international cultures.

Permanent Immigrant Worker

U.S. immigration law provides foreign nationals with several ways to become lawful permanent residents (sometimes referred to as “green card holders”) through employment in the United States. There are five visas for employment-based immigration, which are categorized according to “preferences.” These are:

First Preference EB-1: These are foreign nationals with extraordinary ability in the sciences, arts, academics, business or athletics. They also include outstanding professors, researchers, multinational executives or managers. They are classified as priority workers.

Second Preference EB-2:  This preference is reserved for people who are members of professions that require advanced degrees, but the category also includes persons with exceptional ability in the arts, sciences, or business.  The key difference between the EB-2 category and the EB-1 is that EB-2 does not include people who have excelled in academics.

Third Preference EB-3: This preference is reserved for professionals, skilled workers, and other workers.  Applicants must provide a labor certification to qualify.

Fourth Preference EB-4: “Special immigrants,” e.g., some religious workers, employees of U.S. Foreign Service posts, alien minors who are wards of the U.S. court system all qualify for this preference. If a religious worker wants to qualify, she must be a member of a religious denomination that has a non-profit religious organization in the United States and must have been a member of the religious denomination for at least two years prior to applying for admission.

Fifth Preference EB-5:  To qualify for an EB-5 visa, one must be a business investor who invests $1 million or more in a new commercial enterprise that employs at least ten full-time American workers. These jobs must be created within two years after the investor receives conditional permanent residency. The EB-5 investment can take the form of cash, inventory, equipment, secured indebtedness, tangible property, or cash equivalents and is based on fair-market value.

Students and Exchange Visitors

Nonimmigrants who are visiting the U.S. for academic or vocational studies are permitted to work without a work visa.[7] An international academic student, for example, will have an F-1 visa, which allows the student to enter the U.S. to attend an accredited college or other academic institution, full-time.  During the first year, the F-1 visa-holder can only work on-campus, but after the first year, the student may be employed off-campus for training purposes related to his or her field of study. 

A vocational student will have an M-1 visa.  He or she cannot work during the course of his or her studies, but can, upon completion, work in the U.S. without a visa in the field to acquire practical training. 

Temporary Business Visitors

To enter the U.S. as a visitor for business purposes, one may apply for a B-1 visa. The B-1 visa-holder must self-fund her trip. Therefore, employer sponsorship is not required.  The B-1 applicant must demonstrate the following: The purpose of the trip is to enter the United States for business of a legitimate nature, the applicant plans to remain for a specific limited period of time and the applicant has the funds to cover the expenses of the trip and stay in the United States.

Immigration law is a fast-developing and emerging area of law, especially in these politically-charged times. Despite the potential immigration bans and restrictions, as we have shown, those seeking to immigrate to, or visit, the United States have many possible options.