Arizona Employment Immigration Lawyer
An important characteristic of employment based immigration, whether for permanent residency or otherwise, is that the employer generally must initiate the
petition, and coming to the U.S. to seek employment while on a tourist visa is not permitted. The employer must demonstrate ordinarily that qualified U.S. workers have
not been discouraged from applying for a job that is intended to be filled by a foreign national, or otherwise disadvantaged by the process.
For this reason, employment visas typically begin with an application by the employer to
the U.S. Department of Labor, which determines that the position being offered to a foreign national (called alien worker) is not described in a way that discriminates against or
unfairly eliminates U.S. workers. Technical rules and distinctions require the services of one experienced in the process because mistakes can delay or derail a petition.
Once the position and its wage rate is approved by the Labor Department, the USCIS (formerly INS) determines if the individual applying for the position possesses the
qualifications for the job and is otherwise admissible to the U.S. If the foreign national is in the U.S. and in a visa category that allows it, a change of status within
the U.S. can be applied for and obtained; otherwise, a U.S. Consulate located in a foreign
country issues a visa for entry into the U.S.
For those who have never been involved in the process, the learning curve is steep
and mistakes can be unforgiving. The services
of an experienced immigration lawyer such as John Messing can
help employers and employees navigate the formidable complications
of employment based immigration.
Employment based visas are of two general types.
Non-immigrant employment permits the beneficiary to work and remain in the
United States temporarily, usually for a limited period. The alien worker is expected
to return home at the end of the employment period. Applying for permanent residency from
a non-immigrant visa category while in the U.S. is only permitted where a visa is said to be of "dual intent"
(e.g., H-1B, L-1 and E visas); failure to follow rules
applicable to the requisite intent can result in serious difficulties. The most popular of dual intent visas is the H-1B visa. To learn more
about the H-1B visa, please consult Messing
Law Office's H-1B visa page.
Immigrant employment can lead directly to
permanent residency. For more information, please consult Messing Law Office's page
of employment based immigrant visa categories.
A special visa category exists for Canadian and Mexican workers, who can be hired under an expedited procedure of the North American Free Trade Agreement, which
allows for Treaty National (TN) visas. Mexicans need to seeks a visa from a consulate but Canadians can obtain the visa directly from Customs and Border Patrol at an
approved airport in Canada, or port of entry in the U.S. Basically a letter of employment and proof of qualifications is all that is needed. TN visas can be obtained
relatively quickly. One disadvantage is that TN visa holders cannot apply for permanent residency from the TN category (though it may be possible to switch to a dual
intent visa and accomplish the desired goal indirectly). Also, while initially valid for 3 years and theoretically renewable indefinitely in three year increments, the
TN visa is not allowed to become a substitute for permanent residency, so after a number of renewals, TN status could be ultimately denied.
Regardless of visa category, or nationality of employee, employer have legal duties backed up by legal sanctions to check eligibility of all new hires and they have
generally been expanded under recent state and federal immigrant employee laws and
regulations, and in Arizona, as several other states, mandatory
checking of credentials of new hires against Government database records is required. Messing Law Offices
can help employers develop plans and tools to avoid workplace raids and sanctions
for unauthorized employment of foreignors.
For personalized help with employment visas, including rights of spouses and children of a hired worker, please contact Messing Law Offices.
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