An important characteristic of employment based immigration is that there must be an employer, who generally must initiate the immigration process. Pretending to come to the U.S. on another type of visa to seek employment, for example, a tourist visa or visa waiver, is usually a disqualification. In many but not all cases, the employer is required to demonstrate or affirm that qualified U.S. workers have not been disadvantaged by the petition. The procedures can be very unforgiving, and a technical error can have devastating consequences, often even after the period of employment ends, Submitting a petition done by someone inexperienced or unlicensed is highly discouraged. Mistakes can delay or derail a petition.
Many employment visas typically begin first the U.S. Department of Labor, which determines that the position is properly described according to technical rules and distinctions of employment based immigration. These generally are designed protect U.S. workers, who can include not only citizens and permanent residents, but any class of non-immigrant who holds employment authorization from the Government, including refugees. 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.
The services of experienced immigration lawyerJohn Messing can help employers and employees navigate the shoals 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 with few renewals. 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-3 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 is a pathway 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.
Family members of an approved employment based non-immigrant usually can attend school, but work authorization for adult dependents is less certain. Usually L-2 spouses, E-3 spouses and starting in May 2015, a limited group of certain H-4 spouses are allowed to obtain employment authorization documentation by submitting an independent I-765 filing with fee to USCIS.
Regardless of visa category, or nationality of employee, employers 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, to check the credentials of new hires electronically against Government database records. 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 (520) 512-5432.