A work visa allows you to live and work in the United States for a predetermined period of time. There are many types of work visas available in the U.S., and if you’re looking for a work visa attorney, Law Office of Lu & Associates located in San Francisco can help you learn more about the best options for your qualifications and your unique situation.
Here are the basics of work visas and immigration law regarding them.
Work visas grant a foreign national a temporary work permit. Work visas are approved for a certain period of time, but you can increase that period of time with extensions and renewals.
Work visas fall into the category of non-immigrant visas, which means that they do not lead to permanent residency or a green card.
The visa application process must be initiated by your employer, who should file petitions with U.S. Citizenship and Immigration Services (USCIS). For certain type of work visa, such as the H-1B visa, foreign nationals who are subject to the numeral cap must join the lottery. If selected, the H-1B petition shall be filed within a designated period of time.
As a beneficiary of the work visa petition, if you are in the U.S. with a valid non-immigrant status, such as F-1, you may indicate on the work visa petition that you will change your status from that nonimmigrant status to the status that will be granted by the work visa petition. If you live abroad, you will need to go through the consular processing, or visa interview, upon the approval of your temporary work visa.
There’s no processing time guarantee for most applications sent to U.S. Citizenship and Immigration Services (USCIS). It typically takes several months or even years.
However, it’s possible to pay extra for premium processing. This option guarantees that USCIS will make a decision on your application within 15 days, whether they approve, deny, or ask for more documentation.
If you are operating on a strict timeline, this is an excellent option to consider.
Since there are so many types of work visas, there are as many ways to meet the eligibility requirements.
Generally speaking, you must have employment in the U.S. in order to obtain a work visa. Employers will petition for your visa on your behalf. Depending on your situation, you may be eligible for two or more types of work visas. Talk to our attorney to find out what your best option will be.
There are many types of work visas available, each for a different situation. You may find a complete list of the work visa options at the USCIS’s official website.
The H-1B visa enables employers to temporarily employ foreign workers in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.
As an H-1B nonimmigrant, you may be admitted for a period of stay for up to three years. This time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). The time an H-1B visa holder spends outside the U.S. does not count against the six-year limit, as foreign workers are permitted to recapture time spent abroad while their H-1B status is valid.
If you previously worked on the H-1B status for less than 6 years and have been physically absent from the U.S. for more than 1 year but less than 6 years, you will be eligible for a fresh 6 years in the H status. That is, the six-year clock “resets”. You may also choose to receive the remainder of the time left over from the initial period. The benefit of the second choice is that you do not need to participate into the H-1B lottery again because you are considered as counted against the H-1B cap already.
The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of foreign workers with a U.S. master’s degree or higher are exempt from the cap.
The L-1 nonimmigrant category is available to individuals who have worked for a foreign corporation that has a parent, subsidiary, branch or affiliate company in the U.S. The individual must have been employed in an executive or managerial position (L-1A), or in a specialized knowledge capacity (L-1B) for the foreign company.
In reviewing the L-1 petitions, the USCIS looks closely at the following issues:
We highly recommend that you obtain professional assistance from an experienced immigration lawyer, considering the complexity of this type of work visa application.
How long is the L-1 visa valid for?
L-1 status is generally approved for an initial period of three years. However, if the U.S. entity is a start-up company, the initial validity period is only good for one year. Be sure to extend your stay with help from a work visa lawyer before the expiration of the initial validity period. The L-1A (manager/executive) can be extended up to a statutory limit of seven years; the L-1B (specialized knowledge) is limited to a total of five years.
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics (O-1A visa), or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements (O-1B visa).
The O-1 visa offers an initial period of stay of three years, but may be renewed indefinitely, for as long as the worker is needed. Unlike H-1B visas, there is no limitation on the number of O-1 visas available annually. Therefore, the O-1 visa is often considered as an alternative to the H-1B visa. O-1 also needs sponsorship from employers. The typical route for O-1 visa holders to obtain their green cards is through EB-1A Aliens of Extraordinary Ability , which can be done without the employer’s sponsorship.
The concept of Dual Intent allows a foreign national to hold a temporary nonimmigrant status while at the same time applying for permanent residency in the United States.
That means they can be admitted on their temporary visas even if they have immigrant intent, while others will be prevented from entry if they have immigrant intent. This principle recognizes the dual nature of a person’s intent.
Common temporary work visas allowing for dual intent include:
Due to the special nature of the O-1 visa, those who either have O-1 status or who are considering to get O-1 status should consult an immigration lawyer about intent issues if they plan to obtain a green card some time in the future. Read more about the difference in dual intent for O-1 and H-1B here.
Immigration law in the United States has many complexities that aren’t known to people outside the legal profession. Attempting to navigate it on your own can result in serious problems, including losing your employment authorization or even being placed on removal or deportation proceedings, if you make mistakes.
At the Law Office of Lu & Associates, we work with employers and foreign nationals to find the best visa options for them, which will enable the foreign nationals to get on board on time.
We are especially experienced in helping startups with work visa applications. For example, in H-1B visa petitions, employers need to prove that they have the financial capability to pay for the prevailing wages. However, many startups may have not been in substantive operation at the time of H-1B filing. They don’t have tax return records from previous years to prove the employer’s financial health, either. Though lacking historic financial documentation may make it harder for the startups to get approvals for their employees’ H-1B petitions, we will advise employers on finding alternative documents to strengthen their cases. We tailor our document checklist to the unique situation of each case. With our guidance, a number of startup employers have achieved success on their H-1B petitions. For a free consultation and more information on your work visa options, contact our team at the Law Office of Lu & Associates today.