Many people plan on 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 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. There are more than 20 different types of nonimmigrant visas. However, not all of them provide permission to work. Therefore, 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 our office or the nearest U.S. Citizenship and Immigration Services (USCIS) 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 affiliated their employer. There are only certain permitted activities under B-1 visa, none of which amount to work in the United States. 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.
F VISAS – STUDENTS
Generally, 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 as below.
While foreign nationals who are in student status are generally not allowed to work, they may be authorized to work in the United States in three situations:
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 positions as research assistants, teaching assistants, etc., but may also include other on-campus positions. Normally, such employment should not displace a U.S. worker.
When there is an unforeseen, severe, economic necessity, a student may be authorized to work off-campus on a part-time basis only after having been in F-1 status for one full academic year provided the student is in good academic standing. Permission is granted by the USCIS 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.
Practical Training: A student may apply for two types of practical training: Curricular Practical Training and Optional 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.
VISAS WHICH ALLOW PERSONS TO WORK IN THE UNITED STATES
E VISAS – TREATY TRADERS (E-1) AND TREATY INVESTORS (E-2)
The United States has entered into commercial 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 to 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 Treaty Trader and his or her family.)
A Treaty Investor visa is based on investment. This classification applies to those coming to solely direct and develop operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital.
A Treaty Trader/Investor may come and remain in the United States for indefinite periods of time, but must intend to depart the U.S. upon expiration or termination of their E-1 or E-2 status.
Foreign nationals may work for such a “treaty company” in 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.
The law permits spouses of E-1 Treaty Traders and E-2 Treaty Investors to apply for U.S. work permission.
H VISAS – TEMPORARY WORKERS
The H category 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 also meets additional requirements. There are three sub-categories of H visas each with their own specific requirements:
H-1B Temporary Professionals. This is the most popular category used for foreign nationals coming temporarily to the U.S. to perform services in a specialty occupation. However, it is limited to people with college degrees or, under certain circumstances, to persons who have obtained the equivalent of a college degree through many years of experience in their particular field. In order to qualify for this category, four things are required:
a U.S. employer;
a college degree or its equivalent;
a position within the employing company that requires that specific degree; and
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 include engineers, architects, teachers, and numerous other professionals.
H-1C – This classification applies to a foreign national who is coming temporarily to the U.S. to perform services as a Registered Nurse.
H-2A and H-2B Visas – Temporary Workers. The H-2A classification applies to foreign nationals coming temporarily to the U.S. to perform agricultural work of a temporary or seasonal nature. The H-2B classification applies to foreign nationals coming temporarily to the U.S. to perform nonagricultural work of a temporary or seasonal nature. These visas are 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:
a one-time occurrence;
a seasonal need;
a peak-load need; or
an intermittent need.
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 USCIS 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 USCIS 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, trainees and interns. Sometimes, a person who cannot qualify for 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 may be subject to a two-year foreign residency requirement where he/she would be 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 parent, subsidiary, affiliate or branch office here in the United States. Such a transfer can only take place if the person is a manager or executive (L-1A), or a person with specialized knowledge (L-1B).
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 is an individual with special knowledge of the company’s products, services, research, equipment, techniques, management or other interests, and its application in international markets, or who has an advanced level of knowledge or expertise in the company’s processes and procedures. In order to qualify for L-1 status, a person must be employed for at one year out of the last three years with the company abroad, be coming to the United States to work in a managerial/executive capacity or a capacity which involves specialized knowledge, and must be coming to the United States to work for the parent, subsidiary, affiliate or branch office of the overseas employer.
Certain managers and executives can use L-1A status as a stepping stone to obtain U.S. permanent residence.
The law permits certain spouses of L-1 Intracompany Transfers to work.
O Visas – Aliens of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics.
The O-1 classification applies to a foreign national who has extraordinary ability demonstrated by sustained national or international acclaim and who is coming temporarily to the US to work in the area of extraordinary ability OR a foreign national with a demonstrated record of extraordinary achievement in motion picture and/or television productions. This visa category can 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 USCIS, 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 (such as orchestras not individuals) and persons who are performing artists under the auspices of a reciprocal exchange program, and (3) culturally unique entertainers/support personnel.
R VISAS – RELIGIOUS WORKERS
Three categories of religious workers may be able to come to the United States: (1) Ministers, (2) Religious professionals, and (3) other religious workers. To qualify, a person must have been a member for at least 2 years of a religious denomination or organization having a bona fide nonprofit religious organization in the U.S.
There are other visas which may 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 and Consular Staff
E-3 Visas – for Australian professionals
G Visas – International agency workers
K Visas – Fiances of United States citizens
M Visas – Non-academic students
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.
This document answers most of the frequently asked questions which we receive in our office about “work visas.” If after reading this you have questions about working in the United States or any other immigration matters, please CONTACT our office and schedule an appointment at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.