Tuesday, October 20, 2015

U.S. Work Visas - How Many Are There?

Did you know there are almost 60 different types of temporary U.S.visas in addition to several routes to permanent residence (known as a “green card”)? Unfortunately, green card applications usually take a long time, so even if this is the ultimate goal, you will probably need to begin by applying for a temporary work visa.


So let's lay this out as this topic is oftentimes a discussion with both our clients and candidates who have questions about the processes. There are three main categories of U.S. work visas for professionals. I hope this information proves helpful, and will serve as a resource to you the next time a situation pertaining to visas arises.


H1B VISA

The H1B visa is probably the most well know. This is for Specialty Occupation Workers.

Congress determines how large the H1B quota should be. These quotas can run out rather early in the fiscal year.

The US H1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in architecture, engineering, mathematics, science, and medicine. Under the visa a US company can employ a foreign worker for up to six years.

Applying for a non-immigrant visa is generally quicker than applying for a US Green Card, therefore the H-1B visa is popular for companies wishing to bring in staff for long-term assignment in the US.

Individuals are not able to apply for an H1B visa to allow them to work in the US. The employer must petition for entry of the employee.

The job must meet one of the following criteria to qualify as a specialty occupation:

  1. Have a minimum entry requirement of a Bachelor's or higher degree or its equivalent.
  2. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
  3. The employer normally requires a degree or its equivalent for the position.
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  1. Have completed a US bachelor's or higher degree required by the specific specialty occupation from an accredited college or university.
  2. Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation.
  3. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  4. Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.


TN1 VISA

Canadians can often gain entry to the US with greater ease than others; this preferential treatment for Canadians is linked to treaty provisions within the North American Free Trade Agreement (NAFTA).

While there are many NAFTA related visas, the most useful one is the TN1. The TN1 visa was modeled on the H1B; it may only be used where the employer is based in the US, and the candidate is a professional in a specialty occupation.

Where a candidate, by their profession and nationality, qualifies for the TN1 visa, it has the following advantages over the H1B:

  1. It is granted for one year, but can continue to be renewed indefinitely.
  2. It can be applied for at the border with the US, and is usually granted immediately.
  3. The documentary requirements and procedure is far less burdensome than the H1B visa.
  4. The TN1 is granted for a specific employer. If needed for more than one employer, multiple TN1 applications need to be made. Self-employed professionals would not be able to come under this particular visa category, and may consider the E2 Treaty Investor category under NAFTA.

While it is possible to apply under the TN1 visa with minimal documentation, it is prudent for candidates to arm themselves with the following documents at the border with the US:

  1. A description of the position from the US employer. This should also confirm that the candidate will be a direct employee, and state the salary level. Further, some information about the nature of the employer's business should be included.
  2. Proof of the candidate's qualifications, including, where appropriate, confirmation of the US equivalency of any foreign qualifications.
  3. A copy of the candidate's resume (curriculum vitae).
  4. The original Canadian passport (if applicable), and, if relevant, copies of the candidate's previous passports, visa stamps, and I-94s.
  5. A copy of the employment contract.


F1 VISA

The F1 visa category is reserved for academic students enrolled in colleges, universities, and other academic institutions. Upon graduation, the F1 student may apply for the OPT (Optional Practical Training)visa program. Students studying with an F1 visa are eligible to work in the USA under the OPT visa program, which affords the student the opportunity to apply theoretical knowledge obtained in an academic program to a practical work experience. Any employment opportunity that the student encounters must be directly related to his or her major field of study in order to qualify as OPT. OPT may be full or part time, depending on the circumstances and may take place anywhere in the country. F1 students can transfer / change status directly from F1 to H1B by obtaining a suitable H1B sponsorship position with an H1B sponsor company. However, many students choose (or find themselves requiring) to use the OPT visa program as an interim measure in the overall process of getting to H1B visa status. 



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