Wolf W. Kaufmann

Immigration

Southern California Immigration Attorney

(951) 710-3250

Email: info@wolfklaw.com

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Living and working temporarily in the United States

If you need to fill a position with a temporary foreign worker, you have several options:

The H1-B visa: Temporary employment for “specialty occupations”

This is the most popular “work-visa” even though it is severely limited in scope and application

To qualify for a H-1B visa there are two conditions:

    -The applicant must hold a bachelor’s degree or higher (or the equivalent) and have knowledge pertaining to a “specialty occupation”

    -The position the alien is applying for must require such degree and knowledge.

    The typical problems we encounter with H-1B visa are that either the alien does not meet the necessary requirements, or the position normally does not require his degree.

Once all these conditions are satisfied, the employer must obtain a Labor Conditions Application. Contrary to a well established myth, the employer does not need to show that no American applicant for the position could be found. He needs to show that the alien will be paid not less than the actual or prevailing wage, that the alien’s employment will not negatively impact the working conditions for other employees and some other conditions.

An advantage of the H-1B visa is the fact that an alien can easily transfer between employers who qualify for the H-1B program. The biggest drawback of the visa is the fact that the stay in the United States is limited to a maximum of six years.

While it is a myth that a H1-B visa will lead almost automatically to a green card, it is true that many aliens who qualify for a green card first hold an H-1B visa. 

Intra-company transferees: The L-visa

An employee who has been employed by a company abroad for at least a year within the last three years  as an executive, a manager, or a specialist, can be transferred to the employer’s branch, office, etc. in the United States. Depending on the position the employee is to take, the stay is limited to either five or seven years.

Treaty traders and treaty investors: The E1/E-2/E-3 visa

IIf your country and the United States have formed a treaty you might be able to enter the United States to conduct trade with your home country or to invest in an American business. Managers, executives or specialist employees of these companies then will be allowed to work here on an E-visa.

    The advantages of the E visa are that

      -there is no set limit to the stay

      -there is no requirement for a labor certification or labor conditions application

      -there is no rigid set of educational requirements

    Some provisions in detail:

    1. Trade: If the visa is based on trade (E-1) the business must be engaged in trade between the U.S. and the treaty country, and the American part of this business must mostly be engaged in trade with that country. The trade must be substantial.

    2. Investment: In case of the E-2 visa, the investment in a new or existing U.S. business must be “substantial.” Each case is evaluated individually. The capital invested must be the owner’s own risk capital, however, partnerships are possible. Usually employment must be created.

    3. The positions the alien must have in the business must be such that “develop or conduct” the business, which means it must be an executive or managerial position. In addition, certain specialists may also employed under the E1/E-2 visa if they come to the U.S. to supervise or train U.S. based employees or otherwise are necessary for the business.

The E visa therefore present an unique opportunity for entrepreneurs and their executive staff to live in the U.S. Read more about them on our investor page.

Employment based visa for certain occupations or nationals

In addition to the H1-B, L and E1/E-2 visa there are numerous other visa categories for special groups of occupations. Some of them are:

    R-visa for certain religious workers

    I-visa for foreign journalists

    O and P-visa for aliens of “extraordinary abilities” in business, science, arts, sports or education (very similar to E-1 Green Cards) or performing  athletes

    NAFTA-visa (TN) for Mexican or Canadian nationals: Under the NAFTA Mexican and Canadian nationals in certain occupations can easily obtain a visa to work and live in the United States. Canadians enjoy the widest range of  possibilities under NAFTA. Not only are there two separate visa classes, but provisions for B-1, and L visa are different for those nationals as well. To qualify for a TN visa the Canadian or Mexican must be a  professional and fulfill certain educational requirements that are  similar to the ones required for a H-1B visa.

Special provisions for physicians and nurses

While there is no separate visa class for either physicians or nurses, there are a number of special provisions pertaining to these occupations:

1. Physicians

Physicians entering the U.S. solely to conduct research, consulting or teaching are subject to the normal provisions described here for the various visa categories. However, physicians entering the U.S. to practice patient care are subject to additional requirements:

Physicians who plan to engage in patient care not only have to prove sufficient knowledge of English, but also have to pass stringent licensing and credentialing examinations before they can be issued a visa which are described in detail here: www.usmle.org

In addition to these credentialing examinations the physician also has to obtain a state license to practice medicine.

The following visa are commonly available for physicians or medical students:

    -F-1 for students who study medicine in the U.S. Graduates of U.S. medical schools will be able to skip most credentialing but still have to obtain a state license to be able to immigrate and practice.

    -B-1 for medical students from abroad who want to do a clerkship

    -H-3 for medical students as “externs” at U.S. hospitals

    J-1 for graduates receiving medical training to obtain state licensure. J-1 participants have to enroll in a licensed program and have to fulfill stringend educational requirements and usually must have a license to practice medicine in their home country.

    Participants in the J-program may stay up to seven years in the U.S. However, after completion of the program they usually have to leave the U.S. for at least two years before they can be granted another work visa or a green card. This requirement can be waived, though. The waiver rules are numerous and complicated, if interested, please contact us for a consultation.

    -H1-B for licensed physicians to enter the U.S. to research or engage in patient care. In addition to the normal H-1B rules there are additional licensing and credentialing requirements for physicians as described above.

    -NAFTA-rules for Mexican and Canadian nationals: Physicians who are Canadian or Mexican nationals and want to enter the U.S. for research or teaching can obtain a TN visa (see above).

    -EB2 or EB3 Green Card for permanent residence: Usually physicians apply for an EB-2 Green Card showing “advanced degrees” and “exceptional abilities.” They might be exempt from the labor certification requirement under Department of Labor rules. Physicians who are willing to serve in certain “underserved areas” of the U.S. may also obtain a “national interest waiver” which gives them the possibility to enter the U.S. without a job offer.

2. Nurses

“Registered or professional” nurses also are specially treated under the law. Canadian and Mexican nationals can use NAFTA (TN) status. Professional nurses may immigrate without having to endure the full labor certification process because they are pre-certified as “in demand workers” or “Schedule A-I workers.” However, like physicians, nurses still need to qualify for a visa subject to all the other conditions of the visa category.

The first step for a foreign nurse to enter the U.S. to work is to obtain credentialing, in a very similar process as described for physicians. The credentialing process is governed by CGFNS. A nurse must show at least a two-year degree (Associate Degree in Nursing or its foreign equivalent) to be eligible. The nurse then has to pass all required licensing examinations such as NCLEX and obtain a state license. He or she also has to prove sufficient ability to speak English (usually by passing a test like TOEFL). A newly introduced credentialing regimen called “Visa Screen” may combine these steps.

Visa for nurses:

    -TN visa for Mexcian and Canadian nationals

    -H-1B visa for all others. However, because H-1B usually requires that the alien holds a bachelor degree and the position sought also requires that, most nursing positions do not qualify for a H-1B visa.

    -EB3 Green Card for permanent residence: This is the typical category for nurses and usually it was no problem to obtain a green card. Lately though, there is a backlog and nurses have to wait for their green card at least 6 years.

    Other possible categories include R, and J-1. Please contact us to evaluate your possibilities.

 

If you are interested in obtaining a temporary work visa for a foreign employee, please contact us now to schedule a consultation.

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