Doing business in United States: Immigration Application

Visa Types

H1B Visa – Specialty Occupations (Professionals, Graduates)

The H1B visa is the main method for employers to recruit international professionals and international students to work in the USA.

Duration: up to 3 years (can then be extended one time for up to a 6 years)

H2B – Short Term ‘Seasonal Jobs’ Work Visa

It is the visa to travel to America and work in jobs such as hospitality, theme parks, on a cruise ship, in a restaurant, or, for example as a ski instructor.

Generally, USCIS may grant H-2B visa for up to the period of time authorised on the temporary labor certification (may be extended for qualifying employment in increments of up to 1 year each). The maximum period of stay is 3 years.

E3 – Certain Specialty Occupation Professionals from Australia

Applies to Australian professionals coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical knowledge in specific professional fields and at least a bachelor’s degree, or its equivalent.

Initial period of stay = 2 years (with up to 2 years per extension; no maximum number of extensions, with some exceptions).

There is no government mandated application costs for this visa, it only requires a free filing to the US Department of Labor.

TN NAFTA Professionals

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to temporarily entry the United States to work or do business.

Initial period of stay = up to 3 years.

L-1B Intracompany Transferee Specialized Knowledge

The L-1B visa allows a U.S. employer transfer a professional employee with specialised knowledge relating to the organisation’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialised knowledge employee to the United States to help establish one. The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.

Maximum initial stay for qualified employees entering the United States to establish a new office is one year. For all other qualified employees a maximum initial stay is three years. Extension of stay may be granted in increments of up to an additional two years (until the the maximum limit of five years is reached).

L-1A Intracompany Transferee Executive or Manager

This visa is similar to the previous one, but it applies to senior managers or executives. The other difference is that for all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years (until the the maximum limit of seven years is reached).

E-1 Treaty Traders

The E-2 visa allows a national of a treaty country to be admitted to the United States when they invest a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organisation may also be eligible for this type of visa.

Maximum initial stay = 2 years (with extension of stay in increments of up to two years each).
There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 visa holders, however, must maintain an intention to depart the United States when their status expires or is terminated.

H-2A Temporary Agricultural Workers

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign workers to the United States to fill temporary agricultural jobs.

Employment-Based Immigration: First Preference EB-1 (Permanent)

Issued to individuals who have an extraordinary ability, are an outstanding professor or researcher, or are a multinational company executive or manager.

Employment-Based Immigration: Second Preference EB-2 (Permanent)

This visa is issued to professionals with advanced degrees or to persons with exceptional ability (in the sciences, arts, or business) plus to members of professions holding advanced degrees or the equivalent.

Official fee totals to about $1490 (without considering various contingent fees associated with the cost of possible appeals, ancillary forms and fees that different circumstances might require, and medical examination and mailing costs).

Employment-Based Immigration: Third Preference EB-3 (Permanent)

This visa is issued to professionals with a baccalaureate degree, skilled workers (requiring at least 2 years of training or experience) for which qualified workers are not available in the United States, individuals capable of performing unskilled labour for which qualified workers are not available in the United States.

EB-5 Immigrant Investor Program

Under this program, entrepreneurs are eligible to apply for permanent residence if they make the necessary investment in a commercial enterprise in the United States and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

E-2 Treaty Investors

Visa Application

Foreign workers are required to have the proper visas and work permits in the USA, as established by immigration laws. Work permits must be secured for employees, and sponsored by a locally licensed and incorporated entity, which can be a problem for companies just entering the US market.

According to U.S. Citizenship and Immigration service , employers must make sure that people they plan to employ or continue to employ in the USA is authorised to accept employment in the country.

There are two general categories of US visa permits:

“Non Immigrant” Visa, which is typically obtained by those, who plan to work in the U.S. temporarily and usually have a specific purpose (H1B Work Visa, E-1, E-3 and L1-B visa)
“Immigrant” Visa, which is for those who are migrating to the USA to live and work there permanently (Green Card – Lawful Permanent Residents, typically EB-3 or EB-2 visa)

Sponsoring employees for “Non Immigrant” (or temporary) class visas is usually a quicker and less complicated process compared to “Immigrant” (or permanent) visas. However, there are still many technicalities and steps that are far from intuitive increasing the possibility of failure.

The H1-B type visa is typically the most common way for employers to sponsor professional workers in the U.S.

Employees: To qualify for this sponsorship, the employee must hold a position that requires them to have at least a bachelor’s degree or equivalent experience in the field of future employment.
Employers: For employers H-1B eligibility is a much more complex issue. They must file the petition for the visa on behalf of the employee, who is not allowed to self-petition. Every company, regardless of size, must petition for one of the 65,000 H-1B visas that are made available by U.S. Citizenship and Immigration Services. Based on trade agreements, 6,800 of those visas are allocated for immigrants from Singapore and Chile first. Another 20,000 of them are made available for workers that have advanced degrees (master’s degree or above). Usually, more applications are filed than visas are available lowering chances of employees to get H1B visa.

Process

Sponsoring Company files a petition on your behalf: An employer can be an individual, partnership or corporation. Applications has to be “job specific.” A new H1B visa petition has to be filed if employee’s situation changes (for example, you lose your job or change locations), your new employer must file . The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
- Specific information addressing the positions held
- The exact duties of the position
- The exact dates of employment
- Information regarding the supervisors and co-workers of the beneficiary.
The ‘Prevailing Wage’ and actual wage have to be determined. The sponsoring company is then required to pay the higher of the two. To determine the prevailing wage the company has to complete and lodge a special form with the State Employment Security Agency. In this form employer outlines the responsibilities, skills and experience needed for the job. The actual wage is determined by comparing other workers’ wages in the same positions and with the same level of experience.
The Labor Certification Application (LCA) has to be filed: This form contains information about the sponsoring company. By completing and signing it, the company is agreeing to pay the higher of the two wages mentioned above. It also agrees that this employment will not adversely affect the conditions of other workers and that there is no ongoing strike for their occupation at the workplace. The sponsoring company has to attest that it will offer the H1B sponsored employee the same benefits (health, life, medical, retirement, stock options and bonuses) as their other workers.
When the LCA is approved, the Department of Labor will return a certified copy to the sponsoring company.
The sponsor company must then post notices at the work site that it filed for LCA (for 10 days). Alternatively, the H1B sponsoring company can provide notice of this filing to the collective bargaining representative for its employees.
H1B petition (including fees, form I-129, required forms, documents and information) filed with appropriate USCIS Service office.
H1B petition is being processed: Processing times can vary based service centre and the visa (typically it is a few months wait). If the sponsoring employer can demonstrate a substantial need for the employee, USCIS might approve the petition sooner. Employment cannot begin until USCIS has issued the visa.
Receipt issued by USCIS: The sponsoring company is sent a receipt by the USCIS Service Centre which bears a 9 digit reference number allocated to that particular case, as well as visa processing times and general information about the employer and foreign worker that is being sponsored. At this stage, the H1B application is already in a queue.
Petition Approval: Generally it will be approved within the designated time frame outlined in the USCIS receipt. An approval notice (Form I-797) is issued to the petitioner (sponsoring company).

Documents required from employer

Job title of the position being sponsored
Salary offered to the employee
Detailed description of the job
The minimum requirements for this job
Name and job title of person who will sign the forms on behalf of the company
Name and address of company.
Informational brochures about the company. If the company is new it is advisable to provide as much information as possible
Employer Federal Tax I.D. Number
Telephone number and fax number for company
Client site letter on the client site’s letterhead.
All the US Immigration Bureaus visa filing forms and fees

Documents required from employee

Job Offer from a sponsoring US employer
Copy of the current CV
Copies of passport, degree certificates and transcripts
Employment reference letters from previous employers (if applicable)
Professional License (if applicable)
Copies of any professional development course certificates (if applicable)
Copy of the education evaluation (if one has already been completed and is applicable)

It should be noted that there are certain difficulties that start-ups and small companies currently face.

Costs: The total cost of application will be vary from about US$1,000 to US$4,000 depending on specific circumstances