On Jan 08 2021 by Klasko Immigration

How to Work in the U.S.: A Brief Guide to U.S. Employment Based Immigration

Living and working in the United States is the dream of many individuals across the world. There are different types of employment-based visas to help make this dream a reality depending on each person’s unique situation. Below are some of the most common visa options that the employment based immigration lawyers at Klasko Immigration Law Partners obtain for our clients regularly.

H-1B Specialty Occupation

This dual-intent visa is filed by an employer on behalf of a foreign national employee. Along with other requirements, an employer must demonstrate that the role is a “specialty occupation” as defined by USCIS. A bachelor’s degree or higher in a specific related field is required to qualify the foreign national for the H-1B visa. There are only 65,000 visas available annually for a start date on October 1st, with an additional 20,000 reserved for individuals who hold a master’s degree from an accredited U.S. university. Cases are selected from a computer-generated lottery before they are adjudicated. In 2019, changes to the H-1B Visa Program required employers to pre-register for spots in the lottery system prior to the filing window opening on April 1.

Some organizations are exempt from the annual lottery (often called “H-1B cap season”). Universities, non-profit research institutions, nonprofits affiliated with a university, and government research organizations are exempt from the H-1B quota. 

Foreign nationals approved to participate in the H-1B Program can begin employment on October 1st of the same year. The initial length of the visa is three years, and the maximum length is six years. The visa can be extended beyond six years if the foreign national is far enough along in the green card process, usually achieved through labor certification or a possible national interest waiver.

If the foreign national is terminated, he or she is offered a grace period of 60 days or until their visa expires. Foreign nationals may also change employers using an H-1B transfer, however, their visas will only be available for the remainder of the six years unless they have applied for a green card. 

L-1 Intracompany Transferee

Foreign nationals who work abroad for one continuous year in an executive or managerial role, or a position requiring specialized knowledge may be eligible for an L-1 visa. Their employer will need to request the foreign national’s transfer to the U.S. to work in another branch of the company. 

The role in the U.S. must also be in an executive, managerial, or specialized position. For specialized positions, the foreign national must have special or restricted knowledge of the company’s products or services and the ability to apply that knowledge to international markets. 

L-1 intracompany transferees in executive or managerial positions may live and work in the U.S. for a maximum of seven years, while those in a specialized position may live and work in the U.S. for a maximum of five years (with the initial approval being three years, and the extensions granted in increments of two years). If an L-1 intracompany transferee is tasked with opening a new office, their initial visa will only be valid for one year.

E-1/E-2 Treaty Trader or Investor

Citizens from countries that have an investment treaty with the U.S. may be eligible for an E-1 or E-2 visa to work for an employer who shares the same nationality as they do. E-1 visas are granted to foreign nationals employed in managerial, supervisory, or essential skills positions with a treaty country engaged in substantial trade mostly between the U.S. and the treaty country. E-2 visas are granted to foreign nationals who make a substantial investment in a U.S. company or become an executive supervisor, or essential skills of such a company. 

Each visa is initially approved for one to five years but can be extended indefinitely. Foreign nationals who are not citizens of a treaty country may obtain their citizenship through investment in a 3rd country that has an investment treaty with the U.S.  

O-1 Extraordinary Ability

Individuals who demonstrate extraordinary ability in science, art, education, business, or athletics and can document their “national or international acclaim and recognition” may be eligible for an O-1 visa

The O-1 visa is valid for three years but can be renewed in yearly increments indefinitely. The foreign national must be sponsored by an employer or agent. 

To learn more about each of the employment-based visas mentioned in this blog or find out what other opportunities are available for foreign nationals interested in living and working in the U.S., contact the immigration lawyers at Klasko Immigration Law Partners, LLP for industry-leading employment based immigration services.