Each year, the United States Citizenship and Immigration Services (USCIS) issues a number of temporary (‘non-immigrant’) and permanent (‘immigrant’) visas to potential migrants. Unlike most other countries, the US classes its visas using a series of letters and numbers, rather than more descriptive names, such as ‘skilled’, ‘business’ or ‘investor’. Its visas are also generally employment-specific, rather than based on the points system used by other countries.
The Specialty Occupation Visa
A secure job offer is your best route to permanent residence and citizenship, and the H-1B visa, which allows qualified foreign workers entry for work purposes, is one of the most sought-after temporary non-immigrant visas. It requires a US employer to petition the USCIS on behalf of the prospective foreign employee.
You must be employed in a ‘speciality occupation’, and the employer must obtain a certified labour condition application from the Department of Labor before the visa can be processed. A labour condition application means your employer has determined the prevailing wage for the position and will pay you accordingly.
A ‘speciality occupation’ requires both the theoretical and practical application of what the government has determined as highly specialised knowledge in such fields as architecture, engineering, mathematics, physical sciences, medicine and health, education, business specialties, accounting, law, theology and the arts. Applicants are required to have a Bachelor’s degree or higher in the speciality, or its US equivalent.
If you are employed in a licensed occupation, you must have an unrestricted state licence, registration or certification allowing you to practice. You must also provide evidence of your speciality occupation to the government. This may be through a combination of education, specialised training and/or work experience.
The H-1B visa is issued for a period of three years, but can be extended if the employer can prove it needs you for longer and you maintain your intent to leave the US at the end of the visa extension.
Generally, the processing time for an H-1B visa is three to four months. However, the number of visas is capped and the quota for 2008 was reached in one day, so there are no more available until October 2009, where the filing date is April 1,2009.
The Intra-company Transfer Visa
The L-1 visa is commonly known as an intra-company transfer visa and applies to foreigners who work for a company with a parent subsidiary, branch or affiliate in the US. Applicants must be employed in a managerial or executive capacity (L-1A visa) or with specialised knowledge (L-1B).
The L-1 visa was designed to allow key employees of overseas companies with ties to US corporations the opportunity to work in the country.
To qualify, the employer must be related to a US organisation as a subsidiary, affiliate or division. As the employee, you are required to have worked for the company for at least one year in the three years prior to the application and be employed as a manager, executive or person of specialised knowledge (as outlined below).
L-1A visa holders may be eligible for permanent residency at a later date through the E-B1 category.
Manager (L-1A)
To qualify as a manager, you must primarily manage the organisation or manage an essential function within it. You will have the authority to hire and dismiss or recommend staff for promotion. If you are not supervising staff, you will function at a senior level within the organisational hierarchy or with respect to the function managed.
Executive (L-1A)
To qualify as an executive, you must direct the management of the organisation and establish its goals and policies.
You would only receive supervision or direction from higher-level executives, the board of directors or stockholders of the organisation.
Person of Specialised Knowledge (L-1B)
To qualify as a person of specialised knowledge, you must have special or unique knowledge of the petitioning organisation’s product, service, research, equipment, techniques, management or other interests.
The company relationships must be well documented and obvious to the USCIS for the L1 visa to be issued, and the petitioning company must continue to be a functioning organisation if the visa is to remain valid.
The duration of this visa is dependent on the qualifications of the key employee, with L-1A holders (managers and executives) qualifying for a stay of seven years and those with L-1B visas (specialised knowledge) eligible for a stay of five years.
The Aussie-only Visa
The E-3 visa is only available to Australians. As a result of a free trade agreement some years ago, 10,500 have recently become available. In practice, the E-3 removes Australians from the H1-B category, providing them with their own unique visa stream. Since the cap for H1-Bs has been reached, the E-3 is gaining in popularity and profile. It is an employer-sponsored visa, and works in a very similar way to the H1-B.
Getting a visa to work in the US takes perseverance; it’s a lengthy and often frustrating process. Watch out for rogues doling out quick-fix advice; entering the US as an ‘illegal’ is a serious offence. And always consult an immigration attorney when making decisions about your US visa status.
