Intro to Visa Types:
Unraveling Visa Classifications--Benefits and Perils for U.S. Employers (Article appeared in Contra Costa Lawyer magazine, December 2005)
by Daniel Roemer

            Many thousands of temporary (non-immigrant) foreign workers enter the U.S. every year under the twenty-four major nonimmigrant visa categories. They serve in capacities as diverse as camp counselors and entrepreneurs, special education teachers, software engineers, and CEO's.   They are an important source of expertise for U.S. companies learning to operate or expand operations abroad, and they provide a unique opportunity for U.S. businesses and the public to understand how our foreign counterparts think and work.

            There is, nevertheless, widespread confusion about immigration law and employer compliance with the immigration laws. The Congressional Research Service, in a recent report to the House Judiciary Committee, cited various federal judges on the subject of immigration law.   One opined that the Immigration Act "resembles King Minos' Labyrinth in ancient Crete." Another remarked that the Immigration Code is "second only to the Internal Revenue Code in complexity."   It is thus no surprise that misconceptions abound regarding what constitutes lawful immigration status and employment authorization. Despite the fact that the twenty year-old Immigration Reform and Control Act requires all U.S. employers to document any new hire's employment authorization within three days of their start date by completing Form I-9 and verifying eligibility on the basis of appropriate documents (subject to fines and criminal penalties for non-compliance), there is still much confusion about how to do so. The "alphabet soup" of   work visas discussed below is merely a starting point.  

            There are many permutations of status in the continuum that runs from "illegal alien" to U.S. citizen. The three basic statuses are, in ascending order, temporary workers or visitors, permanent residents (popularly known as "green card holders") and U.S. citizens.

            Temporary work visas (the focus of this article)   allow foreign nationals to come to the U.S. for one to six years or more, if they have an employer-sponsor and can meet the criteria specific to each visa, as long as they are admissible to this country. Being admissible means that they have not committed certain crimes, do not have communicable diseases or unacceptable ideologies, and can otherwise run the gauntlet of conditions set forth by Congress.

            The lynchpin of the temporary worker category is the H-1B visa, used for the temporary employment of software engineers and other professionals. This visa category permits up to 65,000 foreign nationals to come to the U.S. for up to six years. The H visa has been the subject of recent attention because the annual visa quota was exhausted earlier than ever before, and employers wishing to sponsor new workers under this category must now wait until October 2006, unless Congress increases the quota. (The Senate has voted to allocate another 30,000 for this year [2005], but the House must also do so and the President must sign the bill before the visas become available.) The visa applicant must be a "professional,"   must have a U.S. employer who is offering a professional, temporary job opportunity, and the employer must offer the prevailing wage. The term "professional" is defined as including certain recognized professions (accounting, law, engineering, etc.) or it can be met by demonstrating that the job duties are so complex that they are normally associated with an college degree, or that the sponsoring company's industry normally only employs workers who have a bachelor's degree. The H-1B is the most common path to a green card, through a parallel but separate application process known as "labor certification."

            Similar to the H-1B, the TN (Trade National, as in NAFTA trade pact) visa is for certain designated professions, but only if the applicant is a national of Mexico or Canada. This category is not subject to an annual quota and is a less burdensome and less costly process than the H-1B. However, professionals entering on a TN are admitted for only one year at a time (in contrast to two three- year terms for H-1B's) and, unlike their H-1B counterpart, they need to convince skeptical immigration inspectors that they do not intend to permanently live in the U.S.

            The well- heeled cousin of the H-1B visa is the O-1, carved into the Immigration Act for "aliens of extraordinary ability." This category is utilized by artists, CTO's, and other creative, high end employees in business, education, science and athletics. Applicants for this visa must satisfy three of the six statutory criteria, which include demonstrating receipt of prestigious prizes, distinguished publications about the foreign national or her work, contributions of major significance or receipt of unusually high compensation, among other criteria. The alien must show, overall, that they have widespread recognition and that they have risen to the very top of their field. O-1 aliens thus have bragging rights over their visa stamp, due to its exclusive nature.

            The L-1 visa, known as the Intra-Company Transferee visa, is a stream-lined way for U.S. companies that have foreign affiliates to import their managers, executives, or other employees who have specialized knowledge about the company's products or services. They must have been employed by the subsidiary or affiliate abroad for a year or more, and be coming to the U.S. to undertake similar job duties. This is a popular category for those executives and managers who qualify, because, like the O-1, there is a corresponding "green card" fast track process which has substantially the same criteria. It too has generated controversy in the news, as lawmakers in Washington picked up on complaints that this category was being used to skirt the H-1B visa's prevailing wage requirement.

            Lesser known and lesser utilized visas include the J-1 visa for exchange visitors, the H-2 visa for applicants coming to fill a spot labor shortage, and the E-1/E-2 visa for treaty investors and traders.   For the latter, the applicant must be national of a country with which the United States has a qualifying treaty, and the investing company must be majority held or controlled by nationals of the alien's country. The investor must make a substantial investment in a business.

            Ariadne, with her spool of thread, was able to save Theseus from getting lost inside King Minos' labyrinth, and devoured by the Minotaur. Employers would do well to similarly arm themselves with a modicum of knowledge about visa categories,   I-9 compliance and employer sanctions,   in order to successfully navigate the confusing labyrinth of the immigration code.            

Copyright LODR 2005.