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What New York and New Jersey Businesses Should Know About Temporary Work Visas

By Kalyan Kanuri (Godavari Bridges Uploaded by NotFromUtrecht) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe federal government offers a variety of temporary, or nonimmigrant, work visas that allow employers to hire an individual from abroad for a specific job, with the understanding that the person is expected to return to their country of origin once their visa expires. New York and New Jersey businesses should be aware of some of the different types of temporary work visas in order to determine which would work best for them.

Visa Petition Procedures

For any type of work visa, the employer must petition U.S. Citizenship and Immigration Services (USCIS) on behalf of the worker. The employer is therefore the “petitioner” in this process, and the worker is the “beneficiary.” Temporary work visas are valid for anywhere from several months to multiple years, depending on the type of visa and the number of extensions granted.

Labor Certification

The petition process for some work visas require a certification from the Department of Labor regarding the worker and the specific job that the employer is offering. This labor certification must attest that no workers in the U.S. are reasonably available and that the employment of this worker will not have a significantly negative effect on the wages or working conditions of U.S. workers.

Dual Intent

A key feature of any nonimmigrant visa is the intent to return to one’s home country when the visa expires. If USCIS or the U.S. Department of State (DOS) suspects that a beneficiary intends to remain in the U.S., even by seeking to obtain legal permanent residence, it may deny that person a visa.

The doctrine of “dual intent” allows some visa holders to seek legal permanent residence while in the U.S. on a nonimmigrant visa, or when they enter the country. Dual intent expressly applies to H-1B and L-1 visa holders. 8 U.S.C. § 1184(b). Immigration regulations also suggest that it applies to O and P visa holders. See 8 C.F.R. §§ 214.2(o)(13), (p)(15).

H-1B Visa

Perhaps the most well-known temporary work visa is the H-1B visa, which is available to people working in “specialty occupations.” A petitioner seeking to fill a job with a H-1B visa holder must show that the job requires a bachelor’s degree or higher, or some other specialized knowledge obtained through education or work experience. The prospective beneficiary must meet the qualifications set forth by the petitioner.

Federal law limits the total number of new H-1B visas to 65,000 per fiscal year, with another 20,000 visas available to certain beneficiaries with advanced degrees. Competition for this limited number is fierce. USCIS opened the initial filing period for fiscal year 2016 on April 1, 2015. It announced that it had already reached the cap on both types of H-1B visas on April 7.

L-1 Visa

Employees of companies that have offices in both the U.S. and abroad may travel to the U.S. for work purposes with an L-1 visa. The duration of this type of visa depends on the visa holder’s country of origin. With extensions, an L-1 visa may be valid for up to seven years.

O visa

The O-1 visa is available to people with “extraordinary ability in the sciences, arts, education, business, or athletics.” 8 U.S.C. § 1101(a)(15)(O)(i). Individuals who work in film or television may obtain an O-1B visa, while O-1A visas are for people with extraordinary abilities in other fields. People who are needed to assist the person in their work may obtain an O-2 visa, and the person’s spouse or children may obtain O-3 visas.

P Visas

Athletes, artists, and entertainers may come to the U.S. on various types of P visas in order to participate in a game, tournament, competition, exhibition, performance, or other showcase for their talents.

Q-1 Visa

Individuals who are participating in cultural exchange programs that involve employment in the U.S. may travel here with a Q-1 visa. The administrator of the cultural exchange program must petition for the visa.

Employment visa attorney Samuel C. Berger represents immigrants, their families, and their employers in the New York City and Northern New Jersey areas. To schedule a confidential consultation with a knowledgeable and experienced immigration advocate, contact us today online or at (212) 380-8117.

More Blog Posts:

What You Should Know About Student Visas in New Jersey, New York & New Jersey Immigration Lawyer Blog, July 9, 2015

State Department May Deny Visa Renewals for Many Reasons, Including Mere Allegations of Illegal Conduct, New York & New Jersey Immigration Lawyer Blog, June 10, 2015

USCIS Issues Final Rule Extending Work Eligibility to Spouses of Certain H-1B Visa Holders, New York & New Jersey Immigration Lawyer Blog, April 22, 2015

Photo credit: By Kalyan Kanuri (Godavari Bridges, Uploaded by NotFromUtrecht) [CC BY-SA 2.0], via Wikimedia Commons.