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A Road Map to Business & Employment-based Immigration

This is a very general overview of the system of professional immigration to the United States.  Think of it as one of those maps that say "You Are Here."  For more information about your specific interest, click on contact us after reading this overview.

Professionals – defined by the Immigration and Nationality Act as those in occupations requiring a bachelor’s degree or its equivalent – have many options for both temporary and permanent immigration to the United States.  In every case, a high degree of cooperation is needed among attorney, employer and employee, as all assume responsibilities for compliance with the law.


TEMPORARY WORK VISAS

The most common type of temporary status for professional workers is called “H-1B status”, after the section in the Immigration and Nationality Act which defines it.  An H-1B professional must be petitioned by his employer, who also has to obtain approval from the Department of Labor for the salary and conditions of employment.  H-1B status is granted for three years and a single three-year extension is available (there are some exceptions).  There are very strict numerical limitations each year, and the quota for H-1B professionals generally fills very quickly. There are temporary worker visas (H-2A for agricultural workers, H-2B for other workers) available for certain kinds of seasonal or temporary work, and trainee visas (H-3) for certain kinds of training when not available in the applicant's host country.

Some professionals work temporarily in the United States as part of an exchange program under a J visa.  These programs, which can last up to two years, are arranged by both government and private entities and must be approved by the Department of State.  In many cases, the professional must return to work in his home country for two years before returning to the U.S.

Companies with international operations are permitted to transfer personnel as “Intracompany Transferees” using L visas.  There are specific and complex requirements for the length of employment and the nature of the company’s operations.

For Mexican and Canadian professionals who meet certain occupational requirements, there are visas, called TN visas, available under the North American Free Trade Agreement.  These are valid for up to three years, but can be extended indefinitely. Similar visas are available for Australians (E-3) and Chileans and Singaporeans (H-1B1).

For investors, the United States has a system of treaties with about fifty countries that permit investors or businesspeople involved in bilateral trade to open and operate business here.  That status, called "Treaty Trader" or "Treaty Investor", is renewable every two years indefinitely and permits spouses to work and family members to go to school, including university.  It does not, however, lead to permanent residence by itself.


PERMANENT IMMIGRATION

Permanent immigration for employment is generally a three-step process:  certification from the U.S. Department of Labor, a petition by the employer, and application for permanent residence by the professional.  The government has streamlined the labor certification process, but the employer is still required to conduct general recruitment and justify denial of employment to any U.S. workers who meet the requirements of the job.  (There are exceptions for internationally prominent aliens and intra-company transferees seeking permanent status with their company in the U.S.).  As with most immigrants who are not immediate relatives of U.S. citizens, there are quotas for each of these visas, and delays of two to three years (or more) in processing time are common.

For businessmen intending to make very large investments in a U.S. business ($500,000 or $1,000,000, depending on where the business will be located), there are permanent investor visas.  Conditional residence is granted for two years, and if the investment continues to work out, the investor may obtain permanent residence.


YOU NEED PROFESSIONAL GUIDANCE

In all of these cases, both the employer and the prospective employee are undertaking serious responsibilities.  You need professional advice is choosing the right option for you or your company and following the complex government processes for obtaining the necessary visas.


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Important notice: This site presents information about U.S. immigration procedures in a general way.  It is not legal advice, which we can only give after a careful review of your specific situation.

 

Benjamin Lowe, Esq. is admitted to practice only in the state of Florida.

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