TEMPORARY OR PERMANENT RESIDENCY
People who wish to travel to the United States for reasons of employment are divided into two main categories, immigrant and non-immigrant, or permanent and temporary.
Those applying for immigrant visas, commonly referred to as 'green cards', wish to remain in the U.S. permanently. The correct term for 'green card' is lawful permanent residency. There are many different routes to an employment based 'green card', none simple or speedy. Expert representation is essential.
Those persons not wishing to remain permanently in the United States may, where eligible, obtain non-immigrant or temporary visas, upon expiration of which they must leave the U.S. unless they have become lawful permanent residents in the meantime.
The following is a list of the most common temporary visas:
B Visa for Visitors for Business (B-1) or Pleasure (B-2)
Also known as a visitor's visa, the B visa allows a person to enter the US temporarily
for business, (B-1), or for pleasure or medical consultation/treatment, (B-2).
It is similar to the visa waiver program, though application to the U.S. embassy
of the applicant's residence and interview are required. The visa may be granted
for a period of up to 6 months or more, though this will vary from case to
case and from embassy to embassy. Regarding visitors for business, it is advisable
to familiarize oneself with the categories of allowable business activities
to avoid overstepping the mark and perhaps jeopardizing an appropriate work
visa application down the line.
E Visas for Traders (E-1) and Investors (E-2)
Treaty Trader and Treaty Investor visas are available to certain individuals and companies from countries which maintain treaties of friendship and commerce with the U.S., including Ireland and UK, where such individual or company has substantially traded (E-1) or substantially invested (E-2) in the U.S.
For a list of countries included, see
http://travel.state.gov/visa/reciprocity/list_of_treaty_countries.htm
The principal trader or investor and executive, managerial and essential skills workers may be eligible for E visas.
H-1B Professional Visa
The H1-B visa is for professionals - generally bachelor's degree holders.
The number of H-1-B visas is limited by law to 65,000 per year. It is permissible to file H-1B applications in April each year, for a work start date of October. In 2007, the H-1B cap was reached on the very first day of permissible filing, April 1st, with many thousands of applications simply not making the cut. It is advisable to petition for H-1B visas as soon as possible - April 1st, 2008 - to have any hope of being included in the next available quota.
Employees of institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.
There are also 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. Such persons are statutorily exempted from the annual cap.
J-1 Trainee/Internship Visa
The J-1 visa is a temporary training or internship visa for foreign nationals who wish train in their chosen career path in the U.S. for a maximum of 18 months. The purpose of this visa is to foster understanding and share business models between the U.S. and other countries so an underlying requirement is that candidates return to their home country at the end of the training/internship period. Contrary to popular perception, one may train at any time during one's career, so this visa is not limited to newly qualified or young people. A college degree is not necessary and there is no annual quota for this visa category.
L-1 Intra-Company Transfer Visa
The L-1 intra-company transfer visa allows executives and managers, (L-1A), and employees with specialized knowledge, (L-1B), to transfer from the foreign company to a U.S. branch, subsidiary or affiliated company to perform temporary services as executive, manager or specialized knowledge worker.
The applicant must have been employed by the non-U.S. company as an executive, manager, or specialized skill worker for a minimum of twelve months during the three years immediately preceding the filing of the L-1 visa petition.
O Visas for Artists, Motion Picture/TV, and Athletes
The O category is for highly talented or acclaimed foreign nationals in the sciences, education, arts and entertainment, motion picture and TV, and may also be available to high-end chefs and business people lacking professional degrees. Different standards apply depending on area of acclaim but extraordinary ability or achievement must be "recognized in the field through extensive documentation" for all types of O-1 visa. O'Brien & Associates is proud to have assisted many talented artists in obtaining O-1 visas to work in the U.S.
PERMANENT RESIDENCY - 'GREEN CARD'
Family Based
Family based lawful permanent residence ('green card') is available to immediate relatives of U.S. citizens, including spouses, unmarried children under 21, parents of U.S. citizens over 21, and spouses of deceased U.S. citizens in certain circumstances.
It is also available to preference immigrants, in order of preference, 1st, unmarried children of U.S. citizens over 21 years, 2nd , spouses or children of 'green card' holders, 3rd, married children of U.S. citizens, and 4th, siblings of U.S. citizens over 21 years.
The process is reasonably fast for immediate relatives but takes many years for preference immigrants.
Employment Based
There are 5 categories of employment based 'green card':
- First Preference, Priority Workers, (EB-1), includes Persons of Extraordinary
Ability, Outstanding Professors and Researchers, and Multinational Executives
and Managers
- Second Preference, (EB-2), Advanced Degree or Exceptional Ability Aliens
- Third Preference, (EB-3), Skilled Workers, Professionals and Other Workers
- Fourth Preference, (EB-4), Special Immigrants, including Religious Workers,
Returning Immigrants and others
- Fifth Preference, (EB-5), Investment and job creation
Unless labor certification (known as PERM) can be bypassed by filing a first preference petition, there are 3 stages to obtaining a 'green card':
- Labor Certification, now called PERM
- Immigrant Visa Petition; and
- Adjustment of Status (if physically in the U.S.) or Consular Processing
(if abroad)
Obtaining an employment based 'green card' is a complex, lengthy and expensive process but unavoidable for those wishing to work and live in the U.S. permanently. Expert legal representation is essential.
Please contact us for further information. We look forward to being of assistance.
