The Complete Guide to U.S. Worker's VisasStartup Law ResourcesEmployment Law, Human Resources
This is a guide to U.S. worker's visas, HB1 Visas, Temporary Workers, 4 min read
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All foreign citizens must be authorized to work legally in the United States by first obtaining a visa. The government issues several types of worker’s visas, each with its own set of requirements. This is a guide to U.S. worker's visas to help you better understand the different types of U.S. work visas.
What kind of worker are you?
A temporary worker is a non-immigrant who wishes to work in the U.S. for a specific purpose and for a temporary period of time. These workers, once admitted to the U.S., are restricted to the activity for which his or her visa was issued.
A permanent worker is an immigrant who is authorized to permanently work and live in the United States. If you are an employer wondering about how to hire a foreign worker, see this guide from U.S. Citizenship and Immigration Services (“USCIS”).
Most temporary workers must first have his or her prospective employer file a nonimmigrant petition on the worker’s behalf with U.S. Citizenship and Immigration Services. A Form I-129 can be submitted by mail or online, and the filing fee is $325.
A temporary visitor for business requires a B-1 visa unless he or she qualifies for entrance under the Visa Waiver Program. A B-1 visa is for people who are entering the United States for professional reasons, like to consult with business associates or attend a business conference.
The United States issues 140,000 immigrant visas each year to aliens who wish to immigrate based on his or her job skills and become a permanent U.S. resident, commonly referred to as a “Green Card.” These visas are issued in the chronological order in which the petitions were filed until the numerical limit for each category is maxed out. This type of visa requires specific sets of skills and are issued on a preference scale as follows. There are five categories, but the first three (and most common) are as follows:
EB-1: “For persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.” In order to be eligible to file for this type of visa, certain types of evidence must be submitted. More information on the EB-1 visa can be found on the USCIS Website.
EB-2: “For persons who are members of their professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.” This visa also requires certain types of evidence, which is specified on the USCIS Website.
EB-3: “For professionals, skilled workers, and other workers.” The evidence for this type of visa isn’t as comprehensive as the aforementioned, but there is a long backlog. More information on the EB-3 visa can be found on the USCIS Website.
Workers applying for an EB-2 or EB-3 visa must also obtain a labor certification approval from the U.S. Department of Labor.
This entails having a job offer from a U.S. employer that will serve as a sponsor. The labor certification confirms that there are insufficient available, qualified and willing U.S. workers to fill the position offered to you at the prevailing wage and that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
More information about foreign labor certification may be found on the U.S. Department of Labor’s website. Once that is received, the employer must then file a Form I-140, known as an Immigrant Petition for Alien Worker with the U.S. Citizen and Immigration Services specifying the appropriate visa category. This can be filed by mail or online, and the filing fee is $580. More information on visas for permanent workers may be found on the U.S. Citizenship and Immigration Services Website.
After USCIS approves the petition, the National Visa Center (NVC) receives it and assigns a case number. The filing date of a petition becomes the applicant’s “priority date” and visas cannot be issued until his or her priority date is reached. This can take years for certain categories.
Once the priority date meets the most recent “qualifying date” (a date determined by the government when the visa process may proceed) the NVC will send the Choice of Address and Agent form to the applicant, if an attorney or agent will be used (unless you already have an attorney, and in that case the NVC will not send you this form.). The NVC will then contact the applicant to solicit fees, and once such fees are paid, the NVC will request the necessary immigrant visa documents, which include the application, civil documents, and others. The fees will vary, and current fees can be found on the website for the U.S. Department of State.
In addition to the petition, civil documents, application, and fees, you will need a passport valid for 60 days beyond the expiration date printed on the immigrant visa, two 2x2” photographs, an affidavit of financial support, and completed medical examination forms. “Civil documents” include a birth certificate, court and prison records, marriage certificates, military records, etc.
Eventually, the NVC will schedule a visa interview, for which an applicant should prepare for by reviewing the information, preparing for a medical examination, gathering all original documents, obtaining photographs, etc. The U.S. Department of State Website has more information on the immigrant visa interview process.
Navigating this visa process is difficult, so people typically hire an attorney to ensure that everything goes smoothly. UpCounsel can connect you with an immigration attorney that can guide you or your family member through this complicated process.
Jennifer Bautista is a graduate of Hastings Law School and member of the CA Bar. She is an active writer on UpCounsel and works with the Bay Area Legal Society. Before becoming a lawyer she graduated from UCLA with a degree in Sociology. Jenn excels at legal research and legal writing.