Visa and work permits for IT work in the US

January 2006

Hands holding and protecting a globeIT professionals who wish to work in the USA have several avenues open to them because of the different types of visa. In this article, Luke Simms, an attorney at law with Advocates Atlantic LLP, describes how the system works. 

The US immigration system is based on various sorts of visas that allow admission into the country. To be issued, some of these require approved work authorization, which will then allow the bearer to engage in regular employment while in the US.

The work authorization can be general – where bearers can undertake any type of work for any type of employer – or specific, where they may only conduct certain activities for one particular employer.

The type of visa issued and its validity will usually depend on the type of work authorization granted but in some cases visas are granted without such separate work authorization.

Visas are travel documents issued by a US embassy or consulate. Although they allow the holder to travel to the US and formally apply for admission into the country, they do not guarantee entry. An immigration inspector at the port of entry will make this decision.

Below is a summary of the different visas that allow temporary residency in the US. For more details, click on the links.

  • H-1B Specialty Occupation Visa: This requires a job offer from a US employer who then has to obtain work authorization for the candidate. Holders of these visas can then apply for permanent residency.
  • B-1 in lieu of H-1B Visa: Most commonly a 12-month visa for specialized and professional employees working for a non-US company. The visa holder should continue to be an employee of the foreign company, and must leave the US at the end of the stay.  Separate work authorization is not needed.
  • L-1 Intracompany Transfer Visa: If a foreign company has or plans to establish a parent, branch, subsidiary or affiliate in the USA, it can be possible to transfer executives, managers and ‘specialized knowledge employees’ to them.  Separate work authorization must be obtained for the candidate by either the US or the foreign company.  Visas are issued in increments up to five or seven years.
  • E Treaty Visas:  E-1 visa can be issued if the company has substantial trade with the US.  E-2 visa can be issued if the company or the person has invested in a US company. E visas are valid for two years but can be renewed and there is no limit to the number of renewals or extensions.

In certain cases, would-be entrants into the US can apply for permanent residency, known as the Green Card, before entering the country.  Some of these require job offers from a US employer.

All the categories below can be applied before arriving in the USA, as well as by those already living there. Again, below is a summary – click on the links for more details.

  • EB-1: Priority Workers: (i) Persons of extraordinary ability. No US employer is required, but the applicant must intend to work in his field of extraordinariness.
    (ii) Outstanding professors and researchers. Must seek to enter the US for a teaching position or a research position for a US employer.
    (iii) Multinational executives and managers Particularly suitable for L-1A visa holders, this category allows US companies to file a petition indicating the person is needed in a permanent position in the US.
  • EB-2: Members of the Professions holding Advanced Degrees or Aliens of Exceptional Ability. The would-be employer must meet labor certification requirements, demonstrating that a US national could not fill this role.
  • EB-3: Skilled Workers, Professionals and Other Workers.  The would-be employer must meet labor certification for these too.


I Visas allowing the holder to work and reside in the US temporarily:

a. H-1B Specialty Occupation Visa

This visa enables US employers to hire foreign workers in specialty occupations. Such occupations require that the holder must have a US bachelor degree or equivalent in a field related to the position. Work experience may be counted in lieu of formal academic education.

Many IT occupations are suitable specialty occupations. For example, computer programmers/analysts/software engineers would normally be found to be specialty occupations.

To see whether a particular occupation could be found to be a specialty occupation, it may be wise to refer to the US Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH). This discusses the duties associated with the occupation and the training and education necessary for entry into the occupation.

If the OOH states that a bachelor degree is required or commonly required, the occupation is likely to be found to be a specialty occupation. If the OOH states that a bachelor degree may be required for some jobs within the occupation, the nature of the duties associated with the specific position must be highly complex and specialized for the position to qualify for H-1B classification.

To search the OOH database, go to: http://www.bls.gov/oco/

A job offer from a US-based employer is required to qualify for this visa. Having made certain attestations to the Department of Labor, the employer must file a work authorization petition with the Department of Homeland Security (DHS). Once approved by the DHS, an approval notice will be issued and the candidate can use this approval notice to obtain the appropriate H-1B visa at a US consulate or embassy.

If the US employer is willing to sponsor, this visa can lead to legal permanent residency in the US. There is a cap on the number of H-1B visas that can be issued in any fiscal year (1 October to 30 September). Though pressure is mounting to increase the cap, at present, with demand far outstripping supply, the best time to submit the H-1B petition is as soon as possible after 1 April each year, when it becomes possible to submit petitions for the upcoming fiscal year.

b. B-1 in lieu of H-1B Visa

The most common B-1 in lieu of H-1B visa scenario involves a non-US company having a contract or agreement with a US client or customer to perform services in the US.

This visa is unusual as it allows the holder to work in the US, yet does not require the filing and approval of a petition to the DHS. This may in rare circumstances cause problems when the holder enters the US.

This visa is for specialized and professional employees only. In particular, it is likely that any IT professional found to be suitable for the H-1B specialty occupation classification should also normally be able to obtain the B-1 in lieu of H-1B visa.

Indeed, because this visa only involves one petition to be filed directly with the US embassy or consulate, usually with less supporting documentation than the H-1B, many candidates that could not satisfy the bachelor degree or equivalent requirement for the H-1B might be able to obtain the B-1 in lieu of H-1B visa.

While in the US, the visa holder should continue to be employees of and be salaried by the foreign company. The visa holder must return to his/her regular employment with the foreign company after the project in the US has been completed.

Generally, the visa will be issued for any period of up to 12 months (14 is normally the absolute maximum).

c. L-1 Intracompany Transfer Visa is for the transfer of executives, managers and ‘specialized knowledge employees’ between two or more related entities in the US and another country.

This visa allows the transfer of executives, managers and ‘specialized knowledge employees’ between two or more related entities in the US and another country. It may also be suitable where a non-US company wants to establish a branch in the US.

The petitioning entity (either the US or the foreign company) must qualify under immigration rules as a parent, branch, subsidiary or affiliate. The foreign and the US operations must be trading for the entire time that the L-1 employee is working in the US.

The employee to be transferred must have worked as an executive, manager or specialized knowledge employee for the foreign company for at least one year out of the last three. They must be going to the US to work for the US company in these capacities.

In particular, many IT professionals seem to transfer into the US in the specialized knowledge capacity. Here, it is important to demonstrate that the candidate holds knowledge that is not widely known outside of the company about the company’s product, service, research, equipment, techniques or management. For example, the person who developed the company’s in-house software would likely be a good specialized knowledge candidate.

Persons in technical or IT related occupations need not always use the specialized knowledge route. Indeed, a person such as a director of technical operations, whose hands-on technical duties comprise less than 50% of his/her time could likely be a good executive or managerial capacity candidate.

Executives and managers (L-1A) may remain in the US for up to seven years. Specialized knowledge employees (L-1B) may remain in the US for up to five years.

All L-1 employees may potentially become US legal permanent residents through the EB-1, EB-2 and EB-3 classifications.

d. E Treaty Visas

A person may be issued an E-1 visa if:

  • The individual or the company has the nationality of the treaty country.
  • There is substantial trade – more than 50 percent of the company’s trade – between the US and the treaty country.
  • The individual must be the principal trader, an executive, manager or an essential employee.

A person may be issued an E-2 visa if:

  • The individual or the company has the nationality of the treaty country.
  • The individual or the company has made or is in the process of making a substantial investment in a business in the US.
  • The individual must be either the principal investor, an executive, manager or an essential employee. An essential employee must be indispensable to the success of the E business. Usually, this means one that has skills/expertise that are not readily available in the US labor market.

The investment must have the capacity to generate more than enough income to provide minimal living for the investor (and his/her family) or the capacity to make a significant economic contribution.

E visas are commonly issued for two years at a time. There is no limit on the number of extensions, as long as eligibility continues and the relevant treaty remains in force.

II Visas or classifications that allow the holder to work and reside in the US permanently:

Green card status allows a foreign national to live and work in the US permanently. Green card holders should not leave the US for extended periods (more than 6 months) without first taking steps to protect the green card status. If not, the green card may later be considered abandoned.

a. EB-1: Priority Workers

Priority workers are not subject to the labor certification requirement, the process where a US employer must demonstrate that there are no US workers available to do the job and that hiring the foreign national on a permanent basis will not negatively impact the wages and working conditions of US workers.

  1. Persons of Extraordinary Ability
    This category is for individuals who are at the very top of their field. The applicant’s prominence is demonstrated through sustained national or international acclaim. Although no US employer is required, the applicant must intend to continue to work in the area of extraordinary ability in the US.
  2. Outstanding Professors and Researchers
    This category applies to those who are recognised internationally as outstanding in a specific academic area. The applicant must have at least three years experience in teaching or research in the academic area. The professor or researcher must seek to enter the US for a tenure teaching position or a research position for a US employer, whether an institution of higher education or a private employer.
  3. Multinational Executives and Managers
    Particularly suitable for L-1A visa holders, this category allows US companies to file a petition indicating the person is needed in a permanent position in the US. The candidate must have been working abroad for at least one of the past three years before entering the US in an executive or managerial capacity for an entity that is related to the US petitioner as described for the L-1 work visa category.

b. EB-2: Members of the Professions holding Advanced Degrees or Aliens of Exceptional Ability

An advanced degree is either a US master's degree (or the foreign equivalent) or an undergraduate degree (or the foreign equivalent) with five years of progressive experience in the specialty. Exceptional ability is commonly defined as a degree of expertise significantly above that ordinarily encountered.

Labor certification is required, unless it is in the US national interest to waive this. The US employer must file a petition with the DHS containing the approved labor certification as well as supporting evidence. Once this petition is approved, the person may – if in the US – change his or her status to that of a green card holder.

Only a specific number of immigrant visas or numbers are made available each year for the EB categories. Many candidates in the EB-2 and EB-3 categories presently face lengthy backlogs before being issued the immigrant visa or change their status to green card holders.

c. EB-3: Skilled Workers, Professionals and Other Workers

A professional is generally a person who has a US Bachelor's degree or equivalent. A skilled worker is someone in a position that requires at least two years of training or work experience. Other workers are persons with less than two years of training/experience.

The US employer must file the petition with the DHS with an approved labor certification and other documentary evidence. Once the petition is approved and a visa number available, the person may – if in the US – change their status to that of a green card holder.

Disclaimer

This article must not be taken as legal advice. If you intend to move to the United States, professional legal advice must be obtained

Author Note

Luke Simms is an attorney at law with Advocates Atlantic LLP, a new law firm with a dedicated business immigration department. The firm provides immigration solutions to corporate and private clients wishing to relocate to the United States. Their email address is usimmigration@europe.com.