Employment Visas: Working in The United States

If you plan to visit the United States but do not intend to live within the county permanently, you will still need documentation authorizing your presence in the country. A visa is a type of authorization that grants nonimmigrant travelers the ability to remain in California and the United States for a brief period. Visas do not give foreign workers legal residence status or citizenship in the United States. However, they provide employment opportunities in the United States that workers may not have in their home countries.

Types of Employment Visas for Nonimmigrants

There are several employment visas for nonimmigrants, two of which include H-1B and H-2B visas. Unlike other visas, employment visas require employers, rather than foreign employees, to submit applications and complete a considerable amount of paperwork. Immigration law is known for being very complex, but the immigration attorneys at The Justice Firm have the experience to help employers file the correct paperwork the first time.

H-1B Visas for Specialty Occupations, Department of Defense Research and Development Projects, and Fashion Models

As the name suggests, H-1B visas are required for specific foreign workers who have employment obligations in the United States for the following types of employment:

• Specialty occupations;
• Department of Defense (“DOD”) research and development; and
• Fashion models.

Specialty Occupations

To apply for an H-1B visa for a specialty occupation, the foreign employee must have theoretical and practical application of a type of highly specialized knowledge and a bachelor’s degree. Additionally, the jobs themselves must meet one of the following criteria:

• The job usually requires a bachelor’s degree or higher;
• The degree required by the job is usually found in the industry, or the job is so complex that someone can only do it with a specialized degree;
• The employer typically requires a degree for the job; or
• The knowledge required to complete the job’s duties is associated with a degree of some kind.

Employees must also have special education or a license to complete the specialized work.

Although specialty occupations usually require a bachelor’s degree or higher, the law makes room for specialty occupations that may not necessarily require a bachelor’s degree. In these cases, the employee must have the comparable experience required by the specific occupation.

DOD Research and Development

H-1B2 visas pertain to foreign employees who have work projects in research and development with the DOD, and the work is located in the United States. The employee must have a bachelor’s degree or higher. Additionally, the visa application requires one of the following:

• Verification letter from the appropriate DOD project manager for the particular project;
• General description of the employee’s duties on the project and dates of employment; or
• A statement with names of employees on the project with their dates of employment and names of employees whose employment on the project ended within the past year.

Like specialty occupations, research and development work with the DOD requires that employees have the education or skills needed to perform the job but may not necessarily require a bachelor’s degree or higher to have the necessary skills.

Fashion Models

H-1B3 visas pertain to specific foreign fashion models who have work obligations in the United States. To qualify for an H-1B3 visa, the model must meet the following criteria:

1. The job or services must require a fashion model of prominence; and
2. A model of distinguished merit and ability.

If you are a California employer in the Los Angeles, Riverside, Orange, Ventura, or San Bernadino counties and you would like to help a foreign employee work in a specialty occupation, DOD research, and development, or as a fashion model, the immigration attorneys at The Justice Firm can answer your questions about the visa application process.

Application Process for H-1B Visas

The application process for H-1B visas should not be underestimated. The process is typically time-consuming, lengthy, and includes the employer and potential employee working together to obtain the visa. Employers and potential employees must follow all steps, and completing them correctly the first time will significantly reduce the potential for delays and frustrations.

Employers’ Obligations

Applying for H-1B and H-1B3 visas requires the employer and employee to complete several steps. Employers must become certified by the Department of Labor. A certification requires employers to submit a Labor Condition Application. Employers provide several attestations regarding employee wages, working conditions, and strikes in these applications. The employer must either notify a union if it applies or post the certified application at the place of employment. H-1B2 visas do not require that employers become certified with the Department of Labor. Regardless of the visa type, the employer must file Form I-129 to U.S. Citizenship and Immigration Services.

Employees’ Obligations

Employees are required to complete two steps. Once Form I-129 has been approved, employees must apply for a visa with the U.S. Department of State at a U.S. Embassy or consulate in their home countries. Employees must also apply with U.S. Customs and Border Control for entry into the United States.

Length of Stay and Extensions for H-1B and H-1B3 Visas

Fashion models and workers in specialty occupations are eligible to remain in the United States for up to three years, but stays can be extended to six years. Applying for extensions is similar to applying for an initial H-1B or H-1B3 visa. An employer is required to submit a new Form I-129 for each employee.

Extending beyond the six-year limitation is difficult and often limited to employees hoping to obtain permanent legal residence. Suppose you are an employer or current employee in the United States and would like information about obtaining permanent legal residency. In that case, it is best to consult a qualified immigration attorney to assist with the process.

H-2b Visas for Temporary Non-Agricultural Workers

The COVID-19 pandemic has led to a significant labor shortage in the United States. Like in many states, California employers are scrambling to find temporary workers to perform the jobs that U.S. employees cannot or choose not to perform. Hiring foreign employees has been a partial solution to worker shortage. However, the pandemic has led to other practical problems, including a severe backlog in reviewing and granting work visa applications. Many United States embassies and consulates worldwide temporarily closed their doors or reduced their hours, leaving many employers and potential employees unable to apply for work in the United States.

Although the backlog is being addressed, the process is slower than it otherwise would be under normal, non-pandemic circumstances. At The Justice Firm, our immigration attorneys are helping our California clients think ahead about their employment needs, which can reduce their wait times and fill their employment needs.

Showing Temporary Need

Unlike H-1B visas, H-2B visas can pertain to many more types of jobs. H-2B visas usually include labor-intensive but temporary jobs in the hospitality, construction, retail, and warehousing industries. If you are an employer, your job needs must meet several requirements before you can hire foreign workers. To apply, you must show that:

1. There are not currently enough U.S. workers available who are able, willing, or qualified to complete your job needs;
2. Employing foreign workers under an H-2B visa will not be harmful to U.S. employees in similar positions; and
3. Your job needs for foreign employees are temporary, even if the job itself is not temporary.
4. To show that your need for foreign employees is temporary, you must show that the need is either a one-time occurrence or that the work is seasonal. One-time occurrences include:
5. Your job needs or work that is usually permanent, but a temporary event of short duration has created the need for a temporary worker; or
6. You have not employed workers to complete the work in the past, and you will not need workers to complete the work in the future.

Examples of temporary jobs might include seasonal work at ski resorts, amusement parks, cabin resorts, summer camps, or construction projects in northern climates. Employers who usually have permanent jobs in places like restaurants, manufacturing plants, automotive or mechanic shops, and other service or labor-based industries can also use this type of visa to hire temporary workers.

Peak Load or Intermittent Needs

Some employers may not define their work needs as “seasonal.” Instead, their needs might be associated with a peak load or intermittent needs. Employers with needs not qualifying as seasonal can show a “peak load” need must prove:

1. Permanent workers are typically hired for the type of work at the place of employment;
2. A need exists to supplement permanent staff due to the temporary needs; and
3. The temporary employees will not become part of the permanent staff.

To prove intermittent needs, an employer must show that:

1. The employer has not typically hired full-time or permanent staff to complete the work; and
2. Temporary workers are occasionally needed to perform a particular job.

Confusing Agricultural With Non-Agricultural Work

H-2B visas give employers considerable leeway to apply for foreign employees if the work is temporary. As the name implies, H-2B visas do not apply to agricultural jobs. It can be challenging to determine whether a job requires an H-2B visa or another employment visa. If you are an employer and are unsure which visa applies to your job needs, don’t hesitate to contact The Justice Firm locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714 or visit us at our website. Our immigration attorneys serve clients in Los Angeles, Riverside, Orange, Ventura, and San Bernadino counties.

Requirements for Employers Before Seeking Foreign Workers

The United States federal government prefers hiring U.S.-based employees rather than foreign employees. Because of this, the Department of Labor has additional requirements for employers before they can recruit foreign employees. These requirements ensure that there are not already U.S. employees available to fill the employer’s current needs.

A brief list of these additional requirements includes:

• Accepting U.S. worker referrals until 21 days before the date of employment needs;
• Phone interviews for both foreign and U.S. employees, if the employer requires an interview;
• Providing a detailed recruitment report to The Office of Foreign Labor Certification. The report must include the names and contact information of all U.S. applicants, whether they were accepted or rejected for the position, and work-related reasons for rejections;
• Extensive rules with advertising generally and in newspapers;
• Obligations to contact former U.S. employees before hiring H-2B workers; and
• Obligations to bargaining units if the job is normally guided by a union.

Although the above list may seem tedious, employers who do not follow the laws and regulations under the Department of Labor are subject to penalties. To avoid problems with the law, it is best to follow the requirements and submit all necessary documents correctly the first time.

Application Process for H-2b Visas

As with H-1B visas, California employers and potential foreign employees have steps to complete before an employee can be admitted into California or the United States for work.

Employer’s Obligations

Before the employee can take any actions, a California employer must apply for a temporary labor certification with the U.S. Department of Labor. After receiving the certificate, the employer must submit Form I-129 to U.S. Citizenship and Immigration Services.

Employees’ Obligations

Employees are required to complete two steps. Once Form I-129 has been approved, employees must first apply for a visa with the U.S. Department of State at a U.S. Embassy or consulate in their home countries. Second, employees must also apply with U.S. Customs and Border Control for entry into the United States. In countries where H-2B visas are not required, employees only need to seek admission into the United States at a Customs and Border Control place of entry.

Period of Stay

The labor certification generally determines the length of an employee’s visa. However, H-2B visas can permit employees to remain in the United States for up to three years. After three years, the employee must leave the United States for at least three months before returning to the United States under a new H-2B visa.

Hiring a California Immigration Attorney

If you are ready to apply for a visitor visa or are an employer trying to help an employee obtain a visa, please contact The Justice Firm locally at 310-914-2444 or at our Toll-Free number at 866-695-6714, or visit us at our website. Our immigration attorneys serve clients in Los Angeles, Riverside, Orange, Ventura, and San Bernadino counties.