Visas to Work in the USA
It’s important to stress that you cannot undertake paid employment if you have entered the US under the Visa Waiver Program (VWP) or on a B visitor visa. ‘Chancing it’ at the border is risky, and something we would strongly advise against. If you are questioned by border officials about your planned activities while in the US, and it’s deemed that you do not hold the required permission, you will be refused entry into the US. This will be recorded and will impact your future US immigration applications.
If you are studying in the US on an F or M visa and you want to stay in the US to work after you finish your studies, you will need to consider your work visa options early to avoid your current visa expiring as any new application will require time to put together, submitted and processed.
Visas to work in the USA
There are many different work visa routes to consider. Your options will be determined largely by your skills, experience and your plans while in the US.
US immigration rules distinguish between temporary and permanent visas for workers and include employment-related green cards (permanent residency), exchange visitor work and study visas, and seasonal and temporary worker visas.
Temporary work visas
To be eligible for a US work visa, you will first need to satisfy the following:
- You have an offer of qualifying employment in the US
- USCIS has approved your employment petition (I-129 form), as filed by your US employer (sponsor)
- If your visa category requires (eg H visas), you have Labor Certification by the Department of Labor
If you qualify as above you can proceed with your application for the relevant US work visa. Some examples of work visas for the US include:
If you are employed by a non-US company and are being transferred to a US branch or subsidiary, this would be under the L-1 visa category. You would need to apply either under the L-1A classification for executives or managers or L-1B for specialized knowledge workers. L1 workers can be accompanied by qualifying defendants under the L-2 visa.
Adjudicators are assessing L-1 applications more closely than ever, specifically looking to understand if and why a US-resident worker could not perform the role instead.
The O-1 visa is for those with an offer of qualifying employment in the US who can demonstrate world-class status and ability in their professional field.
There are two classifications: the O-1A visa is for those with proven extraordinary ability in fields including education, business, science and athletics; the O-1B visa is for those with extraordinary ability in the arts or television or motion industry.
An annual cap of 65,000 H1-B visas applies each year with strict rules on the application process and timings. Ordinarily, the H-1B route is oversubscribed, with more registrations received than available visas. Since the pandemic however, USCIS have conducted an unprecedented three rounds of the lottery selection process to meet the cap.
H-1B workers’ spouses can accompany the main visa holder under the H-4 visa.
H2 Seasonal Agricultural Worker visas are for foreign agricultural workers to work in the United States on a seasonal or temporary basis, where there is a shortage of domestic workers.
Exchange visitor program
The J visa is aimed at visitors who want to work and or take part in study-based exchange visitor programs in the US temporarily before returning to their country of residence.
Applicants under this route typically include au pairs, camp counselors, college students, summer workers, interns, physicians, professors, scholars, teachers, and trainees.
Running your own business
Entrepreneurs and investors who want to work for themselves in the US can make the move either on a temporary or permanent basis. Visa options and eligibility will depend on your circumstances, skills, experience, business idea and level of investment.
The E-2 visa is for investors of certain nationalities who make a substantial investment in a US-based enterprise. The E-1 visa is for traders of certain nationalities who carry out substantial trade activity with the US.
The E -1 and E-2 also allow the holder to bring their spouse and children under the age of 21 to the USA.
If you have a qualifying job or offer of employment, you may be eligible to move to the US on a permanent basis through an employment-based Green Card. For example, first preference (EB-1) is priority workers, including “foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; or certain multinational managers and executives.”
The Diversity Immigrant Visa Program (or Green Card Lottery) offers 50,000 Green Cards each year, but these are only available to nationals of certain countries, and applicants must also pass stringent background checks.
Employment authorization document
Certain categories of visas exempt holders from having to have an Employment Authorization Document (EAD) to prove their permission to work in the US. Nonimmigrant work visas such as the L-1 visa do not require the holder to have an EAD.
Note also that the rules on spouses requiring EADs were recently changed, enabling most spouses of E, H-1B and L-1 visa holders to attain permission to work without requiring an EAD.
If your only option is to apply for a work visa, proceed with care. Selecting the right visa for your circumstances is only the first step. US visa applications across all classes are heavily scrutinized, making a well-prepared and comprehensive application critical to your prospects of being granted the visa. You will need to provide sufficient evidence to the authorities to prove that your skills and experience meet the relevant eligibility and you may have to show why a resident worker could not be recruited instead. You will also need to prepare well for your visa interview. For guidance on a US work visa application for you or your employees, contact us.
This article does not constitute direct legal advice and is for informational purposes only.