Practice Areas

Immigration Options to Fill Positions

IMMIGRATION OPTIONS TO FILL POSITIONS

With the tight U.S. labor market and the international presence of many businesses, employers have increasingly been confronted with many new immigration issues. Depending upon the qualifications of the applicant and the requirements of the position, obtaining the appropriate visa for a foreign employee can be a daunting task. Although not applicable for every situation, three of the most common visa types available for alien employees are the H1B, H2B, and L visas.

The H-1B classification is available to individuals who are members of what the U.S. Immigration and Naturalization Service (INS) terms "specialty occupations." Specialty occupations are those that at a minimum require the attainment of a U.S. Bachelor's Degree, or its equivalent, for entry into the field. Positions included in the scope of specialty occupations are accountants, physicians, Scientists, lawyers, engineers and architects, although the range of occupations is potentially much broader.

The H-1B classification is valid for an initial period of three years and may be extended incrementally for an additional three years. H-1B classification authorizes employment only with the sponsoring employer and requires that employers obtain a Department of Labor certification and pay the prevailing wage for the position in question.

For positions that do not require specialized knowledge or an advanced degree, the H2-B visa may be an option. This category of visa is used to temporarily employ foreign nationals in positions for which an employer has a temporary need and for which qualified U.S. workers are unavailable. An employer must intend to employ the foreign nationals for a temporary period and its need for the skills possessed by the foreign nationals must also be temporary. Therefore, an alien worker may not temporarily fill a position for which an employer has an on-going or permanent need. To hire alien workers in H2-B status, an employer can have (1) a recurring seasonal need, (2) an intermittent need, (3) a "peak load" need, or (4) a need based on a one-time occurrence.

The initial period of stay granted under H2-B status must be reasonable in terms of the employer's needs and cannot extend beyond an initial period of one year. Extensions of stay in increments of one year are possible, but the alien employee cannot be continuously employed in the U.S. for more than three years.

For companies with international ties, one of the most beneficial employment classifications available is the L visa. The L visa is available for an intra-company transfer of specialized knowledge personnel. This visa requires that the U.S. and international organizations from which the transfer is sought be related through common ownership. Thus, the petitioning company must establish to the INS that the U.S. company is either a parent, subsidiary or affiliate branch of the overseas company. This ownership relationship may be established through annual reports, affidavits or other legal documents.

The L category offers a number of advantages. For example, these visas maybe received on an expedited basis, one may pursue permanent residency while on an L-1 visa, and for many L-1s there is a matching permanent residency category that allows obtainment of a green card. Executives and managers may stay in L status for up to seven years (an initial visa of three years with two two-year extensions), while specialized knowledge employees may stay in L status for up to five years (an initial visa of three years with one two-year extension).

In addition to these visa options, citizens of Canada or Mexico may be eligible for alternative and expedited visa service under the North American Free Trade Agreement ("NAFTA"). For more information on these visas or other immigration matters please contact Attorney of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. at (414) 291-0600.

Posted 11/15/2000