Employment Visa Eligibility FAQ

The process of getting nonimmigrant and employment visas can be daunting.  Whether you are looking to travel for leisure, business, study, or temporary employment, it is important to stay informed.

This article contains frequently asked questions (FAQs) about nonimmigrant and employment-based visas.

• What is a nonimmigrant visa?
• How long can I stay in the U.S. with a temporary visa?
• What is a work permit?
• How do U.S. employer visa sponsorships work?
• What is the I-9 Employment Eligibility Verification?
• Can I become a lawful permanent resident with an employment visa?
• Must employers complete an Employment Eligibility Verification form for each person who applies for a job?
• What is remuneration?
• Can an employee who fails to produce documentation, as required by Form I-9, get fired?
• What if ICE finds out an employee is not authorized to work, but the employer properly completed a Form I-9?
• Is the employer responsible for the authenticity of documents produced to complete Form I-9?
• What is consular processing of a nonimmigrant visa?
• Does a visa guarantee me entry into the United States?
• What are the common reasons for denial of admission at the U.S. port of entry?
• What if I wish to stay after my I-94 card date requires me to leave?
• If my foreign national fiance receives a fiance visa, does she automatically accept permanent resident status after we get married?
• How can I persuade the consul to issue a visitor visa?
• Seek legal advice

What is a nonimmigrant visa?

Non-U.S. citizens who wish to enter the United States temporarily for a specific purpose can get a nonimmigrant visa. Some examples of nonimmigrant visas include a B-2 visa for tourism, a B-1 visa for business, and an F-1 visa for academic students.

Compared with immigrant visas, which are for those intending to live in the country permanently, nonimmigrant or temporary visas are for those who plan to travel to the U.S. and stay for a limited period.

How long can I stay in the US with a temporary visa?

The type of nonimmigrant U.S. visa you have determines how long you can stay in the United States. The date stamped on your passport or your Arrival/Departure Record (Form I-94) by U.S. Customs and Border Protection (CBP) may also determine the duration of your stay. Some of the common visa types and their allowed durations are as follows:

Tourist Visas (B1/B2)

The visa holder can often stay for up to six months on every entry into the United States. After filing an application form, the visa holder can sometimes apply for an extension of a U.S. visa.

Student Visa (F1 or M1)

Student visas are valid for the duration of their academic program. An extra period is sometimes granted to those undergoing optional practice training (OPT). CBP officers often mark their passports or arrival records as "D/S, "meaning "Duration of Status."

Work Visas (H-1B, L1)

The duration of a work visa depends on the specific visa category issued to the foreign worker. For instance, H1B Visas are often valid for up to three years. L1 visas are valid for three to seven years.

Your length of stay in the U.S. depends on the type of U.S. visa and the date stamped on your passport when you arrive at the port of entry. The U.S. Customs and Border Protection may also state in your Arrival Record (Form I-94) the date and length you can stay in the country.

For more information about temporary U.S. visa categories and their validity, you can check this Temporary Visas article by FindLaw. The article details the various types of temporary nonimmigrant visas. It also specifies the validity period and estimated application fees for each visa category.

What is a work permit?

A work permit, otherwise known as an Employment Authorization Document (EAD), is a document that allows foreign nationals the right to work in the United States. You apply for it by filing Form I-765 with the U.S. Citizenship and Immigration Services (USCIS). You will need a work permit if your condition falls under one of the following:

• You can work in the U.S. because of your circumstances or immigration status. For example, if you are an asylee or a refugee and need evidence of your work authorization.
• You have a pending application as a lawful permanent resident (LPR) or a pending application for adjustment of status.
• You have a pending application for asylum or withholding of removal
• You hold a nonimmigrant status, which allows you to stay in the U.S. but does not allow you to work in the U.S. without asking for permission from the USCIS first. This applies to foreign nationals holding student visas or F-1 or M-1 visas.

You do not need to file for EAD if you are a permanent resident. Your green or permanent resident card indicates your authority to work in the United States. You also need not apply for EAD if you hold a nonimmigrant visa that allows you to work in the U.S. for a particular employer. For instance, if you have an H-1B, O, or P visa.

How do US employer visa sponsorships work?

U.S. employers often have to sponsor employment-based visas for foreign workers. Employment-based visa sponsorship happens when the U.S. employer petitions a foreign national to work in the United States under a specific type of work visa. The process and documentary requirements may vary depending on the visa category that you are applying for. But the following is a general overview of the sponsorship process.

1. Job offer and sponsorship. The foreign national gets a job offer from a U.S. employer. The job offer specifies the conditions and employment terms.
2. Labor certification. U.S. employers should get a labor certificate from the U.S. Department of Labor. Here, the U.S. employer should prove that there are no able, available, and willing U.S. workers to fill the position.
3. Submission of petition. The U.S. employer files a Petition for Nonimmigrant Worker (Form I-129) or Immigrant Petition for Alien Worker (Form I-140) for immigrant visas. They file these petitions with the USCIS.
4. Approval from the USCIS. The USCIS will review the visa petitions. If it approves, it will issue a notice of approval to the U.S. employer.
5. Visa application by the foreign worker. The foreign worker has to apply for a U.S. visa at the U.S. embassy or consulate in their home country. The process often includes filing a visa application, paying fees, and attending the visa interview.
6. Admission to the United States. If the consular officer grants the foreign worker a visa, the foreign national can travel to the United States.

What is the I-9 Employment Eligibility Verification?

The Form I-9 verifies the employee's identity and eligibility to work in the United States. All U.S. employers must complete the form for each person they hire. This applies to U.S. citizens and noncitizens.

The employee should attest to their identity and employment authorization in the form. The employee should also present documentation to the employer supporting their identification and authority to work in the United States. The employer will then check the genuineness of these documents.

Can I become a lawful permanent resident with an employment visa?

U.S. immigration laws allow foreign nationals to get lawful permanent residency through employment. Some employment-based "preference immigrant" categories include EB-1 for priority workers, EB-2 for professionals with advanced degrees or exceptional skills, and EB-3 for skilled workers and professionals. Each of these visa categories has specific requirements and eligibility for adjustment of status.

There are also options for status adjustment. If you are in the U.S. with an EB-1, EB-2, or EB-3 visa and meet specific requirements, you can also apply for an adjustment of status from nonimmigrant visa holder to a permanent resident.

For additional information about green cards for employment-based immigrants, you can check this USCIS webpage.

Do US citizens still have to prove they are eligible to work?

Yes. Like foreign nationals, U.S. citizens should still present proof of their identity and eligibility to work. They are also required to fill out Employment Eligibility Verification Form I-9. For employment eligibility, U.S. citizens include those born in:

• American Samoa (including Swains Island)
• Guam
• Northern Mariana Islands
• Puerto Rico
• U.S. Virgin Islands

The process ensures compliance with U.S. Department of Labor laws for all employees.

Must employers complete an Employment Eligibility Verification form for each person who applies for a job?

No. Employers only have to do the Employment Eligibility Verification Form for those hired. Every applicant need not fill it out. The U.S. Citizenship and Immigration Services (USCIS) defines "hired" as the point at which a new employee begins working for compensation.

What is remuneration?

Remuneration includes any form of compensation in exchange for work performed. It can be in the form of wages, food, or lodging. Employers must complete a Form I-9 for anyone hired to work in return for wages or other remuneration.

Can an employee who fails to produce documentation, as required by Form I-9, get fired?

Yes. Employees have three business days from the beginning of their employment to produce the required documents. If the employee fails to complete the form, they may face termination from employment. In cases where the employee's records were destroyed, stolen, or lost, the employee should produce a receipt of replacement documents within three days.

What if ICE finds out an employee is not authorized to work, but the employer properly completed a Form I-9?

The employer must only knowingly continue employing a person with proper authority. If the employer completes the Employment Eligibility Verification form in good faith, it will not get charged with a verification violation. If government officials can prove that the employer knows the employee's status, then the employer faces penalties.

Is the employer responsible for the authenticity of documents produced for Form I-9?

The employer must verify the authenticity of the documents to a certain extent. The employer must accept any reasonably genuine documentation that represents the new hire. To further scrutinize documentation beyond this standard could be an unfair immigration-related employment practice.

What is consular processing of a nonimmigrant visa?

Consular processing of a nonimmigrant visa is when you apply for a nonimmigrant visa at the United States embassy or consulate in your home country.

Does a visa guarantee me entry into the United States?

No. The U.S. visa issued by the U.S. Department of State Consular Office in your home country does not guarantee entry into the United States. Each person arriving at the U.S. port of entry, whether by air, land, or sea, is subject to screening and inspection. The U.S. Customs and Border Protection and immigration officers will ask you questions and check your baggage. They may also conduct biometrics checks and records checks. These immigration officers at the port of entry can allow or deny your admission into the country.

What are the common reasons for denial of admission at the US port of entry?

The U.S. immigration officers may deny entry to foreign nationals for different reasons. Some of the reasons include if they determine that the foreign national does not intend to return to their home country. They committed fraud, provided false information, or used fake passports or visas. They may also get denied entry if, upon checking, the foreign national is suspected of engaging in illegal activities that violate U.S. laws.

What if I wish to stay after my I-94 card date requires me to leave?

To stay beyond the time limit set on your I-94 card, you must file Form I-539, Application to Extend/Change Nonimmigrant Status, with the USCIS. The decision to grant or deny the request is solely in the hands of the USCIS. Be sure to allow adequate time for the USCIS to review your application for an extension.

If my foreign national fiance receives a fiance visa, does she automatically accept permanent resident status after we get married?

No. A fiance visa (K-1) is a nonimmigrant visa. After your marriage, if your new spouse wants to remain in the United States, they will need to apply for an adjustment of status to that of a permanent resident. If you have been married for less than two years, your new spouse will get only a conditional permanent resident status.

How can I persuade the consul to issue a visitor visa?

It would help to show that you have important links to your home country. These links should be strong enough to establish that you intend to return on or before your visa expires. Some essential links you can establish are family relationships, ongoing employment, financial relations, and other ties in your home country.

The consular officer may also ask you about the purpose of your trip, where you intend to stay, and how long you plan to stay in the country. The Consular Officer needs to believe that you will not use the nonimmigrant visa to gain entry into the United States with the intent to remain.

Seek Legal Advice: Consult an Immigration Law Attorney

Understanding the intricate rules of U.S. immigration laws is challenging. The U.S. government offers different visa categories. Each category has its own eligibility criteria and documentation requirements that you must follow. You will also encounter questions as you process your visa application. This is where the expertise and legal advice of an immigration attorney help.

Immigration attorneys can answer some of your questions. They can also guide you through getting temporary visas, work permits, employment-based immigrant visas, and more. Their knowledge and experience can help clarify and direct your visa application process and help you make an informed decision. Contact an immigration attorney near you.

Employment Visa Eligibility: Related Resources

If you would like to learn more about U.S. visas, you can check out some of the related articles below:

• Glossary of Visa Terms
• Temporary Visas
• The Green Card Process: Do's and Don'ts
• Employment Visas
• Understanding U.S. Visas
• Hiring Immigrant Workers