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Temporary Worker Visas

U.S. immigration policies include provisions for temporary work visas. These visas are essential in bridging the gap between the demands of the U.S. labor market and the availability of foreign workers.

To regulate this, the U.S. Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) established guidelines to ensure fairness in the labor market. This article aims to provide a comprehensive overview of the policies for temporary workers' visas in the United States.

Congress legislated laws, particularly under the Immigration and Nationality Act (INA), to address employment-based visas with key principles in mind. The Immigration and Nationality Act has a central focus. It aims to ensure that the foreign workforce does not adversely impact U.S. workers' wages and employment conditions.

Employment Visas and Requirements

To be eligible to work in the U.S. as a temporary nonimmigrant worker, you should qualify for a visa based on the available visa category. The eligibility and the steps to apply may also vary depending on the type of visa you are applying for and the planned employment purpose. Before applying, it is important to understand your visa category and its corresponding immigration status. For a more detailed breakdown of temporary visa categories, refer to FindLaw's article about Temporary Visas.

Among the different visa classifications is the H category. This visa category covers specific occupations with certain professional qualifications:

  • H-1B Visas: Covers specialty occupations and has strict qualification requirements
  • H-1B2 Visas: Specialty occupations concerning Department of Defense cooperative research and development projects or co-production projects
  • H-1B3 Visas: Fashion models of distinguished ability and merits
  • H-2A Visas: The H-2A visa program allows U.S. employers to temporarily bring foreign agricultural workers to the U.S. to fill agricultural jobs. However, the U.S. employer should meet specific regulatory requirements before hiring foreign agricultural workers. The U.S. employer must file Form I-129 or the Petition for Nonimmigrant Workers on behalf of the foreign worker.
  • The H-2B Visas: This program allows U.S. employers to bring in foreign nationals to fill temporary nonagricultural work in the United States. However, the U.S. employer should meet specific regulatory requirements before hiring a foreign national. Like the H-2A visa, the U.S. employer should file Form I-129.

All H visa applicants must have an offer of employment from a U.S. employer. To qualify for an H-1B, a foreign national must possess highly specialized knowledge. A baseline requirement for this showing is a bachelor's or four-year college degree. In addition to these qualifications, the position must require a bachelor's degree.

In other words, it's a two-sided analysis. This means that the foreign national must possess highly specialized knowledge, and the position must demand applying that knowledge. Foreign workers such as engineers, computer programmers, teachers, physical therapists, and medical doctors are employed under the H-1B and H-1B1 visa classifications. For more information about H-1B visa application and requirements, visit this article by FindLaw.

H Visa Limitations and Potential Problems

Temporary visas in the H classification are subject to numerical limitations imposed by Congress. What this means is that receipt of a visa is not a guarantee of immediate entry into the country. If the annual limit is reached, a foreign national with a granted nonimmigrant visa may have to wait to enter the United States. In addition, the different classes of H visas have different processing times.

H1-B visas are also employer-specific. It allows foreign nationals to perform a particular job for a particular employer. So, if you wish to change jobs under an H visa, your U.S. employer should secure a new H-1B visa. You cannot simply quit your current employment and accept a new one without a new visa petition. If you accepted a new job without a visa petition, it could violate your visa terms. This could also impact your immigration status.

Special Economic and Trade Relationships for Canadian and Mexican Professional Workers

The North American Free Trade Agreement (NAFTA) created a special economic and trade relationship between Canada, Mexico, and the United States. With NAFTA, professionals from Canada and Mexico can apply for TN visas. They can apply to work as NAFTA professionals for prearranged full-time or part-time employment.

Canadian and Mexican professionals should also meet specific requirements. These requirements include qualifications in terms of education and experience in the profession. To learn more about TN Visas for NAFTA professional workers, visit this webpage by the U.S. Department of State.

Other Types of Temporary Work Visas

Other than H visas, there are other categories of temporary work visas in the country. Each serves different purposes. These visas include:

  • The L-1 visa applies to intra-company transferees, specifically, employees of a foreign company coming to work in a U.S. office of the company. Typical circumstances in which an L-1 visa is appropriate involve an executive, manager, or employee with specialized knowledge from the home office to assist with operations in the U.S. office.
  • O, P, and R visas also allow temporary employment in the United States. The O visa applies to foreign nationals with extraordinary ability in the arts, sciences, athletics, business, and education. They are those who received national or international acclaim in their field. The P visa applies to outstanding athletes, athletic teams, and entertainment groups of sustained international recognition.

Employer's Obligations: Labor Certification

Hiring foreign nationals on temporary work visas involves specific responsibility for U.S. employers. Their primary task is coordination with the U.S. Department of Labor (DOL). The DOL is an important part of the U.S. government that works with the DHS to handle employment-based immigration.

The DOL ensures that the hiring of migrant workers follows the labor standards and does not impact the local workforce. The labor certification process is the primary mechanism for achieving this responsibility. The process aims to protect U.S. workers' interests. It ensures that outsourcing labor is necessary due to the lack of available, qualified, and willing employees in the United States. The certification also ensures that the employment conditions follow the U.S. labor standards.

A U.S. employer must secure labor certification before hiring a foreign national. An exception lies for agricultural producer associations, who can file as joint employers.

There are annual caps on some types of temporary worker visas. You may learn about the annual cap through the U.S. Citizenship and Immigration Services (USCIS) webpage.

Legal Help With Temporary Work Visas

The application process to acquire a temporary employment visa in the United States is complicated. Some rules and requirements apply to one U.S. visa category but not another. Moreover, U.S. immigration laws often undergo amendments. It is important for U.S. employers and foreign workers to learn about the rights and protections the U.S. government provides.

Consulting an immigration attorney is advisable when navigating the complexities of the visa application process. They can help you understand the requirements for each visa category. Immigration attorneys offer valuable guidance through the application process. They can assist you whether you're processing your documents in your home country or the United States.

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