In this article, we provide an 'easy-to-follow-guide' (not legal advice) on our understanding of the visa requirements to work and remain in the US. 

 

If you intend to work in the US temporarily, you can apply for a Temporary (Non-Immigrant) Worker visa. If you plan on living and working in the US indefinitely, you can apply for an Employment-based Immigrant visa (Green Card).

 

A Green Card (the card is actually green!), officially known as a Permanent Resident Card, allows a non-US citizen to live and work anywhere in the US and then qualify for citizenship after 3 or 5 years.

 

Temporary Worker (Non-immigrant)

Listed below are the visa classifications for temporary workers in the US that you can apply to.

 

Visa Classification

Definition

E1, E2

Treaty trader or treaty investor

F-1

Foreign academic student – when certain conditions are met

H-1B, H-1C, H-2A, H-2B, H-3

Temporary Worker

I

Foreign information media representative

J-1

Exchange visitor – when certain conditions are met

K-1

Fiancé of a US citizen

L-1

Intra-company transferee

M-1

Foreign vocational student

O-1, O-2

Temporary worker in the sciences

P-1, P-2, P-3

Temporary worker in the arts, athletics in an exchange or cultural program

Q-1, Q-2

Cultural exchange visitor

R-1

Temporary religious worker with a non-profit organisation

TN

Professional business worker admitted under NAFTA

 

The most common routes, available to all nationals, are through either a H-1B or L-1 Visa. If you are a Canadian/Mexican citizen, you can apply for a TN visa instead. 

 

If you are an international student in the US on an F-1 visa, you can apply for Optional Practical Training (OPT) Visa, to work 12 months after graduating in a job that relates to your degree. If you studied a STEM subject, you could have a 24-month extension to your OPT. You will need to leave the US if you have not secured another valid work visa when your OPT expires 

 

H-1B Visa:

H-1B allows US employers to temporarily employ foreign workers for jobs that require highly-specialised knowledge or a bachelor’s degree (or higher) in the specific field of occupation.

 

To begin an application, your employer (your sponsor) must complete an electronic registration that requires basic information and pay a $10 H-1B registration fee. For this year, registrations can be completed between March 1 to March 20.

 

By March 31, you should be notified whether successful under random selection (H-1B visa lottery). If selected, your employer has 90 days from April 1 to file the Labor Condition Application (LCA) with the Department of Labor (DOL), prepare all relevant forms and file the H-1B petition. Once the petition is filed, it must be approved by the USCIS (US Citizen Immigration Service) for a visa to be issued and effective from Oct 1.

 

The program has an annual cap of 65,000 visas with an extra 20,000 petitions filed for individuals who have a master’s degree (or higher) who are exempt from the normal cap. Registrations for H-1B are heavily over-subscribed – 308,613 registrations were received for last year.

 

There is a possibility that if the 85,000 cap is not reached from the initial selection of applicants as petitions are denied or never submitted, you may be selected at later dates in additional draws.

 

If you’re from Singapore or Chile, you can apply to the H-1B1 program instead. Of the 65,000-visa available under H-1B, 1,400 petitions are reserved for Chile and 5,400 for Singapore.

 

If you’re from Australia, you can apply for an E-3 visa that is exempt from the H-1B cap but has an annual cap for 10,500 visas for Australians only. An LCA is only required as part of the application – a petition does not need to be submitted.

 

L-1 Visa:

This can be split into L-1A Intracompany transferee Executive/Manager or L-1B Intracompany Transferee Specialized Knowledge.

 

L-1A allows a US employer to transfer an executive or manager from one of its affiliated foreign offices to its US office or allow an executive/manager from a foreign company to establish a US office if it does not yet have one.

 

L-1B allows a US employer to transfer an employee with specialised knowledge in its organisation’s field from one of its affiliated foreign offices to its US office or allow the employee from a foreign company to help establish a US office if it does not yet have one.

 

To begin an application, a Form DS-160 is submitted by your employer. They then should file the L-1 petition to be approved by the USCIS – this must be filed at least 45 days before your start date and no more than 6 months before.

 

Below are the requirements for H-1B and L-1:

Visa

Job/Employer Requirements

 

Prospective Employee Requirements

H-1B

Theoretical and practical application of highly specialised knowledge.

 

Hold a bachelor’s degree (or higher) from an accredited university; or

 

Attainment of a bachelor’s degree (or higher) in the speciality as minimum entry for the job.

 

Hold an unrestricted state license, registration or certificate that allows to fully practice the speciality occupation.

L-1

Have a qualifying relationship to a foreign company (e.g., parent company, subsidiary etc)

 

Have been working for the foreign organisation for one continuous year within the three years immediately before they have been admitted to the US.

Currently/will be doing business as an employer in the US and at least one other country during the employee’s stay in the US with an L-1.

 

Be seeking to work in the US in an executive/managerial capacity (L-1A) or within a specialised knowledge capacity (L-1B) for the same employer/organisation.

 

Both H-B1 and L-1 only permit a maximum initial stay of 3 years however can be extended further. What’s different about these visas from others is that both are dual-intent – foreign workers can also apply for a Green Card during their stay in the US whilst on these visas. This is the route most people take since Green Card applications are long and expensive. Your employer can sponsor you to transfer from a H-1B to a Green Card, however when they start the application depends on company policy.

 

Permanent Worker (Immigrant)

Roughly 140,000 Green Cards are available each year for non-citizens to immigrate based on their job skills.

 

Listed below are the immigrant visa preferences that you can apply to:

 

Preferences

General Description

Labor Certification

First Preference EB-1

Persons of extraordinary ability in sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

No

Second Preference EB-2

Persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

Yes (Unless a National Interest Waiver obtained)

Third Preference EB-3

Professionals, skilled workers, and other workers.

Yes

Fourth Preference EB-4

For ‘special immigrants’ including certain religious workers, employees of US foreign service posts, retired employees of international organisations, noncitizen minors who are wards of courts in the US, and other classes of noncitizens.

No

Fifth Preference EB-5

For business investors who invest $1.8m or $900,000 (if investment made in targeted employment area) in a new commercial enterprise that employs at least 10 full-time US workers.

No

 

Most typical preferences are EB-2 and EB-3 for master’s degree (and above) and bachelor’s degree holders respectively. Applications to Green Cards involve a queue and the waiting time for approval will vary depending on your nationality. For example, Indians have the longest queue for EB-3 with applications submitted in 2012 only being processed now. A bulletin is released each month by the Department of State showing which applications can be moved forward.

 

Diversity Visa Program (Green Card Lottery)

The Diversity Visa Program (Green Card lottery) provides roughly 50,000 visas each year to a class of people (diversity immigrants) from countries with historically low rates of immigration to the US.

 

The DV program is a 2 year process. For example applicants for a 2022 Diversity Visa will have made their application between 7th Oct and 10th Nov 2020. As we write this article, the US Dept of State has not announced the registration period for 2024 Diversity Visas.   

 

Process 

You apply during the registration period. All applicants are entered into a random selection process, like a lottery, with results typically announced 6 months later. Selection in the lottery provides the opportunity to apply for a Diversity Visa. Success is not guaranteed however as you must meet the eligibility requirements.

 

Eligibility is dependent on your nationality and the rate of immigration to the US from your country. This can change from year to year based on migration patterns. The Dept. of State publishes a list of excluded countries which you should probably check before you start this process.

 

Also, you must have at least either:

 

  • High school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or
  • 2 years of qualifying work experience within past 5 years in a job that requires at least 2 years training/experience.

The DV program is extremely popular, with millions of applications from around the world. The 2022 Green Card lottery is for DV-2024 and registration will open later this year.