Including H-1B, TN, L-1, and PERM
Professional workers generally including workers who are performing advanced tasks that require specific training, typically obtained through a Bachelor's degree. Professionals can also include workers with extensive experience in a certain field that would be equivalent to a Bachelor's degree.
H-1B Professional Workers
The H-1B classification is one of the most common means of obtaining employment sponsorship for college-educated or other professional employees. The H-1B classification is very flexible and relatively easy to obtain provided that the employer meet two major requirements:
- The position is a professional position. So, we look for a position that needs specific skills gained from a Bachelor's degree in a certain area, like management or engineering, or some other equivalent level of experience.
- The employee will be paid a wage or salary at a level that meets or exceeds what other workers are getting paid for the same type of work and in same geographic area. We will have to get a certification from the U.S. Department of Labor to confirm this.
There are other requirements of the H-1B visa in addition to these two main requirements. Almost all of these requirements are aimed to protect the U.S. job market. Employers must ensure they are complying with immigration laws for H-1B employees when handling compensation and benefits, leave, termination, and other HR decisions. H-1B employers also have important internal posting and documentation compliance requirements.
While this visa is highly flexible, it is currently oversubscribed: there are only 85,000 visas available every year. Right now, employers are requesting around three times the number of visas available. Right now, employers can apply for these visas once a year in April, and the Immigration Service conducts a lottery to determine which applications are accepted for processing. 20,000 visas are reserved for foreign nationals who hold a U.S. Master's degree or higher, who get two chances at the lottery.
There are exceptions the H-1B quota, and there are also ways to transitions a student who has temporary work authorization (EAD) to H-1B without a gap in employment. Many employers are increasingly seeking alternatives to H-1B, and Streff Legal excels in exploring highly specialized options, such as B-1 in lieu of H-1B, internship, L-1 company structure creation or alteration, or direct-to-Permanent-Residence routes.
H-1B is a temporary status that is capped at 6 years of total H-1B time allowed. However, H-1B also has the advantage of being a very good route to Permanent Residence. H-1B employees are allowed special benefits in seeking Permanent Residence, such as extensions beyond the 6-year limit, some employment authorization for spouses, and lightened travel restrictions, to name a few.
TN NAFTA Workers
The North American Free Trade Agreement (NAFTA) of 1994 created a visa exchange so that certain types of workers from the United States, Canada, and Mexico could work for employers across borders. U.S. employers can sponsor workers from Canada or Mexico to work in certain types of positions listed in the treaty. These include a wide variety of professional positions, though preference is generally given to technical positions. Obtaining TN visas for business, financial, or management positions can be more difficult.
TN visas are temporary and granted for short periods. However, TN status can be renewed, and there is no specific limit on the number of TN renewals. So, a worker can keep TN status for an indefinite time, but will have to renew status frequently. TN does not provide a ready route to Permanent Residence.
L-1 Visas for Intra-company Transferees
L-1 visas are for employees who have worked for a year at a company outside the U.S. that is related to a U.S. company. There are two categories, L-1A for managers and executives, and L-1B for specialized workers.
PERM Labor Certification
Labor Certification is the default way for an employer to sponsor an employee for long-term, non-temporary employment. (1) Labor Certification is often referred to as PERM (2), which is the electronic system the Department of Labor established in the mid-2000s.
Sponsorship through Labor Certification generally requires a position of employment that is similar to an H-1B: a professional or equivalent position. Like, H-1B, PERM Labor Certification requires certification by the Department of Labor. Certification for PERM requires much more than H-1B certification. In particular, the PERM Labor Certification requires that an employer perform a test of the labor market by conducting recruiting: specifically by advertising for that position in specific publications, such as two Sunday newspaper ads at a major newspaper. Employers must certify to the Department of Labor that the employer has been unable to find a U.S. worker able, qualified, and willing to fill the position.
Developing a viable petition for Permanent Residence under the PERM Labor Certification process requires a careful examinations of an employer's business and the employer's specific need for the foreign national worker to fill a particular position.
Before the recent years in which the H-1B quota became over-subscribed, PERM was often considered by employers after two or three years of employment in H-1B. PERM requires a strong employer commitment, due to the expense and HR involvement in the process. Streff Legal has increasingly counseled employer clients that a direct-to-PERM solution may be a more viable option at present, particularly considering the increased flexibility for F-1 Student graduates to keep employment authorization for longer periods and bridge the gap between F-1 OPT employment authorization and H-1B status. (3)
(1) The Immigration and Nationality Act ("INA") § 212(a)(5) requires that a person seeking admission to the United States as a Permanent Residence for work purposes must obtain Labor Certification from the U.S. Department of Labor, unless certain exceptions apply.
(2) PERM stands for Program Electronic Review Management
(3) F-1 Students, upon graduation, receive employment authorization through a benefit called Optional Practical Training (OPT). Typically, OPT is granted for one year, though it can be extended much longer for students in STEM fields (Science, Technology, Engineering, and Math). STEM extensions require an employer participate in the E-Verify program through the Department of Homeland Security (DHS). OPT also requires three types of documents on the form I-9, as well as I-9 reverificaiton. HR should review DHS Form M-274, which contains instructions on properly verifying work authorization through form I-9 and E-Verify. Please contact Streff Legal for questions about the M-274 or other work authorization questions.