Introduction
In the current tight labor market, employers are more frequently making job offers to persons who are not U.S.
citizens or lawful permanent residents or persons with another type of "unrestricted authorization to work
in the United States". The significance of hiring such foreigners ("aliens" in INS jargon), for
an employer, is that it will have to obtain visas authorizing them to work for the company in the United States
before they can begin to work. In contrast, U.S. citizens, lawful permanent residents, and aliens with unrestricted
authorization to work will have documents, such as driver's licenses, unrestricted Social Security Cards or INS
Employment Authorization Cards, which allow them to work for the employer without any further government authorization.
What Is A Visa?
Prior to reviewing the different types of visas which are available to employers, three preliminary questions
need to be addressed. The first is "What is a visa?" A U.S. visa is a document issued by a U.S. Embassy
or Consulate in a foreign country, to an alien, telling the INS inspector at the "port of entry" (in
fact, usually a land border post or an airport) that the Department of State has determined that the alien should
be allowed to enter the U.S. for the purposes set forth in that visa.
What Is Authorized Stay?
The second question is "What is authorized stay?". An INS inspector at an airport or land border
post is not bound by the State Department's determination that an alien is entitled to a visa to enter the U.S.
The INS inspector is legally required to make his or her own evaluation of whether the alien is, in fact, admissible
to the U.S. If the inspector decides that the alien is admissible, he or she will annotate the alien's Form I-94
Arrival-Departure Record, which alien filled out on the airplane, with information indicating when and where the
alien entered the U.S., the visa status which the alien was granted, and the duration of the alien's "authorized
stay".
The duration of an alien's "authorized stay" is not necessarily the same as the duration of the alien's
visa. The beneficiary of a ten year, B-1/B-2 Business Visitor/Tourist visa, is generally granted an authorized
stay of six months upon entering the United States, although a shorter period may be granted if the aliens indicates
that he or she is visiting the United States for a shorter period of time. The beneficiary of a five year E-1 Treaty
Trader Visa expiring a week after the beneficiary's arrival in the United States will be granted an authorized
stay of one year, notwithstanding the expiry of the visa. When an employer audits its Form I-9 files to ensure
that its visa-beneficiary alien employees are still in valid status, it should check whether they are still within
their periods of authorized stay, not whether they are still within the terms of their visas.
Procedures For Getting A Visa
The third question is "How do you get a visa?" To obtain a visa which authorizes employment in the
United States, the employer must file a petition with the INS demonstrating how the employer and the employee fit
the requirements for a particular type of visa. The petition consists of a form I-129 with the supplement for that
type of visa, a letter from the employer explaining the case, and supporting documentation, such as proof that
the employee has at least a bachelor's degree in a particular field of study. The petitions are filed with one
of the four INS regional Service Centers: Vermont, Nebraska, Texas, or California. The petition must be filed with
the Service Center which has jurisdiction over the place where the employee will work.
The Service Centers are substantial paper processing operations. The one in Vermont has approximately 400 government
employees and 400 contractor employees. The Vermont Service Center process close to 2 million applications of various
types per year. Just keeping track of the paper flow is a major undertaking.
After the petition has been evaluated, and if it is approved, the INS issues an Approval Notice. If the alien employee
is already in the United States in a valid status which authorizes a change from one visa category to another,
the Approval Notice will effect the change of category and serve as evidence of the alien's work authorization.
If the alien is outside the United States or in the U.S. in a visa category, such as business visitor visa waiver,
which does not authorize a change of status, the alien must take the Approval Notice to a U.S. Embassy or Consulate
in a foreign country and obtain a visa.
Consular Officers are directed to generally accept the INS's determination that an alien is qualified for a visa,
but they may investigate further and substitute their judgment for that of the INS if they suspect that the application
is fraudulent. One exception to this rule relates to the E-1/E-2 Treaty Trader/Treaty Investor Visa. Until a few
years ago these visas were issued exclusively by the Department of State. Although the INS is now authorized to
adjudicate E visa applications, the State Department's embassies and consulates do not consider themselves to be
bound by INS's Approval Notices. Visa applicants with INS-approved E visa petitions are required to file a full
E visa application, using Department of State forms, which differ slightly from the INS forms. After a visa is
issued, the employee will, on entering the United States, be required to show the visa to an INS inspector, who
will determine whether the employee is admissible and annotate the employee's form I-94 with the period of authorized
stay.
Canadians under NAFTA.
Under NAFTA (the North American Free Trade Agreement), Canadians are the victims of special visa procedures
intended to facilitate trade and travel between Canada and the United States. Instead of submitting their visa
applications to a U.S. Consulate, Canadians are required to submit their applications to INS inspectors at Class
A border posts -- the major Canadian airports and border crossing points. The difficulty is that INS inspectors
are frequently more oriented towards inspection and arrest than towards adjudication. An additional benefit of
these procedures is that a Canadian is not issued a visa laminated into his or her passport. Instead, a Canadian
citizen is issued an annotated INS Form I-94 Arrival-Departure Record, which the INS inspector staples into the
Canadian's passport when he or she enters the U.S. As Canadian citizens are not required to have passports to enter
the United States, the Form I-94 may be carried loose. Needless to say, it is far easier to lose a Form I-94 than
a passport.
Visa Options
Three major categories of visas are available to an employer: (i) Visitor Visas: the B-1 Business Visitor and B-2
Tourist Visas; (ii) Temporary Work Visas; and (iii) Employment- and Family-Based Immigrant Visas. The B-1 and B-2
visas allow aliens to visit the United States but not to work or be salaried here. Someone in B-1 status can attend
business meetings, negotiate contracts, purchase goods and services that will be used outside the U.S., solicit
sales on behalf of a foreign employer, do research, participate in litigation, and make an investment or open a
business in the U.S. A B-2 tourist is allowed to visit for pleasure but not to engage in work.
Temporary Work Visas are likely to be the category of greatest use to an employer. These visas allow aliens to
work in the United States for between five and seven years, depending upon the specific visa used. The three principal
sub-categories of Temporary Work Visas which are most used by employers are the H-1B visa for professionals, the
L-1 visa for intracompany transferees, and the E-1/E-2 treaty trader/treaty investor visas.
Note: The next article in this three part series will discuss the H-1B Visa, The L-1 Intracompany
Transferee Visa, the E-1 Treaty Trader and E-2 Treaty Investor Visas and Alternatives to the Temporary Work Visas.
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