Temporary Workers

The United States, like most countries in the world, limits employment to its citizens and to noncitizens granted permanent residency. There are limited exceptions for those people approved for special work-related visas and for groups of individuals who are given work cards (employment authorization documents or EAD) that are related to their special status. We review the most important.

Treaty Traders and Treaty Investors (E1, E2) This visa is for Treaty Traders (E1) and Treaty Investors (E2). The visa requires that there be a treaty between the US and the applicant’s home country. In addition, the E1 requires that the applicant (or business entity) can establish that there has been a regular and sustained trade between the US and the home country. The E2 requires that the individual (or business entity) is investing substantial assets in an active business that will, at a minimum, do more than merely support the investor and family. The visa is available to key personal of a treaty trader or treaty investor company.

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Temporary Workers (H) – This visa is for nonimmigrant workers, subdivided into several very distinct groups:

  • H-1B are professional workers, requiring (1) at least a bachelor’s degree or its equivalent (2) a US employer/sponsor who has a job opportunity that requires a specialty (professional) worker and (3) the employer/sponsor’s demonstrated ability to pay the worker the “prevailing wage”. It is among the most useful, most sought after, and most controversial of all nonimmigrant visas. The law sets a numerical cap on the number of new H-1B visas which can be issued each year. Most years, the number of applications submitted on the earliest possible submission date usually exceeds the number of available visas for entire fiscal year, creating a computer-generated lottery
  • H-2 are seasonal or peak workers, usually brought in for agricultural purposes (H-2A) or to provide labor for recreational businesses including winter ski resorts, summer beach resorts and the like. (H-2B). Like the H-1B, the number of available visas for H-2s are numerically capped each year. So far, the government has not resorted to a lottery system because the cap is not reached on the first available day, but many employers are shut out of the program each year. Early and accurate applications are essential.

Exchange Visitors (J)– These visas are for individuals who have been accepted into a DHS pre-approved exchange program. There are a broad range of programs available, that can include anyone from an au pair providing child care services to a US trained foreign physician. All J programs must demonstrate they will provide cultural and other benefits to the US and the individuals home country. Some require that the beneficiary must return home for two years after completion of the program.

Intracompany Transferee (L) Arguably the most valuable of all business visas because it can lead to a green card without the necessity of a labor certification. The visa, however, is reserved for international companies. In its most classic form, the visa allows a parent company abroad to transfer one of its key people to a related company in the US. (Think BMW Germany transferring its Director of Marketing to BMW USA). These “key people” can be managers or executives (L1A) or it can be a person specialized knowledge (L1B). This visa requires initial approval from USCIS before the consulate can act. The status can then be the basis of a green card application as an international executive.

Extraordinary Ability (O) This visa is for persons of national or international acclaim. The visa includes the most highly skilled performers, artists, scientists, business leaders and others of similar rank. This visa requires initial approval from USCIS before the consulate can act.

Artists, Athletes and Entertainers (P) This is the “talent” visa for athletes that are participating in a team sport or for entertainers that are coming to provide performances as part of an ensemble. This visa requires initial approval from USCIS before the consulate can act.

Employment Authorization Employment authorization can be granted when an applicant qualifies under a special program, including

  • Asylum Applicants. An asylum applicant filed within one year of entering the US will qualify for a work card upon approval of the asylum application or 150 days after the application is filed, whichever is sooner.
  • Temporary Protected Status (TPS). These are individuals from countries designated by the Attorney General whom are permitted to remain in the US temporarily due to emergency conditions at home.
  • Deferred Action for Childhood Admissions (DACA). These are “Dreamers” approved under the Obama era program.
  • Applicants for Adjustment of Status. These are applicants for green cards who are permitted by law to file within the United States.
  • Cancellation of Removal. These are individuals with “10-year hardship” cases pending in immigration court.
  • Other cases approved on an individual basis due to special circumstances.