As a general matter, US law prohibits foreign nationals from working in the country unless authorized, regardless of whether you're in the US specifically for employment or wish to work while in the US for other purposes.
In this guide, we will explore the various avenues available for working in the US by categorizing visas into 1) employment-based immigrant visas that, by their nature, are a pathway to permanent residency (and, ultimately, US citizenship), 2) employment-based non-immigrant “dual intent” visas that, under certain conditions, can eventually lead to permanent residency; and 3) strictly temporary non-immigrant work visas.
We will also briefly discuss employment authorization documents (EADs), also referred to as work permits, that allow certain foreign nationals to legally work in the US under certain conditions.
Employment-Based (EB) Immigrant Visas
Employment-based immigrant visas are designated for individuals who wish to immigrate to the US based on their job skills, investment, or employment. They are intended to encourage skilled professionals, investors, and other specific categories of individuals to immigrate to the US, and include:
- EB-1 Visas: These are for individuals with extraordinary ability in their field, outstanding professors and researchers, and multinational managers or executives who can demonstrate sustained national or international acclaim, scholarly achievements, or a high-ranking position in an international company.
- EB-2 Visas: These are for professionals with an advanced degree or its equivalent, or individuals with exceptional ability in sciences, arts, or business, who must provide proof of an advanced academic degree, exceptional ability with substantial intrinsic merit, and significant contributions to their field.
- EB-3 Visas: These are for skilled workers with at least two years of training or experience, professionals with a bachelor's degree or its equivalent, and other workers with less training or experience, and need to provide proof of relevant post-secondary education, skilled work experience, and a permanent, full-time job offer from a US employer.
- EB-4 Visas: These visas are for special immigrants, including religious workers, employees of international organizations, and special immigrant juveniles, who must provide proof of membership in a religious denomination, employment with a qualified organization, or qualification under special immigrant juvenile status.
- EB-5 Visas: These visas are for investors willing to invest $1,050,000, or $800,000, in a targeted employment area (TEA) in a new commercial enterprise that creates at least 10 full-time jobs. Proof required includes a lawful source of investment funds, active management of the enterprise, and job creation.
EB visa classifications are subject to the “preference system,” which is a framework used by the US Citizenship and Immigration Services (USCIS), to allocate employment-based immigrant visas among various categories based on the importance of their skills, job positions, and certain other criteria.
It should be noted at the outset that the application procedures can be very complicated, and the details can change a lot based on different factors and individual situations. But, at the most basic level, the abbreviated processes for employment-based visas are as follows:
- For EB-1 to EB-4 Visas, a US employer needs to file a Form I-140 (Immigrant Petition for Alien Worker) with USCIS. If it’s approved and there’s a visa number available, the beneficiary (i.e., the person for whom the petition was submitted) can then apply for a green card through consular processing (or adjust their status if they’re already in the US) by filing a Form I-485. Note that for EB-2 and EB-3 visas, the employer must obtain a Program Electronic Review Management (PERM) labor certification from the Department of Labor (DOL) before filing the I-140 petition.
- For EB-5 Visas, employer sponsorships are not required here. Instead, the investor files a Form I-526 to petition on their own behalf. If the petition is approved and a visa number is available, the investor must apply for a conditional green card through consular processing (or adjustment of status if they are already in the US). Finally, after two years, they can file a Form I-829, which, if granted, removes the two-year conditional status that is placed on their green card and grants them a permanent one.
Non-immigrant Dual Intent Visas
Non-immigrant dual intent visas are visas that allow foreign nationals to temporarily enter the US for a specific purpose, such as to work, study, or invest, while also allowing them to pursue permanent residency. This means that foreign nationals holding non-immigrant dual intent visas can apply for a green card while they are still in the US on their non-immigrant visa. In the context of employment, dual intent visas include:
- H-1B Visas: The H-1B visa is the most common type of specialty occupation visa, and they are issued to foreign nationals who work in fields that require the application of a body of highly specialized knowledge, such as computer science, engineering, mathematics, science, and medicine.
- L-1 Visas: These are for intracompany transferees moving to a US office from an affiliated foreign office. This visa has two subcategories: L-1A for managers and executives, and L-1B for employees with specialized knowledge crucial to the company's operations.
- O-1 Visas: These are for individuals who have proven extraordinary ability or achievement in their fields, whether that be in the sciences, arts, education, business, or athletics (O-1A), or in the motion picture or television industry (O-1B), and who can provide evidence of significant recognition and contributions in these fields.
While the application requirements and procedures for different types of dual-intent employment-based visas vary, the general application requirements include the following:
- A Form I-129 petition submitted by the prospective employer
- Evidence of a job offer from the employer and of the beneficiary’s qualifications
- For H-1B visa petitions, a labor condition application (LCA) from the DOL.
Temporary Work Visas
Next up are visas which allow individuals to enter the US to work on a temporary basis. These include:
- H-2A Visas: These are for agricultural workers who come to the US to perform temporary or seasonal agricultural work.
- H-2B Visas: These are for non-agricultural workers who come to the US to perform temporary or seasonal non-agricultural work based on the temporary need of a US employer.
- J-1 Visas: These are for exchange visitors who participate in work and study-based exchange programs sponsored by the US government or certain designated organizations.
E-1 Trader and E-2 Investor Visas
E-1 visas are issued to treaty traders who come to the US to engage in substantial trade between the US and their home country. E-2 visas are issued to treaty investors who come to the US to develop and direct the operations of an investment enterprise in which they have invested a substantial amount of capital.
While these visas do not provide a direct pathway to citizenship as such, certain treaty investors who invest a substantial amount of capital in a US business may be eligible to apply for a Green Card through the EB-5 investor program.
Work Permits for other Foreign Nationals
Certain non-immigrant foreign nationals can receive a work permit in the form of an employment authorization document (EAD) which allows them to legally work in the US despite the fact that they do not have an employment-based or E-treaty visa.
Examples of foreign nationals who can be eligible for an EAD include certain refugees, asylees, victims of domestic violence, Deferred Action for Childhood Arrivals (DACA) recipients, and certain spouses and children of certain foreign nationals who are in the US on certain employment-based visas.
As you can see, there are many complexities and considerations involved when obtaining an employment-based visa, each of which has unique features and requirements. Through AAL’s directory, you can connect with many attorneys with extensive experience practicing immigration law to provide you with invaluable assistance and guidance in navigating these processes.