Description of Visa Types, Export Controls, and Related Employment Discrimination

Nonimmigrant Visa Classifications Under Which Employment Is Authorized

A. Students (F-1 Visa). A foreign student on F-1 visa status enrolled in or graduated from a United States college or university may apply for employment authorization to obtain practical training in his or her field of study. The INS will grant employment authorization upon application by the student with his or her foreign student adviser's authorization. Practical training authorization is endorsed on an Employment Authorization Document (EAD) issued by the INS. Generally, authorization is limited to part-time employment while school is in session (with the exception of full-time coop work-study programs) and full-time employment during vacations and following graduation, up to a maximum total period of twelve months. The student is not required to have a specific job offer at the time of the application for practical training, and the student may change employers so long as the authorization period has not expired.

B. Exchange Visitors (J-1 Visa). Foreign students, scholars, medical interns and residents, trainees and other "international visitors" enrolled in certain United States government-approved Exchange Visitor Programs are permitted to study, work, research, or otherwise gain experience in their respective fields of interest. J-1 visitors may be authorized to work while in the United States in order to gain practical experience or due to economic necessity. The practical training application for J-1 visa holders is completed by the J-1 program sponsor. Practical training for J-1 visa holders may be authorized for up to eighteen months, depending on the classification of the program they are participating in. Some J-1 visa holders are subject to a two-year foreign residence requirement, requiring them to return to their home country for two years following completion of their J-1 program. The J-1 visitor subject to this restriction must establish that he or she fulfilled the two-year foreign residence requirement before he or she will be permitted to change status or re-enter the United States on certain nonimmigrant and immigrant visas. J-1 visitors subject to the two-year foreign residence requirement may, in certain circumstances, obtain a waiver of the requirement from the United States government.

C. Temporary Workers in Specialty Occupations (H1-B Visa). H1-B visas are issued to professional foreign nationals who are coming to the United States to work temporarily in specialty occupations. The H1-B visa holder may be admitted to the United States for an initial period of three years. Extensions may be granted for a total stay of up to six years. H-1B visa holders awaiting green cards (permanent residency - applications must have been submitted more than a year prior) can extend their visa beyond the sixth year. The H1-B visa holder may legally only work for the employer who filed the H1-B petition on the alien's behalf. They can change jobs once the new employer has filed a new H1-B petition on their behalf. An alien, in the United States, may change status to H1-B from most other valid nonimmigrant visa classifications, such as an F-1 student visa, without having to leave the United States.

Additional regulations pertaining to H-1B workers include:

Employers must offer the same benefits to H-1B workers as they offer to U.S. workers
Employers must pay H-1B workers placed in non-productive status for reasons such as lack of a license or lack of work
Employers may not hire an H-1B worker or file an H-1B petition within 90 days before or after firing a US worker who holds an equivalent job
H-1B workers have whistle-blower protections
A new Labor Certification processing procedure and new forms can be viewed and printed from the Department of Labor web site.

D. Professional Workers (TN-1). A professional is defined as an alien who is a citizen of Canada or Mexico who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 of the North American Free Trade Agreement to engage in business activities at a professional level. The TN-1 (Trade NAFTA) visa is similar to the H1-B visa in that it is available to professionals entering the United States to engage in business activities with a specific employer at a professional level, (i.e. those undertakings which require that, for the successful completion, the individual has at least a baccalaureate degree or appropriate credentials demonstrating status as a professional). While the list of professions which qualify for this visa is limited, the duration of stay is initially granted for a period not to exceed one year and may be extended for periods of one year with no maximum limitation.

E. Temporary Trainees (H-3 Visa). An H-3 visa is issued to individuals who are coming to the United States at the invitation of an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The H-3 training program cannot be designed primarily to provide productive employment and the individual may not engage in any productive employment unless such employment is incidental and necessary to the training. Additionally, the trainee shall not be placed in the normal operation of the business in which workers are regularly employed. It must also be demonstrated that the proposed training is not available in the trainee's own country and that the training will benefit the H-3 visa holder in pursuing a career outside the United States.

The H-3 visa holder is admitted to the United States for the length of the training program which, in no event, may exceed two years. The H-3 trainee cannot obtain an extension, change of status or readmission to the United States after the two year training program until the trainee has resided and been physically present outside of the United States for six months. If the training is seasonal, intermittent or less than six months, this rule does not apply.

F. Intracompany Transferees (L-1 Visa). Certain foreign employees of qualifying foreign companies may be transferred temporarily to the United States to work for a related U.S. company. The L-1 visa is available to companies that have been doing business in the United States for more than one year. It can be extended for a period of stay of up to seven years for L-1 transferees employed in managerial or executive capacities, and up to five years for those employed in a specialized knowledge capacity. For companies newly established in the United States, the initial L-1 petition will be granted for a period of one year. The L-1 visa holder is not permitted to accept employment with a different employer, unless a new L-1 petition filed by the new employer is approved by the INS. An alien, in the United States, may change status to L-1 from most other valid nonimmigrant visa classifications, such as a B-1 business visitor visa, without having to leave the United States. However, this is not a recommended procedure.

G. Treaty Trader (E-1 Visa) And Treaty Investor (E-2 Visa). These nonimmigrant classifications are based on a treaty between the U.S. and the country of the alien's nationality in order to promote trade between the treaty countries or to foster substantial investment. These nonimmigrant visas are granted only to nationals of a treaty country. An E-1 or E-2 nonimmigrant visa holder is authorized to work only for the sponsoring company. This visa is valid for an initial period of 2 years, but can be extended in increments of 2 years for an unlimited amount of time.

Nonimmigrant Visas Under Which Employment Is Not Authorized

A. Visitors For Business (B-1 Visa). Foreign employees who work abroad may be sent by their (foreign) employers to the United States for consultation, training and other business activities which enhance the business of the foreign employer. The B-1 visa holder is generally not authorized to carry out productive work in the United States. He/she is permitted to perform certain types of "nonproductive" services for an employer in the United States. The B-1 visa holder cannot be paid a salary in the United States. The B-1 visa holder's salary should continue to be paid by the foreign employer. The initial period of admission on a B-1 visa is up to six months and, depending upon the stated need, may be extended.

B. Visitors for Pleasure (B-2 Visa). Foreign nationals may enter the United States for a temporary period as a Visitor for Pleasure under the B-2 visa category to engage in such activities of a recreational character, including tourism, amusement, visits with friends and relatives, rest, and medical treatment. B-2 visitors may also attend and participate in conferences with fraternal, social or service organizations. Under no circumstances may a B-2 visitor engage in any type of work or employment in the United States. This is the case even where the remuneration is only room, board and pocket change. The initial period of admission on a B-2 visa is up to six months and, depending upon the stated need, may be extended.

C. Visa Waiver. The Visa Waiver Program was created to permit nationals of designated countries to enter the United States as business visitors or tourists without initially obtaining a B-1 or B-2 visa stamp at a U.S. consular post, provided they meet basic requirements with regard to eligibility for admission.

Nationals of the countries listed below must possess a passport issued by the country of origin (and valid for six months beyond the anticipated return date), and a return trip ticket. They must be entering the United States for short-term business or tourist visits and they may not change or extend their stay while in the United States. An INS Admissions Officer will grant a stay period of up to 90 days. Visa waiver visitors may not undertake productive employment on behalf of a U.S. employer while they are in the United States.

Nationals of the following countries are eligible to enter the United States under the visa waiver program:

Andorra France Liechtenstein San Marino

Austalia Germany Lithuania Singapore

Austria Greece Luxembourg Slovakia

Belgium Hungary Malta Slovenia

Brunei Iceland Monaco South Korea

Czech Republic Ireland the Netherlands Spain

Denmark Italy New Zeland Sweden

Estonia Japan Norway Switzerland

Finland Latvia Portugal United Kingdom

Immigrant Visas (Permanent Resident Status)

An alien lawfully admitted to the United States as a permanent resident is authorized to work. Evidence of permanent resident status is the "green card" (Alien Registration Receipt Card - Form I-551.).

An alien who is in the process of applying for permanent resident status in the United States (i.e., who has filed an application for such status with the Immigration and Naturalization Service "INS") may be authorized to work. Generally, the INS will issue Employment Authorization Documents "EADs" to the applicant, his or her spouse, and their children over age 16, at the time the alien and his or her family members apply for adjustment of status to permanent residence in the United States.

Asylum Applicants And Refugees

An alien who is in the process of applying for asylum in the United States may apply for authorization to work. An asylum applicant will generally be able to present an entry permit, Form I-94, with an employment authorization stamp on it and an Employment Authorization Document ("EAD") issued by the INS. This means that a non-frivolous application for asylum has been filed with and is under consideration by the INS.

An alien granted asylum in the United States or admitted as a refugee is authorized to work in the United States and will be able to present an EAD.

Export Controls

Many products produced in the U.S. are subject to export controls, particularly technology products (software and hardware). Check with the Contracts or Legal Departments to determine which, if any, products are subject to Export Administration Regulations (EAR). If the item falls under EAR, an export license must be obtained by the Department of Commerce (DoC) before the item can be shipped abroad. Products deemed to be related to national defense, (e.g. defense electronics, encryption software, etc.) require an export license issued by the Department of State (DoS).

Export Administration Regulations define an export as an actual shipment or transmission out of the United States of items subject to EAR, or a release of technology or software subject to EAR to a foreign national in the United States. "Such release is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act."

As a result, EAR require employers to obtain an export license for the foreign national from either the DoS or the DoC (whichever is applicable), before the foreign national begins working on a product that is subject to EAR.

Obtaining an export license is time consuming. Generally, obtaining a license from the DoC is faster and easier than obtaining a license from the DoS. A 90-day wait is not uncommon for the DoC, but it may extend beyond 90 days if the DoC has questions on the application. Licenses from the DoS can take months to years.

License applications require the following documents:

A clean copy of the foreign national's resume
A copy of their passport and visa
A description of the job to be performed

For Department of State license applications, the employer must present a "Technology Control Plan" to cover the employee and the job. (The DoS may limit the foreign national's exposure to technology which can limit their ability to do the job and can be difficult for the employer to track and monitor.)

All licenses have an expiration period and must be renewed.

Department of Commerce licenses have a two (2) year validity period
Department of State licenses have a four (4) year validity period

Before hiring a foreign national, the employer must be aware of:

The product/data/technology to which they will be exposed
Whether the product/data/technology requires an export license
The foreign national's country of origin (foreign nationals from countries in which the U.S. has an embargo cannot obtain a license)

Licensing issues continue to evolve based upon:

Changing export laws
Rapidly changing technology
International politics
Employees changing jobs/companies

Employment Discrimination

U.S. regulations prohibit discrimination in employment based on national origin, ancestry, and country of citizenship. Citizens and intending citizens are the only ones protected from citizenship status discrimination. Intending citizens are defined as follows:

Lawfully admitted for permanent residence; or
Granted temporary resident status under the legalization program which offers amnesty for an alien who resided unlawfully in the U.S. since January 1, 1982; or
Admitted as a refugee; or
Granted asylum

and show evidence of citizenship intention by filing an INS Form I-772, entitled 'Declaration of Intending Citizen'. Form I-772 is to be filed with the local INS office before filing the citizenship status discrimination charge.

Top of Page

Hiring and Onboarding

By Auxillium West HR Software