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Immigration and Foreign Employment Issues The International Trade Resource Center (ITRC) receives many inquiries from clients relative to the hiring of foreign employees and/or professional interns. The federal immigration law serves as a gatekeeper for the nation's border; it determines who may enter, how long they may stay and when they must leave. It can be challenging to try and unravel the immigration law and determine which category will best suit your specific situation. This section will provide you with an overview of visa requirements and restrictions as set forth by the U.S. government. The information given to you on these pages serves solely as an introduction to the subject and does not replace any information that you should obtain from a professional in the immigration field. We have also provided you with a resource of websites to consult for further information. Immigration Contacts in the State of New Hampshire New Hampshire organizations providing free or low cost immigration assistance:
Ed MacNeil - Consultant
International Institute of New Hampshire
New Hampshire Catholic Charities
New Hampshire Office of Energy & Community Services
The International Center Law Firms/Members of American Immigration Lawyers Association (AILA):
Abramson, O'Leary & Smith
Bander, Fox-Isicoff & Associates, P.A.
Goff & Wilson
McLane, Graf, Raulerson
Mona T. Movafaghi & Randall A. Drew
New Hampshire Catholic Charities
Orr & Reno
Sheehan Phinney Bass + Green Visa Information Most Asked About Visa Categories For Temporary Workers The Immigration and Nationality Act provides several categories of non-immigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications, which are shown in parentheses. H-1B classification applies to people in specialty occupations which require the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor (65,000). This classification also applies to Government-to-Government research and development or co-production projects administered by the Department of Defense (100); H-2A classification applies to temporary or seasonal agricultural workers; H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000); H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50); L classification applies to intra-company transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity; O-1 classification applies to people who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field; O-2 classification applies to people accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance; P-1 classification applies to individual or team athletes, or members of an entertainment group who are internationally recognized (25,000); P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program; P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country. Petitions In order to be considered as a non-immigrant under the above classifications, the applicant's prospective employer or agent must file Form I-129, Petition for Non-immigrant Worker, with the United States Immigration and Naturalization Service (INS). Once approved, the employer or agent is sent a notice of approval, Form I-797. It should be noted that the approval of a petition shall not guarantee visa issuance to an applicant found to be ineligible under provisions of the Immigration and Nationality Act. Visa Ineligibility/Waiver The non-immigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances, an applicant who is ineligible, but who is otherwise properly classifiable as a temporary worker, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved. Applying for a Visa Applicants for temporary work visas should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. Required Documentation
Each applicant for a temporary worker visa must pay a nonrefundable US$45 application fee and submit:
Other Documentation With the exception of the H-1 and L-1, applicants may also need to show proof of binding ties to a residence outside the United States which they have no intention of abandoning. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly. U.S. Port of Entry Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the bearer of a temporary work visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. Those temporary workers who wish to stay beyond the time indicated on their Form I-94 must contact the INS to request Form I-539, Application to Extend Status. The decision to grant or deny a request for extension of stay is made solely by the INS. Additional Information on Visas Family Members With the exception of "Q-1 Cultural Exchange Visitors," the spouse and unmarried, minor children of an applicant under any of the above classifications may also be classified as non-immigrants in order to accompany or join the principal applicant. A person who has received a visa as the spouse or child of a temporary worker may not accept employment in the United States. The principal applicant must be able to show that he or she will be able to support his or her family in the United States. Time Limits All of the above classifications have fixed time limits in which the alien may perform services in the United States. In some cases those time limits may be extended by the INS in order to permit the completion of the services. Thereafter, the alien must remain abroad for a fixed period of time before being readmitted as a temporary worker under any classification. The INS will notify the petitioner on Form I-797 whenever a visa petition, an extension of a visa petition, or an extension of stay is approved under any of the above classifications. The beneficiary may use a copy of Form I-797 to apply for a new or revalidated visa during the validity period of the petition. The approval of a permanent labor certification or the filing of a preference petition for an alien under the H-1 or L classifications shall not be a basis for denying a visa. Further Inquiries "Questions about petitioning procedures, qualifications for various classifications, and conditions and limitations on employment should be made by the prospective employer or agent in the United States to the nearest INS office. Questions on the visa application to the American consular official should be addressed to the appropriate consular office abroad by the applicant." Links for Further Information Immigration and Naturalization Service New Hampshire Alien Labor Certification Home Page |
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