Foreign nationals who are not lawful permanent residents of the US (i.e., Green Card holders) must have authorization to work in the US before commencing employment. Typically, the US employer must request approval for a particular type of work authorization based on the job offered to the foreign national and the foreign national's credentials. In most cases, the request is made in the form of a petition that is filed with the USCIS and, in other cases, the request is made in the form of an application that is filed directly with the US Embassy or Consulate. For some types of work authorization, the Department of Labor must also grant its approval for the employer to sponsor the foreign worker. In those cases, the Department of Labor's approval is needed before the USCIS (or the US Embassy or Consulate) will process the sponsoring employer's petition or application. The complexity of the preliminary approval process, and the time required for the US employer to receive the approval, can vary greatly depending on the particular type of nonimmigrant or immigrant status sought and the quota-based restrictions imposed on certain types of visa classifications.

In general, the approval process for a nonimmigrant status that includes work authorization takes at least three months.

Once the employer's request for work authorization has been approved, most foreign nationals must also obtain a visa at a US Embassy or Consulate. Under the US immigration system, visas are travel documents that allow a foreign national to seek admission to the US with a particular status. The issuance of a visa does not guarantee admission to the US, and it does not function as the foreign national's work or residence permit after entering the US. Rather, the documents issued by CBP at the port of entry or by the USCIS after entering the US serve as the work and residence permit.

L-1 visa

Multinational companies seeking to temporarily transfer foreign employees for assignment to US operations most often rely on the L-1. This visa is initially valid for assignments of up to three years and can be extended in two-year increments for a total period of five or seven years, depending on the nature of the US job duties. Executive- and managerial-level employees can hold L-1A status for up to seven years, whereas employees working in a capacity involving specialized knowledge have a maximum stay of five years under L-1B status.

The spouse and unmarried children under the age of 21 of an L-1 visa holder may be issued L-2 status for the same period. The L-2 spouse (but not the L-2 children) is authorized to work in the United States after arrival in L-2 status and may, but is not required to, apply for an employment authorization document.

Qualified foreign nationals must have been outside the US for at least 12 months during the three years immediately preceding the L-1 visa request and, during that period, employed by the US petitioning employer or a company with a qualifying intracompany relationship. There are a number of relationships that qualify, but all generally rely on common majority control (e.g., parent-subsidiary, subsidiaries of a common parent, branch or representative office). The qualifying corporate relationship does not need to have existed throughout the period of required employment.

Executive- and managerial-level employment is generally shown through the management of subordinate employees or through the management of an essential function within the organization. Employment in a specialized knowledge capacity requires proof that the employee holds knowledge of the organization's products, services, research, equipment, techniques and management, or an advanced level of expertise in the organization's processes and procedures.

Additional rules apply to companies during the first year of business operations in the US and to those who intend to place the foreign employee at a site not controlled by the sponsoring employer (e.g., placement at a client's site).

Large multinational companies may take advantage of special blanket L-1 rules for faster government processing if they meet the specific criteria relating to revenue or number of US employees and international business operations.

Individuals who are admitted to the US with a nonimmigrant visa will be issued a Form I-94, arrival/departure record, at the port of entry. The Form I-94 is issued and maintained electronically. Foreign nationals are advised to print their Form I-94 from the CBP website after each entry to the US.

The Form I-94 is the official record of the foreign national's nonimmigrant status and the period of stay granted. As such, the printed Form I-94 serves as the individual's temporary work and residence permit.

Individuals who are admitted to the US under a nonimmigrant visa are not required to register their residence with local police authorities. However, they are required to notify the USCIS in writing within 10 days of any change in address after entering the US. Failure to do so can result in removal from the US.

US employers of foreign professionals have long relied on the H-1B visa. H-1B status is initially valid for up to three years, with extensions in three-year increments available for up to six years' total stay. Extensions beyond the six-year limit may be granted to foreign professionals for whom employment-based permanent residence applications are pending. The spouse and unmarried children under the age of 21 of an H-1B visa holder may be issued the H-4 visa for the same period.

Certain H-4 dependent spouses can obtain work authorization if the principal is the beneficiary of an approved immigrant petition or has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act.

The job offered must be in a specialty occupation, which are roles that normally require at least a bachelor's degree in a specific field. The foreign national must hold the required degree from an American university or the equivalent. A foreign degree, employment experience or a combination of the two may be considered equivalent.

Employers must attest that they will provide H-1B professionals with wages, working conditions and benefits equal to or greater than those normally offered to similarly employed workers in the US. A strike or labor dispute at the place of employment may impact eligibility. Employers of H-1B visa holders must comply with detailed recordkeeping requirements, and government agencies often conduct worksite inspections to ensure compliance.

Only a limited number of new H-1B visa petitions can be granted each fiscal year. Generally, this quota applies to first-time H-1B visa holders, with some exceptions for those offered employment by qualified educational institutions, affiliated research organizations, nonprofits and government research organizations.

H-1B1 Free Trade Agreement visa

Prospective employers of foreign professionals who are citizens of Singapore and Chile may take advantage of additional quota allocations and more streamlined processing rules. Although limited in number, the supply of these visas is consistently greater than demand, making them more readily available. The scope of authorized work is essentially the same as the H-1B. The spouse and unmarried children under the age of 21 of an H-1B1 visa holder may be issued the H-4 for the same period. This visa requires proof of the foreign national's nonimmigrant intention to leave the US.

E-3 Free Trade Agreement visa

Prospective employers of foreign professionals who are citizens of Australia can take advantage of similar free trade agreement benefits using the E-3 visa. While subject to an annual quota of 10,500 visas, this quota has never been met, and E-3 visas are commonly available. The scope of authorized work is similar to the H-1B, but status is granted for up to 24 months, with available extensions in increments of up to 24 months. The spouse and unmarried children under the age of 21 of an E-3 visa holder may be issued the E-3 for the same period. The E-3 spouse is authorized to work in the United States after arrival in E-3 status and may, but is not required to, apply for an employment authorization document. This visa requires proof of the foreign national's nonimmigrant intention to leave the country.

TN North American Free Trade Agreement visa

Employers of foreign professionals who are citizens of Canada and Mexico can take advantage of different free trade agreement benefits using the TN visa. There are no numerical limits, so these visas are always available. The job offered must be in one of the professions covered by the US-Mexico-Canada Agreement (formerly known as North American Free Trade Agreement (NAFTA)), each of which has its own education or experience requirements. TN status is granted for up to three years, with a potentially unlimited number of three-year extensions available. The spouse and unmarried children under the age of 21 of a TN visa holder may be issued a TD visa for the same period. This visa requires proof of the foreign national's nonimmigrant intention to leave the US.

Some of the more commonly used professions covered by the TN include computer systems analyst, engineer (all types), economist, lawyer, management consultant, biologist, chemist, industrial designer, accountant and scientific technician. A complete list of NAFTA professions can be found here.

E-1 and E-2 Treaty Trader and Investor visas

Foreign-owned companies doing business in the US may temporarily employ qualified foreign workers to facilitate international trade or investment activities. E visa status is granted for up to five years, with a potentially unlimited number of extensions in five-year increments. The spouse and unmarried children under the age of 21 of an E-1 or E-2 visa holder may be issued the E visa for the same period. The spouse may apply for employment authorization after arrival.

The list of countries with E-1 trade and E-2 investment treaties changes often, and the government's regularly updated list can be found here. Qualifying companies must be at least 50% owned by citizens of the same treaty country. E visa status is only available to citizens of that same country. Not all countries hold treaties or agreements for both E-1 trade and E-2 investment visa status, and many countries hold neither, as can be seen in the following table:

The E-1 requires proof of substantial trading activity between the US and the treaty country. The level of trade can be measured by its value, frequency and volume. Only trade between the US and treaty country is considered, and that must account for at least 50% of the trade of the sponsoring employer. Items of trade range from goods to services, transportation, communications, data processing and finance.

The E-2 requires proof of substantial capital investment that has either already been made or that is in the process of being made when the visa is requested. No minimum value threshold is set for the investment. The amount is measured in relation to the total cost of the US business. Only funds or the value of the property committed to the capital investments is considered, and not the cost of operating expenses. E visa status is available to individual investors with a majority ownership interest and to employees coming to work in either a supervisory role or a position involving skills essential to the venture.

¹ Pending final implementation from the US Department of State.