Work Permits, Agricultural Nonimmigrant Visas, and H-1B Work Visas
Work Permits, or “Employment Authorization Documents (EADs),” are available to people who have filed certain applications and those applications are pending. These pending applications include green card and asylum applications. Work permits are also available to people who have received certain types of status, including asylum, withholding of removal, deferred action, T visas, U visas, and Temporary Protected Status. People who already have a green card, or lawful permanent residents, do not need a work permit, as their status allows them to work in the U.S. Similarly, anyone present in the U.S. with an employment-based visa, such as an H or R visa, does not need a separate work permit.
H-2A Agricultural Nonimmigrant Visa
The H-2A program allows U.S. employers or U.S. agents who meet specific requirements to bring foreign nationals to the U.S. on a temporary agricultural visa to fill seasonal agricultural jobs. H-2A visas are valid for a maximum of one year. Extensions of up to one year are available in certain circumstances. To qualify for H-2A nonimmigrant classification, the U.S. employer (agricultural company, association, farm labor contractor) must:
- Offer a job that is of a temporary or seasonal nature;
- Demonstrate that there is a shortage of available U.S. workers who are willing, able, and qualified to perform temporary or seasonal agricultural labor or services at the time and place needed;
- Show that the employment of foreign national H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The employer must obtain a single valid temporary labor certification from the U.S. Department of Labor (DOL). The Application must be submitted at least 45 days before the date of need.
The employer then begins a recruitment process. Employers must advertise and make an offer of employment to any qualified U.S. workers and may only obtain H-2A visas for those jobs that remain unfilled after the recruitment process. In addition, the employer must hire any U.S. workers who apply for the job during the first half of the contract period. Any U.S. workers successfully referred must be subtracted from the total number of workers requested.
Following approval by the DOL, the employer must file a petition with USCIS for the H-2A status, and, upon approval, candidates then seek the H-2A visas at a consulate abroad.
If you are an employer interested in filing for H-2A nonimmigrant classification for foreign national workers, call or email Lisa Green & Associates, P.C. today for an initial consultation.
H-1B visas are non-immigrant employment-based visas for people in “specialty occupations.” For H-1B purposes, “specialty occupations” are defined by the U.S. Department of Labor and include architects, engineers, and scientists, along with many other job titles. They are generally reserved for people who have college degree and their job requires that specific college degree. H-1B status can be granted for an initial three years and may be extended once for an additional three years. Additional extensions past six years are available in some circumstances.
In order to obtain an H-1B visa for an employee, an employer must first request a certification of a Labor Condition Application from the Department of Labor. While the employer is not required to advertise for the position, the employer must show that he or she intends to pay the employee the “prevailing wage.” The prevailing wage is the minimum industry standard wage as determined by the Department of Labor that must be paid for a particular position.
Only 65,000 H-1B visas are granted each fiscal year. An additional 20,000 H-1B visas are available for foreign nationals who have earned a Master’s degree at a U.S. institute of higher education. Because of the caps on visa availability, USCIS uses a lottery selection. H-1B visas are valid starting October 1, and in order to be entered into the lottery, employers must file 6 months in advance (April 1).
F-1/H-1B Cap Gap
The cap-gap occurs when an F-1 student’s status and work authorization expire before the F-1 can start H-1B employment. Congress has fixed this situation by allowing students with pending H-1B petitions to remain in valid F-1 status and continue working until the H-1B petition is approved.
If you would like to know if you are eligible for an H-1B visa, or if you are an employer interested in filing for an H-1B for an employee, call or email Lisa Green & Associates today for an initial consultation.