Law Talk 15: Temporary and Permanent Work Visas

For this episode of Law Talk, Ben and Andrew go over the basics of obtaining both temporary and permanent work visas in the United States!


Andrew Michael: Okay. And we are live. It is Wednesday again, currently noon because of technical difficulties earlier, but we’re still here.

Andrew Michael: I’m here with Ben today. Ben does a lot of immigration stuff at our firm, and today we’ll be talking about the different types of work visas that are available to foreigners who want to do stuff in the United States. So you want to just start us off, talk about the general intent of these work visas, like what they do, who they’re for, that kind of stuff.

Ben Williams: Yeah, so we’re going to focus on just a certain few of them today. There’s tons of different categories and types of work visas, but we’ll focus on some of the main visas out there. Basically, it’s probably stuff we covered on Law Talks before, but non-immigrant visas versus immigrant visas, which is basically just temporary versus permanent. The certain types of permanent visas have, permanent work visas, have stricter requirements. So there’s the EB-1 through 5 visas, and generally, EB-1 requires extremely specialized knowledge, lots of experience, and lots of recommendations or commendations in your field. Awards.

Andrew Michael: Yeah, and that’s general for most permanent visas, is you have to have some very, very good reason to permanently reside in the United States-

Ben Williams: Yeah, whereas to get these kinds of visas means you also get the chance to become a permanent resident and a green card and eventually a citizen, so the requirements from the get-go are much higher than non-immigrant or temporary work visas.

Andrew Michael: So for permanent work visas, the requirements are harsher, but it’s also an easier path to citizenship over time.

Ben Williams: Right, yeah. As long as you qualify, and depending on the exact category of visa, you might have to demonstrate that you’re one of the top professions, basically, in the world, in your field, to qualify. But again, if you can show that, it’s relatively easy to turn that into a green card.

Andrew Michael: Yeah, I think one of the requirements … I think it’s for EB-2, I can’t remember exactly, but you need to be published in several worldwide renowned journals and stuff like that, so-

Ben Williams: Yeah, there’s things like Nobel prizes and-

Andrew Michael: There’s a bunch of really … yeah, a bunch of really specific things.

Ben Williams: Yeah.

Andrew Michael: So let’s start with temporary visas. So these are the ones we most commonly … Or do we do permanent ones more commonly here at the firm?

Ben Williams: So, we do … There’s just a much more limited number of people who qualify. So certainly if you think you qualify for an EB visa and you’re one of the top in the world in your profession, give us a call. We’d be happy to help. But generally, us, we see more of the temporary, non-immigrant visas, which are H-1B visas. Some of them are strictly temporary, the seasonal workers and stuff like that.

Andrew Michael: Yeah, some can last two or three years, stuff like that as well.

Ben Williams: Yeah, yeah. So typically, the H-1B visa is the most common. There’s a cap on that each year or twice a year, and that fills up pretty quickly, so there’s lots of people trying to get these visas, and some people end up having to wait quite a while for it.

Andrew Michael: And, so, question. Is there a cap, like a total cap, for all immigrants coming in? Or is it a country cap? Like, only so many from Mexico can come, and only so many from China, and stuff like that.

Ben Williams: Right, yeah, so that again, you’d have to look at the visa bulletin. We’ve probably covered that here on Law Talk too before, but you find your category and your country. Yeah, only certain countries have the cap, depending on the type of visa.

Andrew Michael: Yeah. So situations change based on what your home country is, basically.

Ben Williams: Yeah, yeah.

Andrew Michael: So you’ve brought up H-1B visas a couple of times. Could you walk me through what specifically does that visa cover? It seems like one of the more common ones that people apply for.

Ben Williams: It is.

Andrew Michael: So what does it cover, how do you get one, how long does it last? Just give me a basic rundown of it.

Ben Williams: Okay, I can do that. So generally, it starts with if you qualify first, which the requirements are much less strict than the permanent visas we were just talking about. Usually it’s just maybe bachelor’s degree, or maybe just a certain amount of experience in your field, and you have an employer who basically petitions for you to come work for them, and it’s temporary, so it’s usually good for three years. There’s a common extension for another three years, so you usually end up getting six years total.

Ben Williams: In the past, you’ve been able to basically extend that indefinitely and stay in the US with your job. There’s even an opportunity to switch jobs and just refile some forms to keep the visa status.

Andrew Michael: Yeah, because basically, your employer is filing on your behalf. Like, we want this guy, so we’re going to submit the visa paperwork to get this guy to come work for us.

Ben Williams: Yeah, that’s right.

Andrew Michael: So it’s kind of like they’re sponsoring you.

Ben Williams: Yeah, basically, and … yeah. So if you’re interested in this type of visa or if you currently have one, just keep an eye on the news, because as with most immigration things these days, a lot of this might change. There’s been talks of canceling the extensions after six years, making the requirements more difficult, or even … There’s talk of eliminating the H-1B program entirely. So just something to be aware of.

Andrew Michael: It’s all up in the air, basically.

Ben Williams: Basically, yes. Yeah. Welcome to immigration law.

Andrew Michael: So what are the other types of temporary visas besides the H-1B? Because you mentioned you need a bachelor’s degree, for example, and you need to already have a job in the US that is sponsoring you. So what happens, for example, if you’re a seasonal worker? What do they file under? What are the other options besides the H-1B for temporary visas?

Ben Williams: So there are a lot-

Andrew Michael: There are a lot, and there are a lot of very specific ones too.

Ben Williams: I mean, I think almost every letter in the alphabet is covered with the type of visa you can get, and there’s companies that set up … If you’re a student looking for summer work, if you’re looking for seasonal work, you can apply through a company. Those requirements are obviously much easier because it’s a very limited window that you can come for a specific job and then return to your country. So they’re popular and they’re common, but there’s not much opportunity to turn those types of visas into permanent status here in the US. And that’s, I guess, the one advantage the H-1B visa has, is that while you’re here on that visa, if your employer really likes you or you find a new job with an employer willing to sponsor you for a green card, you have the option to start that petition process, and eventually you might be able to turn your H-1B visa into permanent residency.

Andrew Michael: Okay. So we mentioned there’s a lot of different types. I was looking at it before I came in here, and it’s pretty much every letter of the alphabet.

Ben Williams: Yeah.

Andrew Michael: And multiple numbers under each letter.

Ben Williams: That’s true too.

Andrew Michael: Like, H-1B [crosstalk 00:07:32]. So what are the other common ones, what are the ones that are most likely to apply to people? Because, for example, I know there’s one that specifically for workers coming from this one part of Australia. There’s very, very, very specific ones. What are the ones that show up the most often in our practice, or just generally, for temporary workers?

Ben Williams: So, yeah, so generally for the seasonal workers or student employees, you probably won’t even need an immigration attorney. There’s companies set up that specifically just recruit these types of workers on behalf of companies. So we’re looking at … There’s J visas and different numbers of J visas, and I forget what the letters are without looking at the chart. But typically, just because those are so temporary and easy to just qualify for … And typically lawyers don’t need to get involved in that process.

Andrew Michael: Yeah, ’cause there’s already a system set in place by each individual business, where they’re like, “We have to file this form, then this form.”

Ben Williams: Yeah, exactly.

Andrew Michael: Okay. So let’s move on to … Some of these may be a little bit more complicated with the permanent residency worker visas, I guess. So we mentioned, for example, that the H-1B visa is temporary for three, six, some other amount of years, and then leads to citizenship in the future.

Ben Williams: Potentially, yes.

Andrew Michael: Potentially. So what are the different types of permanent visas, the ones without “you must go home at this date” restrictions? I know we’ve covered EB-5 visas, for example, extensively on our knowledge base. But there’s also multiple other types. What are the most common ones that you see or hear about?

Ben Williams: Yeah, I guess the most common ones are kind of the ones that we’ve already mentioned, is just the EB visas, which, if you are either super rich or super, super talented and skilled in your area of expertise, there’s a chance to turn that into a green card and permanent residency. I guess the main other way is to have an employer sponsor you, which is kind of separate from this number and category of visa. It’s a separate petition, but that’s the most common way that the H-1B visas turn into residency, and there’s potential for almost any job to lead to residency. There’s just certain requirements that the employer has to meet ahead of time. So we can talk about that today too, otherwise-

Andrew Michael: Yeah, sure. Keep going.

Ben Williams: Okay, sure. So I’ll just use the H-1B example, just to keep this going. Basically, if you’re here on H-1B, it’s temporary. You have three to six, however many years to be here and working for an employer. If your employer decides they want to keep you around permanently, or you find another job while you’re here that wants to keep you around permanently as well, your employer can file an I-140 petition, but basically, just them petitioning on your behalf to get you permanent status here.

Ben Williams: And for the first steps, it’s pretty much all up to the employer. They have to be willing to sponsor you, to pay the government fees on your behalf, and also there’s certain requirements that they have to advertise the job to show that there’s no American workers that could fill the job-

Andrew Michael: Yeah, it seems like an important things that always comes up is, there can’t be some American worker that can do this job. That’s why we’re hiring outside of America.

Ben Williams: Yeah, exactly. And so ways to do that are to show … Sometimes language requirements, if there’s certain experience that not a lot of American workers have, they can advertise that. But really it comes down to, the employer has to advertise in a local newspaper for the position, and there’s ways to work that advertisement to not entice a lot of people to want to apply. You can make them mail in an actual resume to the address, and most people skimming the job ads skip over that.

Andrew Michael: So my favorite example of that is I have a bunch of friends who do computer stuff, and the job requirements will be like, “You need five years of experience in this programming language,” which has been out for three. And stuff like that.

Ben Williams: Yeah. So the employers would have to work with … usually they work with an immigration attorney to word these advertisements and format them in a way that meets the requirements, so you can’t be too obvious about it, but there are ways to disincentivize people from applying.

Ben Williams: And so basically, once you meet those requirements, there’s this labor certification stuff that we don’t need to get into today. But basically after the employer does their part, you just wait until you’re eligible to actually get the green card, and that’s a common way for H-1B immigrants to turn their temporary visa into permanent residency here.

Andrew Michael: Okay. So what’s another common process for turning your work visa into citizenship? Is it only the H-1B that we see most commonly, or are there other avenues for people who don’t have that specific level of expertise?

Ben Williams: So there’s other ways I mentioned briefly, but the employer petition for permanent residency, there’s no requirements on that, on the kind of job it has to be. So it can be a trade worker. We’ve gotten, I think, nail salons and hairdressers. And you just have to show that basically there’s no American employees willing or able to fill that position. So usually the employer petition process, it’s kind of designed for when the worker is outside of the US, and then they would start the process, and wait until it’s approved before they come to the US.

Ben Williams: If you’re already in the US and you have an employer that might want to do this petition for you, you’re probably going to want to speak to an immigration attorney just to make sure that you’re not barred from any unlawful presence. If you happened to enter illegally or anything, it could complicated the process, but-

Andrew Michael: You want to make sure you do everything right the first time, basically.

Ben Williams: Right, and that’s important for not just work visas but any kind of visa, because visa changes with immigrations, their new policy might be to place anyone who is denied in application into removal proceedings in front of an immigration judge. So if you’re not sure if you’re eligible, you probably want to speak to an immigration attorney beforehand, because the consequences these days are more severe than they were in the past.

Andrew Michael: All right. Let’s go in another direction now. So what if I’m a businessman in Mexico, for example? And I want to come to do a business deal in San Francisco. What visa would I go for? How would I enter the States to … I think it’s the B visa, if I’m not mistaken.

Ben Williams: Yes.

Andrew Michael: But there are ways to enter for 30 days or so to conduct business. The ones we’re talking about now are all sort of path to citizenship ones. What other more temporary visas or ways to enter the country are there?

Ben Williams: Yeah, so as you mentioned, the B visa is probably actually the most popular visa that people use to enter the US, because-

Andrew Michael: Yeah, it’s the vacation visa.

Ben Williams: … that covers the tourist visa, right, which is just, come visit family, or come take a vacation in the US, and leave in a certain amount of time. So under the B visa is also a category for, as you mentioned, business. Just people in business that either have a conference, have a meeting, have to come negotiate a deal here in the US. And it works the same as the tourist visa, you apply through the consulate in your country with evidence that this conference is going on, or this meeting is happening, and as much evidence as you have of your intent to go back to the US and the exact dates you need to be here. And as long as there’s nothing, criminal background or anything like that for immigration to deny your visa, it’s usually pretty simple to just get it approved, come for your limited purpose of your meeting or your conference, and go back to your country.

Andrew Michael: Yeah. It seems like a pretty good way to come to the US for short-term reasons.

Ben Williams: Right.

Andrew Michael: Making a business deal, going to a conference like you mentioned, stuff like that. Anything super short term. Actually, can you work on a … I don’t think you can work on a B visa, though, like do work work.

Ben Williams: No, so those … And that’s the same with the tourist visa. Your intent is important. It’s what immigration looks at when deciding to approve the visa or not. So if you intend to come to the US for a vacation, that’s all immigration expects you to be here for. So if you start working, if you start going to school, that is looked upon as possibly visa fraud by immigration. You could get your visa revoked, you could lose the chance to get one in the future. So these temporary limited visas, it’s important to keep your visit focused on the reason you got the visa in the first place.

Andrew Michael: Yeah. I think our thing is dropping frames for some reason. We’ve covered most everything up until this point, so did you want to do a quick thing about the flying squirrels, or-

Ben Williams: Yes. We’re still live?

Andrew Michael: I think we’re still live. It’s just … Let’s see if there’s actually audio. Yeah, we have audio, it’s just dropping frames for some reason.

Ben Williams: Okay. We’ve had lots of technical difficulties today.

Andrew Michael: This computer is imploding and I have no understanding of why. So let’s just do a quick sign-off with the flying squirrels, and then …

Ben Williams: So, yeah. Real quick, this Friday night, July 27, we are … Tingen and Williams is sponsoring a throwback T-shirt night for the Richmond Flying Squirrels, which is the AA baseball team for the San Francisco Giants affiliate. Basically, we’re sponsoring a Richmond Lawmakers T-shirt, which was a minor league baseball team in, I think, 1806, that played in Richmond. And so we thought it would be cool to have a law firm sponsor the Richmond Lawmakers night.

Ben Williams: So if you’re interested in that, you can check out the Richmond Flying Squirrels website. We’ll have social media posts leading up to it. But I’ll actually be throwing out the first pitch. Jacob Tingen will be doing a radio interview for the Flying Squirrels in, I think, the bottom of the second inning, and the first 1,500 fans 15 years or older get a Tingen and Williams sponsored throwback T-shirt. We’ll be there handing out some free swag. We’ve got some Frisbees and some pens to hand out. Maybe some of our famous Lawyer Up T-shirts as well. So if anyone’s in Richmond Friday night looking for something fun to do, come check out the Richmond Flying Squirrels game, and we’ll see you there.

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