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Professional Work Visas: Both Sides of the Issue / Political Stands

From Jennifer Leavitt-Wipf,
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Foreign professionals can come work in the U.S. to fill jobs that--according to the sponsoring employer--no American can fill. The high-tech industry wants more foreign workers at its disposal, possibly because these foreign workers are less "demanding" and harder working, given their desire to live in the States. American workers and their advocates want restrictions on these visas because they feel threatened and pushed aside by these foreign workers.

Need-to-Know Definitions

What is a Visa?
A visa is government-granted permission to visit its country. It comes in the form of an ink stamp placed in a passport by the host country's representatives. A U.S. visa will always be dependent upon the purpose of the trip. Is the visitor coming to the United States for tourism? A client meeting? To visit family? To marry someone? To study? Or to work? Each type of visa carries different guidelines and rules.

What is an H-1B Visa?
An H-1B visa represents permission for a foreign individual to enter the United States for a stated period of time to perform a particular job, for a specific employer. The worker must be educated or experienced in ways that match the job description, based on the U.S. Government's Occupational Outlook Handbook.

The employer must "sponsor" (apply for) this skilled worker, giving the reasons why this worker is the most qualified individual for the job, and paying the application fees.

What is an L-1 Visa?
An L-1 visa is one for foreign workers who transfer to the U.S., to a subsidiary, branch or division of the foreign company they work for, that is at least partially located in the U.S. Applicants must have been employed with the sponsoring company for at least one year within the prior three years before submitting the L-1 application. The individual on an L-1 visa must be coming to the U.S. to work for the same company in a specialized position that requires his or her uniquely qualified skills.

Latest Developments

High-tech employers and immigration attorneys are calling for lawmakers to raise the annual H-1B work visa limit ("cap") and to make L-1 visas easier to get as well. Recently, a (pro-visa) bill seeking to increase the H-1B cap was introduced. In addition, an (anti-visa) bill seeking to initiate a cap on L-1 visas (HR 2702), and a bill seeking to terminate the H-1B visa program altogether (HR 2688) have been introduced. But those in the know say that Congress is unlikely to be addressing these issues until late 2006, simply because they have "more important" issues on their plates.

Background

For an H-1B Visa, employers must promise to pay equitable or prevailing wage, although various sources can be used to arrive at the number. Prevailing wage means the average wage most often paid to people in similar positions.

H-1B workers are often engineers, scientists or high-tech workers, but they do not have to be. Others can qualify for an H-1B if the employer demonstrates a need for that professional and that professional's specific trained/educated skills. Employers must also promise that hiring the H-1B worker will not negatively affect other workers. (Reduce their chances for challenge, benefits, raises, advancement or promotion, etc.).

There is an annual cap (limit) set on H-1B visas. Applications that do not get submitted before the cap is met will have to wait for the next fiscal year, which starts on October 1.

H-1B visas are one of the few visas which allow dual intent, meaning that H-1B applicants can have the intention of later immigrating and seeking permanent residence in the U.S. However, they have only six years to do this before they are required to return home, because an individual can only hold an H-1B (or any combination of H-1B's for different jobs) for up to six consecutive years.

H-1B and L Visas Count Toward the Same Limits
The alien can only stay on an L-1 for five to seven years at a time, and time on an L-1 visa is calculated concurrently, along with time on an H-1B visa, counted toward the same total (as though they were one and the same). Companies can apply for "blanket" L-1 visa authorization, meaning any qualifying employee or recent employee can simply take a copy of the company's approval to the consulate and get their L-1 visa there. L visas have no annual cap (limit).

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