The Temporary Worker's Visa
The Immigration and Nationality Act allows an employer in the United States to petition submit a petition to the United States Citizenship and Immigration Services (USCIS) for a temporary worker nonimmigrant visa on behalf of an alien beneficiary under 8 U.S.C. § 1184(c)(1). The temporary worker's visa is a short-term visa with a maximum duration of six years.
The temporary worker's program takes its name from 8 U.S.C. § 1101, which describes this classification and defines a class of nonimmigrant alien workers eligible to work in the United States temporarily to perform services in "specialty occupations."
Under 8 U.S.C. § 1184(h)(3), a temporary visa enables a non-immigrant alien worker to be admitted temporarily to the United States for work that requires both "theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."
To petition for a temporary work visa, the employer must submit a petition for nonimmigrant worker to the USCIS. The employer also must file a Labor Condition Application that has been certified by the Department of Labor ("DOL").
Attorney for the H-1B Visa in The Woodlands, TX
The temporary worker nonimmigrant visa classification is used by employers to sponsor foreign nationals to work in the United States. With extensive knowledge of business operations due to his work in business transactions, attorney Luis F. Hess has the requisite knowledge and know-how to help businesses file for a temporary work visa for their international employees.
For businesses in Houston or The Woodlands, call an immigration attorney at Luis F. Hess, PLLC to help you understand how to qualify for a temporary work visa classification by completing the right forms and submitting them to the Department of Labor.
Contact us to learn more about the H-1B nonimmigrant visa classification, used by employers to sponsor foreign nationals to work in the United States. Learn more about how a foreign worker can qualify for the H-1B classification, how an employer obtains a Labor Condition Application (LCA), the H-1B petition process, and how the foreign worker acquires lawful H-1B status.
Attorney Luis F. Hess is specially situated to help clients obtain temporary work visas. He can guide clients through the immigration process from a business perspective in Conroe, The Woodlands, Spring, Houston, and other nearby communities in Montgomery County or Harris County, TX.
Call (281) 205-8540 to discuss your case.
Overview of Temporary Work Visas in Montgomery County
- How is a "Specialty Occupation" Determined?
- What Qualification Must a Temporary Worker Have?
- How Many Temporary Work Visas are Issued Each Year?
- What Other Visas Should I Consider?
According to the INA, in order to be considered a specialty occupation, a position must, at least, be found to meet one of the following four criteria:
- The position normally has a minimum requirement of a baccalaureate degree or higher or its equivalent for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can only be performed by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
The courts consider the criteria listed in 8 C.F.R. § 214.2(h)(4)(iii)(A) to be necessary, but not sufficient, to meet the statutory and regulatory definition of a specialty occupation.
Not only does a job opportunity have to meet certain requirement to be considered a "specialty occupation," but the desired employee must meet certain qualifications as well. A beneficiary must possess at least one of the following four qualifications:
- Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
- Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
- Hold an unrestricted state license, registration, or certification that authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, specialized training, or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
An employer intending to hire an immigrant employee must first submit a Labor Condition Application (“LCA”) to the Department of Labor ("DOL").
In the LCA, the employer must promise to pay the employee a specified required wage rate and provide certain working conditions. The required wage rate must be the higher of either the actual wage or the prevailing wage level for the occupational classification in the area of employment.
The cap on temporary work visas refers to the limit that Congress has placed on the number of temporary work visa petitions that may be granted in any given fiscal year. As of 2017, the annual limit for this visa petition was capped at 85,000. Of these, 65,000 visa petitions are subject to the “regular cap,” with an exemption for the first 20,000 workers who have earned a master's or higher degree from a United States institution of higher education (the “master's cap”).
Not all temporary work visa petitions are subject to the Congressional limitation, such as the “cap-exempt” petitions.
If an employer files a temporary worker’s visa, the employer should also explore a backup plan in case the petition is rejected. Other alternatives include a visa for:
- individuals who can be categorized as an Exchange Visitor;
- individuals entering a structured training program;
- individuals whose employer has offices outside of the United States, an individual may be placed on the foreign payroll and work abroad until next year’s filing period or until another type of work visa becomes available;
- individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent green card process and work authorization issuance;
- essential employees, if the company and foreign national share the same nationality;
- individuals who are students, continue as students, and pursue their studies and look at internship opportunities under curricular practical training (CPT);
- individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension;
- for intracompany transferees, who work with an organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances;
- individuals who may qualify under the extraordinary ability criteria;
- Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement;
- nationals of Australia; and
- nationals of Chile or Singapore.
An experienced business-based immigration attorney in The Woodlands, TX, can help you decide what alternatives might exist if the temporary worker’s petition is rejected.
Find a Lawyer for a Temporary Work Visa in Texas
Contact attorney Luis F. Hess to learn more about temporary work visas. Luis F. Hess also helps employers who are seeking a nonimmigrant visa to sponsor foreign nationals to work in the United States in temporary or seasonal nonagricultural work.
When representing employers, Attorney Luis F. Hess helps the client submit the requisite forms for nonimmigrant workers and file a Labor Condition Application that has been certified by the Department of Labor (“DOL”) as required by 8 C.F.R. 214.2(h)(4)(i)(B)(1).
Contact us to learn more about the H-1B nonimmigrant visa classification, used by employers to sponsor foreign nationals to work in the United States. Learn more about how the foreign worker acquires lawful H-1B status, how an employer obtains a Labor Condition Application (LCA), the H-1B petition process, and how a foreign worker can qualify for the H-1B classification.
Luis F. Hess represents clients in employment-based immigration cases throughout the greater Montgomery County and Harris County area. For immigration cases in Shenandoah, The Woodlands, Conroe, Spring, Houston, and other nearby communities, contact Luis F. Hess, PLLC.
This article was last updated on Friday, January 26, 2018.