Overview: In this global economy, multinational employers are not only transferring executives and managers to US offices but even small business owners hire foreign citizens for their workplace. Whether big or small, if an employer has foreign citizens working for it on US soil, it must ensure that those foreign citizens have the proper work visas.
There are many different types of visas depending on an individual's profession and whether the individual intends on coming to the US temporarily or permanently. Even in temporary situations, the duration of each visa differs.
In order to apply for a temporary worker visa, an employer must file the appropriate paperwork with the United State Citizenship and Immigration Services. However, the filing of employment-based immigration petitions and applications with the government does not create an exception to the doctrine of at-will employment. Therefore, employers need to make sure employees understand that there is a difference between the length of the temporary visa, which is definite, and the nature of the employee's employment, which is indefinite and at-will.
Trends: There is a cap on the number of H-1B visas allowed per year. H-1B visas are used for individuals with a specialty occupation position, which is defined as a job that requires at least a bachelor's degree (or its equivalent) in the specialty. In the last few years, the cap on H-1B visas has been reached long before the end of the government's fiscal year-sometimes within days of when the petitions can be filed. Therefore, employers should file necessary documents and petitions as early as possible.
Author: Melissa A. Silver, JD, Legal Editor
Updated to include information on the Supreme Court ruling on Deferred Action for Childhood Arrivals.
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Updated to include information regarding third-party worksite H-1B petitions.