U.S. Visas: Working in California
November 15th, 2020
California Dreamin’? What to Know About Living and Working in California
The U.S. immigration process has become a high-stakes undertaking for many professionals, entrepreneurs, and employers. Still, coming to California to live the life of your dreams remains possible.
The key to achieving your dreams is identifying your long-term goals, strategically evaluating your immigration options, and selecting an option—and backup plan—to meet your goals and timing.
Before I dive into the alphabet soup of visa options, you should know that the U.S. offers three types of temporary visas:
- Nonimmigrant (temporary) visas: Individuals who hold nonimmigrant visas must show their stay in the U.S is only temporary, and they intend to eventually return to their home country.
- Immigrant visas (green cards): Individuals who hold a green card can live and work permanently in the U.S.—and eventually apply for U.S. citizenship.
- Dual intent visas: These visas are nonimmigrant visas, but the individuals who hold them can apply for a green card.
Most nonimmigrant visas require a job offer from an employer sponsor—and oftentimes that sponsor must be a U.S.-based company.
The exception to this is the B-1 visa for business visitors. The B-1 requires no employer sponsor and does not allow its holder to do hands-on work, either paid or unpaid, for a U.S. entity. However, a B-1 visa holder can meet with investors, negotiate contracts, hire staff, and establish an office. A B-1 visa allows for a maximum stay of one year.
Many high-tech and biotech employers use the J-1 visa’s research, trainee, and intern programs. The J-1 is designed to foster knowledge and cultural exchange between the U.S. and other countries. Most J-1 visa holders must return to their home country to live for at least two years when the visa expires but can file for a waiver. A spouse of a J-1 visa holder is eligible for a work permit.
An E-2 visa may be an option for individuals whose home country has an investment treaty with the U.S. and will invest substantial capital by starting a business or opening an office. The E-2 spouse is eligible for a work permit. The E-2 can be extended indefinitely as long as the conditions under which it was granted remain the same. However, immigration officials could suspect that your stay in the U.S. is permanent with each renewal, so you should explore your green card options if you want to set down permanent roots.
A handful of nonimmigrant visas are available for individuals from specific countries. One is the E-3 visa for Australians with specialized theoretical or practical knowledge, which also offers unlimited extensions. The spouses of E-3 visa holders are eligible to work. Another is the H-1B1 visa for Chileans or Singaporeans holding specialty occupations, which allows for a maximum stay of six years. And finally, TN visas for Canadians or Mexicans to fill certain professional positions and allows unlimited extensions. The spouses of H-1B1 and TN visa holders are ineligible to work.
Dual Intent Visas
The H-1B visa is a dual intent visa for candidates with specialized knowledge and skills. Only 85,000 H-1B visas are available each year, so a lottery in the spring determines who is eligible to apply for one that year. Nonprofit and government research organizations are exempt from the H-1B cap and can submit an H-1B petition at any time of the year. The maximum stay under an H-1B is six years unless the H-1B visa holder or employer files for a green card. Spouses are only eligible for a work permit if the H-1B holder has been approved for a green card.
L-1 visas allow a company—even one based abroad—to transfer an employee from a foreign office to a U.S. office—or to set up a U.S. office—if that employee has worked for the company for at least one year. The L-1A visa allows the transfer of managers and executives; L-1B is for employees with specialized knowledge. Spouses are eligible for a work permit.
While not technically a dual-intent visa, the O-1A visa for individuals with extraordinary ability does not require its holders to maintain a residence in their home country (unless UK citizens) and filing for a green card is not a reason to deny an O-1 or admission to the U.S. The requirements for an O-1A are more stringent than for an H-1B, but the O-1A has no annual cap and allows for unlimited renewals. Spouses of O-1A visa holders are not eligible for a work permit.
Most employment green cards require an employer sponsor. They usually have more stringent requirements than nonimmigrant visas and take longer to obtain. However, they are very possible to obtain and can be a great solution for a family where both spouses work, they need stability for their children, and the intention is to relocate to the U.S. on the time horizon of 2-3 years for U.S. market expansion if they are not citizens of India or China.
Some green cards require employers to obtain certification from the U.S. Department of Labor to prove that no qualified U.S. workers are available for the position and ensure the wages and working conditions of U.S. workers are not adversely affected. They include:
- EB-2 for individuals with a master’s degree or higher in a field related to the position
- EB-2 for individuals with exceptional ability in the sciences, arts, or business
- EB-3 for skilled professionals with at least a bachelor’s degree and two years of training or work experience
The green cards that don’t require labor certification but still require an employer sponsor are:
Individuals can apply for these green cards without a sponsoring employer:
- EB-1A for individuals with extraordinary ability. Employers can also apply for this green card on behalf of an employee.
- EB-2 NIW (National Interest Waiver) for individuals with exceptional ability in the sciences, arts, or business whose work will benefit the U.S. Employers can also apply on behalf of an employee.
- EB-5 for individuals who invest $900,000 to $1.8 million in a company or real-estate project that creates at least 10 full-time jobs for U.S. workers.
Immigration is complicated, but it doesn’t need to be overwhelming! There are lots of options to choose from. It’s possible to find cutting-edge immigration solutions to live and work in California!
Sophie Alcorn founded Alcorn Immigration Law, the fastest-growing immigration law firm in Silicon Valley, in 2015. Sophie is certified as a specialist in immigration and nationality law by the State Bar of California Board of Legal Specialization. She writes a weekly immigration column for Tech Crunch and hosts a weekly podcast, “Immigration Law for Tech Startups.”
If you are thinking of expanding your business to the US or sending key people then please reach out to your team at Briars via firstname.lastname@example.org