Immigration law is complicated. There are no two ways about it. One of the things that makes it complicated is the fact that there are so many different kinds of visas people can obtain in order to gain authorized entry into the U.S. For example, consider the H-1B and EB-1 visas. They are two distinctly different visas with different purposes. Yet that doesn’t prevent confusion among both employers and their foreign-born workers.
As immigration attorneys specializing in business immigration, it is our responsibility to understand the different types of visas that employers might need for their foreign-born workers coming into this country. We pass on our knowledge as we assist both employers and potential employees in their attempts to navigate U.S. immigration law.
The H-1B Visa Is Temporary
The biggest difference between the two visas relates to how long a valid visa holder can remain in this country. Under the H-1B visa program, an employee’s stay is temporary. H-1B visas are typically granted for an initial term of three years. Foreign born workers can renew their visas for another 3 years, providing them with up to six years total. After that, a worker must either change to another status or leave the country.
Statute dictates that the H-1B visa is a non-immigrant visa. In other words, a company is may not be hiring an H-1B visa holder with the goal of making them a permanent resident in the country. Although, in our experience, most companies that are willing to sponsor someone for an H-1B are likely to eventually sponsor them for an immigrant visa down the road. It is important to remember that the H-1B is for temporary work status only.
Foreign Nationals With Special Skills
It is also worth noting that the H-1B visa is not for just anyone. The program is intended to give employers access to foreign nationals with special skills. The skills in question are limited in scope. They are often science, technology, engineering, and mathematics (STEM) related. At a minimum, the position must require a bachelor’s degree. If it’s a foreign degree, it must be evaluated as being equivalent to a U.S. bachelor’s degree. A person may also qualify through a combination of education plus experience that equates to a U.S. bachelor’s degree.
Employers hoping to bring in foreign nationals under the H-1B program, who then wish to sponsor the employee for an immigrant visa, typically must demonstrate that they cannot find sufficient talent here at home to fill open positions. They must attest to the fact that an offer of employment under the H-1B program is temporary only. However, H-1B status is considered “dual intent,” which means the person can be in a nonimmigrant status such as H-1B, while also intending to become a lawful permanent resident.
The EB-1, EB-2, and EB-3 Visas Are Permanent
Where the H-1B visa is technically temporary, the EB-1, EB-2, and EB-3 are permanent. They are immigration visas that give the holder the legal right to live and work in the U.S. indefinitely. They are essentially permanent resident visas. But like the H-1B, the EB-1, EB-2, and EB-3 are not available to everyone. They are specifically designed for foreign nationals with extraordinary ability, skills in the national interest of the United States, professional-level employees, and other skilled workers.
These are typically people with skills that are hard to come by. They are professors, scientific researchers, senior executives, and other types of business professionals that are in short supply in this country.
Employers should understand that EB-1, EB-2 and EB-3 visas can take several months to process, at minimum. More complex applications could take years. EB-1, EB-2, and EB-3 visas are also highly competitive and require a significant amount of documentation. Many categories are oversubscribed, so the employee may potentially need to wait years before receiving lawful permanent residency. This is why having another work status such as H-1B is so critical because it enables them to live and work in the United States while waiting for an immigrant visa.
The EB-1 is so designated because those who qualify for it are at the top of the list of preferences. Each subsequent EB visa is designated by a number indicating order of preference. There are five EB visas in total. In this article we covered only EB-1, EB-2 and EB-3 because they are the most common.
Do not let the complex nature of business immigration and visas scare you. If you are looking to bring foreign nationals into the country on a temporary or permanent basis, Graham Adair is here to assist. We can help you navigate the system, complete documentation correctly and on time, and do everything else required to secure those visas.