Aliens who are not legal permanent residents must obtain permission before
working in the United States. They may apply for permission to enter to accept
employment in either a temporary or permanent immigration classification.
Others, such as students who are already living temporarily in the United
States, may apply for permission to work under the terms of their immigration
classification or change to another classification. In all cases, permission to
work must be received before starting to work.
As a general rule, an alien living outside the United States who wishes to
work temporarily in the U.S., must first get a job offer from a U.S. employer.
It is the employer who starts the paperwork. In many cases, such as with an
H-1B, the employer will file for labor clearance with the Department of Labor,
then file a petition with the INS. Following INS approval, processing is
transferred to a U.S. Embassy or Consulate abroad. Entry is permitted for a
limited period based on the premise that the job is of a temporary nature. Most
classifications permit renewals to not more than six years.
There are a number of classifications which permit employment and each has
its own criteria and a process which must be strictly adhered to. Some, such as
student classifications, may permit employment in connection with the student's
Depending on the classification, the conditions may involve a determination
that a U.S. worker is not being displaced and workers are in short supply in the
location concerned. This is particularly true in H-1B petitions where the
employer has a proportionately large share of the workforce employed as H-1Bs
and is deemed to be an H-1B-dependent employer. In all cases, it is expected
that the alien is qualified and not paid below the local going rate.
There are several other available classifications for business professionals
as well as internationally-acclaimed persons, foreign government representatives
and specialized workers. However, only two temporary classifications permit the
foreign worker to be actively seeking a Green Card while working in a temporary
capacity. These are Business professionals (H-1B) and Intra-company Transferees
It is usually a shorter and easier process to obtain permission to enter for
work in a temporary classification than to obtain a Green Card to live and work
permanently in the United States.
If permanent entry is approved, a Green Card, renewable after ten years, is
issued. This is generally a long process involving, in some cases, Department of
Labor or INS Labor Certification. Approval of an INS petition is always
required. If the applicant is living outside the United states, a visa must be
issued by the abroad followed by approved entry by the INS at a U.S. port of
entry. Each step must be taken in sequence as a pre-condition of advancing to
the next step. The requirements for supporting documentation are extensive and
must be followed very precisely, according to the requirements of the
classification or preference concerned.
There are special exceptions for internationally acclaimed aliens and those
with special skills in great demand.