HR Professionals Ask About their Employment-Based Immigration Concerns
Recently, Berardi Immigration Law reached out to a number of our corporate immigration clients to find out what some of the most frequently asked questions from their foreign employees are. Here are some of those responses:
Q: Can foreign employees working in the U.S. travel outside the U.S.?
A: Generally yes but the requirements may be dependent upon the visa category the foreign national holds. For most foreign nationals, a visa issued abroad is required to re-enter the U.S. after periods of travel abroad. However, based on the NAFTA treaty, Canadian citizens are exempt from this visa requirement. That said, it’s important to understand the difference between “your status” and “your visa,” since these terms are often used interchangeably but are very different.
A nonimmigrant visa is issued to an individual and placed in their passport by an official at a U.S. Consulate or Embassy which operates under the Department of State. Visas are issued in many different categories and have varying validity dates.
CBP issues Form I-94, which determines U.S. immigration status. Status is classified under the category of admission (such as visitor, student, intra-company worker) and the duration of stay permitted. When an individual holding a valid visa arrives at a port-of-entry, a CBP Inspector determines admissibility and the amount of time an applicant may be admitted for. This information is recorded on Form I-94 Arrival/Departure record.
Click on the link to learn more about “Common misconceptions regarding visas and status.”
Q: Are certain visas only are available to citizens of certain countries?
A: There are a number of visa categories (again, a visa is just a travel document, you get status based on a category under which you apply or petition) that are only available to citizens of certain countries. Among these are the TN and L categories, which are available to Mexican and Canadian citizens, and the E-3 visa, which is available to Australian citizens. Most other categories are open to all foreign nationals who otherwise meet the eligibility requirements.
Below are just a few of the informative articles regarding these categories you can find on our website:
- TN Nonimmigrant Visa: Employing Canadian and Mexican Nationals Under NAFTA
- TN Nonimmigrant Visa: NAFTA Professions List
- NAFTA Nonimmigrant Visas (TN and L-1): A Comparison
- Temporary work permits for Australian Professionals (E-3)
Q: What is the impact of an individual’s visa category on family members? Is a spouse able to work?
A: Again, based on the category under which the individual holds status, spouses may or may not be able to work. For example, the spouse of an employee with an E-3 visa can gain authorization to work in the U.S. because the spouse is eligible to apply for the same E-3 status. Unmarried children under 21 are also eligible for the E-3 status, however they are not eligible to work.
Here is information on other popular business categories:
H-1B Visa: An H-4 visa is issued to the spouse and dependent children of H-1B visa holders who would like to accompany the H-1B visa holder in the U.S. during the period of their stay. As an H-4 nonimmigrant, neither a spouse nor an child is authorized to be employed in the U.S.
L Visa: Spouses and unmarried children under 21 years of age of L-1 workers are entitled to L-2 status. Dependents may be students in the U.S. while remaining in L-2 status, and spouses may seek to obtain employment authorization.
TN Status: Spouses and unmarried children under 21 of TN professionals are entitled to TD status. They may be students in the U.S., but may not be employed while under TD status.
Find out about these and other employment based nonimmigrant categories by clicking here: Working in the United States (be sure to scroll down to the “related articles” section).
Q: What if a baby is born while the family is in the U.S.?
A: That baby is a U.S. citizen with all rights and responsibilities that come along with that.