About two years ago, when I came to the US as a Microsoft intern, I started to understand the concept of “work authorization,” and the meaning behind the pesky job application question: Are you eligible to work in the United States?
Let’s face it—that’s a terrible question. Students are not lawyers, and I’m pretty sure few, if any, students outside the United States even understand the concept of work eligibility or the cacophonous mess of the US border. I’ve been forced to navigate it, so in this article, I’m going to try to explain, in layman terms and relatable examples, the general work eligibility situation in the United States. I will also try and elucidate just why tech is working so hard for skilled-immigration reform, and even though armageddon looms on the horizon, why no one else seems to care in this presidential election.
Please note that this is by no means legal advice. I am not a lawyer, nor do I have any legal or related immigrations training. These are simply a collection of my observations, so if you are to act on them, please do so at your own risk, and please perform your own extended research (and speak to a lawyer) before you do so.
First, let’s break down the different types of visas, and what they’re all used for. Unless you are an American citizen or permanent resident, you will need some sort of visa to work (be paid) in the US. Simply hopping across the border as a visitor is not going to help.
Interns: J-1 visa
Typically, students have little to no trouble getting into the United States as an intern. Under the J-1 visa, or “cultural exchange” visa, students are allowed to receive business training, and be compensated for it. The sponsoring company needs to produce a training plan (which is often generic), and as I understand, the emphasis should be that the intern is receiving more benefit than the company.
Complications with this visa include the “two-year home residency requirement,” which precludes students from returning to the US until they stay another two years in their home country. This varies by country, and certain countries, such as Canada, are excluded from this requirement. I believe all Canadian interns enter the United States under a J-1 visa.
Forging a life
The real complication of working in the US begins with graduation. For all foreigners to the US, there are broadly two categories of visas: Nonimmigrant, and Dual-Intent (nonimmigrant + immigrant). A large portion of those who come to the US, for one reason or another, would like to remain here, or at least, not live under the constant threat of deportation. This isn’t always possible, and it’s pretty much always a gamble.
Staying in the US
Someone entering the United States under a visiting visa, such as a TN or a B, is presumed to have no intent to remain in the country. Not just illegally—at all. When you enter under a visiting visa, you really have no lawful way of obtaining permanent residency, or by extension, citizenship.
Someone entering under a dual-intent visa, however, has the option to apply for permanent residency, and by extension, citizenship. Yet, because it is dual-intent, there is no declaration of intent. This means that it is lawfully possible to switch from a nonimmigrant visa (such as TN) to a dual-intent visa (such as H-1B) without signaling that you actually do want to stay in the country. It’s worth emphasizing that switching to a dual-intent visa does not mean you intend to stay, but rather, gives you the option to intend to stay.
If you already feel like ripping out your hair, it’s because this is both confusing and ridiculous.
Canadians working in the US: TN visa
For all the groups of people, Canadians (and Mexicans) really have it the easiest when it comes to simply working in the US. The meaning of “easy,” of course, is really subjective. Canadians, when they qualify, can work in the US for what is essentially an unlimited amount of time (through repeated renewals) under a TN visa. TN visas are nonimmigrant intent.
TN visas are possible because of the North America Free Trade Agreement, and a means thereby to exchange labor. It gives new graduates from Canada the opportunity to work in the United States if they have obtained a degree in their to-be field of work, allows for experienced professionals to hop across the border, and facilitates Canada’s largest export: talent.
If you didn’t catch the limitation, here it is explicitly: Your area of study has to correlate to your area of work. Thus, while a Canadian computer science, or software engineering graduate should have no trouble working as a developer in the valley, it would not be possible for, say, a literature graduate to do the same, even if the literature graduate was considerably more qualified.
There is, of course, some leeway in how TNs are processed. Investment bankers, for example, often work in the United States under an economist visa if they’ve obtained a business degree. Are they economists? No—but they’re close enough. Did they do their degree in economics? No—but it’s close enough. Yet, there are also limitations; some professions are not covered under this visa. For example, doctors from Canada cannot practice in the US under a TN unless it’s for research.
TNs are easy enough to obtain. Bring your paperwork to the border, and the customers officer will assess whether it’s valid. Challenging cases are usually filed with USCIS prior to approaching the border. Unfortunately, if your job offer and area of study are entirely different, you’re most likely out of luck for a TN.
Graduates of an American school: F-1 visa with OPT
The people who have it the second easiest are those who finished school in America under a F-1 visa. Those who graduate from an American school have the option to work in the United States for a year by applying for Optional Practical Training (OPT) status. Those who studied a STEM (science, technology, engineering, math) major can further extend it for another 17 months. At the time of writing, there is apparently talk of invalidating the 17-month extension for reasons that anti-vaxxers would probably support/understand.
As with the TN, F-1 visas with OPT are also nonimmigrant intent.
Intracompany transfers: L-1 visa
Some of those who don’t fall into either of the above categories can still enter the US on another type of work visa: L-1, or, as my friend puts it the “leash” visa. On this nonimmigrant visa, you are leashed to the company as an intracompany transfer. While with the TN and F-1, you can theoretically change jobs, you cannot on an L-1. You are leashed solid to the company sponsoring you.
Essentially, under an L-1, companies who have employed someone in another country for a period of time, can bring that person into a US office. This is one primary reason that companies like Google keep a Swiss office. Great employees that get booted out of the US go to the Swiss office, and at a later date, get transferred back into the United States.
If you have little or no hair left, it’s probably because this is really stupid.
Holy grail visa: H-1B
Those on a TN, F-1, and L-1, literally dream about this visa. They scream and cheer and run around the house in circles when they get this visa. They throw more-than-elaborate parties when they get this visa. It is the holy grail of all accessible visas, and it is dual-intent. Many would consider giving up their first-born child for this visa.
Unfortunately, obtaining an H-1B is very much like winning the lottery. Actually, scratch that. It is exactly like winning the lottery because H-1Bs are processed via a lottery. Completely (theoretically) randomly.
At the end of March, those who have already graduated and obtained a degree can enter the H-1B lottery for October dispersement, with the help of no less than an experienced legal team. Note that these dates do not align with traditional university graduation dates—meaning that most graduates need to wait another year before applying for an H-1B, then another six or so months before they’re actually granted. Companies need to show that they cannot easily find similar talent in the US, and that it is necessary to bring in skilled immigrants. Your salary has to be sufficiently high, and they need to show that you’re necessary. It’s an exceptionally cumbersome process, and many employers don’t even want to bother.
This past year, less than 50% of all applicants received an H-1B visa. Those on expiring OPTs were let go from many companies and sent back to their own countries. Talented graduates of non-US schools had their offers retracted. Those on TN visas were delayed yet another year in starting their new life.
It makes a lot of sense. I know.
Conversion without the holy grail
There seems to be a hidden technicality that doesn’t make itself entirely obvious, or could it really be a good idea. It appears that the permanent residency application process is removed from the visa process, insomuch as that there is no dependency that you must have a dual-intent visa in order to apply for permanent residency. However, if you apply for a permanent residency without a dual-intent visa, you risk being banned from the country.
The reason is that when you apply for permanent residency, you “declare” your intent to stay, while having promised that you did not intend to stay. By itself, this might be ok, because it is plausible that your intent has changed. However, once your visa expires, and you need to renew, you may no longer be able to renew as you have declared your intent, and your visa is not dual-intent. Thus, you risk losing your visa and having your residency application destroyed. While it’s possible, if a company is handling your immigration, it is often unadvised, and they may refuse to do this altogether.
Person of extraordinary ability: O-1 visa
The second dual-intent visa is the O-1, granted for those who have demonstrated extraordinary ability or accomplishments. Typically reserved for scientists, there are a set of requirements that applicants are required to meet. These visas are not easy to obtain, even for the highly skilled, and are generally out of reach. I won’t go too far into this, but realize that the government’s definition of “extraordinary” is actually plainly defined by a list, and simply having done some outstanding stuff may not qualify you.
Life after dual-intent
Even if you manage to obtain an H-1B visa, the conversion to permanent residency is terrible. The process is a little more complicated than I want to dive into, but candidates essentially have about a three-year minimum time where they can’t change jobs, or else their process starts all over again. Three years is assuming no random audits or delays. [Editor’s note: Quartz checked with an immigration law firm, which told us that while processing time for permanent residency can in some cases be shorter, three years is not atypical.]
From there, there are countries with additional waiting times (China, India, Mexico, etc.) that change every year, and have stretched out to 8+ years before. This is based on your country of birth, and not your country of citizenship.
You might be asking why this isn’t a bigger issue. I guess it’s because there aren’t enough people who are exposed to it. And, I suppose, the level of complexity isn’t something that’s easy to understand.