The philosophy of the American government as far as admission is concerned, is that it must protect the American worker.
Only those who can contribute to the national economy, to the cultural interest or to the well being of the U.S. have the right to work in the UnitedStates. We are not referencing exceptional cases of refugees who are forced to flee their countries for political or economic reasons.
We will talk here about the “H” category as now redefined in the Immigration Act of 1990 as the “Employment Based First, Second, or Third Category”.
We know that those who wish to immigrate permanently to the United States must obtain a “Green Card”, which is essential in order to have the right to such permanent residency and to work.
Let us now look at options which give the lawful “right to work”.
The difference between the “H” visa and the “Employment Based Preference” is that the latter gives the right to permanent American residency whereas the “H” visa is temporary and is only valid initially for three years with a possibility for renewal for an additional two years.
This means that if you wish to work in the United States and you possess the required qualifications, you are eligible for an “H” visa as long as you retain your residence abroad.
The “Employment Based Preference” indicates a permanent relocation to the new U.S. residency.
The qualifications for the two categories vary greatly.
An “H” visa requires recognized talents whereas the “Employment Preference” requires exceptional talents which are out of the ordinary and which must be recognized by specialists in the profession.
For example, a singer who is well known in her city would be a possible candidate for an “H” visa, but unless she has had sustained fame nationally or internationally she may not be able to obtain an ” Employment Based Preference” to become a permanent resident.
Frequently in the field of immigration, interpretations are not always consistent. The same candidate for a visa may be simultaneously eligible for an “H” and/or for “Employment Based Preference”.
How can one prove that one has exceptional qualities?
By producing a file full of diplomas, certificates of competency, affidavits of specialists, articles from newspapers, and any documentation attesting to the expertise of the individual, the applicant is arming himself for positive reply.
Those who work in the artistic fields must present proof of publicity, advertising and especially engagement contracts.
In the case of union disputes or a strike, a certificate obtained ahead of time from the Department of Immigration will be postponed to a future date if the holder is not in the United States yet. It is the union which must decide to accept a non-American wishing to exercise a job which is controlled by the union; the labor certificate will only become valid if the union grants its consent.
The “Employment Based Preference” requires the offer to the foreigner of an existing job.
This offer can be made by a third party, by the individual himself if he has hired an American employee and maintains a going enterprise, or by the agent of a foreign artist. A labor certification is not required for the H category since it is a temporary visa (see exceptions noted in chapter one). Note, however, that a labor certification attestion (LCA) is required for the H1 visa.
The H visa has two major advantages. First, it allows the immediate family and support staff to accompany the beneficiary. It also allows you to hold on to the tax advantages of your country of origin in certain circumstances where you maintain direct, consistent and permanent ties to your home country. Note that there have been numerous changes to the immigration statute in connection with visas for those in the entertainment field and you are encouraged to review Chapter One for this purpose.