US visa eligibility: five HR issues when transferring employees

For HR professionals identifying viable non-US citizen candidates for hire in the US, investigating visa eligibility is mandatory prior to onboarding and the commencement of employment.

In navigating the complex and frustrating regulations and restrictions of US immigration law, everyone should remember a simple acronym: “COPE”. The points listed below will assist any HR professional to cope with the difficulties of US immigration law when identifying personnel for employment in the US:

  • criminal and prior immigration history;
  • occupation;
  • previous experience; and
  • education.

 Criminal and prior immigration history

A criminal history or prior visa denials, overstays or refusals of entry to the US are preliminary concerns in identifying viable transferees to the US.

Any prior criminal history may delay transfers or even result in outright inadmissibility. A simple arrest without a conviction may result in delayed processing of a visa, while documented admissions of criminal activity or convictions may have even greater repercussions.

While the law governing the implications of various criminal convictions is complex, HR professionals should be mindful that crimes against property, involving drugs or domestic violence often have serious repercussions for those attempting to secure a US visa.

Adverse US immigration history may also complicate and undermine a transfer to the country; prior visa denials or refusals of entry may result in the delayed processing or heightened scrutiny of a visa application. In addition, individuals who have failed to adhere to the terms of a previous visa may face delays and complications in pursuing a new visa. Finally, individuals who have remained in the US beyond their permitted stay may face outright bars to re-entering the US for up to 10 years in some cases.

Occupation and US visa eligibility

The occupation of the transferee will have a significant bearing on visa eligibility. The immigration laws of the US typically favour individuals within an organisation, including managers, executive, and employees with specialised knowledge.

In assessing the likelihood of a visa option for a transferee to the US, company owners, executives, and managerial personnel generally have a broader selection of visas available to them. In addition, employees in occupations that require some proprietary knowledge or specialised skills generally have greater access to a visa than unskilled workers. Those deemed to be of extraordinary ability in a given occupation or field, via industry awards and reputation, also have greater options than less distinguished individuals in a given occupation.

Previous experience within an organisation

Employees who have previous experience working for a parent, branch, subsidiary, or similarly related business entity of the US company that they will transfer to, have broader options when applying for a visa.

Individuals with at least one year of executive or managerial experience, or work as a specialised knowledge employee, are often eligible to the US on the basis of being an intra-company transferee. As a result, individuals with previous experience within a multinational company may have a broader range of options to enter the US with a work visa.

Previous work experience may also result in greater US visa eligibility and likelihood of visa approval on the basis of knowledge gained through employment. Many visa categories favour specialised or technical knowledge of a multi-national organisation’s business operations, product development, and proprietary knowledge.

Education as a factor in immigration law

Consideration of an employee’s education is often an essential factor in determining the availability of a suitable visa to work in the US. Some visa categories require a transferee to have the minimum of a US bachelor’s degree, or equivalent education and work experience. More generally speaking, visa applications that do not require the attainment of a certain level of education are often strengthened based on education credentials.

The education of a transferee is also a substantial factor when an employer sponsors an employee for legal permanent residency in the US. The availability of legal permanent residency is prioritised for those who have attained a master’s degree or equivalent educational and work experience.

For those not well versed in US immigration laws, the complexities involved become readily apparent when identifying candidates for transfer. The visa options have the dual distinction of being great in quantity but often limited in utility. In assessing eligibility of transfers and coping with the unavoidable complexities of US immigration law, HR professionals must never forget: criminal and prior immigration history; occupation; previous experience; and education.


About William Diaz

William Diaz is an attorney at immigration law firm Laura Devine Solicitors.
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