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If you are a game industry professional with an interest in a job opening in your field at a company located in the U.S., the first thing you will probably be asking yourself is: "Can I get permission to work in the U.S.?" The following FAQs should answer most of your questions. However, if you have not found the answers you need please e-mail us at: alipson@globalmobilitylaw.com. Please mention in your message that you are writing after viewing our website and we will respond within 24 hours. We do not charge for short answers that give general information which is NOT legal advice.
Q: I am a citizen of another country, how do I get a work permit?
A: Work permits are issued for a temporary period of time and are tied to a specific employer who must file a petition on your behalf with the United States Citizenship and Immigration Services or USCIS. They are called non-immigrant visas. If the petition is approved, you would then need to apply for the actual visa stamp in your passport at the U.S. embassy or consulate closest to your residence before you would be allowed to enter the U.S. and begin work here.
Q: What kinds of work permits (non-immigrant visas) could I qualify for?
A: For the interactive entertainment industry there are two kinds of work permits or visas that would normally be appropriate:
H-1B: This is a professional and "specialty occupation" work permit or visa status for individuals with a minimum of a Bachelor's Degree in their field, or comparable experience that is calculated according to a specific USCIS formula. There must be a U.S. employer who is offering the position which realistically and normally requires a successful candidate to hold the minimum of a Bachelor's degree in their field. The employer must comply by certain Department of Labor regulations with respect to salary and working conditions, one of which is that the foreign born worker must be paid at or above the prevailing wage of the particular geographic area where the position is based.
CAVEAT: For professionals holding degrees from overseas there is an annual cap of only 65,000 visas. All new H-1B work commences on October 1 of each year and can be requested for a period of time up to three years. The earliest date to file the petition for the October 1 start date is April 1. In the recent past when the economy was growing, more than 65,000 visa petitions were filed on the first day. Petitions were chosen based on a lottery system. This year, 2009, it is now June and there are still just under 20,000 H-1B visas available.
O-1: This is a work permit or visa status issued to foreign nationals of extraordinary ability in the arts, sciences, education, business or athletics. There must be a U.S. employer who is offering the position. To qualify for this visa status you must submit documentary evidence to show that you have achieved sustained national or international acclaim and that your achievements have been recognized in the field through extensive documentation. Extraordinary ability indicates a high level of expertise and requires proof that you are one of a small percentage who has risen to the very top of the field. There is no cap on the number of O-1 visa issued each year. The O-1 visa can be issued for an initial period of up to three years and can be renewed for one year at a time indefinitely.
Q: If I come in on an H-1B or an O-1 can I switch employers or add employers?
A: U.S. immigration law allows you to switch employers if the new employer files a transfer petition on your behalf that is approved for an appropriate job for up to three years, up to a total of six years in H-1B status. Once you have been counted in the H-1B cap you are allowed a total of six years (more in some circumstances) without needing to be re-counted for the cap. If you want to work 24 hours a day, you can add one or two "concurrent employers", where each files a petition on your behalf, so that you have more than one job with more than one employer running at the same time or "concurrently".
Q: Once the H-1B or O-1 petition is approved by USCIS how do I obtain a visa stamp in my passport?
A: You will need to make an appointment at the closest U.S. Embassy or Consulate to apply for a non-immigrant visa. We suggest that you visit the website of the Embassy or Consulate for the most up-to-the minute instructions as to how to make a visa appointment and how to pay for the visa. Most U.S. posts overseas require prepayment of the visa fee at the local bank. You would then need to bring proof of payment to the interview along with completed forms that are initially submitted on line, then printed out and brought in your application packet together with a photograph and the original notice of approval issued by USCIS indicating that the petition was approved. Most Embassy/Consulate appointments require you to stand in line and wait a long time both outside and inside and the interview itself normally takes place at a counter and lasts a matter of minutes. In most cases it will take the particular post several days to return the passport with the visa stamped inside. In certain countries such as those of the Middle East, China, India and Russia, there may be delays due to security clearances.
Q: If I don't qualify for either the H-1B or the O-1 visa what are my non-immigrant working visa options?
A: There are some creative options if you have some flexibility in terms of timing and some funds:
- J-1 Exchange Visitor visa: This is an exchange visitor visa that can be issued for up to 18 months for certain trainees under specific circumstances. The application process is unique. The employer applies to a designated umbrella agency for approval of its training program. The agency charges a fee for this service. If the training program is approved, the agency will issue an approval notice which you can then take to the closest U.S. Embassy or Consulate and apply for a visa. Unlike the H-1B or the O-1 visa you would have to demonstrate that you have sufficient ties to your home country that your J-1 stay in the U.S. will only last for 18 months. For certain countries and under certain circumstances, the grant of the J-1 visa means that you must return home for at least two years before you can resume living and working in the U.S. This is a tricky visa category that requires an in-depth analysis and careful planning.
- L-1 Intracompany transferee visa: If you are a manager/executive of a company overseas or an individual with specialized knowledge of the company's products, services or procedures, who has been employed in that capacity for 12 months out of the previous three years, and you are coming to assume a similar position in a related company, either a parent, subsidiary, branch or affiliate of the overseas company, you may be able to qualify for this visa status. This visa status can also be used even if you are coming to set up a new U.S. operation although you would only be given one year of authorized stay to start with before you would have to prove the viability of your new company. An L-1 for a manager/executive can be issued for a total of seven years (five years for specialized knowledge).
- E treaty visa: If the U.S. has a treaty of commerce with your country, and if you have an entrepreneurial spirit you may want to invest in a new company in the U.S. and apply for an E-2 treaty investor visa. You would have to demonstrate a "substantial" investment in a commercial enterprise and demonstrate that the investment will be profitable beyond your own income needs and that it will create jobs for U.S. workers. If you would like to establish a trading company based upon the trade of goods or services between the U.S. and your home country, you could apply for the E-1 treaty trader visa. In both cases you must invest unencumbered funds in the venture and be able to demonstrate a profit by the end of the first two years. Once issued, and after the first two years, the visa can be renewed indefinitely.
- TN visa: If you are from Canada or Mexico you may be able to qualify for a NAFTA professional TN visa status which can be granted for up to three years. Canadians may apply directly at the border, either in the Canadian airports or at the port of entry when entering the U.S. by car. For Canadians, no visa stamp is required. Mexican citizens must present a visa and may apply at consular sections around the world for a NAFTA professional TN visa. To qualify for the visa the applicant must be a citizen of either Canada or Mexico, must possess the qualifications for one of the professions listed in the NAFTA treaty appendix and must be coming to work for a U.S. employer.
- E-3 visa: Australians have a special deal. The U.S. enacted legislation for this visa based upon a special treaty with Australia that allows Australians to come in to work in "specialty occupations" similar to the H-1B. There are 10,500 visas allocated each year and since the law was enacted in 2005 the cap has never been reached. The E-3 can be applied for directly at the U.S. Embassy or Consulate overseas. The E-3 visa is given in two year increments and can be extended indefinitely.
Q: Can my spouse and children accompany me to the U.S.?
A: Yes, they can, in a related visa category such as H-4 for dependents of the H-1B main visa-holder and the L-2 for dependents of the L-1 visa holder. H-4 visa holders may attend school but are not authorized to work. L-2 visa holders are authorized to work as well as attend school.
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