Common Work Visa Misconceptions
COO and Co-founder of Legalpad, Sara Itucas, weighs in on some of the most common work visa misconceptions. You can read this post and other answers on our recent Quora Session!
You have to be a Nobel Prize Winner or Justin Beiber to qualify for the O-1 visa (for the record, Justin Beiber does have an O-1)
The O-1 is a terrific option for venture-backed startup founders, designers, and academics!
You need to prove that the job won’t be taking American jobs
I get this one all the time, from people at startups and corporations alike: “How do I prove that this job won’t displace a US citizen?” The answer is that while there are a few visa types that have this requirement, most common nonimmigrant (non-green card) visas do not have this legal requirement. The H-1B, the O-1, the TN, E-3, etc. don’t need to prove this.
This “proof” only really becomes a question when sponsoring someone for some green card categories. This might seem scary, but also remember that there are great immigration attorneys out there who dedicate all their time to this process. They’ll walk you through it when it’s time to make that leap.
You can work in the US on all visa types
Not all US visas have work authorization, and perhaps the most practical example of this is with dependent visas. There are dependent visas that have no work authorization available, some with limited work authorization, and weirdly enough, often times dependents actually have more flexibility when it comes to employment!
There are also limits on work authorization for students and recent graduates that can affect their ability to apply for other visas like the H-1B.
Your visa and your status are the same thing
It’s important to understand two immigration terms: visa and status. Experts conflate these two all the time, so it’s worth mentioning for people who haven’t worked in the industry for most of their career!
Visa: The visa is the actual stamp in your passport. It’s like the ticket that allows you to get on the plane. The sticker or stamp does not guarantee admission to the US, however, and is not a reliable indicator of someone’s status.
Status: When you hear “Visa,” you’re probably thinking of “Status.” Your visa status is what the government looks at when determining legal presence.
These distinctions are important because this means that:
- A person can have valid “status” in the US but not have a valid “visa” in their passport
- A person can have an unexpired visa in their passport, but may not have a valid immigrant status
You can easily transfer your visa status
Not all visas can be transferred to a different company. Although it is possible to transfer certain visa status, it still requires good planning around timing and requirements.
Once you’re in you can do whatever
Yeah, no, most work visas have rules on who you can work for, where you can work, and which positions you can work in. Always make sure you understand your visa status to avoid “unlawful presence,” which I can talk more about below.
“Oops” moments are no big deal
There are a ton of safeguards in place when it comes to grace periods, but some lapses in status and compliance can open you up to “big deal” situations! We’re serious when we tell you to treat deadlines and timelines seriously. And there are hefty fines if you’re out of compliance as an employer: with H-1Bs in particular, the Department of Labor actually has a list of companies they’ve labeled as “willful violators,” which is published for the public on their website.
And as an employee, long periods of “unlawful presence” can result in bans from returning to the US, ranging from 3-10 years, and in serious cases, lifetime bans!