Visa Options and Immigration Strategies for Those in the Food and Drug Industry

by David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq. and Samantha Chasworth, Esq.

The food and drug industry in the United States is highly-competitive, housing talent from within the country and abroad. Businesses in these industries should be aware of the different visa options available for hiring foreign talent in order to stay on top in an otherwise highly competitive market. Thus, here’s an overview of potential visa options and immigration strategies for those in the food and drug industries.

Categories of Employment-Based Non-Immigrant (Temporary) Visas

H-1B Visa – Specialty Occupation

The H-1B visa classification is designated for what is considered specialty occupations. These occupations should, therefore, require the following:

* Theoretical and practical application of a range of highly-specialized knowledge

* A minimum requirement of a bachelor’s degree or higher in the respective specialty (or its equivalent in terms of work experience)

This visa classification is also the most common among businesses hiring foreign talent.

Employers for this category must also show that they are offering the prevailing wage for this specific occupation in their localized market.

Examples of positions that qualify for the H-1B visa classification are listed below.

* Engineers in a variety of fields
* Supply chain professionals
* Food and drug scientists and researchers
* Veterinarians

There is an annual limit for professionals entering the country with H-1B visas. The cap is at 65,000 visas for individual with a bachelors or its equivalent and 20,000 more visas for talent with a master’s degree or higher from a university in the United States. Thus, the total cap is 85,000.

Professionals working with an H-1B visa can switch employers while still in the US. For that, the new employer must file the H-1B petition on the employee’s behalf. Moreover, the employer must also update the petition with any changes in occupation, demonstrating that it is offering the prevailing wages for that occupation. The employer must make this amendment before the employee switches occupations.

H-1B1 – Category for Professionals from Chile and Singapore

Citizens from Singapore and Chile who otherwise qualify for an H-1B visa can seek H-1B1 status. Thus, this visa category is a specialty occupation category for candidates from Chile and Singapore.

E-3 – Category for Professionals from Australia

Australian citizens who otherwise qualify for an H-1B visa can seek E-3 status. Thus, this visa category is a specialty occupation category for candidates from Australia.

TN – Category for Professionals from Mexico and Canada

The TN is a visa category specifically for citizens of Mexico and Canada that currently work in specific professional occupational categories that allow for United States work authorization.

The most common examples of TN category occupations in the case of the food and drug industry include the following. Note that this is not an exhaustive list.

* Biologist
* Dairy scientist
* Veterinarian
* Animal breeder
* Poultry scientist
* Horticulturist
* Plant breeder
* Soil scientist
* Scientific technician/technologist
* Engineer

In addition to being a citizen of Mexico or Canada, applicants must also have the following qualifications to qualify for a TN work visa.

* Be offered a job from a US employer
* Hold a baccalaureate or licenciatura (bachelor’s) degree in the field relevant to the occupation. A state/provincial license, which is a document issued by a state, provincial or federal government that allows a professional to engage in a regulated profession or activity, is also acceptable. However, a license by a local government is not accepted.

L-1 Visa – Intracompany Transfer

This category is for individuals either in a managerial/executive or in a specialized knowledge capacity who have been working abroad for 12 months or more in the last three years to come to the United States to work for an affiliate, parent, subsidiary or branch office in the same capacity as mentioned above.

F-1 – International Students

Individuals with F-1 student visas may work in limited capacities. Thus, they can work in Optional Practical Training (OPT) for a year after graduating from university. The work must be related closely to their field of study to qualify for OPT. However, STEM field students can extend this period by 24 months.

B-1 Visa – Business Visitors

The B-1 visa is for foreign professionals to visit the US just for temporary business within a specific, limited time frame. The maximum period is one year which may be extended depending upon the needs if the foreign business.

Process of Acquiring Permanent Residency (Green Card)

All visa categories above allow employers to hire foreign professionals for limited periods. However, employers that want to retain foreign employees for longer periods than available with the nonimmigrant visa categories above can sponsor individuals for permanent residency (LPR or green card). With a LPR status, foreign employees can stay and work in the US permanently.

Acquiring LPR takes years, and it is longer for Chinese and Indian citizens. In addition to this time frame, employers should also note that some visa categories (such as TN and H-1B1) are not easily transferred into cases for LPR. Thus, it’s better to switch the visa category to a better platform for this purpose. The H-1B visa category is the very best option.

Typically, the LPR process has 3 steps, which are listed below.

1. PERM labor certification with the U.S. Department of Labor (DOL)
2. Petition for I-140 immigrant visa with the U.S. Citizenship and Immigration Services (USCIS)
3. Application for I-485 adjustment of status with the USCIS or Consular Process with the Bureau of consular Affairs at a U.S. Consular Office Abroad.

Hiring, Work Authorization, and I-9 Compliance

According to the Immigrant and Employee Rights (IER) section of the Department of Justice (DOJ), employers are permitted to ask candidates only the two questions listed below during an interview or even during the job application.

* Are you legally permitted to work in the United States?
* Will you require sponsorship for employment visa status now or in the future (e.g., H-1B visa status)?

After hiring a foreign employee, the US employer must complete and retain a Form I-9 to confirm the identity of and work authorization of every employee that was hired after November 6, 1986. This was made part of the law under The Immigration Reform and Control Act of 1986.

There are 3 obligations that US employers have when completing Form I-9 all for its employees, irrespective of whether they are foreign or from the US:

* Confirming that the I-9 is completed thoroughly and accurately, with the employee adequately and timely completing Section 1.
* Ensure that all documents presented by the employee are related to that employee only.
* Ensure that every document looks reasonably genuine on its face.

If you have any questions about how the immigration and nationality laws in the United States may impact you or your family members or if you want to access additional information about the United States or Canadian immigration and nationality laws, please feel free to get in touch with the immigration and nationality lawyers at NPZ Law Group. You can send us an email at or you can call us at 201-670-0006 extension 104. In addition, we invite you to find more information on our website at

About The Author

David H. Nachman, Esq. is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assist clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.

Ludka Zimovcak, Esq. is a Managing Attorney at NPZ Law Group, PC. Mrs. Zimovcak's passion for excellence in immigration law derives from her own family's first-hand immigration experiences. She is fully licensed to practice as an Attorney in Slovakia and New York

Snehal Batra, Esq. is Managing Attorney of our Raritan, NJ office at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. Ms. Batra is an Indian-American attorney with a passion for immigration law which derives from being an immigrant herself. Having been born in India and raised in New Jersey, Ms. Batra understands firsthand the many difficulties and challenges that immigrants commonly experience while engaged in the U.S. immigration process. As such, she is eager to help families, businesses and individual immigrants to realize the American dream.

Samantha Chasworth, Esq. is Counsel at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. Ms. Chasworth earned a Juris Doctorate (JD) from the St. John's University School of Law in Queens, New York, where she was an editor on the Journal of Civil Rights and Economic Development and participated in numerous immigration and family law clinics and internships including time at the US-Mexico Border at the Karnes County Civil Detention Center.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.