U.S. employers can employ a foreign worker on a temporary basis (on a non-immigrant, temporary worker visa), or on a permanent basis, by sponsoring a foreign worker for permanent residency (for a green card). The U.S. employer may choose to do either, or both. There are various categories and specific eligibility requirements for the two types of employment-based immigration. It is very important that each step is followed very closely so that the petition is filed and adjudicated in a timely manner to assure that the foreign worker can be employed without delay.
Visas for Temporary Employees
Certain non-immigrant visas allow employers to temporarily employ foreign individuals for a certain amount of time. Many types of non-immigrant visas are classified by what particular skill, occupation, or profession the applicant has, or what field of research the foreign worker will be engaging in.
For example, an H-1B visa would allow a U.S. employer to employ a foreign worker in a specialty occupation that is related to the foreign worker’s degree of a bachelor’s or higher. The H-1B visa can be granted for an initial period of three years, with an extension up to a total of six years. Additional extensions beyond the initial six years are possible when certain steps are taken by a U.S. employer, in a timely manner, to sponsor the foreign worker for permanent residency. Typical fields that qualify as a “specialty occupation” for an H-1B visa are computer science, architecture, engineering, biotechnology, sciences and arts, medicine and health, education, business management, accounting, and law.
Currently, federal law limits the number of H-1B visas to 65,000 per year. There are a number of exemptions, including the first 20,000 petitions filed for persons who hold a master’s degree or higher, or for petitions for workers at universities, government research facilities, or certain other non-profits, who are “cap-exempt,” meaning not subject to the annual H-1B numerical cap.
It should be noted, there are years when enough applications to surpass the number of allotted visas are received by the USCIS on the first day that applications are accepted (April 1) for the coming fiscal year (beginning Oct. 1). When this occurs, a lottery is held to determine which applications may enter the adjudication process.
Other types of temporary employment visas include treaty traders and investors (E visas), intracompany transfers (L visas), seasonal workers, athletes, entertainers, people with extraordinary abilities, and religious occupations. There are also a number of country-specific visas available to citizens of certain counties, such as Chile and Singapore (Free Trade Agreement Professional), Australia (specialty occupation professionals), and Canada and Mexico (TN professional worker visa based on the NAFTA treaty).
Visas and Green Cards for Permanent Employees
Sponsoring prospective foreign employees to work permanently in the United States through permanent labor certification can be a complicated and time-intensive process for the U.S. employer.
A U.S. employer wishing to sponsor a foreign individual for permanent residency usually must apply for a labor certification with the U.S. Department of Labor. The purpose of this process is to establish that the foreign worker will not adversely affect the job opportunities, wages, and working conditions of U.S. workers, and that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. It can be an exhausting process in which certain timelines, recruiting procedures, and detailed specifications must be met, so professional guidance by an experienced immigration lawyer is essential to the success of your case. Currently, this process is carried out through an electronic certification system, commonly known as PERM (Program Electronic Review Management.) Visa applicants with extraordinary ability or who qualify for a National Interest Waiver may bypass the PERM requirement.
Once the labor certification is obtained, an employer may then submit an I-140, Immigrant Petition for Alien Worker, with the USCIS. The I-140 indicates the U.S. employer’s intention to hire a specific foreign worker on a permanent basis. When the I-140 is filed, the prospective employee is placed in line according to the “priority date” with others in the same visa category. When they reach the front of the figurative line, they may then be eligible to apply for a visa to immigrate. Hence, it is usually in the best interest of both the employer and the prospective employee to file sooner rather than later.
Please note, an American employer may begin the process of sponsoring a foreign employee for permanent residency regardless of whether the prospective employee is already working in the United States.
If you have any questions about business-based immigration, please contact us. We would be happy to help.