It is common for American companies to apply for immigrant or non-immigrant visas on behalf of foreign workers to have them fill a job opening and work in the United States. Despite it being a common practice, the process to identify the appropriate legal immigration strategy can be complex, as there are different types of visas that employers may use, with different conditions, processing times and procedures.
Employers must meet several requirements before the visa application for the worker can be approved, and those requirements may be different, depending on the type of visa your company intends to use. The type of visa that is most appropriate for the worker will depend on the kind of business you are operating, the qualifications of the foreign worker and the position the person will have in the U.S.
If you are a company and need guidance on how you can obtain permission for a foreign national to work for you in the United States, Our employment immigration attorneys can guide you in identifying the best alternative option and support you throughout the application process, reducing stress and minimizing the burden on your team. Call the FitzGerald Law Company for a case review at (617) 303-2600.
How Employers Can Bring Foreign Employees to the U.S. for Work
As an employer, oftentime you may need to hire or transfer a foreign worker when a qualified U.S. worker is not available or found. First, consider whether you intend to employ the individual permanently or temporarily. This will allow you to focus your options on either a non-immigrant visa or an immigrant visa (Green Card). It generally takes less time to process a nonimmigrant visa petition which could allow you to have the foreign worker at your company sooner, however many nonimmigrant visas are limited in number and are not available for all workers, at all times. There are restrictions on the availability of nonimmigrant visas based upon a large number of factors, including the position, the worker’s nationality (i.e. TN Visas are only available for Canadian and Mexican workers), the employer’s education and experience (i.e. many H-1B Visas are only for workers with University degrees), and others. An immigrant visa on the other hand may take a longer period of time to be granted but there are less restrictions on the type of employee that may be sponsored.
Employment immigration law can be challenging to understand and navigate, so it is critical to work with experienced employment immigration attorneys as you move through the stages of obtaining an employment visa for an alien worker.
Permanent Workers
There are several ways that a company may be able to obtain an immigrant visa / legal permanent resident status for a foreign worker; including the most common one, which requires the company to establish that there are no U.S. workers willing and able to do the job, and it will not have an adverse effect on the wages or working conditions of U.S. workers who are similarly employed. This determination is made by the Department of Labor when it approves the company’s Labor Certification Application, ETA-9089, which is explained in more detail below. There is also a procedure for obtaining residency for a worker who is an executive or a manager with an affiliated company outside of the U.S.; a procedure for applying for an employee who has an extraordinary ability; and another for workers who are providing a service that is in the “National Interest” of the United States.
Temporary Workers
There are numerous categories of temporary / non-immigrant visas which allow foreign workers to be employed or conduct business in the United States. Our Boston employment immigration lawyers have years of experience helping employers with many types of non-immigrant U.S. Visas for foreign employees who are temporarily coming to work in the U.S. including the H (H-1B) visa for professional employees, the E-1 Visa for Treaty Traders and E-2 visa for Treaty investors, the L (L-1A, L-1B) visa for intra-company transfers, O-1 visa for foreigners of outstanding abilities, the visa R-1 visa for religious employees, the P-1 visa for professional athletes and entertainers, and the TN visas for certain professional workers from Canada and Mexico as well as their corresponding derivative visas for immediate family members of the primary beneficiary of these visas. Our employment immigration attorneys can help your company prepare the required applications and supporting documentation for the most suitable nonimmigrant visa for your foreign worker.
Labor Certification Application for Permanent Foreign Workers (PERM) through the Department of Labor
A significant percentage of Immigrant Visas (Residency Petitions) for Alien Workers require that the petitioning employer obtain an approval of a Labor Certification Application from the U.S. Department of Labor (DOL). When adjudicating a permanent labor certification application, the DOL does not generally review the beneficiary’s qualifications for the position; this authority and responsibility rests with USCIS. Instead, the primary function of the Department of Labor in connection with PERM is to establish the prevailing wage for the position that will be offered to the foreign worker, or verify that the petitioner/employer’s proposed wage is appropriate; and to confirm that no qualified American worker is willing and able to accept the position that the petitioning employer is offering the foreign worker; after the business has completed the mandatory recruiting steps.
Afterwards, the USCIS will assess these petitions to ensure that the position offered is the same or similar to the position that the Department of Labor certified and that the beneficiary meets the qualifications of the job. Our employment immigration attorneys can help you make sure your business complies with the labor certification requirements before submitting any applications to the Department of Labor or USCIS and avoid later complications or denials. More information on the PERM process for Labor Certification (LCA) [1]
Residency Petition upon approval of LCA: I-140 & I-485 or DS-260
Once an LCA is approved for a PERM Petition by the DOL, the petitioning employer must file a Form I-140, Immigrant Visa Petition for alien worker, with USCIS within 180 days of the date of the approval.
This requires the petitioning employer to provide USCIS with evidence that it can pay the prevailing wage and that the foreign worker has the qualifications and capacity to do the job, including any educational degree or required experience.
In addition to the I-140, once the “priority date” is current for the appropriate immigrant visa category, the foreign worker must file either an I-485, to obtain resident status while remaining in the U.S. or a DS-260, to process residency outside the U.S. through a U.S. Consulate. Bear in mind that if the priority dates in the Visa Bulletin [2] allow it, the I-485 can be filed concurrently with the I-140 Immigrant Petition for Alien Worker.
Our business immigration lawyers can also help your employees file for their U.S. legal permanent resident status either via adjustment of status (I-485) in the U.S. or consular processing (DS-260) at a U.S. consulate.
Non-immigrant Employment Visas
In addition to the immigrant visa petitions discussed above, there are a number of non-immigrant visas that may be used for a foreign worker, depending on their qualifications and eligibility.
Under the H visa classification there is the H-1B visa for “specialty workers,” who have a bachelor’s degree or higher from a university, or its equivalent, H-2A visas for temporary agricultural workers, H-2B visas for temporary non-agricultural workers, and H-3 visas for trainees. In addition, the H-4 visa is available to the spouses and children of individuals holding H-1B, H-2A, H-2B, or H-3 visas, so that they may accompany the primary visa holder as dependents.
Under the E visa classification there is an E-1 visa for a “trader,” who is from a country that has a trade treaty with the U.S. There is an E-2 visa for an “investor,” who is from a country that has an investment treaty with the U.S. There is an E-3 visa for “specialty workers,” who are from Australia and have a bachelor’s degree or higher from a university, or its equivalent.
Under the L visa classification for intra-company transfers, there is an L-1A visa for an “executive or manager,” who has worked for 1 of the last 3 years outside of the U.S., for an affiliate of the U.S. company. There is also an L-1B visa for a foreign worker who has “specialized knowledge” of a critical aspect of the U.S. company and who has worked for 1 of the last 3 years outside of the U.S., for an affiliate of the U.S. company.
Under the O visa classification there is an O-1A visa for “aliens of extraordinary abilities or achievement,” in the sciences, education, business, or athletics, who will be working for a U.S. company. There is an O-1B visa for “aliens of extraordinary abilities or achievement,” in the arts or in the motion picture or television industries, who will be working for a U.S. company, and there is also an O-2 for an individual who will accompany an O-1 artist or athlete to assist in a specific event or performance.
Under the R visa classification for religious workers, there is an R-1 visa for a minister or a person working in a religious occupation and who will be employed by a church or religious organization that qualifies under IRS Code 501(c), and who has been a member of an affiliated church or religious organization for the prior two years.
Under the P visa classification for athletes and entertainers, there is a P-1A visa for a professional athlete or an athlete competing alone or as part of a team at an internationally recognized level of performance, or an amateur athlete who is competing in a specific event or on a specific tour. There is a P-1B visa for a performer who will perform as a group that has been established for a minimum of one year and who has international recognition. There is a P-2 visa for entertainers performing under a reciprocal exchange program between an organization in the United States and an organization in another country. There is also a P-3 visa for entertainers who will perform under a “culturally unique” program.
Created under the NAFTA Treaty with Mexico and Canada and continued under the USMCA (United States-Mexico-Canada Agreement), the TN visa allows professionals who are nationals of either Mexico or Canada, who are coming to the U.S. to perform specific professional services identified in the agreement, for a U.S. company. Find the professions that are listed in the USCMA / NAFTA treaty that qualify for a TN Visa [3].
Spouses and children (under 21 years old and single) of the holders of most of the above non-immigrant visas are eligible for derivative non-immigrant visas.
Our immigration attorneys also have extensive experience with employment-based nonimmigrant visa petitions and can assist you to evaluate the legal options you have to employ a foreign worker. Read More About Non-Immigrant Visas for Temporary Workers [4]
Certification of Labor Condition Application (LCA) from the Department of Labor is Required for Certain Non-immigrant Visas
Certain nonimmigrant visa categories, such as the H-1B, require U.S. employers to obtain a Labor Condition Application (LCA) certification from the Department of Labor (DOL). As part of this process, the employer must attest that it will comply with these requirements::
- The employer must pay the worker a wage that is at least equal to the wage paid to other employees with similar qualifications, or the prevailing wage for the position in that geographic area, whichever is higher.
- The employer must provide working conditions that do not negatively affect other workers in similar positions.
- The employer must confirm that there is no strike or lockout at the place of employment for the position being offered.
- The employer must notify either the employee bargaining representative or, if none exists, post a notice at the worksite stating that an LCA has been filed with the DOL.
Our Boston Employment Immigration Lawyers Can Help
If your company is seeking to sponsor a foreign national—whether they are already in the United States or abroad—our knowledgeable employment immigration attorneys can guide you in selecting the most suitable visa category for your business, whether a permanent (immigrant visa) or a temporary one (non-immigrant visa). We will support you through every stage of the qualification and application process, simplifying what can otherwise be a complex and demanding undertaking. To schedule a consultation, contact FitzGerald Law Company at (617) 303-2600 (ext.0) or complete our online appointment request form [5].