It is common for American companies to apply for immigrant or non-immigrant visas on behalf of foreign workers to have them fill a position 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 alien 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 lawyers can help you determine the most appropriate and viable alternative and assist you with the application process. 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, you may need to hire or transfer a foreign worker when a U.S. worker is not available. 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 alien worker at your company sooner, however nonimmigrant visas 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 only for Canadians and Mexicans), the worker’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 what type of employee 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 that requires they 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 latter determination is made by the Department of Labor when it approves the company’s Labor Certification Application, ETA-9089, which will be explained further 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 H (H-1B), E (E-1, E-2, E-3), L (L-1A, L-1B), O (O-1), R, P, and TN visas (described later), 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 appropriate 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 petitioner/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 DOL certified and that the beneficiary meets the qualifications. 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 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, the foreign worker must also file a petition once the “priority date” is current for the category, either a 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 immigration attorneys can also help your employees file for their U.S. legal permanent resident status either via adjustment of status (I-485) or consular processing (DS-260).
Non-immigrant Employment Visas
In addition to the immigrant visas petitions discussed above, there are a number of non-immigrant visas that may be used for a foreign worker, depending on their qualifications and eligibilities.
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.
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 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. Ther 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 motion picture or television industry, 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 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/organization that qualifies under IRS Code 501(c), and who has been a member of an affiliated church/organization for the two prior years.
Under the P visa classification 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 preforming under a reciprocal exchange program between an organization in the United States and the other country. There is a P-3 visa for entertainers who will perform under a “culturally unique” program.
Under the NAFTA Treaty with Mexico and Canada a TN visa was created for professionals who are nationals of either country, who are coming to the U.S. to perform specific professional services for a U.S. company. The professions must be listed in the treaty and are available at the following link : https://www.nafsa.org/_/file/_/amresource/8cfr2146.htm [3]
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 Workes [4]
Certification of Labor Condition Application (LCA) from the Department of Labor is Required for Certain Non-immigrant Visas
Some nonimmigrant categories, like an H-1B, require U.S. employers to obtain a certification of labor condition application from the Department of Labor (DOL). That application requires the employer to attest that it will comply with the following requirements:
- The employer must pay a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area
- The employer must provide working conditions that will not adversely affect other similarly employed workers
- The employer must attest that there is no strike or lockout at the place of business of the prospective temporary worker
- The employer must give notice to the bargaining representative or post a notice at the place of business that a labor condition application has been filed with the DOL
Our Boston Employment Immigration Attorneys Can Help
If you are an employer looking to sponsor a foreign worker currently in the U.S., or one who is outside of the country to come work in the U.S., our employment immigration lawyers can help you determine the most appropriate type of visa petition for your business needs; whether permanent (Immigrant Visa) or temporary (non-immigrant visa), and assist you with the entire complex application and qualification process. For a case consultation, contact the FitzGerald Law Company today at (617) 303-2600.