U.S. companies may wish to employ foreign national workers on either a short-term or a long-term basis. The criteria for petitioning for nonimmigrant work visas or permanent residence (“green cards”) for workers are specific, complicated and strict. Many of the immigration procedures involved in obtaining visas or permanent residence do not have much to do with business necessity even though these processes are supposed to help American companies employ much needed skilled employees from abroad.
It is important for companies and foreign national workers to seek the advice of a qualified immigration attorney early in the hiring process. Failure to properly plan, or to not follow the immigration laws and requirements, even if unintentionally, can result in liability for the company and disastrous results for the worker. Processing times can be lengthy for some immigration processes and thus should be started well before the company wishes to employ the foreign national.
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Nonimmigrant visas for foreign national workers
Foreign national workers may need a temporary work visa or nonimmigrant visa to pursue work in the U.S. The U.S. offers an alphabet soup of different types of nonimmigrant visas — each with specific legal requirements and criteria. The most common types of nonimmigrant work visas are:
• B-1 Visas for Business Visitors: This visa allows foreign business visitors to enter the U.S. to confer with colleagues, attend board of director meetings, attend conferences and seminars, provide after-sales service and conduct preliminary work before setting up a U.S. office. The B-1 should not be used for productive U.S. employment.
• E-1 and E-2 Visas: Treaty Visas for Investment and Trade: These visas allow nationals of certain countries that have trade treaties with the U.S. to own and operate businesses in the U.S. as well as conduct trade within the U.S.
• H-1B Visas for Professional Workers: The H-1B visa status authorizes employment of qualified individuals to work in positions that require a U.S. bachelor’s degree or the equivalent for entry into the position. The biggest drawback to the H-1B program is that the demand for H-1B visas far exceeds the available supply. But, there are additional visas set aside for individuals from Chile and Singapore. Australians have an E-3 visa that is similar to the H-1B visa.
• H-2B Visas for Seasonal Workers: These are seasonal visas for unskilled labor where there are shortages of U.S. workers. Again, there are limits to the number of available visas and demand for these visas far exceeds supply. Planning for H-2B visas should be started approximately 9-12 months before the workers are needed.
• H-3 Trainee Visas: Valid for the period of training, or up to 18 months maximum, H-3 visas are used for foreign nationals who must obtain training in the U.S. that they will later apply outside the U.S.
• J-1 Visas of Cultural Exchange: This program may include students, trainees, interns, teachers and professors, research scholars and international cultural visitors. This program is administered by the U.S. Department of State.
• L-1A and L-1B Multinational Transferees: Executives, managers or those employees with specialized knowledge may transfer from a foreign company to a U.S. parent, subsidiary, branch or affiliate.
• TN or Trade NAFTA Visas – The NAFTA treaty provides visas to Canadians and Mexican nationals whose occupations are listed in the treaty. Most of the occupational categories are for those who are highly educated and skilled.
• O-1 Visas for Individuals of Extraordinary Ability: Individuals who are at the top of their field may qualify for these visas.
There are other visa types that allow foreign nationals to work including certain individuals with student status, O and P visas for artists and athletes and R-1 visas for religious workers. Certain other individuals may have “open market” work authorization including those with pending family or employment-based permanent residence applications, individuals in U status, spouses of E, J and L visa holders, DACA recipients, and those applying for asylum or relief from deportation.
Permanent residence for foreign national workers
Permanent residence is commonly called a “green card.” There are many different options for employment-based sponsorship of a worker’s permanent residence. Most of these legal processes are complicated and time consuming. But, employers may wish to sponsor highly valued workers. Certain extraordinary or exceptional foreign nationals may be able to sponsor themselves for permanent residence.
The most common employment-based route to permanent residence is an employer sponsored process called PERM. The crux of PERM involves showing that there are no qualified U.S. workers for the position that has been offered to the foreign national and that the U.S. company can pay a required minimum wage.
Other ways to obtain permanent residence depend upon showing that the worker is highly skilled or highly qualified. The EB-1 (or Employed-Based First) category is for those with extraordinary ability, outstanding professors or researchers and certain executives and managers of multinational companies. EB-2 (or Employment-Based Second) category petitions may be filed for those workers or employees with advanced degrees, those with exceptional ability and those whose presence is in the U.S national interest.
Some of these processes take many months or many years to complete. So, employers and workers should properly plan if permanent residence is the ultimate goal.
All employers contact the immigration system through the completion of I-9’s
Federal law requires employers to hire only individuals who may legally work in the U.S. All U.S. employers must verify the employment eligibility and identity of each employee hired to work in the U.S. by completing a Form I-9 for every employee, including U.S citizens. Employers are not required to complete Forms I-9 for independent contractors. However, it is against the law to contract the labor of an individual knowing that he or she is not authorized to work in the U.S.
The U.S. immigration system is designed to only allow foreign nationals who fall into very specific categories to work in the U.S. If someone falls outside those circumstances, lawful immigration will be challenging, if not impossible. Only through careful planning can employers successfully navigate a very complex and challenging system.
Lisa Battan is founder and principal attorney at the Lisa E. Battan, P.C., law firm in Boulder. She has practiced immigration law for about 20 years. She can be reached at 303-444-8668 or email@example.com