If you are a U.S. employer seeking to hire foreign nationals to work in the United States, there are many issues to consider. Let’s get started!
General Employment Concepts:
While onboarding situations differ, there are basics required of every individual hired in the United States where compensation is expected for work provided. Form I-9 compliance must be addressed for all workers during the onboarding process—this applies to U.S. citizens, lawful permanent residents, and foreign workers who have authorization to work in the United States. While a hiring manager cannot mandate what forms of evidence a candidate presents for inspection during the Form I-9 process, familiarity with this protocol is necessary to avoid administrative errors than can result in penalties for non-compliance.
Foreign nationals can present special challenges when recruiters, hiring managers and HR representatives fail to properly vet candidates to ensure they possess necessary authorization to work in the U.S. Consultation with immigration counsel is always advised to avoid hiccups, and to timely file any required nonimmigrant or immigrant work authorization. The following summary is informational only and should not be used as the basis for any hiring or termination decision. No attorney-client relationship is created by this informational post, and a formal Client Retainer Agreement is required before Philip Levin & Associates, P.C. can be engaged to provide professional immigration services.
The pathways for employment sponsorship are varied and based in U.S. federal immigration law, as interpreted by U.S. Citizenship and Immigration Services (“USCIS”), U.S. Department of Labor (“DOL”), and U.S. Department of State (“DOS”). Generally speaking, there are both employer-based and family-based tracks for work authorization, as well as some asylum seekers and those with “TPS” employment authorization who hail from a handful of countries enduring various forms of civil strife or natural disaster which precludes their immediate return.
Common nonimmigrant status types that permit temporary employment in the U.S. include H-1B, L-1A, L-1B, TN, E-3, F-1 OPT, R-1, and O-1. Each has specific requirements to qualify that include time limits on their respective work authorization, restrictions on employers, worksites and wages, as well as potential limitations on visa numbers permitted in a given fiscal year. Some visa types permit “dual intent” that allows nonimmigrant employment in the U.S. while pursuing permanent resident status (“green card”) in parallel (eg: H-1B, L-1A), while other visa types are defined as “single intent” categories that largely preclude filing for permanent residency in the U.S. without a proactive review and assessment of lawful options.
General profiles of common nonimmigrant visa status types include H-1B for professional “specialty occupation” employees hired by a U.S. employer at a specific worksite(s), treaty-based visa classifications that include E-3 (for Australian nationals), H-1B1 (for nationals of Chile or Singapore), and TN (for nationals of Canada and Mexico). For those at the highest level of research and experience in their respective fields, the O-1 visa is a valued avenue for employers seeking to bolster their research and patent departments, while other visas are specific to religious workers, athletes, or entertainers.
While the above categories each carry some limitation on employment duration, location, or field of endeavor, seeking permanent resident “green card” status via employment is available in collaboration with timely filings with DOL and USCIS. The process is lengthy in most cases, but somewhat speedier for “extraordinary ability” workers, professors/researchers, and some executives or multinational managers who can avoid a precursor test of the labor market before sponsoring a foreign national employee.
If you or your human resource department requires assistance with a foreign national candidate you wish to hire, our team of immigration lawyers and paralegal professionals at Philip Levin & Associates is here to help.
Get Help Retaining Foreign Employees with Philip Levin & Associates, P.C.
Immigration law is technically detailed and demanding—simple administrative errors can carry significant consequences—we strongly encourage you to seek timely legal advice from an immigration practitioner. While visa petitions, employment applications, and labor certifications may seem straightforward after a quick review of a government website, the pitfalls are many and failure to timely address an issue can preclude an option for your talent pool.
The professional team at Philip Levin & Associates offers help for all types of immigration law issues including:
Whatever issue you are confronting, you can be assured that our team has the experience and expertise necessary to ensure your case is handled in an orderly and timely manner. Contact our team today for a consultation and to identify your path forward.
How can I work in the United States?
If you are the person seeking employment in the U.S., there are options depending on what you bring to the table regarding your post-secondary education, work experience, and/or country of origin. University training can be coupled with employment authorization in your area of study, or significant investment in the U.S. economy might permit nonimmigrant status as an investor or “treaty trader.” Options are varied and each carry a potentially significant burden of proof that must be provided before seeking to work in the U.S. To gain a better understanding of what this process might look like, please reach out to our team today.
