Obtaining an immigration employment visa has had an enormous impact on businesses. According to the U.S. government’s Bureau of Labor Statistics, over 18% of the civilian workforce in 2022 were foreign nationals working with temporary work authorization. We can expect that number to continue to grow in the years to come.
As a nation, the United States welcomes those immigrants who come here to contribute to and benefit from the “American Dream.” At the same time, the government protects the labor rights of our native-born citizens. This article will briefly review a few specific topics that are relevant in hiring and retaining nonimmigrant/temporary workers:
- Employment Visa Possibilities
- Verification Requirements Before Hiring
- Comply With Immigration Laws With Levin and Pangilinan PC
Immigration Employment Visa Possibilities
The U.S. government offers several different visa categories that permit employment in the United States. Each category has its own eligibility requirements and residency limitations. Employers seeking to employ a foreign national (or a foreign national seeking employment in the United States) must ensure they apply for the correct visa for the intended job and understand the limitations. If the stipulations of a particular visa classification are violated after it has been issued, the worker and the employer may be at risk.
Below is a brief summary of the most common of these visas:
- Immigrant Visas (Green Cards) permit the bearer to live and work in the United States virtually indefinitely, with nearly the same rights as citizens. There are five main employment-based (EB) immigrant classifications that may lead a person to receive an immigrant visa:
- EB-1 – for workers of exceptional ability;
- EB-2 – for workers possessing an advanced degree or equivalent in a specific profession;
- EB-3 – for skilled or unskilled workers for non-temporary / non-seasonal jobs;
- EB-4 – for “special immigrants” (e.g., religious workers, certain broadcasters, certain U.S. government employees or military personnel, or individuals who are seeking witness protection);
- EB-5 – for investors who have already invested significantly in a U.S. commercial enterprise and who intend to create and maintain at least ten full-time jobs for qualified U.S. employees.
However, the Immigrant Visa classifications sometimes suffer from long queues due to the volume of immigrants coming from a specific country. For example, at the time of this writing, China, India, Mexico, and the Philippines are suffering from a longer backlog. The length of time it takes to sponsor a potential employee through these immigration/EB classifications is usually too long.
As a result, many employers look to hire foreign workers through a temporary nonimmigrant visa classification. There are various types of visa classification, and the attorneys at Levin and Pangilinan PC work with employer clients to navigate the immigration programs so that the employer may retain the talent that is needed.
Types of Temporary Non-Immigrant Visa Classifications
- E-1 / E-2 – For citizens of a country with whom the United States maintains a treaty of commerce or navigation, who want to engage in international trade (E-1) or who make a substantial capital investment into a U.S. business (E-2);
- E-3 – for citizens of Australia who work in specialty occupations that require advanced training (minimum of a bachelor’s degree);
- F-1 OPT / STEM OPT – for students to receive “Optional Practical Training” in their field of study in the form of temporary employment;
- H-1B – for workers in specialty occupations that require advanced training (minimum of a bachelor’s degree);
- H-2A / H-2B – for both skilled and unskilled workers to provide services in agriculture (H-2A) or non-agriculture (H-2B) on a temporary (seasonal / peak-need) basis;
- H-3 – for workers seeking further training in their field in the United States;
- I visas – for workers in the media industry who are employed by a foreign press or media service;
- L-1A / L-1B – for workers in foreign companies who are either in management or executive positions (L-1A), or who possess “specialized knowledge” that is integral to the operations of that business (L-1B), allowing them to transfer to work out of their company’s U.S. location;
- O visas – for workers who have demonstrated an extraordinary ability for their work, regardless of the specific industry they represent;
- P-1A – for internationally recognized athletes;
- P-1B / P-2 / P-3 – for workers in the entertainment industries;
- R-1 – for religious workers who will be working for a non-profit organization associated with their denomination or order.
- TN – for citizens of Canada and Mexico, as part of the North American Free Trade Agreement (NAFTA), allowing them to work for a U.S. employer in a professional capacity, for example, in science, education, engineering, medicine, law, economics, etc.
Other immigration employment visas may also be available for people from specific countries or with specific circumstances (e.g., if they are transferring from one company to another).
Verification Requirements Before Hiring
Federal law prohibits an employer from knowingly employing an immigrant who does not have proper work authorization. The Immigration Reform and Control Act of 1986 (IRCA) created the I-9 Employment Eligibility Verification process for all hires, regardless of citizenship. Employees are required to provide their prospective employers with documentation to prove that they are allowed to work.
Prospective employees must complete the I-9 and give it to the employer, accompanied by the necessary documentation proving the employee’s identity and work authorization. The employer, in turn, must certify on the I-9 that they have physically examined the documents and, for anyone with temporary work authorization, track the expiration date of the work authorization. If the employment relationship continues, the employer may be required to re-verify the employee’s work authorization. Because immigration documents and work authorization dates may change from time to time, the list of documents may be expanded from time to time.
A new version of the I-9 was released on August 1, 2023. The previous 2019 version may be used up to October 31, 2023, after which the newer version must be used.
The I-9 is retained by the employer for three years after the date of hire (or one year after the date of termination, whichever is later). At any time, when requested, the I-9 must be provided without hesitation to any DHS or USCIS officer who may request it. Failure to comply with I-9 regulations, especially if there is a pattern of such non-compliance, can lead to substantial fines or even imprisonment.
Comply With Immigration Employment Visa Requirements With Levin and Pangilinan PC
Immigration laws that impact employment can be very complex. Knowing which type(s) of visa(s) fit your circumstance and ensuring that the application process is followed precisely can be a confusing and frustrating endeavor. The highly-trained and experienced immigration attorneys at Levin and Pangilinan PC are fully versed in all of the qualifications, allowances, and limitations of each employment visa possibility. We guarantee that we will pursue every available avenue for successful and satisfactory results to your case.
If you are an employer seeking to hire a foreign employee or an employee seeking to be hired by a U.S. company, we encourage you to contact us today to set up a consultation.
This article contains legal information and is not legal advice. See Disclaimer for further information.
Immigration Employment Visa FAQ
Q: What are the common employment-based visa categories, and who is eligible for them?
A: Common employment-based visa categories include H-1B, L-1, E-2, and more. Eligibility criteria vary based on factors like job skills, education, and employer sponsorship.
Q: What is an employment-based visa, and how does it differ from other visa categories?
A: An employment-based visa allows foreign nationals to work in the US based on their job qualifications and the needs of US employers. It differs from other visa categories like family-based visas or humanitarian visas.
