Hiring Foreign Workers: H1-B and Other Immigrant Visas

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From healthcare to agriculture, construction to technology, skilled and unskilled job seekers are at a premium and foreign workers present one possible solution to help employers fill the gap. However, the process of recruiting and sponsoring overseas workers and obtaining the immigrant visas they need can be expensive, time-consuming, and even intimidating.

The information presented below provides a concise roundup of the most common types of foreign worker visas available and the procedures that are necessary to procure them.

Complicating Factors

The laws that determine eligibility requirements for foreign workers are politically charged and liable to change. You should be prepared for the process to take longer than hiring and onboarding a U.S. citizen or permanent resident. When you budget for the position, you’ll need to factor in likely costs, which can range from $1,200 to $4,500 in fees alone. Lawyer fees can add to these costs, as can the time your HR department may need to devote to the process.

The Basics of Sponsorship

Whether you choose to sponsor a foreign worker for a permanent (immigrant) or temporary (nonimmigrant) visa, the steps you’ll undertake on their behalf are designed to ensure that U.S. employees aren’t displaced by immigrant workers at lower wages. You’ll need to provide proof that:

  • The job you’re hiring for cannot be easily filled by a U.S. worker
  • The employee you’re hiring has the credentials required for the job
  • You are paying the going rate for the role

To make sure you’re paying a fair wage, use a salary tool that provides a median salary range by job title and region.

Types of Immigrant Visas

Technically it is your prospective employee who will be applying for a visa with you as the sponsoring employer. However, undertaking the bulk of the process for your perspective employee is the best way to attract top overseas talent.

The information provided below can help you determine which permanent or temporary immigrant worker programs make the most sense for the types of workers you need. Divided into two categories—permanent and temporary—they represent some of the most common immigrant visas obtained by foreign job seekers.

Permanent Employment-based Visas

Permanent employment-based (EB) immigrant status is granted to workers with extraordinary abilities or specialized credentials. These visas are rated from first preference (EB-1) to fourth (EB-4), with EB-5 visas reserved for investors with substantial resources who wish to start a business in the United States. These visas are hard to come by and require significant documentation to obtain.

If you are in negotiations with a highly desirable applicant asking to be sponsored for EB status, you’ll need to use the U.S. Department of Labor’s (DOL) Permanent Labor Certification Online Case Management System to provide sufficient evidence of the candidate’s credentials and scarcity of qualified U.S. applicants.

Most employers will find it easier and less expensive to bring in workers utilizing Temporary Non-immigrant Classification visas that range in duration from a few months to three years.

Temporary Worker Visas

The following immigrant visas are the most likely to be utilized by small and midsized employers, from tech firms to regional manufacturers and agriculturalists:

  • H1-B. Aimed at highly skilled occupations for which there are insufficient qualified U.S. workers, these three-years visas are eligible for a three-year extension.
  • TN. Granted to citizens of Mexico and Canada for three-year intervals. There are no quotas, and they require far less paperwork than other types of visas. They are not subject to the six-year limit of an H1-B and can be renewed every three years indefinitely.
  • L1. These visas allow you to transfer executives and managers (L1-A) and professionals with specialized knowledge (L1-B) from an overseas office to a U.S. worksite within the same company.
  • H2-A. This is a commonly used visa program that allows seasonal agricultural workers to work during U.S. planting and harvest seasons, as well as in other aspects of agriculture and food processing.
  • H2-B. These visas can be applied for by seasonal, nonagricultural workers or for one-off, project-related positions that are not as specialized as H1-B positions. These are generally positions that do not require a bachelor’s degree.
  • O-1. These are awarded to persons with extraordinary capabilities in arts, sciences, entertainment, and business.

Certain countries (for example, Australia, Chile, and Singapore) have special status that allows their citizens to obtain immigrant visas with fewer restrictions and a more streamlined, less expensive application processes. There are also visas available in dozens of categories based on the type of employment, from childcare workers and clergy to professional athletes and nurses.

Application for nearly all of these visa categories and many more begin with a Petition for a Nonimmigrant Worker, or 1-129 form. This same form is used to apply for extensions for previously granted visas as well.

H1-B Visas: What You Need to Know

As mentioned previously, H1-B visas are the most common type of temporary worker certification sought by U.S. employers for foreign workers. For most employers the process begins with the DOL, from which you must obtain a labor condition approval (LCA).

Demand for H1-B visas typically exceeds the government’s quotas, but certain attributes can improve your chances of obtaining one, for example, if your candidate has an advanced degree. Some professions in higher education and research are exempt from the quota. You can work with the DOL to determine if a position you are having trouble filling is eligible for H1-B status.

You can also hire an employee who already has an H1-B visa that they obtained from another U.S. employer when their work with them has ended, though it may require you to file additional paperwork. This is referred to as “porting.” If you decide to pursue a candidate who has an H1-B visa with time remaining, reach out to the DOL to file an extension.

Agencies and Resources

You will likely need to work with the following government organizations to obtain a visa:

  • The DOL, specifically the Office of Foreign Labor Certification, must sign off before you can apply for H1 and many other categories of visas to certify that the position you are looking to fill cannot be easily filled with U.S. workers. The type of visa will determine which permits you will need to file through its Foreign Labor Application Gateway (FLAG). Once, you’ve obtained labor certification from the DOL, you can then proceed with your visa application.
  • U.S. Citizenship and Immigration Services (USCIS) is the agency you will petition for the appropriate visa, which is then issued to its recipient at a U.S. embassy or consulate in their country of origin.
  • Department of State (DOS)  issues USCIS-approved immigrant visas to approved employees at a U.S. embassy or consulate in their home country. At that point, you can begin onboarding them as you would any other new employee.

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Legal Disclaimer:  This article is not intended as a substitute for professional legal advice. Always seek the advice of an attorney regarding any legal questions you may have.