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Employers

Hiring Foreign National Employees in the United States

I. INTRODUCTION

US employers often resort to the employment of foreign employees for a variety of reasons. In some instances, US employers are unable to find qualified, willing, and able US workers to occupy certain positions. In some instances, employing a foreign national is necessary because of the scarcity of specific skills in health care, engineering, and information technology positions. It is not a secret that foreign workers work harder and longer hours and complain less. They are often creative and certainly add to the diversity in the work place.

US employers may sponsor the employment of certain foreign nationals to be employed for a certain term under what is known as non–immigrant work visas; those are visas with a limited and finite term. While employed, the United States law also allows US employers to sponsor the worker to obtain permanent residence (green card) as incident of their employment and as an added benefit. Once permanent residents, the foreign workers may remain in the United States permanently and apply for citizenship.

Employing a foreign national worker comes with certain responsibilities that are spelled out in the myriad of statutes and regulations. For instance, employing H–1B visa  “specialty occupation” workers requires the employer to pay the foreign worker prevailing wages, promise not to adversely affect the working conditions of US workers, and provide for the reasonable transportation cost to return the alien to his or her country at the conclusion of the employment.

II. NON–IMMIGRANT VISAS SOLUTIONS FOR EMPLOYERS

The following is a list of common mechanisms that United States employers may utilize to employ foreign nationals temporarily in the order of their popularity:

  • Specialty Occupation H–1B Visa: This visa type is reserved for those occupations that require as a minimum a bachelor’s degree to successfully perform the duties of the position. It is important to note that not every position requiring a bachelor’s degree may qualify for the issuance of a Specialty Occupation H–1B visa. For instance, certain nursing positions have been held not to be specialty occupations. It is worthy to note that there are only 65,000 new H–1B visas available each federal fiscal year normally referred to as “cap” H–1B visas.
  • Intracompany Transferees L–1A and L–1B visas: To qualify, aliens must have worked one year within the three years preceding their entry in the US for a foreign company, which is classified as a branch, parent, affiliate, subsidiary or joint venturer to a US company and who will enter the US to work for such US company in a managerial, executive, or specialized position.
  • NAFTA Canadian and Mexican Professionals TN visa. This is an attractive visa type to secure non–cap related temporary visas, which may be secured relatively quickly. Employers may apply for this visa type at the port of entry, at a US Consulate, or internally before the USCIS. It must be noted that only specific occupational titles may qualify for this visa category. In addition, there are certain restrictions in applying for permanent residence while the employee is on a TN visa due to the “dual intent doctrine.”
  • Non–agricultural skilled or unskilled “Temporary or Seasonal” Workers H–2B. In order to secure this visa, the employer must first obtain a labor certification issued by the US Department of Labor. There are 66,000 new H–2B visas available each federal fiscal year. The crux of this visa type is proving that the position is in fact seasonal in nature. Foreign nurses working in shortage areas H–1C.
  • Seasonal Agricultural Workers H–2A.
  • Trainees H–3 Visa.

III. EMPLOYMENT BASED PERMANENT RESIDENCE SPONSORSHIP

US immigration regulations allow employers to sponsor their foreign employees to obtain permanent residence (green card) based on a bona fide offer of permanent employment. The most pressing issue facing employers sponsoring foreign labor is the lengthy and convoluted administrative processes involved in the permanent residence process. Due to the complex nature of the employment based permanent residence process, it is highly advisable to enlist the services of experienced immigration law counsel to navigate through these administrative procedures competently and to avoid the numerous pitfalls.

There are five (5) employment based permanent residence categories:

  • First preference Employment Based Category EB–1 is reserved for:
    • Aliens of Extraordinary Abilities
    • Outstanding Professors and Researchers, and
    • Multi–National Executives.

    This preference category is the fastest process, as it does not require the employer to demonstrate that the permanent employment of the alien does not displace an equally qualified US worker. In other words, the employer would avoid the lengthy and convoluted PERM process and would directly move directly to the I–140 stage.

  • Second Preference Employment Based Category EB–2 is for Advanced Degree Aliens and for Exceptional Abilities Aliens. This process requires the employer to go through the PERM process prior to filing the immigrant petition. The PERM requirement may be waived if the alien can demonstrate that his immigration is in the national interest of the United States.

  • Third Preference Employment Based Category EB–3 is for skilled workers and other workers. Like the second preference category, this preference category also requires the employer to go through the PERM process prior to filing the immigrant petition.

Below is a chart that illustrates the first three preference categories and some notes regarding the differences between these processes. It must be remembered that the first category is the most attractive due to the fact that priority dates for all citizens of the world have been current for a considerable period of time. This would encourage the employer and alien to file the I–140 and the I–485 processes concurrently.

Preference Description PERM? Procedure & Comments
EB–1Aliens of Extraordinary AbilitiesNo
  • Immigrant Worker petition (I–140) setting forth preference criteria
  • Adjustment of Status application (I–485) may be filed concurrently with I–140 if alien is in US and priority date is current.
  • Alien may alternatively apply for permanent residence at a US Consulate outside US after approval of I–140 petition and priority date is current.
  • Preference criteria are subjective and open for USCIS interpretations.
Outstanding Professors & ResearchersNo
Multinational ExecutiveNo
EB–2National Interest WaiverNo
Advanced Degree AliensYes
  • Labor certification (PERM) must be processed and approved proving that US workers are not being displaced.
  • Immigrant Worker (I–140) petition is based on more objective criteria.
  • Adjustment of Status application (I–485) may be filed concurrently with I–140 if alien is in US and priority date is current.
  • Alien may alternatively apply for permanent residence at a US Consulate outside US after approval of I–140 petition and priority date is current.
Exceptional Abilities AliensYes
EB–3Professionals/
Skilled Workers
Yes
Other WorkersYes

IV. CONCLUSION

Employing foreign workers is a rewarding process due to the many contributions those workers bring to their employers in innovation, dedication, and ambition. The course of legalizing their status is wrought with administrative rules and often overlapping procedures. Despite these difficulties, U.S. employers are not discouraged from the employment of foreign workers. If you have questions about the employment of foreign nationals, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles all matters concerning employment and green card cases for employers and employees of all sorts. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.

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