Getting Visas for Foreign Workers |
Yvette Sebelist
The United States is undergoing the largest immigration boom since the early 1900s. Many of these folks already have U.S. citizenship, green cards or work authorization cards. Those who haven't yet gone through this process need both help and time getting the paperwork done.
The Basics
You may find a job applicant whom you'd like to hire, but she asks you to sponsor her for a visa. What can you do? In most cases, these are temporary, or nonimmigrant, visas.
There are a variety of nonimmigrant visas. A foreign national may stay in the U.S. as a nonimmigrant for as little as a few months for a temporary laborer or trainee, to indefinitely for some categories - such as artists, athletes and some professionals - as long as the job exists.
Many small businesses sponsor individuals. These visas aren't blanket work authorizations, as the employee can only work for the sponsoring employer.
Consulting companies, which place employees in work sites, sponsor some visas. While companies aren't responsible for documenting independent contractors, be sure to deal with a reputable consulting company and double-check your liability for long-term placements.
Most employers use lawyers to process visa petitions because any mistakes in the thicket of paperwork almost always lead to big delays. Deciding who pays for visa processing can be negotiated between the employer and the employee-to-be.
Temporary Employment Visas
Here are some of the more common visas:
- H-1B for bachelor's level professionals in a specialty occupation. The maximum stay in the United States is six years. Graduating college students often transition to this type of nonimmigrant visa. Computer professionals often obtain H-1B visas to work for high-tech companies.
- H-2A for agricultural workers. These last less than one year, but extensions are available for up to three years.
- H-2B for temporary skilled or unskilled labor for a seasonal, intermittent or one-time temporary need. These are available for less than one year.
- TN for Canadians and Mexicans in professional positions. There is an unlimited duration of stay; this is an easy and fast way to hire.
- L-1 for transfers for managers, executive and specialized knowledge personnel of a multinational company. There is a five or seven year maximum stay.
- O-1 for extraordinary individuals in business, the arts and sciences. There is an unlimited duration, and processing is fast, but standards for entry are high.
- P-1 for musical groups, athletic teams and individuals with international acclaim. Some have unlimited duration.
- R for religious workers and professionals. There is a five-year maximum stay.
- J for exchange visitors, including researchers, trainees and au pairs. Duration of stay varies.
Some students may have work authorization. Others may be eligible for "optional practical training" - work authorization for one year after graduation in their field of study.
My Employee Wants a Green Card
Foreign nationals can obtain green cards through employment. Getting such permanent residency is usually a long process. For some, it may take five or more years.
In most cases, the employer sponsors the foreign national by offering a permanent job. That doesn't mean employment for life. For immigration purposes, permanent means a job that lasts as long as both the employer and employee want it to last. But the INS expects the employee to work for the employer after he or she gets a green card.
Every employer must complete I-9 forms, even if there's just one employee. Companies employing independent contractors aren't responsible for completing the I-9 for those workers.
The employer provides information about the proposed position to the Department of Labor and to the Immigration and Naturalization Service.
An immigration attorney should be consulted for processing green cards because the laws are extremely complex. Errors can mean applications are denied or returned after sitting for a couple of years waiting for processing. Again, the employer and employee can negotiate who pays for it.
Many jobs require an individual labor certification. The job must be certified by the U.S. Department of Labor after testing the labor market, usually through advertising the job, and determining that no qualified U.S. worker was available. Employers may request an expedited process called Reduction in Recruitment (RIR) if they've previously recruited for the job.
If you want to sponsor a relative or someone with part-ownership in your business, you need to consult your immigration attorney because there may be restrictions.
In some permanent residency categories, the labor certification at the Department of Labor isn't needed. Certain foreign nationals may apply to the INS on behalf of themselves if they have extraordinary abilities or if the work they do is in the U.S. "national interest." Other workers, such as managers of multinational corporations or "job creation" investors in the United States apply directly to the immigration service.
Whether applying for a temporary or permanent visa, allow plenty of time. After all, you're dealing with federal agencies.
Getting Help
Pick a lawyer who specializes in immigration law. Someone who dabbles in immigration cases can do more harm than good. The laws are so complex and change so frequently, a lawyer has to be immersed in the practice to know the nuances.
If you're looking for help with employment visas, ask the attorney how much of his or her practice is spent on business immigration. An attorney who does mainly family immigration or deportation representation may not be as informed.
Attorneys practicing immigration law need only be licensed in one state, as immigration law is entirely federal and does not vary from one state to another. So if you like an attorney in another state, go ahead and hire them.
Check out the firm's reputation. Some immigration lawyers work for large firms with other areas of practice, but most have small firms or solo practices. Ask your local bar association or other lawyers whom they would recommend.
Immigration attorneys usually charge a flat fee, which can vary depending on the region or state in which the attorney practices. Fees don't depend on outcome; you're paying for the attorney's time to prepare and file the case. In some situations, an hourly fee may be appropriate, but watch out when using an attorney who dabbles in immigration and charges by the hour - the learning curve may inflate your costs.
Although it's no guarantee of quality, most immigration attorneys are members of the American Immigration Lawyers Association. AILA has more than 6,000 members and provides training conferences, mentors and online updates on immigration law changes.
What's Next?
Nonimmigrant visa processing times can vary dramatically. Someone getting a TN professional visa from Canada can take paperwork to the border and be processed in a few minutes to a few hours, depending upon the case.
Most other cases require INS approval of a petition for a visa. A foreign national already in the States may change status from one visa category to another. If the foreign national is outside the U.S., he or she must await INS approval and obtain the visa from a U.S. consulate abroad.
Some visa cases must go through a two-step process via the Department of Labor, then the INS. These include H-1B and H-2B visas and can take two to four months. Recently, requests for H-1B visas have reached their quota early because of the growing shortage of high-tech workers, leaving some waiting longer.
Other visas only require advance INS approval. Processing times can vary from a week to three or more months. Your immigration attorney should be able to tell you about waiting times.
Processing green cards can take much longer. Labor certifications at the Department of Labor can take from two to six months for expedited cases. Other cases might take from one to three years to process.
In the final step, the foreign national applies for the green card. If he or she applies to "adjust status" in the U.S., it may take from one to three years. The person does, however, get a work authorization card while the application is pending. Others may opt to apply for their green card at a U.S. consulate abroad, as this can markedly shorten the processing time.
The whole process can be time-consuming, but you need to fill those jobs with quality workers.
Yvette Sebelist is an attorney with King & Ballow in Nashville, Tenn. She practices exclusively in immigration law, and lectures and writes frequently on immigration law for business.
Web Link:
Immigration and Naturalization Service