While family-based immigration receives significant attention, foreign nationals can also immigrate to the United States through their employers. For employers seeking the talents, knowledge, and experience of foreign workers, there are a variety of employer-sponsored immigration options available. If you have foreign workers you wish to add to your team, a business immigration attorney can help you find the way forward.
Navigating the Immigration Process to Get the Workers You Need
As an employer, you may sponsor and hire a foreign national either for temporary work or on a permanent basis. There are several options available, each with different requirements. Determining which options are available can be confusing, but an experienced business immigration attorney can help. Some of the options to consider if you’d like to sponsor a temporary worker include the following:
The H-1B Visa
The H-1B visa is a common employer-sponsored temporary work visa. The H-1B visa is often referred to as a “specialty occupation” visa. What this means is that the job must require at least a bachelor’s degree or foreign equivalent. Oftentimes, the applicant may have more than a bachelor’s degree but what matters is whether the job duties in fact require a college degree.
Each year, there are 85,000 H-1B visas available. These are given out based on an annual lottery that takes place in March of each year. Twenty thousand of these are reserved for individuals who obtained a Master’s degree from a U.S. institution. If they are not selected in the “Master’s” lottery, they get a second chance to be selected in the “Bachelor’s” lottery. Applicants cannot enter their names in the H-1B lottery. Only employers can do this. Higher education institutions such as universities do not participate in the H-1B lottery because they have access to an unlimited number of H-1B visas.
Once selected and approved, the H-1B visa is usually valid for three years with the option to extend for another three years for a total of 6 years. Time spent outside of the United States while on an H-1B is deducted from this time. The spouses and children of H-1B visa holders may also come to the United States on an H-4 dependent visa.
It is technically a dual-intent visa, meaning that although it is only valid for a limited period of time, H-1B visa holders may have the intent to immigrate permanently. Sometimes, a foreign national applies for an H-1B visa at a U.S. embassy or consulate abroad, and the person is unlawfully denied the visa for having immigrant intent. We can help overcome this.
The O Visa
The O-1 visa is available for people with extraordinary abilities or achievements. Eligible people are at the very top of their fields, including science, arts, athletics, business, media, or education. Individuals who hold the O-1 visa can then sponsor their assistants using the O-2 category or their families via the O-3 category. The O-1 visa requires an employer to sponsor the foreign national.
The L Visa
The L-1 visa, often referred to as an “intra-company transfer visa,” is available to workers who are transferring to a branch or office located in the United States of their current employer. It is available only to executives or managers, or individuals with “special knowledge.” A foreign national can be on an L visa for a maximum of seven years. The applicant must have worked for a foreign company abroad in a full-time position for one year during the preceding three years.
There are other employment-sponsored visas you may want to explore. Your options will depend upon the nature of the employment and the foreign national’s qualifications. An immigration lawyer can help you decide which option will be the best fit for you and your business.
Note that none of these temporary work visas ultimately lead to U.S. lawful permanent resident status. Unless the worker has another way of filing for permanent residence, the employer will probably need to go through the permanent labor certification process.
What Is a Permanent Labor Certification?
Another option for employers looking to hire immigrant workers is to go through the permanent labor certification process (also known as “PERM”) in order to get the worker permanent residency. The PERM program is administered by the U.S. Department of Labor (DOL). The focus of the process is to ensure that no U.S. workers are available to meet the employer’s minimum requirements regarding experience, training, and education. While the DOL will not require the employer to hire a U.S. worker, it will not grant a permanent labor certification for an immigrant worker if a U.S. worker can fill the role. If the employer successfully navigates the PERM program, then the employer may sponsor the worker for permanent residency.
Obtaining a labor certification is a complex and lengthy process. The best approach to obtaining a permanent labor certification is to have very specific and strict requirements for the position you wish to fill. Otherwise, the DOL can easily find a U.S. worker who qualifies. An experienced business immigration attorney can help you develop the role and navigate the PERM process so that you can hire the candidate you need.
Adjustment of Status Versus Consular Processing
Foreign nationals who are already in the United States may be eligible to adjust their status to lawful permanent resident status without leaving the United States. Whether the individual can do this or not can depend in large part on whether there is a visa available.
Applicants must be in a lawful status in order to adjust their status in the United States through employment-based categories. However, there is a small amount of protection afforded to these individuals if they have up to, but not more than, 180 days of unlawful status or unlawful employment. The 180-day calculation may be complicated, and you should speak with an immigration attorney to determine whether you qualify for this protection.
If a foreign national is in the United States but is not eligible to adjust their status, then they may instead need to apply for an immigrant visa at an embassy or consulate abroad. Foreign nationals who are abroad may also need to be processed through an embassy or consulate abroad. Whether your employee may adjust or will need to consular process can be a complex question that is very dependent on the specific circumstances and can have significant consequences.
Contact Lotfi Legal to Discuss Your Business Immigration Needs
Employer-based immigration can be challenging, but the result is getting the talent you need for your business to succeed. At Lofti Legal, we help our clients navigate the immigration process quickly and cost-effectively. Call or email us today to schedule an appointment to discuss how we can help with your immigration needs.