Hiring Foreign Nationals

Helping Employers Hire Foreign Workers

At Brown Immigration Law, we understand that hiring foreign nationals can be a complex process. Our team is here to help you navigate the process and ensure that you comply with all relevant laws and regulations. We have extensive experience working with employers of all sizes and in a variety of industries. Our experienced lawyers can help you understand your options and guide you through the process of hiring foreign workers.

How to Choose the Right Work Visa

Employers must determine the appropriate visa category for the worker based on their qualifications, job type, and intended duration of stay. Those work visas are:

• H-1B Visa:
  • For: Specialty Occupations requiring specialized knowledge (e.g., IT, engineering, science).
  • Requirements: Job offer from a U.S. employer and the employee’s qualifications (usually a bachelor’s degree or equivalent).
  • Duration: Initially granted for up to 3 years, extendable to a maximum of 6 years.
• L-1 Visa:
  • For: Intra-Company Transferees moving from a foreign company to a U.S. branch, subsidiary, or affiliate.
  • Requirements: The worker has to have worked for the foreign company for at least one continuous year within the preceding three years.
  • Types: L-1A for managers/executives, L-1B for employees with specialized knowledge.
  • Duration: L-1A is initially granted for up to 3 years (extensions up to 7 years), L-1B for up to 5 years (extensions up to 7 years).
• O Visa:
  • For: Individuals with Extraordinary Ability or Achievement in fields like sciences, arts, education, business, athletics, etc.
  • Requirements: Demonstrating extraordinary ability or achievement in the field of expertise.
  • Types: O-1A for individuals with extraordinary ability, O-1B for individuals with extraordinary achievement in arts or entertainment.
  • Duration: Initially granted for up to 3 years, extensions available in 1-year increments.
• TN Visa (NAFTA):
  • For: Citizens of Canada and Mexico under the North American Free Trade Agreement (NAFTA).
  • Requirements: Job offer in a profession listed in the NAFTA agreement.
  • Duration: Granted in 3-year increments, renewable indefinitely in 3-year increments.
• E Visa (E-1/E-2):
  • For: Treaty Traders (E-1) and Treaty Investors (E-2) from countries that have treaties of commerce and navigation with the U.S.
  • Requirements: Involves substantial trade (E-1) or investment (E-2) between the U.S. and the treaty country.
  • Duration: Can be granted for up to 2 years initially, with extensions available.
• J-1 Visa (Exchange Visitor Program):
  • For: Participants in approved exchange visitor programs, including students, researchers, professors, and other categories.
  • Requirements: Sponsorship through an exchange program designated by the U.S. Department of State.
  • Duration: Varies based on the program and category.
• H-2 Visas (H-2A/H-2B):
  • For: Temporary Agricultural Workers (H-2A) and Non-Agricultural Workers (H-2B) for seasonal or temporary work when U.S. workers are not available.
  • Requirements: Need for temporary or seasonal workers and meeting specific criteria.
  • Duration: Generally, up to 1 year with possible extensions.

Each visa category has its specific eligibility criteria, application process, and limitations. Employers need to assess the requirements carefully and select the most suitable visa category based on the job role, the candidate’s qualifications, and the company’s needs.

Additionally, some visas, like the H-1B, require the employer to obtain a labor certification from the Department of Labor (DOL) to ensure that hiring a foreign worker will not adversely affect the wages and working conditions of U.S. workers.

Our business immigration attorney keep you updated on the status of your petition and let you know when it has been approved.

What Employers Should Know About Change of Status

It is not unusual for an employee to want or need to change their status from one type of non-immigrant visa to another, but without the intention of becoming a permanent resident or citizen. Employers should understand that to successfully do this, they must request the change prior to the expiration of the employee’s current authorized stay. The employer must file the request with U.S. Citizenship and Immigration Services (USCIS), and should do so as soon as the reason for the change arises.

Until USCIS approves the change, the employer should not assume it will be granted. The employee should continue to conduct themselves only in accordance with the permissions of their current non-immigrant visa. Failure to maintain one’s current status or acquire the necessary change of status could result in deportation.

The government generally allows changes in non-immigrant visa status if the individual in question was lawfully admitted to the United States, their current status is valid, and they have not violated any conditions of their visa or committed any crimes that would make them ineligible for a change in status.

What Employers Should Know About Adjustment of Status

Some employees decide to go a step further and either become a green card holder or a citizen. Adjustment of status is the name given to the process by which this occurs. Immigration laws allow employees to become lawful permanent residents (obtain a green card) which can set them on the path to becoming U.S. citizens.

There are limits to how many adjustments will be allowed each year, and the foreign national must meet certain requirements such as:

• Being physically present within the United States
• Having been lawfully admitted to the United States
• Being admissible to the United States; in other words, not having committed a crime or otherwise become ineligible

Applying for an employment-based adjustment of status requires submission of several forms:

• Application to Adjust Status
• Application for Employment Eligibility
• Application for Advance Parole
• Medical Exam Results
• Approval Notice

Determining If Your Potential Employee is Eligible for a Visa

As an employer, you need to know which of your potential employees will be able to obtain a work visa. Employment-based visas are available to those who have sufficient work experience, skills, education, or some combination thereof, and they allow employees to permanently live and work in the United States.

There are five employment-based (EB) preference categories:

1. EB-1, or First Preference: This is for what USCIS considers to be “priority workers” and includes employees with unusual talent in the fields of science, the arts, education, business, or athletics; extraordinary professors and researchers; and certain types of multinational managers and executives.
2. EB-2, or Second Preference: Professional employees with advanced degrees or who have extraordinary abilities fall into this category. This includes those who request national interest waivers.
3. EB-3, or Third Preference: Skilled workers, professionals, and qualifying unskilled workers would apply for EB-3.
4. EB-4, or Fourth Preference: This category is reserved for certain religious workers, employees of foreign service posts, retired employees of international organizations, and others.
5. EB-5, or Fifth Preference: If the employee is a business investor who invests at least $1,050,000 (or $800,000 if the investment is made in a specific employment area) in a new business enterprise, and one that employs at least 10 full-time U.S. workers, they may qualify for this type of work visa.

Before filing for EB-2 or EB-3, the employer must obtain a Labor Certification from the U.S. Department of Labor which verifies two key pieces of information:

1. There are not enough available U.S. workers who are qualified, able, and willing to fill the job position that is being offered either at the prevailing wage rate or a higher rate; and
2. Hiring the employee will not harm wages and working conditions of U.S. workers who are in similar employment positions.

This is in addition to other paperwork the employer must complete, as well as properly categorizing the employee. Inaccurate categorization or missing forms could delay processing and cause legal problems for both the employee and the employer. One of our employment immigration attorneys can provide more assistance.

Criminal Penalties for Misrepresentation Can Extend to Employers

U.S. immigration and law enforcement officials take work visa misrepresentations seriously, and employers themselves can face steep legal penalties for making false statements, using false or falsified documents, and knowingly hiring or continuing to employ individuals who are not lawfully permitted to be in the United States. Anyone who violates immigration law in this respect can be fined up to $3,000 per unauthorized employee and face up to six months in prison (or both). It is also a felony to use false identification documents or misuse real ones for purposes of satisfying employment verification provisions.

Considering the potential legal penalties, fines, and lost reputation that can stem from employer misrepresentations, it is strongly advised that you speak with Brown Immigration Law to ensure that your employees all comply with applicable immigration rules and regulations. We are also able to serve as your criminal immigration lawyer in the event you face investigations or criminal charges.

Fast Facts for Potential Employees Seeking a Work Visa in America

The more you know about U.S. immigration law and how it intersects with work visa requirements, the better off you and your foreign employees will be. These are a few essential facts to keep in mind:

• The US Department of Homeland Security is cracking down on enforcement of Alien Registration Requirements, which mandate the registration of foreign nationals with DHS. 
• Filing fees vary but they can reach thousands of dollars for work visas (for instance, the L-1 visa can cost $4,500).
• Some visas (e.g. H-1B) may take 3-6 months to process, while others (e.g. L-1) may require 4-7 months.
• Employees should have their passport, application and payment receipt, photo, petition receipt number, and all relevant forms prior to their visa interview (among other documents they might need).
• The employee will need to visit their nearest U.S. embassy or consulate for processing, including the required interview.
• Approximately 140,000 work visas are available each year.

Frequently Asked Questions About Hiring Foreign Nationals

My employee has an O-1 visa and wants to work for multiple employers; can he do that?

Yes. Thanks to the work flexibility of the O-1 visa, an employee who holds this type of visa can work for multiple employers or for themselves simultaneously.

How much does it cost to sponsor a work visa?

Costs can range based on the visa because of filing fees, legal expenses, attorney fees, and other costs.

Who has to renew the visa: me, or my employee?

In most cases, the employer has the duty to apply for and renew a non-immigrant work visa, unless the visa is one that allows self-petition.

If I fire my employee, will she have to leave the country?

Firing an employee who holds a work visa ends their sponsored employment. The employee would then have about a 60-day grace period to find new employment or leave the country.

Do You Have an Immigration Lawyer Near Me?

Our dedicated immigration law firm is ready to assist with your work visa needs, regardless of the type of visa your employee has or how complex the employment relationship is. For your convenience, we have five office locations ready to serve you: Cleveland and Columbus, OH; Durham, NC; and Tampa and Orlando, FL.

Let Brown Immigration Law Help

Brown Immigration Law has extensive experience in hiring foreign workers in the states of Florida, Ohio, and North Carolina for companies of many sizes. We can help streamline the process of hiring foreign workers with diligent attention to detail and follow-through to get your case needs solved as quickly as possible. Contact us today at (888)-861-4414 to obtain our experienced and knowledgeable immigration legal services today.