Sponsoring a non-US Citizen to Work at Your Company? Try These Work Visa Applications
As a small business, you will always be looking to find excellent, talented employees.Sometimes, you may be looking abroad for an employee with the right skill set. However, the process of sponsoring an employee for a work visa from abroad can seem quite daunting to small business owners.
If you are considering employing someone who does not have citizenship status in the US, there are questions you will need to answer and procedures you will need to follow before that employee can work in the US. It is imperative that you obtain a work visa for your employee.
Small businesses can sometimes find themselves at a disadvantage when seeking to sponsor a foreign worker. The costs, including filing and legal fees, are harder for small businesses to absorb and the impacts of a setback can cause significant operational or talent challenges for small companies. But it is possible for small businesses to sponsor and petition for foreign employees to come to the US. This article contains an overview of your options but one imperative is to hire a skilled immigration attorney to guide you through the process, point you toward the right visa, and fulfill all of the application requirements.
Determine the right type of work visa based on that employee’s skills and abilities.
There are several work visa categories for sponsoring an immigrant worker.
The H-1B is a temporary work visa that allows you to employ workers in specialty occupations that require significant expertise. The H-1B has a lottery and a cap (65,000 plus an extra 20,000 for those with a US masters degree). The H-1B is valid for 3 years and can be extended for 3 years. H-1B visa recipients can concurrently pursue a Green Card application process and many do. There are also the H-1B2 for Defense Department employees and the H-1B3 visa which is just for fashion models.
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EB visas are employment-based immigrant visas that are for skilled workers who want to come work for a U.S. employer and gain permanent residency status. There is no lottery for EB visas, though there is a cap (approximately 140,000) and the waitlist can be long. EB visas are immigrant work visas which means that they come with a Green Card. The Green card is valid for 10 years + extensions. Once the employee has lived and worked in the US for 5 years, they can apply for citizenship.
1. Persons with extraordinary ability: This visa category is for those with extraordinary performance and skills in the sciences, arts, education, business, or athletics. Significant documentation is required to show this level of ability. A job offer isn’t required – and the individual can self-petition with Form I-140 – but the individual must intend to continue to work in their field of extraordinary ability when they are in the US. This visa type gets a lot of scrutiny and they are very hard to obtain.
2. Outstanding foreign professors or researchers: This visa type is for professors or researchers who are recognized internationally and come to pursue a tenure or comparable position at a university. A job offer is required and the employer must file an I-140.
3. Executives of multinational corporations: This visa type is for managers or executives at multinational organizations that have been employed for at least 3 years. The individual must be looking to continue work at the same company in a managerial or executive capacity. A job offer is required and the employer must file an I-140. This is a visa type that may be well suited to a small business, if the small business has multi-national operations.
These so called “second preference applicants” must first have a labor certification approved by the Department of Labor. A job offer is required and the employer must file an I-140. The spouse of an E-2 visa holder may be able to stay in the US via a E-21 visa. The spouse may be able to get an EAD (Employment Authorization Document) to work. Children may be able to stay in the US under an E-22.
1. Professionals with an advanced degree: This visa type is for individuals with an advanced degree or a bachelors and 5 years of relevant experience
2. Professional with exceptional ability: This visa type is for those with exceptional ability in sciences, arts, or business. Exceptional ability is “significantly above that normally encountered.”
These so called “third preference applicants” must have a labor certification approved by the Department of Labor and the employer must file a I-140. The spouse of an E-2 visa holder may be able to stay in the US under a E34 or EW4 visa. The spouse may be able to get an EAD card for permission to work. Since this visa type has a lower standard, it is scrutinized less, but the wait until approval can be longer.
1. Skilled workers: This visa type is for individuals in jobs that require 2 years minimum of training or work experience; this is not a visa type for seasonal or temp workers
2. Professionals in jobs that require a bachelors from a U.S. university or foreign equivalent:
2. Unskilled workers: This visa type is for individuals that can fill positions with less than 2 years of training or work experience; this is not a visa type for seasonal or temp workers
All of these visa types will be subject to scrutiny by USCIS so it is essential to make sure you have the correct paperwork and supporting documentation for each visa type. In addition, there are other niche visa types that may apply to your small business, such as the H-2A visa for temporary agriculture workers. An attorney or law firm experienced in immigration law is a must when selecting the visa path for an individual employee.
The next thing you should do is follow the respective steps for that visa. An immigration attorney can and should guide you through the process.
The H-1B process can be lengthy. For an H-1B visa, you will first have to submit your Federal EIN to the U.S. Department of Labor to be verified. The professing time is about 5 days. Then the next step is to submit a so called “Labor Conditions Approval” (LCA). In this document, you will provide details about the job and assure the government that the employee will be paid the prevailing wage. The processing time is about 1 week. Next, you will submit the I-129 Form. This form asks for education and experience of the employee, the employment contract, and has associated fees. The processing time is about 3 to 4 months but expedited processing is available (it costs extra).
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For EB-1 visa, start with the I-140 Form. For the EB-2 and EB-3 visas, the process is to first pursue an Application for Permanent Labor Certification from the Department of Labor. This requires that the employer prove that there are no workers already legally in the US who could do the job. According to the Department of Labor, the purpose is to certify “to USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers”. It also requires the employer to make a “prevailing wage determination” which typically involves posting the job ad for a certain period of time and making certain efforts to recruit talent. The employer will need to summarize the steps taken to try to recruit workers. Once the Permanent Labor Certification is approved, then file Form I-140, Immigrant Petition for Alien Worker. The I-140 processing can be expedited for a fee of $1440.
Sum up how much it’s going to cost.
It is certainly costly to petition to sponsor an employee, which can seem like a burden to small businesses. The process will cost several thousand dollars per employee. Many employees working on eligible visas will also ask that you help them petition for permanent residency (a Green Card), which can be costly as well. You – the employer – are responsible for these fees and can’t pass them along to your employee in the form of reduced wages or a reimbursement bill. Most companies will retain an attorney to assist with any immigrant visa petitions, which results in billable attorney’s fees typically ranging from $500 to $3,000 as well. Finally, there is the opportunity cost of waiting for an employee to be approved for work permission – your company could have been producing or selling during that time, so there may be foregone revenue to consider as well.
Evaluate the U.S. Citizenship and Immigration Services (USCIS) requirements and your business’ likelihood to pass muster.
Small businesses can sometimes have trouble petitioning for immigrant workers because USCIS needs to be convinced of your business’ financial viability and that it can support the salary of that immigrant worker without issue. Be prepared to produce supporting documents including your financial statements and tax returns. Documents that may help make a strong case include: annual reports, audited financials, bank statements, and business tax returns. If the individual is already an employee, you’ll want to be able to show proof of their prior pay and possibly personnel records. USCIS will also interrogate the qualifications of the worker and your business’ needs for that specialized talent.
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Wait. For a while.
Standard processing for an H-1B can be three to twelve months. Premium expedited processing is available for an additional fee. EB processing time can take several months to years because the number issued is numerically limited. Be prepared to wait for USCIS to make a determination about your petition to sponsor an immigrant worker. Your immigration attorney can provide you with an estimate of the processing time for the visa.
Invest in making a strong case to USCIS
Overall, it is essential to make a strong case to USCIS that your small business needs foreign workers. Show USCIS that you have the need and the funds to hire a foreign worker. Be sure to invest in the right legal advice to prepare your application and provide detailed, timely responses to USCIS if you receive any queries.
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Note: This article is not legal or immigration advice. Always seek the advice of a qualified and licensed attorney for legal matters and questions.