How can I employ FOREIGN WORKERS in the United States?
U.S. Immigration has two main categories: permanent residence visas (also called “immigrant visas” or “green cards”) and temporary residence visas (also called “nonimmigrant visas”).
To sponsor a foreign worker, employment based green cards are often the best possibility for employers. There are five types:
- EB-1: for aliens with extraordinary ability, outstanding professors and researchers, or multinational business managers and executives.
- EB-2: for aliens with exceptional ability or aliens with advanced degrees (employer/sponsor required)
- EB-3: for professional workers (with university degree), skilled workers and unskilled workers (employer/sponsor required)
- EB-4: for religious workers
- EB-5: for aliens who invest $1 million and create 10 new full-time jobs (in limited situations, an investment of $500,000 is acceptable).
Processing times for employment based green card vary widely. An EB-1 and some EB-2 applications can be approved in less than 1 year. However, an EB-3 application can take over 2 years and an EB-5 application can take more than 3 years.
Generally, sponsoring a foreign worker for a green card does NOT enable the worker to live in the U.S. and work during the application process. For this, we usually recommend a temporary visa, which are described below.
Most workers fall into the EB-3 category. To qualify, there is a three-step application process that can take approximately 18 to 36 months in total.
The first step of the EB-3 green card is called PERM Labor Certification. In this step, the employer must show the U.S. Department of Labor (DOL) that it cannot find a qualified and available U.S. worker to do the job that it wants to give the foreign worker. The employer must also agree to offer a wage that matches or exceeds the “prevailing wage rate” paid by others in the area (based on government salary survey) or the wage paid by the employer to other workers in the same job at the employer’s business. The purpose is to make sure that the employer is not taking advantage of the foreign worker and paying less than what it would cost to employ U.S. workers. A foreign worker cannot be employed by the employer during step 1 unless the foreign worker has a temporary visa that permits employment. This step generally takes about 1 year, though processing time can be over 2 years if the case is audited by the DOL.
The second step of the EB-3 green card is called the I-140 petition. In this step, the employer must prove to the USCIS that it can afford to pay the salary offered to the foreign worker based on its profits or its net current assets or based on the fact that it already employs the worker on a temporary visa and pays the required wage. This step generally takes 4-10 months, but two-week processing is available for an extra government fee.
The final step of the EB-3 green card is a background check. In this step, the government checks to see whether the foreign worker and his or her family is inadmissible due to criminal record, immigration violations, health problems and other issues. This step can be done in the U.S. if the worker is here with a temporary visa. Otherwise it would be done through the U.S. consulate in the worker’s country of residence. Processing time is generally 6-9 months.
Many clients prefer to be in the U.S. before or during a green card application. Therefore, they first come to the U.S. on a temporary visa. There are about 30 different kinds of temporary visas.
Unfortunately, there are not a lot of temporary visas that permit employment in a non-professional capacity (in other words in a job that does not require a university degree). Some possibilities are as follows:
- E-2 Treaty Investor Visas. This visa permit investors from certain countries to invest a substantial amount of money and acquire a controlling interest in an active U.S. business. The visa is issued for up to five years and is renewable. The investor can work in his or her own business. The spouse can qualify for an unrestricted temporary work card. Children up to the age of 21 can accompany the parents and attend school, but cannot work. In addition, this visa allows the investor to employ a management-level worker or worker with essential skills from the same country as the investor. For example, the U.S. has an E-2 treaty with Italy. If an Italian citizen invests money to purchase a and qualifies for the E-2 visa as an investor, then he or she may also be able to bring in an Italian worker to serve in a management position or in an essential position, such as an Italian Chef. This only works if the owner is not a U.S. citizen or permanent resident and comes from the same treaty country as the worker.
- F-1 Student Visas. In many cases, after a foreign student earns a diploma (associates or bachelor’s degree, for example), the student will be eligible for a one year work card. If the degree is related to /hotel management or culinary arts, then possibly the student could work in a company with the work card. Limited employment options are also permitted in some other student visa cases, such as unforeseen economic hardship
- H-1B Visas for Workers in Specialty Occupations, which permit employment of professional level workers by a sponsoring employer. The visa is issued for up to three years and can be renewed another three years (additional renewals are possible in some cases). To qualify for this visa, we must show that the job is normally filled by a worker with a university degree that is related to the job and that the worker has the correct university degree or the equivalent in education and work experience.
- H-2B Visas for Temporary Workers in Temporary Job. This visa can be used by employers if they have a temporary need for workers. This can include a temporary one-time need, a seasonal need, a peak load need or an intermittent need. The employer must complete a process with the Department of Labor in which it shows that it cannot find qualified and available U.S. workers to meet its temporary need. The employer must offer a wage that matches or exceeds the prevailing wage in the area of employment. Only workers from certain countries are eligible to participate. There is a cap on H-2B visas issued each year. Because of the process of showing no qualified and available workers is difficult, this visa option can be expensive and often is cost-effective only if the employer needs a large number of workers doing the same job (e.g. 10 servers).
- J-1 Visas for Participants in Exchange Programs, which permit business trainees to come to the U.S. to learn about an occupation or profession for up to 18 months. This visa is often used by a younger worker who has earned a post-secondary degree and is seeking training in the field in which he or she studied.
- L-1 Visas for Multinational Managers, Executives and Specialized Knowledge employees who are being transferred to the U.S. by a related international company. This visa requires that the foreign worker worked for at least 1 full year for a foreign business that is related to the American business through common ownership. The 1 year of employment must be a management level or executive level or specialized knowledge level. The USCIS is very tough on L-1 visa applications, especially for smaller businesses.
- O-1 Visas for Aliens with Extraordinary Ability who are seeking temporary employment. This visa is issued for up to three years and can be renewed in one-year increments. This visa requires that the foreign worker prove that he or she is one of the very best in the field. It can be used for chefs if they are well known or award winning.
- Q-1 Visas for Cultural Exchange Program Participants. If the employer can show that it has established a program to teach the public about a foreign culture, then it can bring in workers from that culture to interact with the public and share information about the home culture. This visa is for a maximum of 15 months.
- Special Treaty Visas for certain professional workers from Mexico, Canada, Australia, Singapore and Chile. The U.S. government has some special treaties with the counties listed that allows some professional level workers to work in jobs that require a specific university degree. These visas can be issued for 2 or 3 years depending on the treaty.
Deciding which type of temporary visa to apply for is usually based on the question, do you want to work for someone else or do you want to have your own business?
Now that you have seen the “big picture,” please feel free to ask for more detailed information about the categories listed above. Or, please feel free to send email inquiries or make an appointment for a personal consultation.
Relevant Visas & Topics
- E-1 Treaty Trader visas, which permit owners, and certain employees, of businesses that engage in a substantial amount of trade in goods or services between the U.S. and the home country of the business owner if the country has a treaty with the United States. This visa can be issued for up to five years.
- E-2 Treaty Investor Visas, which permit owners, and certain employees, of businesses in which the owner has a controlling interest and has made a substantial investment. investors from certain countries to invest a substantial amount of money and acquire a controlling interest in an active U.S. business. This visa can be issued for up to five years.