People from many parts of the world want to work here in the United States. You are about to learn what it takes to hire an international employee in the United States and what it takes for both international employees and their employers to stay compliant with the law.
An employment visa allows a foreign national to be employed temporarily in the United States. Most international employees are “sponsored” by their U.S. employers, and it is the employers who must apply for and acquire their employment visas.
WHAT IS REQUIRED FOR AN IMMIGRANT TO WORK IN THE UNITED STATES?
A work “visa” should not be confused with a work “permit” or Employment Authorization Document (EAD), although an international employee will need an EAD as well as a visa.
How to apply for an Employment Authorization Document will be explained after this brief look at how to obtain a work visa.
In order for a foreign national to work legally for an employer in the United States, that person must:
1. Have both an employment visa and an Employment Authorization Document (EAD); or
2. Be a lawful permanent resident of the United States (a green card holder).
When sponsoring a foreign national to work in the U.S., the U.S.-based employer must acquire the proper visa. In most cases, this will be an H-1B, L, TN, or EB-1 visa.
An experienced immigration attorney can help U.S. employers determine which visas they need and also help employers to acquire those visas.
WHAT IS THE H-1B VISA?
Here are the details that employers need to know about the most frequently-sought employment visas: The H-1B visa allows U.S.-based businesses to hire international workers in fields such as science, medicine, engineering, and math.
Employers who intend to acquire H-1B visas must first be approved by the Department of Labor for a Permanent Labor Certification (or “PERM”).
The Permanent Labor Certification ensures that no qualified U.S. workers are available for the position being offered, and it additionally ensures that the wage being offered for the position is comparable to the wage offered for similar positions in that geographical region.
H-1B candidates must have earned at least a bachelor’s degree and may remain employed in the United States for as long as six years.
H-1B visas are “capped” – only 85,000 total H-1Bs are issued each year – and a lottery (held each year beginning on April 1st) determines which U.S. employers are “awarded” the visas.
WHAT OTHER WORK VISAS ARE FREQUENTLY REQUESTED?
These are the other most-frequently requested employment visas:
1. L-1 visas let employers bring managers, executives, or specialists from an employer’s foreign subsidiary or branch to the U.S. L-1A visas for executives and managers are good for seven years; L-1Bs for workers with specialized knowledge are valid for five years.
2. TN visas let Canadian and Mexican professionals enter the United States for brief business visits.
3. Sponsoring employers may seek an EB-1 visa for managers, executives, and for “outstanding” professors or researchers who have shown an “extraordinary” ability in the arts, sciences, business, education, or sports.
WHAT IF AN INTERNATIONAL WORKER’S SPONSOR GOES OUT OF BUSINESS?
All work visas require the visa holder to remain employed by the sponsoring employer. If the company goes out of business, the visa may be suspended.
If that happens, the employee may need to return to the country of origin and seek another sponsoring employer in the United States.
However, if you are the employee whose employer has gone out of business, speak with an immigration lawyer first. Immigration law is quite complicated, so there may be an exception that would allow you to remain in the U.S. while you seek another sponsoring employer.
WHO NEEDS AN EMPLOYMENT AUTHORIZATION DOCUMENT (EAD)?
Some immigrants in the United States, including those admitted as lawful permanent residents and those who are granted asylum or refugee status, may have automatic employment authorization as a direct result of their immigration status.
Others will need to apply for and receive a work permit or “EAD,” an Employment Authorization Document`.
If you are an immigrant and you do not know your residency status – or if you are not absolutely certain – you need to resolve the question with the help of a skilled immigration lawyer, and you will need to resolve it prior to requesting an EAD.
WHAT IS REQUIRED WHEN YOU REQUEST AN EAD?
Your immigration lawyer can also review (or help you with) the Application for Employment Authorization (Form I-765) so that there are no misunderstandings, mistakes, or delays in the processing of your request.
Immigrants submitting Form I-765 must determine their “eligibility category,” and they’ll need documents to prove they belong to a particular eligibility category. Again – this can’t be emphasized enough – you’ll need an immigration lawyer’s help when you complete Form I-765.
As of 2018, the EAD filing fee is $410. Several eligibility categories will also require an additional $85 biometric services fee.
You will be contacted by mail if your Form I-765 is returned for mistakes or inaccuracies, denied, or approved.
WHAT IF YOUR EAD REQUEST IS RETURNED OR DENIED?
If your Form I-765 is returned because you failed to include anything, you will be permitted to correct the form and re-apply. If your Form I-765 is denied, you will need to review your remaining options with your immigration lawyer.
EADs are usually approved for one year. Renewals cannot be requested more than 120 days before the current EAD expires. Immigrant workers may apply for a replacement for a lost, stolen, or mutilated EAD or for a document that includes incorrect information.
Many observers describe the U.S. immigration system as “broken.” If you’ve read this far, you can see that it is certainly complicated, that the paperwork can be almost overwhelming, and that the opportunities for delays, mistakes, and misunderstandings are abundant.
IS THE SYSTEM REALLY BROKEN?
But the system is not entirely broken. If you are a foreign national, unless you have committed a crime, or you have disqualified yourself in some other way, an immigration attorney can almost always help you achieve your goals in the United States.
Similarly, if you are a U.S. employer seeking to hire foreign nationals, you’ll need some patience – and the ability to tolerate a mountain of paperwork – but a lawyer with substantial immigration experience will probably be able to help you hire the international workers you need.
Finally, don’t even try to obtain a work visa, a Permanent Labor Certification, or an Employment Authorization Document without help from a qualified immigration attorney.
The law is simply too complicated, and mistakes can be far too costly. Get legal help before you make those mistakes.