Are you a foreign national planning to work in the United States? You have to know a few steps and requirements to make it possible. Whether you aim to get an employment-based green card or are looking at temporary work visas, this article aims to give you a comprehensive source of information. You will learn about employment-based visas, eligibility, and the application process.
What Is an Employment Visa?
An employment visa allows foreign nationals to work in a particular country, often for a designated period. Filing the appropriate visa application requires a firm understanding of the goals of the foreign national employee and the business seeking to hire a foreign national. The unique facts of each situation will determine which visa to apply for and the necessary documentation to submit to the U.S. Citizenship and Immigration Service (USCIS).
There are two types.
Immigrant Employment Visa
Foreign nationals seeking employment in the United States get these work visas. The visa could lead to lawful permanent residency or a "green card." Here, the foreign worker gets offered work by a U.S. employer. Employment-based immigrant visas are based on categories such as:
- Persons of extraordinary abilities in arts, science, education, business, or athletics
- Outstanding professors and researchers
- Professional talent
- Multinational executives and managers
- Investors and employment creation
See FindLaw's "How to Apply for Immigrant Status Based on Employment," an overview of the immigrant visa application process. The visas fall into employment-based preference categories. The five types are:
- EB-1: Priority Workers — Reserved for professionals working in the U.S. widely recognized for their extraordinary ability in arts, science, education, business, or athletics (i.e., Pulitzer Prize-winning author).
- EB-2: Professionals with Advanced Degrees or with Exceptional Ability — For professionals with an advanced degree, or its equivalent, and at least five years of work experience (i.e., Ph.D. working in the field for five years).
- EB-3: Skilled/Professional Workers — This category covers skilled workers, professionals, and capable unskilled workers (labor certification and a permanent, full-time job offer are required).
- EB-4: Special Immigrants — Includes religious workers, broadcasters, Iraqis who have helped the U.S., physicians, and others.
- EB-5: Immigrant Investors — People investing in a new commercial enterprise that creates or preserves at least 10 full-time jobs.
Nonimmigrant Employment Visa
Nonimmigrant visas are often valid for a limited period. These visas get issued for a specific purpose and are available for temporary workers in the United States. Some of the examples are:
- Skilled professionals (H-1B visa)
- Intra-company transfers (L-1 visa)
- Temporary agricultural workers (H-2A visa)
- TN/TD visa for Canadian and Mexican professionals under the North American Free Trade Agreement (NAFTA)
- E1/E2 visa for treaty traders and investors.
How Employers Sponsor Employment-Based Visas
U.S. employers are essential in sponsoring employment-based visas for foreign workers seeking opportunities in the United States. Sponsoring employment-based visas not only benefits the foreign worker beneficiary. It also creates a diverse talent pool in the United States, contributing to the growth of the U.S. workforce. But, U.S. employers and foreign workers must understand how the process works. This helps to ensure an effective, smooth, and lawful transition into the United States. It also ensures compliance with the immigration and employment laws in the United States.
The following are the common steps that U.S. employers follow when sponsoring foreign employees:
- Job offer. The foreign national must have a job offer from a qualified U.S. employer. The job offer should specify the conditions and terms of employment.
- Labor certification. Employers should get labor certification from the U.S. Department of Labor. The certificate shows that no able, qualified, and willing workers in the United States could fill the position.
- Submission of petition. U.S. employers should submit an Immigrant Petition for Alien Worker (Form I-140) for immigrant visas. And Petition for Nonimmigrant Worker (Form I-129) for nonimmigrant visas. Submit these forms to the USCIS.
- Approval. The foreign national can continue with the visa application process upon petition approval.
- Visa application. The foreign worker files an application for a worker visa at the U.S. consulate or U.S. embassy in their home country.
- Traveling to the United States. Upon issuance of an employment visa, the foreign worker can travel to the U.S. to start their new job.
The U.S. employer should also follow compliance requirements. This includes verifying employee eligibility, keeping an accurate employment record, and complying with labor and wage requirements.
Employment Visa and Numerical Limitations
Every fiscal year, the U.S. Department of Homeland Security (DHS) and the Department of Labor (DOL) give a numerical limit on the number of visas. For instance, in May 2022, the DHS and DOL published a temporary rule increasing the cap to 35,000 on H-2B nonimmigrant visas.
The DHS can make available employment visas after consulting with the Secretary of Labor. They look at the needs of businesses in the United States. The DHS and the DOL also examine the impact on U.S. citizens and U.S. workers and the integrity of the employment-based visa program.
Proving Your Eligibility to Work in the United States
Employees applying to work in the U.S. must prove their eligibility to work in the country. They can complete Form I-19 or the Employment Eligibility Verification Form. The employer uses the form to verify the employment authorization and identity of the hired worker. Note that employers use the form for foreign workers and U.S. employees. The U.S. employer and the employee should complete the form.
The form asks them to attest to their authority to work in the United States. They also must present documents proving their identity and work eligibility. Documents that show proof of authority to work in the United States include the employment authorization identification card, employment visa, or permanent residency card.
The U.S. employer should examine these documents and determine if they are genuine and relate to the employee.
Moving to the U.S. With Your Family
Employment-based visas also allow your spouse and children to join you in the United States. But this may depend on the visa category given to the foreign worker. Some visas allow dependents to go with the primary visa holders into the U.S., while others may not. Visas for the family members are not automatic. They have to go through a separate immigration process. The dependents should still meet specific visa requirements to join their family member when traveling to the U.S. for work.
For example, if you received an H-1B visa, your spouse and children under 21 may file for an H-4 visa to go with you to the United States. Remember that your family members can only apply for an H-4 visa once you have an H-1B visa. The U.S. consulate may ask you to show a copy of your H-1B visa from the USCIS. The consular officer may also ask you to show proof of your relationship with the H-4 applicants. These documents may include a marriage certificate or birth certificate.
With an H-4 visa, the visa holder may study in the United States. But, H-4 visa holders can't work in the United States. They can only apply for work authorization if the H-1B visa holder applies for lawful permanent resident status (LPR).
Get Legal Advice from an Immigration Law Attorney
The complex landscape of U.S. immigration laws can be overwhelming. Some rules apply differently depending on the visa category you are applying for. The U.S. government also issues requirements you must submit to increase your chances of getting a U.S. visa. There are also steps for U.S. employers to follow before you can hire foreign workers to come into the United States. Because of these rules and requirements, it is best to consult a legal professional who can give invaluable guidance.
U.S. immigration lawyers can help you process your employment visa application. They can guide you as you navigate the complex rules of immigration laws. With their experience handling these cases, they can also give other legal services related to U.S. immigration laws. Among them are help with adjustment of status, family-based immigration, and more.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified immigration attorney to help you with visa procedures.