Gaining entry into the United States as a temporary (nonimmigrant) worker or as a permanent (immigrant) worker requires both the employer and employee follow the proper legal steps to comply with the U.S. Citizenship and Immigration Services process.
Foreign labor is often sought when a U.S. citizen is not available to perform a certain role. Employers seeking qualified workers must determine if they wish to hire/relocate someone temporarily or have them work permanently in the United States. This will determine if the employer wishes to petition for a Green Card (permanent residence) or petition for temporary employment status for prospective employees. Employees are not allowed to self-petition.
Regardless if the employee requires permanent or temporary status, Employer Sponsorship is likely required. There are more than a dozen classifications for temporary and permanent foreign workers, and they each have certain rules and forms to file. Only a few nonimmigrant classifications allow a select few individuals to obtain permission to work in the United States without Employer Sponsorship. These include the nonimmigrant E-1, E-2, E-3, and TN, with special circumstances for F-1 and M-1 student and J-1 exchange visitor classifications. Most others will need to file the correct petition for their classification and provide any supporting documentation, as specifically outlined in the petition form guidelines.
Permanent Foreign Workers
There are five employment-based immigrant preferences for those seeking permanent residency:
EB-2 – Reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
EB-3 – Professionals, skilled workers, and others
EB-4 – “Special immigrants”, including certain religious workers, employees of US foreign service posts, retired employees of international organizations, alien minors who are wards of the courts in the US, and other classes.
EB-5 – Business investors who invest more than $1 million or $500,000 in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Application for Foreign Labor Certification
Before applying for Employee Sponsorship, the employer bears the burden to correctly petition the U.S. Department of Labor (DOL) to obtain an approved labor certification. The Foreign Labor Certification programs serve to provide the necessary evidence that the employer does not seek to adversely impact job opportunities, wages, or working conditions for American workers by temporarily or permanently hiring foreign workers.
Under the requirements of the Foreign Labor Certification, the employer navigates a complex process that may involve the following government agencies:
- Federal Department of Labor
- State Department of Labor
- U.S. Citizenship and Immigration Services (USCIS)
- Department of State
- Attorney General
- Secretary of State
Examples of typical forms associated with the Foreign Labor Certification:
- Application for H-1B Nonimmigrants (ETA-9035)
- Application for Alien Employment Certification (ETA-750A)
- Application for Employment Certification (ETA-750B)
- Application for Employment Certification for Agricultural Services (ETA-790)
Apply for Employee Visa
Once this certification is approved it allows an employer to extend a job offer to the prospective employee, petition the U.S. Citizenship and Immigration Services for a visa, and become an Employee Sponsor. The forms and fees required to change so be diligent at the time of petitioning to ensure the correct forms and fee amounts are submitted. Application documents and payments are required at once to avoid delays.
High demand for USCIS petitions and the limits set by the law capping the number of people allowed to immigrate each year determines the waiting time between application and approval. Some may have little to no wait while others have waited for more than a year.
Consular Process or Adjustment of Status
For those seeking permanent resident (Green Card) status, once the employee received an approved immigrant petition and immigrant visa number, there are two ways to apply for lawful permanent resident status. Depending on whether the employee is currently residing in the United States or outside of the U.S. will determine if the employee files for an adjustment for status or if they must proceed through the Consular Process. The Consular Process involves applying at a U.S. Department of State consulate abroad for an immigrant visa for permission to come to the US and be admitted as a permanent resident.
Employment Authorization Document
U.S. employers have the responsibility of verifying employees are allowed to work in the United States. An Employee Authorization Document can be used to verify a worker’s eligibility if their status is pending, approved, or require USCIS’s permission. Lawful permanent residents may use their Green Card as evidence of their employment authorization.
There are processes and guidelines for renewing or replacing an Employee Authorization Document.