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What It Takes to Hire Foreign Workers for Your Business

By Irelis Arias on 9/4/2014
hire foreign workers USCIS

Depending on your industry and the type of position you’re looking to fill, you may find that the best candidate for the job is someone outside the U.S. If you wish to hire a foreign worker who is not authorized to work in the United States, however, you must take certain steps to help the individual secure a work visa. Known as “sponsoring” a foreign worker, this is a complex process that requires strict compliance to avoid complications. The demands on your time and resources to pursue the individual, cover the costs and manage the necessary paperwork can be great. While not exhaustive in detail, the following article will provide a helpful overview of the sponsorship process.

Sponsoring a foreign worker

In sponsoring a foreign worker, you must determine whether to do so on a temporary or permanent basis. Approximately 140,000 permanent work visas (or employment-based immigrant visas) are allocated each year, grouped under five different categories and with specific caps in each category. Two of these categories – Employment-Based Second Preference (EB-2) and Employment-Based Third Preference (EB-3) visas -- offer the broadest definitions for employers wishing to sponsor. Nearly 40,000 EB-2 visas are given each year to professionals holding advanced degrees and to individuals with exceptional ability in the arts, sciences or business. The same number of EB-3 visas (40,000) are allocated annually for professionals holding bachelor’s degrees and other skilled and unskilled workers.

The Department of Labor (DOL) certification and Citizenship and Immigration Services (CIS) requirements with permanent work visas vary, but the most common documentation is:

ETA Form 9089, Application for Permanent Employment Certification, filed with the DOL. (To receive certification, you’ll need to prove that you cannot fill the position with a U.S. worker, and that hiring the foreign worker will not adversely affect the wages and working conditions of U.S. workers.)
ETA Form I-140, Immigrant Petition for Alien Worker, filed with CIS once you receive certification approval from the DOL and make a job offer -- a step that determines whether the job and the worker’s credentials match a specific visa classification.

    It’s important to realize that it can be difficult to hire workers permanently through immigrant visas. If your need for a foreign worker is temporary (a few months or even a few years), another option is to help the worker secure a nonimmigrant work visa. This visa is temporary in nature, with validity periods ranging from a few weeks to several years. In addition to being easier to obtain, a temporary work visa can serve as a bridge to permanent residence status, since the individual is already working legally in the U.S.

    There are approximately 30 nonimmigrant visa categories, including tourist and student visas, but the types used most frequently by employers to hire foreign workers on a temporary basis are:

    Specialty workers (H-1B) – Applies to workers in occupations that require technical expertise in a specialized field, such as architects, engineers, computer programmers, accountants, doctors and college professors. H1-B workers are admitted to the U.S. for an initial period of three years, which may be extended an additional three years. The current annual cap in the H-1B category is 65,000, along with another 20,000 for foreign workers with a master’s or higher degree from a U.S. academic institution.
    Temporary Alien Labor to Meet Temporary Needs (H-2) – Applies to temporary or seasonal workers in the agricultural industry (H-2A) and skilled or unskilled workers in other industries (H-2B). H-2 status typically is valid only for the period of the employer’s temporary need, with a maximum initial stay of one year. There is no annual cap on H-2A visas, while the annual cap for H-2B visas is 66,000.

    In most cases, if you want to hire a foreign worker on a temporary basis, you must file Form I-129, Petition for a Nonimmigrant Worker. You may also need to request foreign labor certification from the DOL before filing Form I-129, with specific DOL form requirements for H-2A and H-2B visas.

    Be aware that the process to obtain labor certification for nonimmigrant visas can take anywhere from a few weeks to a few months, depending on the type of visa and the appropriate state workforce agency’s requirements. Once the labor certification is approved, the petition is filed with the CIS, adding more time to the approval process.

    As a potential H-1B employer (the leading sponsorship relationship), you’ll also need to meet these additional responsibilities:

    Posting a notice in two places on your premises where the H-1B employee would work, disclosing the wage, title and location of the offered job, for 10 days. This posting is not an advertisement or an announcement that the job is open to any qualified U.S. worker who wants it. Rather, it serves as a public notice of the wages and working conditions of the H-1B job, as required by the DOL.
    Covering the H-1B user fees – $1,500 for most employers, or $750 for companies with 25 or fewer employees – and the H-1B filing fee of $325 and fraud prevention fee of $500.
    Paying the foreign worker at least the wage stated on the labor certification form and offered in the petition. Only amounts paid as W-2 salary (with all necessary payroll taxes withheld) apply, which excludes discretionary bonuses, sales commissions, non-cash benefits and non-employee compensation. Also, H-1B workers cannot be classified as independent contractors.
    Filing an amended petition with the CIS if any employment conditions change, such as a new location or jobsite, or an assignment to a different job not considered a vertical promotion.

    Keep in mind: Sponsoring a foreign worker can be a complex process requiring approval from more than one government agency, so it’s best to consult an immigration attorney before seeking this arrangement.

    Hiring and Performance