U.S. Immigration Requirements for Employers

As the global workforce continues to diversify, U.S. employers are increasingly seeking to hire international talent to fill critical roles within their organizations. This process, however, requires a thorough understanding of the immigration requirements set forth by U.S. immigration laws and regulations. Sponsoring an employee for a U.S. visa involves many steps and compliance with various legal obligations.

Generally speaking, employer must provide working conditions for visa employees that are similar to what they provide to their U.S. employees, all of which must be in compliance with U.S. labor laws.

Types of Employment-Based Visas

To sponsor an employee, employers must first identify the appropriate employment-based visa category. The most common categories include:

H-1B Visa

The H-1B visa is one of the most popular visas for skilled workers in specialty occupations that require theoretical or technical expertise. Employers must demonstrate that the position requires at least a bachelor's degree or equivalent in a specific field. For example, a technology company may sponsor a software developer with a degree in computer science under this visa category.

The annual cap for H-1B visas is limited, currently set at 65,000, with an additional 20,000 visas available for individuals holding advanced degrees from U.S. institutions. Once someone has received an H-1B, they are no longer counted toward the annual limit as they file extensions and amendments as needed.

If employment of an H-1B employee is terminated, the employer is obligated to pay the cost of the return transportation to that person’s home country.

Labor Condition Application (LCA) Requirements

For H-1B visas, employers are required to file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA ensures that the working conditions offered to the foreign worker do not adversely affect the wages and working conditions of U.S. workers similarly employed.

Key Components of LCA

• Wage Requirements: Employers must pay the H-1B worker the higher of the actual wage paid to similar employees or the prevailing wage for the occupation in the geographic area. For example, a tech company in San Francisco must ensure that the salary offered to an H-1B software engineer is comparable to what other engineers in the area are earning.
• Working Conditions: The employment of H-1B workers should not adversely affect the working conditions of similarly employed U.S. workers. This includes ensuring that H-1B workers receive the same benefits and working hours as their U.S. counterparts.
• Notice Requirements: Employers must provide notice of the LCA filing to the collective bargaining representative or, if there is no such representative, they must post the notices at the workplace. This notice ensures transparency and allows current employees to be aware of the foreign worker's employment conditions.
• Record-Keeping: Employers must maintain public access files that include documentation of the LCA and other related records. These records must be available for inspection by the Department of Labor upon request.

L-1 Visa

The L-1 visa is designed for intracompany transferees who work in managerial positions or have specialized knowledge. This visa allows multinational companies to transfer employees from foreign offices to their U.S. offices. For instance, a global corporation might transfer an executive from its London office to its headquarters in New York using an L-1 visa. The L-1 visa is subdivided into L-1A for managers and executives, and L-1B for employees with specialized knowledge.

TN Visa

The TN visa is designated for citizens of Canada and Mexico as part of the North American Free Trade Agreement (NAFTA). Applicants must have a job offer in the U.S. in one of the specified professional occupations listed under NAFTA. Generally, this visa requires that the applicant holds the necessary qualifications, including a bachelor's degree or equivalent, as well as appropriate credentials for the specific professional category. Unlike other employment-based visas, the TN visa does not have an annual cap and can be renewed indefinitely in three-year increments, provided the employment relationship continues.

Other Non-immigrant Visa Statuses

There are numerous other visa statuses for people coming to the United States to work on a non-permanent basis – although many people in one of these statuses may eventually intend to become a lawful permanent resident. If the person is abroad, the application will include a step wherein the employee must apply for a visa in their country of residence before entering the United States. If the person is already in the U.S. in another status, an application to change to a work authorized status must be filed. For example, many people enter the U.S. as university students, and then change to a work status after they graduate.

Lawful Permanent Residency

Many employees who come to the United States intend to stay on a long-term basis. In that case, lawful permanent residency is the best option. This process typically includes three steps: PERM Labor Certification, I-140 Immigrant Petition for Alien Workers, and finally I-485 Application for Adjustment of Status.

Employer Sponsorship Obligations

Employers who choose to sponsor foreign workers must adhere to several obligations to ensure compliance with immigration laws.

Job Advertisement and Recruitment

For certain visa categories, such as the PERM labor certification for EB-2 and EB-3 visas, employers must conduct a rigorous recruitment process to demonstrate that there are no qualified U.S. workers available for the position. This involves placing job advertisements in various media and documenting the recruitment efforts. For example, a hospital looking to hire a foreign nurse must advertise the position in national newspapers and online job portals and provide evidence of the search to the Department of Labor.

Non-Discriminatory Practices

Employers must ensure that their hiring practices are non-discriminatory and that all candidates, regardless of nationality, are given equal opportunity for employment. This includes adhering to Equal Employment Opportunity (EEO) laws and ensuring that the selection process is based on qualifications and experience rather than nationality or immigration status.

Compliance with Wage Requirements

Employers must comply with wage requirements to ensure that foreign workers are paid fair wages comparable to those of U.S. workers in similar positions. For example, a foreign engineer on an H-1B visa must be paid a salary that is on par with what a U.S. engineer with similar qualifications and experience would earn.

Filing the Petition

Once the LCA is approved, the employer can proceed with filing the visa petition with the U.S. Citizenship and Immigration Services (USCIS). This step involves submitting Form I-129 for non-immigrant visas, such as H-1B and L-1, or Form I-140 for immigrant visas, such as EB-2 and EB-3.

Supporting Documentation

The visa petition must be accompanied by supporting documentation that includes:

• Proof of the employer's ability to pay the offered wage: Employers must provide financial documents such as tax returns, financial statements, and bank records to demonstrate their ability to pay the foreign worker's salary. For example, a startup might submit its recent financial statements to show that it has sufficient funds to pay an H-1B software developer.
• Proof of the employee's qualifications and educational credentials: This includes copies of degrees, transcripts, professional licenses, and work experience letters that verify the foreign worker's qualifications for the position. For instance, a university hiring a foreign professor might include copies of the professor's Ph.D. diploma and publications.
• Documentation of the employer's business operations and financial stability: Employers must provide information about their business, such as company brochures, organizational charts, and client contracts, to establish the legitimacy and stability of their operations.

Approval and Consular Processing

If the petition is approved by USCIS, the foreign worker must then apply for a visa at a U.S. consulate in their home country. This process typically involves an interview and submission of additional documentation, such as a valid passport, visa application forms, and medical examination results.

Visa Issuance and Entry to the U.S.

Upon approval of the visa application, the foreign worker will receive a visa stamp in their passport, allowing them to travel to the U.S. They must present their visa and supporting documents to U.S. Customs and Border Protection (CBP) officers upon arrival. The CBP officers will review the documents and conduct a brief interview to verify the purpose of the worker's entry.

Maintaining Compliance

Employers must continue to comply with immigration regulations even after the foreign worker has been granted a visa and begins employment.

Monitoring Employment Conditions

Employers must monitor the employment conditions to ensure that they continue to meet the requirements of the visa category. Any changes in employment terms, such as job duties, work location, or salary, must be reported to USCIS. For example, if a foreign worker on an H-1B visa is promoted to a higher position with different duties, the employer must file an amended petition with USCIS.

The amended file needs to be received by USCIS – typically after the receipt notice is issued – before the new role is started by the employee. Once USCIS has issued the receipt notice, the employee may begin the new role while waiting for the approval notice. If the amendment is denied for some reason, the employee must return to the role that was approved in the prior H-1B petition.

Record-Keeping and Reporting

Employers are required to keep accurate records of employment and immigration-related documents and to report any significant changes in the employee's status to USCIS. This includes maintaining copies of pay stubs, employment contracts, and immigration forms. Employers must also report any terminations or resignations of foreign workers to USCIS within a specified timeframe. The most important of these is in connection with an H-1B, H-1B1 or E-3 because those cases include a Labor Condition Application (LCA), which obligates the employer to pay the prevailing wage. If the petition and LCA are not properly withdrawn, the employer could become liable for unpaid wages.

There is not a specific deadline for withdrawing the petition and LCA. It is recommended that it be done as soon after the separation date as possible.

Site Visits and Audits

USCIS may conduct site visits and audits to verify compliance with immigration laws. Employers must cooperate with these inspections and provide the necessary documentation. For example, during a site visit, USCIS officers may interview the employer and the foreign worker, review payroll records, and inspect the workplace to ensure that the terms of the visa are being met.

Conclusion

Sponsoring an employee for a U.S. visa is a complex process that requires a thorough understanding of immigration laws and compliance with various legal obligations. By adhering to the requirements outlined in this guide, employers can successfully navigate the sponsorship process and hire international talent to enhance their workforce. Ensuring compliance with immigration regulations not only benefits the employer but also contributes to a fair and transparent immigration system for all parties involved.

For further information on this topic and more, please contact the Sterling Lexicon immigration team at immigration@sterlinglexicon.com.