Business Immigration FAQs

Employment Based Immigration & Workplace Compliance FAQs

Employer and Employee Resources

Employment Based Immigration FAQs

Q1. I would like to move to the USA and work. What do I need to do? How can I qualify for a visa allowing me to work?

A1. The following visas allow for different types of employment situations. Each has a different list of requirements, maximum length of stay, unique permissible activities, etc:

  1. Temporary “nonimmigrant” visas: Lettered “A” through “V”. See the US State Department’s website regarding temporary employment and business visa categories. See also the USCIS website.
  2. Permanent residence (“immigrant visas” or LPR status): There are several employment-based methods for immigrating, each with specific requirements. Employment authorization is also available while certain applications are pending, such as some family and employment based immigration cases, asylum applications, and various specialized programs. Each category has its own special requirements; some are employer specific, others are not. See also the USCIS website list of employment based categories (EB).

What is best for you will depend upon an analysis of the individual facts in your case, your education and work experience, and the nature of the job opportunity.

There is no such thing as a general “work permit.” One cannot just “apply for a work permit.” A person must have a specific work visa or green card, or a work authorization document tied to a particular application for temporary or permanent status. For example, asylum applicants can apply for work permits after their cases are pending for 150 days. Applicants for adjustment of status to permanent residence can apply for work permits. There are many types of applications that have generic work authorization associated with them, but work authorization cannot be applied for by itself.

As a general rule, if looking for a work based visa or green card, it is best to look for work in a field directly related to your previous education and/or work history if you are going to immigrate through employment. It is usually harder to qualify for a visa if you are changing careers, unless you are willing to go to school, work as a trainee, invest in your own start up company, or have a relative sponsor you. We also look at whether you may have a hobby, sport or skill if you are at the very top of the field.

When calling us to discuss your opportunity, it is best that you already have a potential job offer or work under consideration. We do not provide match making services. We are not a recruitment firm.  Likewise, if you want to start or buy a business in the USA, your initial meeting with the attorney will be more productive and valuable to you if you have a specific entity and business plan for it in mind. While we welcome the chance to meet with you to discuss US immigration options in general terms and answer your questions, you may find it more effective to do some preliminary research on your own first. The State Department and USCIS links above are a good place to start. Always make sure you look at government websites ending in .gov.  Then contact us to discuss whether your opportunity has the potential for visa qualification.

Q2. I have been offered a job and it looks like I may qualify for a visa, but the employer seems reluctant to sponsor me for a work visa or green card. What should I do?

A2. First, educate yourself about the various visas and qualifications by reading whatever you can on the subject. (See links above.) Ask your prospective employer to speak to your attorney or an experienced immigration attorney or their counsel. Often, an employer’s reluctance is due to ignorance about the law and procedures or due to a prior bad experience. In most cases, the employer must be part of the process for employer-sponsored visa or green card categories. They should not burden you with all the work and expenses. Because sponsorship is expensive, time consuming, and takes awhile, a serious employer will go through the trouble if they are truly interested in your skills and potential contributions. This is especially true if  they have recruited for a while without much success. In our experience over many years, there are three types of employers: 1) those that know about immigration and have used the various visa categories to secure top talent; 2) those that refuse to get involved, may discriminate (possibly illegally) or don’t have the funds to sponsor anyone and will settle for lesser skilled employees; and 3) employers that don’t know anything about immigration processes, but would be willing to learn, because they really like a foreign national candidate, and/or may have some very limited experience with the process.

There are some instances where you might be able to sponsor yourself and still do business with the employer/company.   When job hunting, do not put on your resume any of the following: marital or family status, religion, race, nationality, place of birth, age, or sexual orientation, since employers may not discriminate on these grounds in the USA. Do not put immigration status on your resume either.  You want to get into the door for an interview. You want to ace the interview. You want the employer to love you, and then, at that point, they may consider sponsorship when the offer is made.  It is a delicate balance about when to determine the best time to mention and negotiate sponsorship needs. Employers are not allowed to discriminate based on national origin or citizenship status during the screening process.

Watch out for friends and relatives who offer to sponsor you as a “favor.” From our experience over many years, most friendly “favors” turn into difficult problems if there is no true fit between the job offer, your background, and the visa requirements. You do not want to get into a situation where there is fraud, or there is a mismatch between the job and your background that could make the case unsuccessful.

Some employers who are used to working with immigrants pay the legal fees and costs as they are considered a business expense and are viewed by the US Department of Labor as the overall cost to hire the person. Other employers split the costs. Still others make the immigrant pay or require the employee to reimburse the employer if the employee leaves the company within a certain time period. The H-1B visa rules now contain provisions requiring the employer to pay, at a minimum, portions of the government filing fees. In an H-1B audit, however, it is common for the U.S. Department of Labor to inquire about who paid the legal fees and costs. In the case of PERM labor certification costs, the employee is not allowed to pay the advertising costs or legal fees. In the end, who ultimately pays for legal fees will depend upon your negotiating skills and the law. The U.S. Department of Labor takes the position that the legal fees and filing fees are the employer’s cost of doing business, especially where the relevant applications are the employer’s applications with associated wage and working condition liabilities. (E.g., PERM, H-1B, I-140s, etc). In these cases, the employer is responsible for the content of the application and signs under penalty of perjury.

Q3. As a Human Resources Executive, I see many applicants responding to our ads who are foreign nationals needing sponsorship. Should I get involved in sponsoring them? Why or why not?

A3. This will really depend on the nature of the job opening, the qualifications you need, and your experience or knowledge about the availability of qualified US workers in your occupational market place. If you are seeking unskilled labor, often an applicant who asks you to sponsor him or her is here illegally, because there are few to no temporary or nonimmigrant visas for unskilled workers at the time of entry into the U.S. Sponsoring them could put your company at risk for employer sanctions and fines if you know the person is unauthorized to work in the U.S. This is not the case in every situation, however. There are many people without green cards or US citizenship who have various types of cases pending who are in fact entitled to work authorization. For example, someone immigrating through a spouse may have a work permit while the case is pending. Young people who have received “deferred action” from deportation under the Deferred Action for Childhood Arrivals (DACA) program generally have work authorization. Applicants for asylum may have work permits. There are many categories of workers with lesser known immigration classifications who have valid work permits. Therefore, it would be worth seeking professional advice before rejecting otherwise qualified applicants. In a few industries, if you can show a critical shortage of US workers, and have a truly temporary need, you might be able to sponsor unskilled workers such as through the H-2A agricultural worker visa program or the H-2B seasonal or temporary worker program, to name a few options. But this will require an analysis of the candidate’s eligibility to immigrate at all, as many could be subject to a bar to returning to the USA.  (These two visa categories do require labor market tests.)

However, skilled or professional level workers may indeed qualify for any number of visas, so it is worth consulting an attorney to see if there is a good match between your opening and their credentials for visa purposes. In this firm’s experience, when an employer discovers a well qualified foreign worker whose skills are in demand, the employer usually sponsors them for a good reason: they cannot find anyone else with similar credentials, or the person’s skills may be in demand in the industry, thus making you more competitive if you hire the candidate. In the end, it comes down to educating yourself and understanding what is involved in the process, having a budget for immigration fees, legal services, and qualifying wages, plus having the time (and patience) to spend preparing a good case with your counsel. As a general matter, we see employers sponsor foreign nationals only after extensive recruitment or inability to find highly specialized or top quality talent. To be honest, it’s usually going to cost more to lawfully hire a foreign national. Employers do get a return on investment in many occupations where they hire foreign nationals who create new products or services, add to market share, or create more jobs.

Many non-immigrant work visas do not require a labor market test. Some permanent residence categories also do not require a labor market test such as visas for crème de la crème workers (or reputation-in-the-field visas), or those performing work of national benefit. In some cases, employees or business owners can sponsor themselves.

Employers who do not want to deal with foreign nationals need to make sure that they do not cross the line into national origin or citizenship status discrimination. The U.S. Justice Department, Office of Special Counsel, has information for employers about what they can and cannot do in the advertising, screening and hiring processes.

See below regarding workplace compliance.

Q. 4. What is PERM?

A. 4. PERM refers to the U.S. Department of Labor’s automated “labor certification” process. Labor certification is one of three parts to an employer-sponsored green card case or for H-2 temporary worker visas. Essentially, the employer is asking the U.S. Department of Labor (DOL) to certify that the employer has a job opening in an occupation for which there are no qualified, willing and able US workers (U.S. citizens, green card holders, or asylees or refugees). In order to get certified, the employer must first establish the objective minimum education and experience requirements needed to perform the job. The requirements cannot be tailor made to the foreign national candidate. Likewise, if the requirements are too broad, everyone will qualify and then the labor certification process is for naught. Once the job duties and requirements are determined, the employer has to get a prevailing wage determination from DOL. If the wage is acceptable, the employer has to use it in the application. If it advertises the wage, it has to use that figure at a minimum or as the bottom of a range.

There are very specific nit-picky rules about where and when the employer must advertise the position to U.S. workers. It must also post a notice on site or through a collective bargaining group. (There are additional requirements for professional level jobs.) If anyone meeting the minimum requirements for the job answers the ad, the employer must interview the candidates. If anyone is rejected for the job, it must be for objective, quantifiable reasons related to the ad. If the employer finds qualified candidates, then basically, the whole process stops, unless the employer has multiple openings. If the employer cannot find qualified, willing or able US workers or can show it lawfully rejected US applicants, then DOL will review the employer’s efforts for compliance with the rules. In many cases, DOL asks to audit the ads and recruitment information, thus delaying the case. In some cases, they will ask the employer to re-do the recruitment under DOL supervision.

Assuming all goes well, and the employer cannot find a qualified US worker, and if DOL accepts the recruitment efforts, it will certify the labor certification application. All during this period, the foreign national must have an underlying nonimmigrant work visa or other work authorization, or be outside the USA, since PERM does not bestow any work permission privileges on the foreign national.

Whereas DOL certifies the position to be available for a foreign worker, the next step is called the “visa petition,” or form I-140, filed with US Citizenship and Immigration Services (USCIS). Now the employer is asking that the position be made available for a specific foreign national. The employer will prove the employee indeed meets all the qualifications in the PERM application and that the employer has sufficient funds to pay the prevailing wage. The I-140 does not bestow any work permission privileges on the foreign national.

The final phase of the green card process is the foreign national’s own application for a green card wherein he or she proves admissibility. This can be done in the USA through “adjustment of status” (Form I-485) if the person is in valid status. Alternatively, the employee can file for an “immigrant visa” abroad at a US consulate. Upon entry with the immigrant visa, the employee will receive the green card. The quota in the given category must be “current” in order to file for adjustment of status or the immigrant visa. The foreign national must be “in valid status” in order to file form I-485 (there are some exceptions). Sometimes when the quota is open, it can be concurrently filed with the I-140. At this point, the employee must show intent to take up the job and that he or she is a good immigrant and not inadmissible. There are some exceptions for long delayed cases where the employee can take up another “same or similar” job.

Q. 5 What is Form I-9, E-Verify, and “workplace compliance”?

A. 5 Form I-9 is a form EVERY employer must complete when hiring a new employee. This has been the law since November 1986. It does not apply to those employees who were already on the payroll before date of enactment of the Immigration Reform and Control Act (IRCA). The employee fills out the top portion on the first date of employment or no earlier than the hire date. The employer fills the bottom portion within three days of hire. The employer is required to keep I-9s available for inspection either three years after the date of hire, or one year after the date employment is terminated, whichever is later.

The employer must physically see the employee’s original documents from a list of choices the employee may present to verify work permission status in the US. The I-9 obligation extends to employers of all sizes and to US citizen employees as well.

The M-274 handbook is a handy tool every employer or HR manager should have in their library as it helps employers to learn the I-9 rules and the various types of documents they may encounter.

IRCA has four main provisions:

  • Employers must complete I-9 forms. Failure to do so or failure to complete them correctly can result in civil penalties. There are both technical and substantive fines for failing to complete/properly complete I-9s.
  • Employers may not “knowingly hire unauthorized workers.” There are civil substantive fines for these more severe violations. “Knowingly” includes actual knowledge as well as constructive knowledge. And liability can extend to managers and owners.
  • Employers who have a “pattern or practice of knowingly hiring unauthorized workers” can be subject to criminal penalties (jail and substantial fines).
  • Employers, in the process of meeting their I-9 obligations, may not engage in national origin or citizenship discrimination.

See information about potential penalties.

E-Verify is the government’s free online database that employers may subscribe to. Employers have to sign a Memorandum of Understanding and be open to I-9 audits. E-Verify has both immigration and Social Security data and is used to verify the information on the I-9s. First, the employer and employee complete the I-9. Then the employer inputs that information into E-Verify. Employees can also do a self-check, but that is not the same as using E-Verify by employers. While I-9s are mandatory of all employers, E-Verify is voluntary for most employers throughout the U.S. The exceptions where E-Verify is mandatory include:

  • Employers who were previously sanctioned for lack of I-9 compliance where mandatory E-Verify use is part of a settlement agreement;
  • Employers who are certain federal contractors
  • Employers operating in states or localities with mandatory E-Verify laws.

When an employer enters the data, E-Verify will either produce a confirmation notice or a “tentative non-confirmation.” If the latter, the employer must give the employee eight government workdays to fix or verify status with the US Department of Homeland Security or Social Security or both. For more information, see How to Correct A Tentative Non-Confirmation.

Workplace compliance can be one of two things. Employers are subject to notice of inspection and audit of their I-9 forms, systems, and compliance by Immigration Customs and Enforcement (ICE), part of the U.S. Department of Homeland Security. This is a formal area of law that can result in Notices of Intent to Fine, settlement agreements and/or litigation before the Administrative Law Judge. Similarly, accusations of discrimination can be investigated and litigated by the Office of Special Counsel of the U.S. Department of Justice.

There are other types of government inspections and audits that can come up in the context of immigration related employer obligations in the H-1B, H-2, E-3 visa, PERM green card process and other programs that are regulated by the U.S. Department of Labor. Employers may also do their own internal audits, with or without counsel, before they ever have a problem or audit with any of these agencies. This would involve reviewing their own paperwork to make sure it is in compliance with any of the programs/obligations mentioned above.

Q6. I am interested in buying or starting a business in the U.S. What should I know about immigration?

A6. There are different visas available for business owners. However, one big obstacle is that a number of categories require an employer-employee relationship. This can be problematic for some foreign national entrepreneurs with significant ownership interests. However, there are some company formation steps to take to create a proper employer-employee relationship or the investor/owner or originator/inventor may have to consider giving up some equity. This will depend in large part on the most appropriate visa or green card category, the applicant’s work history and education, nationality of all the owners and their percentages of ownership/capital invested, as well as plans for the new company in the USA.

As a preliminary step, it may be worth making a short visit as a business visitor (B-1/WB) to the U.S. to do your research, provided you do not perform local labor for hire. Once you are closer to acquiring or setting up a business, develop a very detailed business plan describing your service or product, marketing plan, financing sources, hiring plans, projected operating expenses, ownership interests, and capital contributions, etc. Not only will a business plan be useful for visa planning and application purposes, it will most likely be required for a visa application. Plus, you can use it to obtain financing from banks and other investors. A business plan is a good road map to help you build your business. A business plan is very helpful to an immigration attorney (not to mention your tax and corporate counsel) because it helps us to analyze the appropriate immigration vehicle. Also, it is the evidence of choice to support the seriousness of your plans and capabilities. Most consulates require it for business visas, especially for start-ups and investor visas.

Be sure to talk to your tax and estate planning advisor. Tax and estates issues play an important role in immigration planning. For example, to reduce U.S. tax liability, you my need to limit your physical presence in the U.S., thus limiting your choice of visas to certain nonimmigrant visas rather than permanent residence. Or, your tax counsel could advise you of the reverse. Tax and immigration both play a role in the choice of business entity to set up, who the owners will be, their nationalities, their respective ownership interests, and your choice of visas. Sometimes, tax and immigration issues work at cross purposes. Therefore, it is important that your tax and immigration counsel get on the same page. Ultimately, if you can visit the U.S., make an appointment to consult with international tax and immigration counsel here so we can work together. We work with a number of international tax professionals (accountants and lawyers).

Another issue to consider is whether you intend to stay in a field or industry that you know best. Often the immigration authorities will want some proof that you have the capability to make the business successful. If you have never been in business, at least be able to demonstrate that you have the skills and experience to make or sell your business product or service. This is not a hard and fast rule, just a recommendation. If you have been in business for a long time or have multiple businesses, moving into new industries, products or services should not be a problem.

QUOTAS AND BACKLOGS

Q7. How does the quota work?

A7. A detailed description of how the employment based (EB) and family based (FB) permanent residence quotas can be found here.

There are some other visa categories that have annual caps or allotments. And, each has different rules as to whether those who did not get visas in a given year have to start again the following year or get to remain in line for the following year. The H-1B and H-2B annual caps, for instance, require a new application every year if the applicant was not selected in years of high demand. On the other hand, U visa applicants and those people granted cancellation of removal in front of an immigration judge, get to stay in line for the following year without having to reapply. Likewise, EB and FB applicants subject to the quota, keep their places in line so long while waiting for the quota to become current.