You’ve searched for local talent but have come up empty, and you are considering taking your recruiting efforts abroad. You know you can attract the right candidate, but how to get them working for you in this country legally?
This article will explain how in detail and comes from the office of a noted O-1 Visa Lawyer in NYC.
How to Sponsor a Foreign National Employee
Once you know what position you need to fill, you need only to follow these six steps:
1. Perform a Background Check and Verify Documentation
Determine what type of non-immigration visa program will be suitable for your candidate. Take the time to verify foreign credentials such as college degrees. Then, conduct a background check to ensure that your candidate will be granted a visa.
2. Obtain Certification from the Department of Labor
You must show the Department of Labor that you have made every effort to recruit and hire a U.S. national for the position you seek to fill with a visa holder. This process may take anywhere from eight to twelve weeks. The USCIS website has the certification form, and you will also complete and submit a Labor Conditions Application (Form 90235).
3. Apply for the Appropriate Work Visa
If you are unsure which non-immigrant visa is right for your candidate and the position you seek to fill, consult with an experienced immigration attorney. H-1B visas seem to be the most popular because an H-1B visa holder can live and work in the U.S. while seeking permanent resident status.
4. Comply with Medical Insurance Requirements under the Affordable Care Act
Once your candidate has their visa, and they become a “resident alien,” they are subject to the requirements of ACA. Either they must obtain health/medical insurance per ACA, or your company must provide it.
5. Ensure You Meet Salary and Benefit Requirements
Your candidate must be offered a wage that is typical for the position you seek to fill. They also must be given the same benefits as U.S. nationals in their position.
6. Wait for Processing, or Pay a $1,500 fee for Premium Processing
What Types of Foreign National Workers Can Work in this Country?
There are various types of non-immigrant, employment-based visas for foreign nationals seeking to work in the U.S. The most common visas are:
According to the United States Citizenship and Immigration Services (USCIS), H-1B visas are available to foreign nationals who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability, in the U.S.
These visas are in effect for three years but may be extended for another three years. If you, as the visa holder’s employer, wish to sponsor the visa holder’s citizenship, that is an option.
H-4 visas are available for the spouse and dependents of an H-1B visa holder. H-4 visa holders may work full-time as long as the H-1B visa remains valid.
The O-1 nonimmigrant visa for temporary workers is for the foreign national who possesses “extraordinary ability or achievement” in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
O-type visas have the following subclassifications:
- O-1A visa holders are foreign nationals with extraordinary abilities in the sciences, education, business, or athletics.
- O-1B visa holders are foreign nationals with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
- O-2 visa holders are foreign nationals who accompany an O-1 artist or athlete to provide assistance with a specific event or performance or series of events or performances.
- O-3 visa holders are the dependents of the O-1 visa holder. These are the spouse and the unmarried children under the age of 21.
L-1 visa holders are the employees of a company that transfers them to a U.S. location. An L-1 visa holder can only work for that employer in order to remain in the U.S.; if they leave that employer, they must leave the country. L-1 visas are in effect for three years and may be extended up to five years.
There are several different types of J-1 non-immigrant visas depending on the type of worker sponsored. J-1 visa holders are generally researchers, scholars, professors, or exchange students. A J-1 visa permits foreign nationals to visit the United States to exchange skills, experience, or knowledge in various areas and work part-time. The maximum time a J-1 visa holder can stay in the U.S. is usually seven years.
Time, Quota, and Money Work Against You
The sponsoring employer, not the employee, is responsible for filing all applications and paying all fees, which may total anywhere from $2,500 and $7,000. Also, for most visas, there is a limit to how many will be issued each year. If you are struggling with successfully hiring a foreign national and getting them here to work for you legally, you might consider hiring an immigration lawyer to help you. Their familiarity with the system will give you and your candidate the best chance of success at obtaining a visa.
About the Author
Veronica Baxter is a writer, blogger, and legal assistant operating out of the greater Philadelphia area. She writes for Yao Law, an entertainment and immigration lawyer in New Jersey.