When a U.S. citizen is not available to fill a position, many employers across the country want or need to sponsor an employee for a work visa. While the process is detailed and complex, here are some fundamental things to keep in mind if this scenario applies (or might soon apply) in your organization:
Permanent or Temporary?
The first thing to determine is whether the employee that you wish to sponsor for a work visa would fill a permanent or a temporary position.
Sponsoring Permanent Workers
If the position is permanent, then the foreign employee may apply for permanent residence (a.k.a. “a green card”), provided they have unique skills that fit into one of the five preference categories (noted below). As the prospective employer, you will also need to demonstrate to the Department of Labor’s satisfaction that hiring them will not displace a U.S. worker, or have a negative impact on wages or working conditions for U.S. workers.
Permanent Worker Visa Preference Categories
There are five permanent worker visa preference categories: First Preference EB-1, Second Preference EB-2, Third Preference EB-3, Fourth Preference EB-4, and Fifth Preference EB-5 (note that EB-5 is for investors, and so typically will not apply to employers who wish to sponsor foreign employees). For a description of each preference category, click here.
Sponsoring Temporary Workers
The USCIC has several nonimmigrant categories of temporary workers (noted below). As part of the sponsorship application, you will have to attest to certain commitment and conditions, including that: you will pay a wage that is no less than that paid to similarly qualified workers in the geographic area; you will provide working conditions that will not negatively impact other similarly employed workers; there is no strike or lockout where the sponsored employee would be working.
Temporary (Nonimmigrant) Worker Categories
As noted, USCIS offers several non-immigrant categories of temporary workers, including (but not limited to): H1B Visa - Specialty Occupation; O1 Visa - Extraordinary Ability; L1 - Intracompany Transferee; TN Visa - Nonimmigrant NAFTA Professional. For a description of each category, click here.
Working with an Experienced Team
To learn more about how to sponsor an employee for a work visa, contact the experienced Pollak team today. We will help you clearly understand the rules and process — including those that have recently changed and may shift in the near future — and ensure that your application to the USCIS is complete, accurate and timely. Contact us to learn more.
We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.
--Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.