What do you do when sponsoring a foreign national is your best — or only — option?
The process for a U.S. company sponsoring a foreign national is complex, and not knowing the rules and regulations could prove costly and time consuming.
It’s not simply a matter of verifying a job candidate’s documentation and completing an application. You must satisfy a number of government requirements before sponsoring a foreign national to be employed in the United States.
The type of documentation, the time and the resources involved vary depending on the vacant position and the type of visa sought. Be cautious that the requirements can change as lawmakers update existing immigration-related laws and regulations. Always review with legal counsel to oversee the process and to answer any questions about foreign national sponsorship and the changing laws that affect employment.
Given the time and monetary cost of obtaining a work visa, this may not be the most efficient avenue to pursue if local options are available. But if your recruiting efforts fail to produce a viable local candidate, then there are a number of variables to consider.
What common types of visas are there?
Visa categories cover a broad range of non-immigrant or temporary visas depending on the specific kind of work, but some of the most common are:
- H-1B – Non-immigrant, employment-based visa for temporary workers
Duration: Starts off for up to three years but can be extended for an additional three years with the option to extend to temporary status if the company is willing to sponsor the employee’s citizenship.
- J-1 – For researchers, scholars or student/exchange visitors
Duration: There are different types of J1 visas. The duration of each depends on the program. The work performed must be part of the participants approved program.
For example, a short-term scholar program may be granted six months, while a professor or research scholar may have a duration of five years.
- F-1 – For students
Duration: The work visa will depend on form I-94 and I-20.
Grants permission to work part time on campus (20 hours or less per week) and are eligible to apply for off-campus employment – OPT (see below) – in their field of study.
- OPT – Optional practical training is temporary employment directly related to a F-1 student’s area of study
Pre-completion OPT is limited to 20 hours per week while school is in session. Post-completion OPT students may work full time.
Duration: Per authorization documents
Typically these are for students in certain science, technology, engineering and math (STEM) fields, who may apply for a 24-month extension of OPT employment authorization following graduation if they meet certain conditions.
- CPT – Curricular practical training or temporary authorized training
Duration: As directed by program and authorization documents
CPT is very similar to OPT, except CPT work can be either full-time or part-time, and a signed cooperative agreement or a letter from the employer is required.
OPT and CPT can later be transferred by the employer if the employer wants to sponsor these visa holders for H-1B visas.
- H-4 – For the spouse or dependents of an H-1B visa holder
Duration: Generally, H-4 visas expire automatically if the associated H-1B expires or is not renewed.
H-4 visa holders may work full time if the associated H-1B is valid.
- L-1 – Transfer of a foreign employee to work in an U.S. office of the same employer. For those in management, executive or specialized knowledge positions.
Duration: Starts off for three years and can be extendable to a maximum of five years
L-1 visa holders cannot transfer to another employer. If they resign or get fired, they must leave the country. If employed in a managerial or executive position for one continuous year in the preceding three years (in the U.S. or outside the U.S.), you can apply for green card in EB1C category immediately.
How do I sponsor a foreign national?
Follow these seven steps to successfully identify, recruit, vet and sponsor a non-U.S. citizen:
1. Determine what position the hire will fill
The type of job will have a bearing on how much red tape is involved and the type of visa required by the employee.
First, decide what roles within the company you will fill with foreign nationals. While there are dozens of possible fields, the majority of visas are granted to applicants within six specific disciplines.
Recent yearly data by the U.S. Customs and Immigration Services (USCIS) shows most of the approved H1-B petitions went to computer-related occupations by a more than 4-to-1 margin over the next highest occupations of architecture, engineering and surveying, education, administration and medicine/health.
2. Conduct recruiting process, background checks and verification of documentation
Determine the proper immigration visa program (H-1B, L-1, etc.) for your recruiting needs. The most important question: Will the employee become a permanent resident or is this a temporary hire?
Conduct the same rigorous recruiting process used to identify qualified domestic candidates. Allot additional time for your international recruitment efforts, as it may take longer to verify foreign college degrees and other documentation. This verification process can take weeks to months, depending on the country.
An H-1B visa is the most common, often called a U.S. work visa. These are granted to eligible temporary workers with employer sponsorship. H-1B visa sponsorship cannot be offered until the candidate’s background check is complete.
U.S. companies may hire any foreign national as long as they are already in the country and are eligible and authorized to work in the United States. Federal law requires all employees complete an I-9 form for legal identification. All foreign hires must also have a valid work visa from the U.S. Customs and Immigration Services.
3. Apply for a work visa
Consult an immigration attorney.
H-1B visas are very popular because they allow the holder to live and work in the U.S. while seeking permanent resident status. Historically, the quota has been filled quickly.
4. Obtain Department of Labor certification
Before formally applying for a candidate’s visa with the U.S. Customs and Immigration Services (USCIS), your next step is obtaining a certification from the US Department of Labor.
This is a complex process. In a nutshell, requesting certification means that the employer has made the case to the Dept. of Labor that all efforts to recruit a U.S. worker for the position have been exhausted and that the identified candidate meets the skills and qualifications required for the role.
The certification required will depend on the type of business, but typically takes eight to 12 weeks. Contact USCIS to verify which certification will suit your needs.
Part of this step is the submission of a Labor Condition Applications by the employer to the Department of Labor via Form 9035. The LCA details the conditions employers must meet in the process.
5. Comply with insurance requirements
Since the passage of the Affordable Care Act (ACA) in 2010, there have been significant changes to the health care industry and some of those changes affect H-1B visa holders.
Foreign nationals are not obligated to maintain coverage, but once they become a “resident alien,” as defined by federal laws, H1-B visa holders are subject to ACA laws.
Insurance obligations are the responsibility of the employee, but companies may assist in the process or offer company insurance.
6. Meet salary and benefit requirements
The salary for an H-1B employee cannot be less than the typical wage for the position or occupation. The employee must be given the same benefits as other employees in a similar position at the company.
The employer, not the employee, is responsible for all costs associated with filing the application for an H-1B petition. The employer may not charge these costs to the employee or seek reimbursement from the employee.
While some of the fees for H-1B applications are standard, such as the basic filing fee ($460) and fraud prevention and detection fee ($500), others are based on how many workers the filing company employs and can vary from hundreds to several thousand dollars. Typically, the cost to an employer will run between $2,500 and $7,000.
7. Cross your fingers
The processing time for H-1B visas varies.
Applicants can seek an expedited decision by paying a $1,410 fee for premium processing and have a decision in approximately 15 calendar days for premium processing.
The United States Citizenship and Immigration Services had suspended this service for three months before announcing Feb. 19 it had resumed processing for petitions filed on or before Dec. 21, 2018.
Don’t let the complexity of employment laws frighten you. Make sure you’ve got your T’s crossed and I’s dotted when it comes to the law. Learn more by downloading our free e-book Employment Law: Are You Putting Your Business at Risk?