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How to Hire a Foreign Worker
 
Published Tuesday, June 6, 2017
by SUSAN T. GOFF and AUTUMN MISIOLEK TERTIN

With the international nature of today’s businesses, the hiring of foreign national employees is on the rise—and your managers and corporate officers will look to you to provide them with proper guidance on how to quickly and successfully get much-needed employees into the U.S. to fill valuable roles.

In general, there are two types of immigration cases: non-immigrant and immigrant. Nonimmigrant cases involve temporary permission for a foreign national to stay in the U.S. for a particular purpose, while immigrant cases involve permission to permanently reside in the U.S. There are many types of nonimmigrant and immigrant visas available to foreign nationals. For those seeking temporary employment in the U.S., an F-1, H-1B, L-1 or TN visa may be appropriate; for individuals wanting to permanently live and work in the U.S., securing an immigrant visa would be more appropriate.

Student Visas
The F-1 visa is issued to foreign students to study in the U.S. When in F-1 status, a student can apply for Optional Practical Training (OPT), which is a temporary employment period directly related to the student’s field of study. F-1 students are permitted to receive up to 12 months of OPT during or after their degree program.

Additionally, some students whose degrees fall into certain science, technology, engineering and math (STEM) fields may be eligible to receive a 24-month extension of their OPT, which is great news for the employers depending on these skilled young professionals to grow their companies.

Visas for Professionals
The H-1B visa is issued to professionals in specialty occupations to work in the U.S. and requires at least a bachelor’s degree or its equivalent. H-1B visas are valid for up to three years with a three-year extension available for a total of six years. Availability of the H-1B visa is limited by an annual allotment of visas (the H-1B cap). Under current law, there are 65,000 H-1B visas available each fiscal year, with an additional 20,000 available for recipients of U.S. master’s degrees. The H-1B cap enrollment period opens every year on April 1 for employment start dates beginning on Oct. 1 of the corresponding year. Due to the popularity of the H-1B visa, the H-1B cap is almost always reached on the first eligible filing date, resulting in a five-day lottery period for petition filings. In fact, the 2016 demand for this coveted visa was three times more than the quota.

Congress has been trying to amend the H Visa program. One proposal, the H-1B and L-1 Visa Reform Act, introduced by Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), calls for dismantling the lottery system and in its place creating a preference system to allow foreign students educated in the U.S. to receive top priority for visas. This proposed change would help retain those bright young stars who are already working in F-1 OPT status. It would also give preference to advanced degree holders, those paid a high wage and those with valuable skills.

The L-1 visa comes in two varieties: the L-1A and the L-1B. These visas are issued to employees of foreign entities wishing to transfer to a U.S. office from the company’s office abroad. L-1A visas are reserved for executives and managers while L-1B visas are available to those with specialized knowledge relating to the company’s interests. Both visas are available for up to three years with extensions available for a total of seven years for L-1A and five years for L-1B. These visas are popular choices for bringing employees into the U.S. for companies that already have a presence in the country or wish to establish a U.S. presence. However, the L Visa application process can be challenging due to the vast amount of information required and the little likelihood of success.

The TN visa is available only to Canadian and Mexican citizens and is issued to professionals seeking to engage in business activities with a U.S. employer under the North American Free Trade Agreement (NAFTA) for up to three years with unlimited renewals. The challenge with TN visas is that NAFTA limits the occupations that can benefit from them, including engineers, computer systems analysts, chemists, physicians and university professors.  

Nonimmigrant Visa Fees
The fees charged by the immigration service for filing these nonimmigrant applications can vary but typically include a $960 application fee plus another $750 or $1,500 depending on the size of the company.

In order to expedite an application decision within 15 days, as opposed to the common wait time of several months, there is an additional fee of $1,225. For TN visas, there are no filing fees paid if the application is made at the border; rather, the applicant pays a visa fee upon issuance.

Immigrant Visa
The immigrant visa is commonly obtained through employment. When an individual is hired on a nonimmigrant visa (typically H or L), they usually want assurances from the employer that permanent residency will be an option for them. Generally, for individuals to use the employment-based method, a three-step process must be followed:

• An Application for Labor Certification is filed with the U.S. Department of Labor;

• An Immigrant Petition for Alien Worker is filed with the U.S. Citizenship and Immigration Services (USCIS); and

• A Permanent Residency application is filed with the U.S. Department of State or USCIS.

Steps one and two must be completed by the employer, while step three can be completed directly by the employee.

In order to file an Application for Labor Certification, an employer must undergo the Program Electronic Review Management (PERM) process. This requires the employer to certify that there are no willing, able and qualified U.S. workers available to perform the job duties of the position being offered to the foreign worker, and that by offering this job to a foreign worker, it will not hurt the job opportunities, wages or working conditions of U.S. workers. Once the Application for Labor Certification is approved, the employer can then apply for an Immigration Petition.

The Immigration Petition for Alien Worker is filed with USCIS using Form I-140. In the petition, the employer must prove that the employee qualifies for the position listed in the Labor Certification and that the company has the ability to pay the offered salary. Once the petition is approved, the employee can then apply for an Immigrant Visa or Adjustment of Status Application if a visa number is available.

Immigrant Visa Fees
Fees for the immigrant visa process include advertising costs, an application fee of $700 and the cost of educational evaluation. At the permanent residency stage, the individual pays $1,225 and, if outside the U.S., pays an additional visa application fee of $345.

Filing From Outside the U.S.
Individuals outside the U.S. file an Immigrant Visa Application with the Department of State, while individuals inside the country submit an Adjustment of Status Application to USCIS. In order to file either application, an employee would have to have a current priority date (such as a Labor Certification submission date) under the monthly issued DOS Visa Bulletin.

The Visa Bulletin is formatted according to country of birth and lists the priority date cutoffs for China, India, Mexico, Philippines and all other countries. The dates in the monthly visa bulletin can jump forward, they can retrogress or become unavailable altogether, resulting in lengthy backlogs for those awaiting permanent residency, including green card, status. Due to this backlog, USCIS allows individuals with pending Adjustment of Status Applications to obtain an Employment Authorization Document, such as an EAD card, to continue employment without a nonimmigrant visa.

President Donald Trump has said he wants to crack down on the misuse of visas. It is not clear yet how this will play out for employment-based visas. Another area of concern for companies going forward is in enforcement. The new administration plans to step up onsite visitation by Homeland Security agents to companies employing foreign nationals in any nonimmigrant status, and companies should begin preparing for these visits.

In states like NH, where the unemployment rate is low and young people leave the state to work elsewhere, foreign professional employees provide a valuable role in filling critical positions in companies. It is vital to understand the immigration options available to employers and their foreign-national employees in order for these companies to grow.

Susan T. Goff is a founding partner of GoffWilson, P.A. in Concord, and Autumn Misiolek Tertin is an attorney with the firm, which focuses exclusively on immigration law. For more information, visit Goffwilson.com.


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