For a foreigner to move to the United States for work, the individual will need to obtain a visa to work in the country. The process begins by first finding an employer willing to hire her for a particular position, as the employee cannot apply directly to the government for a work visa. The employer will then petition for an employment visa, also called a "work permit" or "work visa." Companies seeking to hire immigrant workers will need to choose the right type of visa for the position and then file the appropriate paperwork and fees, generally with the help of an immigration attorney. The process can be long and expensive and the limited number of employment visas available means that many of those who apply and qualify will not be approved.
When a company cannot find a qualified candidate in the U.S. to fill a specific job position, they may choose to hire an employee from outside the country. To do this, they will need to find the right candidate and then fill out the proper paperwork and pay the fees necessary to obtain a visa. Because foreign workers seeking employment in the U.S. cannot apply for a visa themselves and an employer must do it for them, the process is called employment sponsorship.
There are many types of visas available for potential employees based on the type of employment, the nature of the employee/employer relationship and a number of other factors. Each visa type requires a different application process, has its own rules for qualifications and a unique fee structure. A few of the most common visa types are:
- H-1B: These are the most common work visas in the U.S. These visas are designed for foreign workers in certain specialty occupations where there are not enough American workers to fill the demand. For an employee to obtain one of these visas, he must have at least a bachelor's degree or some level of equivalent experience in their field (the employee will have a higher chance of being accepted in the visa lottery if he has a master's degree or above, though). An H-1B visa allows the worker to stay and work in the U.S. for up to three years. The visa may be renewed once, allowing the employee to stay and work in America for up to six years. With these visas, the employee may bring his spouse and children and certain spouses may even be able to work.
- H-2A: The American agricultural industry often requires foreign workers to aid in seasonal harvests because there are too few native workers to fill these roles. That's where these visas, designed specifically for temporary agricultural workers, come in. There are an unlimited number of these visas available in any given year, so employers do not need to contend with a lottery system if they wish to obtain workers through the H-2A program. With these visas, an employee may stay for the initial duration of employment, but the visa may be renewed in one-year increments for a total of up to three years. While these employees may bring their spouses and children, their family members may not work.
- B-1: These visas allow individuals to travel to the U.S. for business purposes, but not for residency purposes. While these visas are work-related, those traveling under these visas do not require employment sponsorship, but the individual must be able to show that she has the funds to cover her full trip and that she has a permanent residence outside of the U.S. as well as other ties to incentivize her return home. While B-1 visas can be used to conduct business such as investor meetings, product demonstrations or trade shows, visitors using these visas may not run a business, seek gainful employment or receive payment from an organization within the U.S. while visiting the country. Individuals obtaining a B-1 visa may stay for six months, and the visas may be renewed once for a total stay of up to one year. These visas do not allow for the inclusion of dependent visas, so spouses and children will be required to obtain B-2 "visitor for pleasure" visas or stay home.
- L-1: These visas are for workers employed outside of America by a company with locations inside the U.S. where the employer wishes to relocate the individual; for example, if an employee in a Google office location in India needed to be transferred to their Silicon Valley main campus. For this reason, these visas are known as relocation visas. There are no limits on the number of L-1 visas issued every year. The employee may initially stay for three years, but the visa can be renewed for up to five years under an L-1B visa or seven years under an L-1A visa. Like the H-1B visa holders, those who obtain these visas may choose to bring their families with them, and their spouses may even be able to work.
The cost of sponsoring an employee for temporary residency in the U.S. is notoriously high. This is something to consider when deciding whether it would be cost beneficial to hire an American worker or someone from outside the country. While the cost of visas will vary by type, the most common work visa, the H-1B may cost between $2,500 and $8,000 including government and attorney fees.
The base cost of the application is only $460, but some companies may have to pay more, including a $500 anti-fraud fee, a $750 or $1,500 fee to fund programs addressing skill shortages in America and even a $4,000 fee if the company employs at least 50 employees with over half coming from other countries. If your visa is not approved, the application fees will not be returned.
Because the process is particularly complex and even incorrectly filling out one box on a form can result in the denial of a visa, it is always advisable to work with an immigration attorney, which may cost an additional $1,000-to-$3,000.
It is worth noting that having the money to pay for the employment visa is not enough. To be approved for an H-1B visa, you must also be able to prove that your company has the cash flow necessary to pay your employee the prevailing wage defined by the Labor Condition Application. This is not a problem for some large corporations, but many startups wishing to hire foreign workers may find this to be a challenge. Because these new companies may have low cash flow in the beginning, they will instead need to show evidence of income, legitimacy and stability, which may include evidence of venture capital investments, a business plan, employee contracts and office space leases.
Generally speaking, the first thing any company should do if they are seeking to sponsor an employee's work visa is to hire an immigration lawyer. Because the process can be extremely complex and it is important to provide all necessary documentation and to properly fill out all paperwork, it is rarely advisable to forge ahead without an attorney specializing in the immigration process.
As previously mentioned, the visa process varies depending on the specific type in question, but for the most common visa, the H-1B, once you have a lawyer to help you, you will need to start by filing a Labor Condition Application with the U.S. Department of Labor. This paperwork attests to the fact that in hiring the employee you will not adversely affect the American labor pool. You will need to agree that the employee will be paid a prevailing wage, be offered the same benefits as other workers in the position, that hiring him will not affect the working conditions of other employees and that there is no labor dispute or work stoppage at the time you agreed to hire him. Depending on the position, you may also require a work certification, which means showing that you need that specific individual to work for your company and cannot find a comparable employee from the U.S. pool of laborers to fill the position.
Once you have properly taken care of the Labor Condition Application, you will need to file a petition on behalf of the employee. Once your application and petition have been approved, you will need to wait for the April 1 lottery by the U.S. Citizenship and Immigration Services. Because the yearly number of applications for H-1B visas outnumbers the 65,000 visas available each year, each company must hope that they are approved through the random selection of all eligible applications. There are 20,000 more visas available to those with a master's degree or higher, so it pays to hire employees with these higher-education credentials.
The most obvious benefit of hiring non-U.S. workers, particularly through the H-1B or H-2A visa programs, is that it allows employers to fill roles for which there are not enough U.S. workers able or willing to do a particular job. In the H-1B cases, this may mean that there are not enough skilled workers available in a highly technical field, and in the H-2A cases it may mean that Americans are unwilling to do low-paying work in the agricultural industry. Either way, bringing in employees from outside the country allows an employer to tap a whole new set of workers willing and able to get the job done.
Aside from the obvious necessity to get workers from outside the country if there are not enough available inside of it, hiring immigrants can also bring new perspectives to a company, which can be particularly beneficial to companies in creative industries. Simply having someone with a different background can help spark creativity among all employees as ideas are bounced back and forth between employees.
Additionally, it may be beneficial to companies with international dealings who need employees that not only speak the language but also know the culture and customs of a given region or country. Even if a country does most of its business in the U.S., this can be beneficial if immigrant communities make up a large portion of its customers.
Of course, there are always downsides to hiring immigrant laborers as well, aside from the substantial cost of the visa application process. For example, while some people see it as a benefit working with many people from many different cultures, it can also cause problems even with those who consider themselves to be fairly open-minded. That's because people with similar cultural backgrounds know the acceptable social norms for behavior among coworkers. It can be easy for people from different cultures to accidentally offend one another.
Another problem can arise if the immigrants do not speak English fluently as it can cause communication breakdowns when there is no common language among employees. Sometimes local employees may even feel uncomfortable if two immigrant employees speak in their language as it can make the employees who do not speak the language feel like they are being left out or even badmouthed.