If you are an employer in the United States who needs to fill a permanent position, or a non-U.S. citizen who has been given an opportunity by a U.S. company, the immigration process can be lengthy and intimidating.
Employers will need to take various actions throughout the immigration process in order for the employee to secure the right visa.
Can an Individual Apply for a Work Visa?
There are several types of visas that a company or individual can apply for if they want to sponsor a foreign worker in the United States.
In some cases, an individual may be able to apply for a professional visa. For example, if there is a skill shortage, someone with specialty skills can request temporary status via an EB-1 application. Reserved for “workers of extraordinary ability,” these individuals typically include highly-trained professionals like scientists, doctors, medical professionals, researchers with advanced degrees, as well as athletes, entertainers, and others.
Sometimes referred to as an “Einstein visa,” the individual who applies for it must have been recognized publicly for their achievements or sustained a high level of international renown. The individual in this case is not required to show a job offer from an established employer within the U.S. to apply.
How Can An Employer Sponsor an Immigrant For Entry Level Work?
An EB-3 Visa is one of five categories of professional visas for which an employer may apply on behalf of an employee. The U.S. Citizenship and Immigration Services (USCIS) issues a total of 40,000 such visas annually, of which only 10,000 are available for unskilled workers.
Unskilled workers and employers seeking visas for them are usually greeted with a fairly long waitlist. Those professions can include a wide range of workers, not limited to:
- Landscaping workers
- Nursing aids
- Farm workers
If the job requires completion of a vocational training program, the employer may start the application process after the program is completed. The prospective employee must already be qualified for the job before an employer requests temporary status for that worker.
How Can An Employer Sponsor an Immigrant For Skilled Jobs?
While immigration law doesn’t provide an exact definition, the Department of Labor does state that a subcategory of EB-3 for professional workers without advanced degrees includes: highly-skilled professionals like architects, lawyers, doctors, engineers, IT workers, and teachers.
In a general sense, the job itself should require highly-specific educational requirements, and the degree should be in a corresponding field of study. A four-year bachelor’s degree (or equivalent) typically does not rise to this definition of “professional.” However, if the position requires a bachelor’s degree plus a defined period of experience, that could satisfy eligibility.
The “skilled” worker subcategory of EB-3 is a bit different. This category could be used for certain types of information and IT workers or other professionals (chefs, construction, supervisors, journalists/writers, designers, etc.) with at least two years of training or experience. Precisely how much training and what constitutes adequate experience is not completely clear, a great example of why an experienced immigration attorney is recommended.
Some Steps for Employers To Follow
While this is by no means an exhaustive guide (and should not be construed as legal advice), here are some general guidelines for employers to follow.
- Offer the prevailing wage. The employer must request “prevailing wage determination” (PWD) from the U.S. Department of Labor (DOL) via its online FLAG system and prove that the wage offered to the non-national worker is at least 100% or more of the prevailing wage.
- Advertise and recruit for the position within the U.S. Employers need to prove that they made good faith efforts to recruit and hire talent from within the U.S. before seeking talent from another country.
- Complete PERM application form. After the hiring firm/employer has documented it is unable to find available talent within the U.S., it then applies for PERM labor certification from the Department of Labor (DOL). While the request should take 45-60 days, decisions can often take additional months or even years.
Have Other Questions About Permission to Work in the U.S.?
For those who need assistance and facilitation with moving to the U.S. for a job or hiring an offshore employee, the compliance standards for either can be complicated and time-consuming. Our legal experts are familiar with every aspect of immigration law and are available to assist you no matter where you are in the process.
Please contact us to learn more about how one of our immigration legal experts can help you today.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship.