U.S. immigration law defines an immigrant visa as a document which allows a foreign national to enter into the U.S., and eventually apply for lawful permanent residency. Lawful permanent residents are generally granted the same rights as natural-born citizens, such as the right to work in the country, as well as the right to pursue citizenship.
Immigrant visas can be thought of as three broad categories. Generally speaking, a person who is seeking an immigrant visa must find a person or organization who will petition them to relocate to the U.S. This is why immigrant visas are generally categorized according to the applicant’s relationship to their petitioner.
An example of this would be the following types of immigrant visa categories:
- Family-Based: Petitioners may include immediate relatives, close family members, fiancés, and other people who are willing to help the applicant receive their visa;
- Employment-Based: Employers may act as a petitioner in order to petition a worker to relocate permanently to the U.S. This may also be known as employment sponsorship; and
- Special Immigrants: An example of special immigrants as employees would be religious workers, or applicants who are from selected countries.
It is important to note that for some employment-based immigration visas, work certification may be required. What this means is that an employer will need to verify that the person is filling a legitimate employment need.
Immigrant visas are largely characterized by the applicant’s general intent to relocate permanently to the United States. This is in contrast to other types of non-immigrant visas in which the applicant only intends to stay temporarily, such as student visas or temporary work visas. An applicant for non-immigrant status must show that they do not intend to stay or live permanently in the United States.
Employment visas are what allow citizens of foreign countries to work in the U.S. for a temporary period of time. Generally, a U.S. employer must sponsor the worker for relocation to the U.S. for a limited period of time for the purposes of employment. Employment visas are sometimes referred to as work visas, or work permits. Additionally, the number of employment visas that can be issued each year is limited by the U.S. government.
Some of the kinds of visas that require employment sponsorship may also require work certification. This process verifies that the employer needs that specific worker for the job, and cannot find similarly qualified employees from the pool of U.S. laborers. An employment-based visa can lead to lawful permanent resident status for the worker, which would require an adjustment of status after a period of time.
What Are the Different Types of Employment Visas?
To reiterate, the different categories of employment visas are based on the type of employment, as well as the nature of the employee-employer relationship. An example of this would be how there are the E1 through E5 visas, covering various different kinds of employment.
Some of the most common classes include:
- H1-B: As temporary work permit visas, H1-B visas are designed to allow U.S. companies to employ college-graduate level workers in specific industries. The positions that they fill require technical or theoretical expertise in specialized areas of industry.
- B-1 Visas: As travel visas for business purposes, the B-1 visa allows a foreign national to travel to and stay in the United States for a short time for specific business purposes, such as:
- Settling an estate;
- Negotiating a contract;
- Participating in training; or
- Attending a conference. This list is not exhaustive, as many other comparable legitimate business activities would qualify for issuance of a B-1 visa. However, the business purpose must relate directly to the applicant’s business outside of the U.S., and the applicant cannot be paid a salary by any U.S. entity.
- L-1 visas: For intracompany transfers or to establish an affiliated U.S. office, the L-1A nonimmigrant visa allows a U.S. company to transfer an executive or manager from an affiliated foreign office to an office in the U.S. A foreign company that does not have an affiliated office in the U.S. can use an L-1 visa to send an executive or manager to the U.S. in order to establish an affiliated office. However, the employer must file a Form I-129, Petition for a Nonimmigrant Worker with a fee for the employee.
There are different applications and eligibility requirements that are associated with each type of employment visa category. The qualifications that an applicant must have for the three types of employment sponsorship visas are as follows:
- H1-B: Requires documentation showing that the application possesses the following qualifications:
- Holds a US bachelor’s or higher degree that is required by the specific specialty occupation from an accredited U.S. college or university, such as an M.D. degree for employment as a doctor;
- Holds a foreign degree that is the equivalent of a U.S. bachelor’s or higher degree, and is related to the specialty occupation;
- Holds an unrestricted state license, registration, or certification which authorizes the applicant to fully practice the specialty occupation, as well as be engaged in that specialty in the state of intended employment;
- Has education, training, or experience in the specialty that is the equivalent of the completion of such a bachelor’s or higher degree; and/or
- Has expertise in the specialty that has been recognized through progressively more responsible positions directly related to the specialty.
- B-1: Requires documentation showing that the applicant qualifies in three ways:
- A description and timeline of the business to be done while in the U.S.;
- Return travel plan and/or tickets for the return trip;
- Important scheduled events or time-sensitive activities that will require the applicant’s return to their home country;
- Ownership of real estate or other connections demonstrating the applicant’s intention to return to their home country;
- Evidence that the applicant has sufficient funds to pay for their stay in the U.S. and return travel to their home country, such as evidence of bank accounts, cash on hand, credit that could cover the stay and travel, and evidence of paid expenses such as prepaid airline tickets; and
- Evidence showing that the B-1 visa applicant has sufficient ties to their country of citizenship, in order to ensure that the applicant will return there. This would include such items as: a mortgage or rental agreement for their residence; family members residing in their country of citizenship; foreign bank accounts; and other property and employment or other contractual obligations abroad.
- L-1: Requires a showing that both the employer and the employee qualify as follows:
- The employer must have a bona fide business relationship with a foreign company, as well as be doing business as an employer in the U.S. and one other country for the length of the employee’s stay in the U.S.; and
- The employee generally must have been working for a qualifying organization outside of the U.S. for one continuous year, within the three years immediately preceding their admission to the U.S, and be seeking to enter the U.S. in order to provide service as an executive or manager for a branch of the same employer. Additionally, the applicant’s role must genuinely be that of an executive or manager.
What Is Visa Sponsorship for Employment, and How Does the Process Work? How Long Does Visa Sponsorship for Employment Take?
Employment based visa sponsorship requires that the employer, on behalf of the prospective employee, files for a specific type of nonimmigrant visa with the U.S. Citizenship and Immigration Services (“USCIS”). How long USA visa sponsorship processes might take largely depends on the type of visa that is being issued.
The steps that an employer would generally need to take in order to petition the USCIS for approval to hire an H-1B worker are as follows:
- Review the job description in order to ensure that it qualifies as a specialty occupation. These qualifications must meet one of the following criteria in order to qualify as a specialty occupation:
- Bachelor’s or higher degree, or its equivalent that is generally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry;
- The job is so complex or unique that it could only be performed by an individual with a degree;
- The employer generally requires a degree or its equivalent for the position; and/or
- The nature of the position is so specialized and complex that the knowledge required to perform the duties is generally associated with a bachelor’s or higher degree.
Additionally, employers must ensure that their applicants meet one of the following criteria:
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
- Hold an unrestricted state license, registration, or certification that authorizes them to fully practice;
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree.
- Determine the rate of pay for the position. The H-1B employer must pay its H-1B workers the higher of the prevailing wage, or the employer’s actual wage for similarly employed workers.
- Additionally, this wage rate must be reported on the labor condition application (“LCA”) to the U.S. Department of Labor (“DOL”).
- Notify the U.S. workforce. Notice must be given on or within 30 days before the date that the employer files the LCA with the DOL. A copy of the completed LCA can serve as the notice; however, it is not required to be posted, so long as all of the required information is posted.
- Examples of such requirements include:
- The number of H-1B nonimmigrants that the employer seeks to employ;
- The occupational classifications in which the H-1B nonimmigrants will be employed;
- Period of employment;
- The locations at which H-1B nonimmigrants will be employed; and
- The following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
The following must also be done:
- Submit labor condition application (LCA/Form 9035/9035E) to the DOL for certification. The employer must apply for and receive DOL certification of an LCA no more than six months prior to the initial date of intended employment. Additionally, an employer’s LCA must list all of the places of intended employment as identified at the time of filing;
- Register with the USCIS for the annual H-1B lottery. Because of the limited number of H-1B visas that are granted each year, the USCIS holds an annual lottery for employers who wish to sponsor the visa on behalf of the worker who will be the visa holder. As of 2020, employers who wish to be entered into the lottery must first submit an electronic registration. This requires only basic information about the company, as well as the requested beneficiary, generally between March 1 and March 20. They must also pay a $10 fee per beneficiary. It is important to note that no later than March 31 of each year, the USCIS will notify registrants if they were randomly chosen in the lottery to meet the visa cap. From there, only those who are chosen in the lottery may submit a I-129 petition;
- Await lottery selection. The USCIS will conduct a random selection of all registrations first in order to meet the 65,000 limitation; from there, a random selection for the additional 20,000 visas will be conducted among the remaining prospective beneficiaries who have a U.S. master’s degree or higher;
- Submit completed Form I-129 to the USCIS for selected beneficiaries. Registrants with selected beneficiaries have a 90-day window in which to file a completed H-1B petition, starting on April 1. Once the LCA is certified, the employer should file Form I-129, or Petition for a Nonimmigrant Worker, with the USCIS Service Center. This center will be indicated on the Notice of Selection; and
- Instruct prospective workers outside of the United States to apply for Visa or admission. Once the Form I-129 petition has been approved, the employer will receive a Form I-797 (or, Notice of Action) declaring the petition approved. The prospective H-1B worker who is outside of the United States may then take a copy of Form I-797 when they apply with the U.S. Department of State (“DOS”) at a U.S. embassy or consulate abroad for an H-1B visa. They must then apply to the U.S. Customs and Border Protection (“CBP”) for admission into the United States under H-1B classification. Once the worker arrives in the U.S., the employer will follow general Form I-9, as well as other hiring procedures.
What If the Employee’s Sponsor Goes Out of Business?
One requirement for all work visas would be that the foreign national must be employed at all times by their sponsoring employer during their stay in the U.S.
What this means is that if the employer becomes incapacitated, or if the company goes out of business, the employee will lose their work qualification. Their visa may be suspended as well. Additionally, they may need to return to their country of citizenship in order to seek alternative avenues for returning to the U.S. While there are some exceptions to these situations, in general, the worker must exit the country if they no longer work for their sponsoring employer.
Should I Hire an Immigration Lawyer?
Filing for sponsorship for employment visa status can be challenging. Additionally, the right kind of documentation that is needed to prove that the applicant and the employer are qualified must be submitted, as well as completed forms.
You should consult with an immigration lawyer if you need help with employment sponsorship and visa matters. An experienced immigration attorney can inform you of your various options, as well as help you decide which one best suits your needs. Additionally, if you need to attend an immigration hearing, your attorney can provide you with legal representation.