A Complete Guide on Sponsoring a Work Visa in USA
Updated on 02/10/2021
Every year an endless number of people come to the United States to work and to perform different functions in the labor field. American immigration law establishes different ways by which foreigners can carry out their careers and skills in the country. For this, there are different types of visas designed according to the job position, type of work to be performed, previous experience and education and even depending on whether the foreigner wishes to stay temporarily or permanently in the country.
1. How to sponsor a work visa?
Prospective employers and companies can hire foreign nationals to work for them even when the person is not a Lawful Permanent Resident (green card holder) or a U.S. Citizen. In order for the company to become a sponsor, or file a formal request with the government to accept that person as employee, the sponsor must go through several steps and request the involvement of multiple government agencies usually including the U.S. Department of Labor and the United States Citizenship and Immigration Services (USCIS). The basic petition form for working visa is called I-129, Petition for a Nonimmigrant Worker.
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2. What type of work visa should I sponsor?
Sponsoring a Working Visa: Depending on the type of work to be done and the duration of the visa, there are different options through which the employer can be the sponsor of that foreign worker. This is a general guide of the most common working visas available in the United States.
Types of Working Visa in USA:
H-1B Visa: Allows U.S. employers to temporarily employ foreign workers in specialty occupations. Generally, the foreign worker must possess a bachelor’s degree or equivalent. Authorization to work is limited to employment by the sponsoring employer. Unfortunately, only 85,000 non cap-exempt initial visas may be issued per year under this category. The visa is valid for maximum 3 years and can be renewed for another 3 years. Employers who are higher education institution, or non-profit organization associated with a higher education institution, or non-profit research or government organization are cap-exempt and no restriction on visa numbers.
H-2A (agricultural) and H2B (non-agricultural) Visas: Seasonal workers. The two visas are limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the United States interest.
L-1 Visa: Available to employees of an international company with offices in both a home country and the U.S., or who intend to open a new office in the U.S. while maintaining offices abroad. L-1A category is for executives and managers, valid for up to seven years. L-1B is for workers with specialized knowledge, valid for up to five years. The disadvantage is that after that, must stay out for one year and work for the affiliate of the U.S. company.
E-1 Visa: Allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for E-1 visa.
E-2 Visa: Allows an individual to enter and work inside of the U.S. based on an investment he or she will be controlling while in the US, usually a business. The visa must be renewed every other year, but it can go indefinitely. There must be a treaty in place between the U.S. and his or her home country (treaty country). For new startups, the investment must be large enough to start and operate the business. The investment must be at risk. There is no set amount for the investment amount.
TN Visa: Available only to Canadian and Mexican nationals who come to work in a professional level. Subject to the skills list and the profession qualifies under the regulations. The visa is valid for 3 years and can be renewed for every 3 years.
O Visa: For a person who has an extraordinary ability in the sciences, arts, education, business, or athletics and can demonstrate by sustained national or international acclaim and has been recognized in the field through extensive documentation. Candidates must meet three out of 10 criteria or one-time achievement, such as a Pulitzer, Oscar, or Olympic medal. The advantage is that no formal offer of employment is required to apply for such working visa. Also available for Outstanding Researchers and Professionals who can demonstrate international recognition for outstanding achievements in a particular academic field and must be entering the U.S. to pursue tenure or tenure track teaching.
P Visa: For athletes, artists, and entertainers. Candidates must be internationally recognized.
Q Visa: For practical training and employment and for sharing of the history, culture, and traditions of your home country through participation in an international cultural exchange program.
R-1 visa: Allows religious workers (ministers and persons working in the religious vocation or occupation) to work in the U.S. for a period up to 5 years.
Besides, there are other categories of working visa includes CW-1 (CNMI-Only transitional worker), E-2C(Long-term foreign investors in the CNMI), E-3 (Certain “specialty occupation” professionals from Australia.), H-1C (Registered nurses working in a health professional shortage area as determined by the U.S. Department of Labor.), H-3 (Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.), and I (Representatives of foreign press, radio, film or other foreign information media.)
3. How long does it take to get a working visa?
The answer really depends on which type of working visa employer sponsors. Each type of working visa has its own application steps and processing times. For example, H-1B visa, if it is the first for a candidate to get a non cap-exempt H-1B visa, employers must enroll the H-1B selection registration first in the early of March. Only those who have been selected in the registration are eligible to file an H-1B petition with USCIS. TN visa, much flexible, candidate employees just need to go to the CBP port of entry to obtain a TN visa. It is not necessary for employers to file an I-129 petition for them first.
Good news is that employers or candidate employees can pay additional fee to request USCIS to expedite the processing of their work visa I-129 petitions for their candidate employees. Such process called premium processing. Compared with 2-6 month regular processing by USCIS, 15-day premium processing by USCIS is much more attractive if employers would like to have their candidate employees start to work as early as possible.
4. Proof of legal eligibility to work for workers with working visa
Foreign employees must provide proof of identity and work authorization within a few days of starting a new job. Such documentation includes their foreign passport, valid Form I-94 bearing the same name as the passport and an endorsement of their nonimmigrant alien worker status, such as H-1B, TN, L-1, O-1, etc. Alien employees can get Form I-94 either when they entered the U.S. with their valid working visas or from the I-797A approval notice issued by USCIS.
5. Green card through employment
There is a path from a working visa to the green card through employment for foreigners who wish to remain in the United States permanently. Please note, that employers can sponsor green card for foreign nationals who are currently outside the United States or who are already living and working in the United States in legal status.
Steps to get a green card through employment
Step 1:“The Labor Certification (PERM)”. A labor certification from the Department of Labor (DOL) is required for most (but not all) employment-based green card applications. To get a PERM from DOL, employer must first request a prevailing wage determination from DOL, then go through the recruitment process.
Employer must participate in the recruitment process to test the U.S. job market by recruiting to determine if there are capable, willing, available, and qualified US workers for the position to be offered abroad. Recruitment is what it sounds like, the employer must post the position and review the resumes for more than 30 days, but less than 180 days, before applying the labor certificate to make sure there are no other qualified American workers available. Advertising must be conducted in several types of methods as required by the law.. Employer must clearly and completely document the whole process of recruitment.
Step 2: “The Immigrant Petition for Alien Worker”. The employer files the I-140 Petition with USCIS. It is filed with the approved PERM (if applicable), proof of qualification of the candidate employee, and proof of employer’s ability to pay.
Step 3: “The Green Card Application” or “Consular Processing”. If an immigrant visa number is available in the visa bulletin, and the applicant is keeping a legal status in the USA, the applicant can file a Form I-485 to apply for permanent residence (green card). Derivatives (spouse and unmarried children under the age of 21 of the principal applicant) can file their I-485 as well. Interviews are now conducted with USCIS. For applicants who are outside the United States, they should apply for an immigrant visa through consular processing. They will be scheduled an immigrant visa interview at a U.S. embassy or consulate in their home country or the country where they have permanent residence.
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