Green Cards (Common)
National Interest Waivers
Professors & Researchers
Executives & Managers
PERM Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)
Work Visas (Common)
O-1 Extraordinary Ability
TN Canadians & Mexicans
J-1 Visa Holders
Nurses & Physical Therapists
Immigration Basics for Employers
This page provides a summary of the basic principles of United States immigration law for employers. This information is general, and does not constitute legal advice. If you have specific questions about your situation, or would like a consultation, please contact us.
Business immigration law sets the requirements for U.S. employers to hire foreign workers. Immigration law also affects the hiring of U.S. workers, because employers are required by law to document that all new hires are authorized to work in the United States.
An employer may hire American citizens and foreign nationals who are permanent residents in any capacity. Other foreign nationals, however, must generally be "sponsored" for employment. Immigration law defines a limited selection of categories, each with its own process. Various government agencies are responsible for enforcing this system, including the U.S. Citizenship and Immigration Service, the U.S. Department of Labor, the U.S. Department of State, as well as state labor agencies.
There are two general categories for foreign workers: nonimmigrants (temporary workers) and immigrants (permanent residents).
Nonimmigrant Categories for Temporary Workers
There are many different types of nonimmigrant classifications. The U.S. Citizenship and Immigration Services provides a comprehensive list of each of the different types of nonimmigrants. The most common non-immigrant categories for business are:
Each of these categories have a specific process for obtaining approval, generally from the U.S. Citizenship and Immigration Service. It may be possible to extend the visa status, or change to another classification, once the individual is in the United States.
Permanent resident status allows foreign nationals and their immediate family to live in the United States, and work for any employer. This status is often referred to as having a "green card," based on the green tint on cards that had previously been issued to permanent residents. Most people obtain green cards by being sponsored by their employers or their relatives. Other people obtain permanent residence through the diversity visa lottery, through asylum and through various other means. You can read more about options for obtaining permanent residency elsewhere on our site.
The process for obtaining permanent residency based on employment depends on the position offered, and the qualifications of the foreign worker. The first preference category is for aliens with extraordinary ability, outstanding researchers and professors or those with a national interest waiver. Certain executives and managers of multinational companies may also fall in this category. The primary advantage of this first preference category is that these workers do not require the lengthy and often costly process of labor certification.
Professionals with advanced degrees or those with exceptional ability in the sciences, arts or business fall into the second preference category. The third preference category include professionals with basic degrees, skilled workers and "other workers" who have less than two years of relevant experience. Each of these categories require labor certification, where the Department of Labor certifies that the employer has document its unsuccessful efforts to recruit qualified U.S. workers. The length of time which the process takes varies according to the category, backlogs in the labor certification process and the availability of visas.
Permanent residency is also available to investors who meet certain criteria.
Immigration law can be complicated and confusing for employers. The procedures for documenting work authorization or obtaining work authorization for a foreign worker requires a solid understanding of the law governing each category.
The assistance of an experienced and competent immigration attorney can save time, avoid complications and may save your company money and frustration. Employers acting without proper legal advice have experienced delays, complications and even government fines and sanctions. You can contact Peng & Weber for experienced immigration advice and assistance with all of your business immigration needs.