Immigration Basics for Employers

• Employment-Based Immigration
• Nonimmigrant Categories for Temporary Workers
• Permanent Residence or Green Card status
• Immigration Assistance Available to 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.  

Employment-Based Immigration

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:

• B-1 (business visitor): This visa status allows foreign business visitors to enter the United States to confer with colleagues, attend seminars, provide certain after-sales service and engage in other activities, such as preliminary work before setting up a U.S. office.

• E-1 and E-2 (treaty traders and investors): These visas allow nationals of certain "treaty" countries to start up businesses in the United States.  Key employees in executive, managerial, or technical positions may also be employed in E visa status, if they are of the same nationality. A list of these treaty countries is available from the U.S. Department of State.  Unlike most other visa categories, treaty traders and investors apply directly at a U.S. consulate or embassy and do not require approval by the U.S. Citizenship and Immigration Services. If the individual is already in the United States, he or she may file to change status to the E-1 or E-2 category.  Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-1 status.

• F-1 (academic student): This status may allow certain authorized students to be employed on or off campus, or in "practical training" for a 12-month period before or after completion of their academic studies.

• H-1B (professionals or specialty occupation): The H-1B visa status authorizes employment of qualified individuals in positions which require a U.S. bachelor's degree or the equivalent for entry into the position.  The foreign worker must show that he or she has the equivalent of a U.S. bachelor's degree, and meet all state licensure requirements.  Employer must first file a "labor condition application" with the U.S. Department of Labor, attesting that they meet wage and working conditions.

• L-1 (multinational transferee): L-1 visas enable the transfer to the United States of executives, managers and employees with specialized knowledge from a related company abroad.  This visa category provides some advantages for foreign executives and managers in obtaining permanent residency.

• TN (NAFTA professional): This visa category was created by the North America Free Trade Agreement and allows Canadian and Mexican nationals in certain occupations and professions to be employed for renewable year terms.  Canadians have simplified filing and entry procedures.

• J-1 (exchange visitor student/trainee/teacher/medical resident):  The "J" exchange visitor program provides for the interchange of people in the fields of education, arts, and sciences. J-1 visitors may include students, trainees obtaining on-the-job training; teachers and professors, research scholars, and international cultural visitors.

• O-1 (alien of extraordinary ability in the arts/sciences):  The O category is for individuals of extraordinary ability in the sciences, arts, education, business, or athletics.  The category also includes an artist's or athlete's support staff, spouse and children. The alien must be coming to the United States to work in his or her area of extraordinary ability or achievement.

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 Residence or Green Card status

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 Assistance Available to Employers

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.