Generally, foreign nationals who want to enter the US for employment purposes must first obtain a work visa for USA.
This can be a lengthy and complex process for both employees and companies.
However, there are instances when employers must hire foreign workers in the US when there is a shortage of available workers to fill certain jobs.
That’s why federal immigration laws in the US have provisions that allow for hiring and bringing qualified employees to the country.
In this article, we have a look at the most important steps and documents required when hiring foreign employees in the US.
Step 1: Determine the Category of Work Visa for USA under which You Can Hire Foreign Workers
The following are the most common types of work visas under which companies can hire foreign workers in the US:
- H-1B – Specialty occupations requiring a higher education degree and highly specialized knowledge
- H-1B1 – Specialty occupations for qualifying citizens of Singapore and Chile
- H-2A – Temporary or seasonal migrant farm workers
- H-2B – Skilled or unskilled temporary non-agricultural workers carrying out various activities
- H-3 – Trainees or special education visitors
- L – Intracompany transferees such as managers or executives
- O – Individuals with extraordinary skills in arts, sciences, education, athletics, business, motion picture, and television
- P-1 – Internationally recognized athletes or members of an entertainment group
- P-2 – Artists or Entertainers under an exchange program
- P-3 – Artists or Entertainers who perform, teach, or coach under a culturally unique program
- Q-1 – Individuals who participate in an international cultural exchange program
Step 2: Find Out If You Need a Certification from the Department of Labor
Before moving forward with the visa application process, you must check whether you need a certification from the US Department of Labor (DOL).
This certification may be necessary to ensure that hiring foreign workers in the USA will not negatively impact job and career opportunities for local workers.
To find out whether you need a labor certification for your future employees, you must check the instructions for form I-129 available on the United States Citizenship and Immigration Services (USCIS) website.
Do note each labor certification program has slightly different requirements depending on the visa type requested.
However, in most cases, a foreign labor certification can be obtained by following these steps:
- Ensure that the role meets the requirements for the requested program
- Ensure that the wage offered is at least equal to the prevailing wage offered to similarly employed workers
- Gain a full understanding of the laws and regulations that come into effect upon receiving a foreign labor certification
- Complete and submit the ETA form corresponding to the requested program
- Wait for an answer on the application
Please note that approval from DOL does not guarantee visa issuance.
Step 3: File a Form I-129, Petition for a Nonimmigrant Worker
Before your prospective employee can apply for a work visa for USA, you must file Form I-129, Petition for a Nonimmigrant Worker. The Petition must be approved by USCIS.
You must fill out the form on behalf of the prospective employee.
Depending on your location, you can file the form at:
- California Service Center (CSC)
- Vermont Service Center (VSC)
- Nebraska Service Center (NSC)
- Texas Service Center (TSC)
More information on where to file the I-129 Form can be found here.
The filing fee is $460.
In most cases, the Petition must be submitted no earlier than 6 months prior to the proposed employment start date.
If USCIS approves your petition, you will receive a Notice of Action, Form I-797.
Please note that some categories of visas, such as H-1B, H-3, and O do not allow for multiple workers on one petition.
On the other hand, visa categories such as H-2A, H-2B, P, and Q-1 may cover multiple workers on one petition provided that they carry out the same activities at the same location.
Please note that the Petition for a Nonimmigrant Worker processing time will largely depend on the visa category and office you apply.
While some cases may take 2.5-3 months to process, others may require a longer timeframe.
Step 4: Your Future Employee Applies for a Work Visa for USA
Upon approval of the Petition for a Nonimmigrant Worker, the prospective employee may apply for a work visa.
The steps and procedures to follow may vary based on the US Embassy or Consulate where the application is submitted.
You can find the list of US Diplomatic Missions here.
You and your prospective employee should carefully read the instructions available on the website of the Embassy or Consulate before applying.
However, as a general rule, the following steps are required:
- Check the validity of the passport: In most cases, the applicant’s passport should be valid for at least six months beyond the intended return date.
- Complete the online Nonimmigrant Visa Application Form DS-160. You may also need to upload a color photo while completing the online form.
- Collect the supporting documents. These typically include documents that show ties to your home country and prove your intent to return home.
- Schedule an interview appointment. Wait time for interview appointments typically varies by location, demand, and visa category.
- Attend the visa interview with the Consular Officer.
- In case of a positive answer, return to collect the passport and visa.
For most nonimmigrant visa types, the application fee is $185.
The Bottom Line
There is a lot of red tape involved in hiring foreign workers in the US.
However, taking the necessary steps as early as possible and keeping abreast of foreign employment requirements in the US will guarantee complete compliance with current laws and regulations.
Furthermore, it’s important to be aware of US tax rules and obligations you have as an employer.
For example, companies must report all wages and other compensation paid to the employee to the IRS (Internal Revenue Service).
Additionally, for employees holding specific categories of US work visas, the responsibility for covering the expenses of return transportation to their home country lies with the company in cases where the employer terminates their contract before its scheduled end date.
Employers must also inform USCIS of any changes in workers’ employment status.
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