As the economy has become global, having foreign workers on staff can also be a competitive advantage. Foreign workers may be bilingual or trilingual and may be able to communicate with colleagues, clients, and customers from around the world. They may understand cultural differences which allow them to succeed in negotiations and meetings involving employees and executives from different cultures.
Of course, with many jobs going remote today, hiring foreign workers is easier than ever. Some workers don’t even have to leave their native countries and can complete work for their American employers online, even attending virtual meetings and events.
With all these benefits and options, it’s no surprise foreign workers are hired in virtually every industry, including
In fact, just about any position in any sector may sometimes be an appropriate option for a foreign worker. If your organization is having challenges finding a U.S. worker willing, ready, and able to fill a position at your business or if you need a worker with language skills beyond English or an understanding of multiple cultures for your international company, hiring a foreign worker could benefit you.
In general, you can hire a foreign worker if you take the correct steps and you can show you will not be affecting the U.S. and local job market adversely. For that reason, you may need to advertise your position and show you cannot find local workers who are ready, willing, and able to do the job. This step is so employers don’t hire foreign workers simply to pay them less.
If you are hiring international employees, there are a few basic steps you will need to follow
To hire a foreign worker, you must also follow the visa process for the specific visa category applicable to you and your needs. Since the process for each visa varies widely and can take anywhere from a few months to a few years, depending on the visa, it is useful to consider which program you might want to use to hire foreign workers, even before you apply for certification with the DOL. Planning ahead helps you anticipate what documentation you will need and which candidates may be the best match for a visa program.
Now let’s consider which visa program could be right for your organization.
If you need to hire workers for a seasonal rush or on a temporary basis, the H-2 visa program may be right for you. It is designed for employers who require additional workers but do not need to hire permanent employees. There are two H-2 visas: the H-2A and H-2B.
Once the employer has taken these steps, foreign workers who are not in America may need to file for an H-2A visa at a U.S. Embassy or Consulate and then seek admission to the U.S. In some cases, workers may not need an H-2A visa and may be able to seek entry into the United States directly.
If you are a U.S. employer with seasonal or temporary positions to fill that are not agricultural jobs, the H-2B visa program may allow you to bring in foreign workers for those positions. This visa program has a cap of 66,000, so it is competitive. The program is open twice a year and once the cap has been reached, no more employers can apply until the program re-opens.
In addition to the H-2 visa programs, employers can also seek to hire foreign nationals through the H-1B visa, which is for specialty occupation jobs, usually requiring specialized skills and at least a bachelor’s degree or licensing or certification. If you are having a hard time filling a position because there are not enough candidates with the specialized skills you need, the H-1B visa can be an option.
Once this is done, the applicant for the job will need to file Form DS-160 along with all required documents and fees. He or she will also need to schedule an interview at a U.S. embassy or consulate.
The North American Free Trade Agreement (NAFTA) was implemented in 1994. As part of this agreement, U.S. employers can hire citizens of Mexico and Canada for some professional business activities for up to three years.
The TN visa is a non-immigrant, temporary visa that can only be used to bring Canadian and Mexican citizens to the United States for work. The work completed must appear on the list of NAFTA-approved jobs, which includes positions such as accountants, scientists, teachers, professors, healthcare workers, researchers, veterinarians, and others.
The requirements for a TN visa are complex. For one thing, the process for hiring Canadian citizens is different from the process for hiring Mexican citizens. If you would like to hire a Canadian citizen through the TN visa program you can extend an employment offer in writing, either through an employment contract or a letter that outlines the work duties and why the worker will be in the United States. Your hire will go to one of the 14 points of entry designated by Customs and Border Patrol with this documentation, a Form I-129 approval notice, and supporting documentation required by that form.
Alternatively, if the applicant is in the U.S., you can hire through the TN visa program by completing the process as follows
Once the approval notice is secured, your hire can proceed to one of the 14 CBP designated points of entry with the notice, proof of citizenship, and other required documentation to seek entry into the United States.
If the worker you wish to hire through a TN visa is a Mexican citizen, you will need to extend an offer of employment and then your candidate will need to
Mexican citizens also need more documentation, especially if they are bringing dependents when entering the United States. TN petitioners who are citizens of Mexico may need to present
Additional documents may be needed for the worker and their dependents. Healthcare workers, for example, will need to complete the VisaScreen process before entering the U.S.
EB visas include categories of visas that are designed for highly skilled, trained, and able workers who can contribute to the U.S. workforce permanently. The EB visas program encompasses five categories of employment-based visas
The EB-2 visa is for skilled workers who either have a bachelor’s degree and at least five years of work experience or a master’s degree or doctorate. To hire a worker through an EB-2 visa, employers need to
The candidate will need to demonstrate exceptional ability or advanced degrees and will need to wait for their priority date. Then, if they are outside the United States they will need to schedule an interview in a U.S. consulate or embassy. If the candidate is already in the United States, they will apply for an adjustment of status.
Since the EB-2 visa requires an advanced degree or significant skills, not everyone qualifies. The EB-3 visa can be a way to hire foreign workers who have at least a bachelor’s degree or have at least two years of permanent work experience. This visa program is also appropriate for unskilled workers being hired for permanent work and for professionals with a college education. To apply for an EB-3 visa, employers need to
The EB visa process can take years and is strict, but if you need a permanent worker for a skilled or unskilled job, this is the path to secure a qualified candidate from another country. When determining which visa to seek for a candidate, consider the duties of the job and verify any potential hire meets the minimum educational and work experience requirements for the job.
In most cases, U.S. companies hiring foreign workers will seek to secure a non-immigrant visa to hire a worker temporarily to help with seasonal or temporary work. However, if your organization needs skilled workers and you wish to hire a highly skilled professional or executive, there are also permanent immigrant visas available.
It is important to note that you may still need a visa if you hope to hire a worker to work remotely for your business. If you are hiring a freelance or contract worker, you do not need a visa, but it is essential that the contractor meets the requirements of a freelancer and is not treated as an employer. In that situation, your company may be misclassifying a worker.
The L-1B visa is for foreign workers who work for an affiliate, non-U.S. office of an American company or for workers of a foreign organization who are being sent to America to open a U.S. office of the company. Unlike the L-1A visa, L-1B visa holders do not need to be executives or managers but do need to demonstrate exceptional skills which are essential for the company’s success. To seek an L-1B or L-1A visa, employers need to file an I-129 petition with the USCIS.
There are many visa options for American companies hiring foreign workers and understanding the immigration process is challenging, which is why Farmer Law PC has created resources to help you:
Our resources provide a solid overview of the options available for employers interested in hiring foriegn workers.
The process of hiring foreign workers is complex and there’s a lot at stake. You don’t want to be audited by the Department of Labor or find your intended hire is denied entry because of an error. Of course you want to be fully compliant, but even determining which visa program is best for your hiring needs can be confusing.
Farmer Law is here to help. We understand your focus is on your business, and you may not have the time to review years of immigration and employment law to determine your next steps. That’s what we’re here for.
If you need workers and are considering hiring international employees, contact us for a consultation. We can examine your needs, explain which visa program might be appropriate for you, and work to get all the paperwork filed. Farmer Law PC routinely helps American business owners navigate the immigration process and we can even help you find foreign workers for your open positions. If you’re worried about a DOL audit or are currently being audited, our legal team can work with you to navigate that as well.
