The need for a dependable workforce exists in every industry. Unfortunately, federal immigration law primarily carves out immigration pathways for those deemed “highly skilled,” or, requiring a professional degree. This leaves a large segment of employers with limited options for hiring foreign workers – even if the employer can show they have tried and failed to hire a U.S. worker.
Immigration law is crafted at the federal level, and your U.S. Representative and/or Senator should hear from employers like you who depend on foreign labor to grow your business, harvest your crops, feed your family, and stimulate the U.S. economy. We will be happy to help when immigration law catches up to the needs of U.S. businesses.
Immigration Law: How Do I Hire a Foreign Worker – Unskilled Labor
We can feel the frustration from employers who simply want to do the right thing, but risk going out of business if they can’t hire employees to fill open positions. Unfortunately, the visa pathways for unskilled labor positions are costly and require substantial planning. An additional hurdle – these visas are only offered on a temporary basis – which can hamstring an employer’s ability to train and cultivate a dependable workforce.
There are two primary temporary work visas, the H-2A and H-2B visas.
The H-2A visa provides work visas for agricultural workers who will be employed in temporary or seasonal positions. In order to employ on an H-2A visa, an employer must first submit a temporary labor certification application to the U.S. Department of Labor (DoL). With an approved labor certification in hand, the employer must submit Form I-129, Petition for a Nonimmigrant Worker to USCIS.
Once USCIS approves Form I-129, prospective workers outside the United States must apply for the H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with the U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.
The worker may remain in the United States under the H-2A classification for the period specified in the DoL Labor Certification. H-2A classification may be extended in periods of up to one year and must be accompanied by a labor certification that supports the extension. If an H-2A worker has resided in the United States for three years, they must depart and remain outside the U.S. for three months before working in H-2A status again.
On the surface, the H-2B visa looks like an appealing option for companies that have exhausted their local labor pool and are looking for international workers. In reality, the H-2B program is constrained by its popularity. Only 66,000 visas are distributed in any given fiscal year. 33,000 are given in the first half of the fiscal year (October 1 – March 31) and 33,000 allocated to workers who begin employment in the second half of the fiscal year (April 1 – September 30).
As with the H-2A visa, an employer who hopes to hire on an H-2B visa must first seek DoL labor certification, which shows they have tried and been unable to hire U.S. workers, that foreign workers will not undermine wages for U.S. workers, and that the work being performed is temporary in nature.
Once the labor certification is secured, the employer must submit Form I-129, Petition for a Nonimmigrant Worker to USCIS.
With an approved Form I-129, prospective workers outside the United States may apply for the H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.
Immigration Law: How Do I Hire a Foreign Worker – Professional
If the position you are hiring for requires a professional degree, you have several options for hiring a foreign worker, depending on your business, the position, the skill level required, the country of citizenship of your desired employee, and a host of other factors. Here is a general breakdown of employment visas, including benefits and drawbacks for each category.
- H-1B Visa – Governed by a yearly quota and lottery, except for exempt employers. The H-1B visa is for specialty occupations that require a professional or advanced degree.
- L Visa – For companies with offices or subsidiaries in another country. Can be used for managers or for employees with specialized knowledge.
- TN Visa – For citizens of Mexico or Canada
- Student or Trainee Visas – Available for temporary workers.
- EB – Employment-based green cards. To be in the U.S., the employee must be in current visa status. Requires Department of Labor certification, except in cases of extraordinary ability.
- Schedule A Direct Recruitment – available for positions that do not impact the U.S. labor market. For a list of occupations, click here.
I am a Foreign National – How Can I Work in the United States?
In order to work in the United States, you must have an employment offer from a U.S. company and must come to the U. with a visa status that allows you to work. In immigration law, Travel visas, such as the B-1 and B-2 visas, do not permit employment and receiving compensation from a U.S. company while on a travel visa can impact your ability to live and work in the United States in the future.
The E-2 investment visa allows a foreign national to open a business in the U.S. and remain a legal resident for as long as the business is operational. Self-petition green cards provide permanent resident status for those who can prove extraordinary ability in their field. Family green card sponsorship exists for spouses, parents, siblings, and dependents of U.S. citizens, and spouses and dependents of U.S. permanent residents.