Immigration Insights
To maintain a competitive edge in today’s global economy, hiring talented job candidates from other parts of the world is essential. Of course, the process of hiring citizens of another country can be a daunting task for an employer. To protect your company and your valued foreign employees, the importance of following the law cannot be overstated.
Overview of Legal Considerations
Hiring foreign workers requires understanding the available visa options, compliance requirements, and ever-changing immigration laws. The following are some aspects to consider when navigating these complex legal issues.
Visa Options
For a citizen of another country to legally live and work in the United States, an employment-based visa must be granted. More often than not, it is the responsibility of the company to sponsor the new employee in obtaining a visa.
Determining the appropriate visa option for the employee requires careful consideration. Any visa application also necessitates specific and detailed responses from the employer and the employee. The two overarching categories of visas to consider are Nonimmigrant Visas and Immigrant Visas.
Nonimmigrant Visas
Nonimmigrant Visas are temporary visas. A nonimmigrant visa holder can enter the United States for a specific purpose and time. Two of the most common are the H-1B Visa and the L Visa.
- The H-1B Visa is for a person being hired for a temporary specialty position. The applicant must have at least a bachelor’s degree or equivalent experience. The employer must prove that there are no qualified U.S. applicants for the role.
- The L Visa is for intracompany transfers. The applicant must be an employee of an affiliated office who will be transferring to a U.S. office.
Immigrant Visas
Employment-Based Immigrant Visas are for those wishing to become permanent residents of the U.S. These permanent visas never expire and allow the new citizen to bring their spouse and minor children into the country.
- EB-1 Visas are for those with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers with at least three years of experience; multinational managers or executives affiliated with the U.S. employer.
- EB-2 Visas are for professionals holding advanced degrees or a bachelor’s degree and at least five years of applicable experience and for persons of exceptional ability in the sciences, arts, or business.
- EB-3 Visas are for skilled workers, professionals, and unskilled workers. Specific training, experience, or education requirements must be met.
Compliance Requirements
Certain compliance requirements must be met when hiring foreign workers, which vary by visa type.
Labor Condition Applications (LCAs)
LCAs are required for United States employers when hiring those requesting an H1-B or E-3 visa. The employer files an LCA with the United States Department of Labor. The LCA attests to certain working conditions: wage requirements, working conditions, strike/lockout attestation, and public disclosure of the LCA as required.
Prevailing Wage Determinations
As mentioned above, the LCA requires a prevailing wage determination. A prevailing wage determination aims to establish that foreign and U.S. workers are being paid fairly and at the same rate.
Employers can establish this by sending in a request to the National Prevailing Wage Center (NPWC) or by accessing the Online Wage Library or other legitimate source.
Form I-9 Compliance
Employers must complete an I-9 form for all employees, whether U.S. citizens or noncitizens. The form verifies the employee’s identity and work authorization as determined by the employer. Additionally, these forms must always be kept on file.
Impact of Changing Immigration Policies
Immigration policies change and shift, which impacts how employees must navigate the process of hiring foreign talent. Modifications of forms, higher fees, and alterations to how the lottery is administered can happen at any time. These changes can disrupt an already complex process, making it even more difficult and confusing.
Tracking Changes in Immigration Regulations
Having an immigration attorney who stays apprised of policy changes and the latest immigration news can make the difference between gaining or losing a new employee.
For example, the United States Citizenship and Immigration Services (USCIS) recently made changes to the H-1B visa to strengthen the integrity of H-IB visas and reduce fraud. These changes include new electronic filing systems and increased fees. As immigration attorneys, we must monitor all these changes closely because one mistake can lead to a rejected application.
Anticipating Future Policy Shifts
There have been many policy shifts in the past several years due to Covid-19 protocols and changing administrations. With the upcoming presidential election, there are more shifts on the horizon. Keeping up with changes is vital to ensuring that the law is followed every step of the way when hiring foreign talent.
What Can An Immigration Attorney Do For You?
The Value of Legal Expertise in the Hiring of Foreign Talent
Visa options, compliance requirements, and changing immigration laws can make for a rough landscape to navigate when hiring foreign workers. If the process is done incorrectly, consequences could include fines, penalties, and stressful legal issues.
Avoid these pitfalls by enlisting the help of an immigration attorney. Our legal expertise means a less stressful, more efficient, and properly navigated process.
In Your Corner
Having an immigration attorney to manage hiring foreign talent is in the best interest of both the employer and the employee. Our expertise and dedication to following the law on behalf of our clients mean a better chance of success. Contact us if you are interested in assistance with hiring from abroad.
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