As we move toward a more global economy, many employers are choosing to hire foreign nationals to meet their employment needs. While hiring a foreign national may be in an employer’s best interest, the process of obtaining the necessary work permits and visas can be daunting.
The following is a general checklist of items that employers should consider when hiring a foreign national employee:
Determine the visa(s) for which the foreign employee qualifies. There are a number of visa options for foreign nationals, each with their own qualifications, requirements, and limitations. For instance, the H-1B non-immigrant visa is available to foreign workers who are employed by U.S. companies in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. In order to qualify for an H-1B visa, the employee must meet the following requirements: (1) the applicant’s job position requires a bachelor’s or higher degree; (2) the applicant possesses at least a bachelor’s degree or its U.S. equivalent, or a combination of education and marketing experience equivalent to a U.S. bachelor’s or higher degree; and (3) the wage offered to the applicant is at least the prevailing wage, or the actual wage paid to other marketing professionals similarly employed, whichever is higher. But even if a foreign national employee qualifies for the H-1B visa, there are strict quota requirements on the number of H-1B visas that can be issued each year.
In some situations, an employee may qualify for an L-1 visa as well. Generally, an applicant must have worked abroad as an executive, manager or specialized employee for at least one continuous year within the previous three year period in order to qualify for the L-1 intra-company transfer visa.
Foreign nationals from Canada and Mexico who enter the U.S. to work in a professional job are generally eligible for the TN work visa under the North American Free Trade Agreement. Unlike some other visas, there are no caps on the number of TN visas that can be issued each year.
Work with the employee to complete and submit a timely petition for the appropriate visa. Depending on the visa sought, different petition forms and supporting information will need to be provided to the U.S. Citizenship and Immigration Services (USCIS). A skilled immigration lawyer can help you determine the appropriate visa to seek, assist with the petition preparation, and ensure that the visa petition is submitted in a timely manner. Businesses should also work in conjunction with the foreign national employee to ensure that accurate information is provided.
Confirm employee’s employment eligibility with E-Verify. E-Verify is a voluntary computer system provided to employers by the USCIS that allows employers to electronically verify the employment eligibility of newly-hired employees. E-Verify can only be used to check new hires, must be used within 3 days of the employee’s start date, and cannot be used to pre-screen employees.
Obtain a completed Form I-9. As we recently discussed, I-9 investigations are at an all-time high, with more than 3,000 audits taking place in 2012 compared to only 250 in 2007. Given that the government is stepping up its investigations and looking more closely at I-9 procedures, most organizations would benefit greatly from enhanced I-9 self-examination procedures. Organizations should examine their current I-9 forms to confirm that they are up-to-date, look at their current processes and procedures, and consider implementing new processes and procedures with respect to I-9 verifications.