If you own or manage a U.S.-based company that needs to hire international workers, hiring the people you need is not necessarily as costly as you might think, and it can usually be done with the help of an experienced immigration attorney. If you have never hired international workers, you’ll have to learn a bit about immigration law and employer compliance, but you’ll be able to count on an experienced Las Vegas immigration attorney to provide the immigration advice and legal services that you’ll need.
If your company needs to hire college graduates or employees with advanced degrees on a temporary basis, you may need to learn about and apply for H-1B visas. The H-1B visa category was designed specifically to help U.S. employers hire international workers for temporary jobs in “specialty” occupations. H-1B visas are issued only for degree holders with job offers from U.S. employers acting as sponsors, and the visas are issued directly to the employers rather than the employees.
The Immigration and Nationality Act of 1965 defines “specialty” occupations as jobs that require a “theoretical and practical application of a body of highly specialized knowledge” and a minimum of a bachelor’s degree – or the foreign equivalent – in the field. The H-1B visa allows a U.S. employer to hire a foreign worker in a specialty occupation for up to six years if a qualified U.S. citizen or resident cannot be found to fill the position.
WHAT DO INTERNATIONAL WORKERS HAVE TO BE PAID?
As mandated by the Department of Labor, employers that seek H1-B visas must meet the “prevailing” wage (for similar work in that specific region), and they must pay an international worker either the prevailing wage or the “actual” wage, whichever is higher. The actual wage figure is the average salary for workers with the same job and equivalent educational credentials who work for the same company or institution.
Applications for H-1B visas are accepted every year beginning April 1, so employers seeking H-1B visas need to begin the process now. As Las Vegas immigration attorney Margo Chernysheva explains, “H-1B season is about to start, the most traditional way to bring a qualified professional in the United States. Unfortunately, lately this program has become more like a lottery with over 220,000 applications filed and only 88,000 visas available each year.”
Attorney Chernysheva further explains that for specialty occupations, “The other option is PERM (Permanent Labor Certification), which would be an option for most workers except those from China and India as the wait time is very long for those two countries in all PERM categories.” Before filing for Permanent Labor Certification, an employer must first receive a Prevailing Wage Determination (PWD) from the Department of Labor.
WHAT IS A PREVAILING WAGE DETERMINATION?
A Prevailing Wage Determination establishes a minimum wage for a position, and it takes about six weeks to receive from the Department of Labor. Employers should request a PWD prior to recruiting for a position. An experienced immigration lawyer can answer employers’ questions about Permanent Labor Certification, PWDs, and the other requirements for businesses that hire international workers.
A random selection process determines which employers will receive H-1B visas. H-1B applications that are not approved are returned to employers along with the filing fees. Depending on your situation as an employer, alternative visas may also be available. For employers who need to bring international employees to the United States, the additional visa options include:
• the L-1 visa for intracompany transfers
• the O-1 visa for individuals of extraordinary ability
• the H-3 visa for individuals entering a structured training program
• the J-1 visa for individuals who can be classified as an exchange visitor
• the E-1 or E-2 visa for traders or investors from particular nations
• the TN visa for Mexican and Canadian professionals
• the E-3 visa for Australian nationals
• the H-1B1 visa for nationals of Chile or Singapore
• the 17-month OPT extension for individuals with a U.S. degree in a STEM field and employers enrolled in E-Verify
Employers who hire seasonal laborers will need H-2A or H-2B visas. Institutions or faith communities hiring religious workers will require R-1 visas, and those who hire athletes or entertainers, depending on the specifics, will need to apply for a P-1, P-2, P-3, or Q-1 visa. Each visa has different legal requirements that employers and employees must satisfy. Employers with any concerns regarding visa petitions and requirements should consult promptly with an immigration attorney.
WHAT ARE I-9 FORMS? WHY ARE THEY IMPORTANT?
Employers in the U.S. are legally obligated to ensure that the new employees they hire have authorization to work in the United States. Sometimes, this isn’t as simple as it sounds. Immigrants in several different legal categories may be allowed to work in the U.S.: green card holders, asylees, refugees, temporary visa holders with work permits, and others. Whether or not an employer recruits international employees, the federal government regards every employer in the U.S. as a prospective employer of foreign workers and requires employers to help with immigration enforcement.
Thus, since 1986, employers have been required to complete and keep I-9 forms to confirm the work authorization of new employees and to prove the employer’s own compliance. U.S. Citizenship and Immigration Services also provides a 69-page Employer’s Handbook with detailed instructions for completing the I-9 form and a comprehensive explanation of the immigration-related responsibilities of employers. The law compels employers to make sure that new employees are either:
• U.S. citizens
• noncitizen nationals
• lawful permanent residents
• foreign workers authorized to work in the U.S.
The federal government maintains that only the employers who “knowingly” hire unauthorized workers are targeted for I-9 inspections, but some employers may not be aware that they are non-compliant. Given the increase in I-9 compliance investigations – and the fines for employers who fail to complete or to maintain I-9 forms properly – employers with any I-9-related concerns should have an immigration lawyer review company policies and record-keeping procedures.
Some kind of legal complications are inevitably a part of immigration-related employment matters, so employers hiring foreign employees must not hesitate to obtain the advice and services of a good immigration lawyer who can review your records and procedures, advise you regarding visas and compliance, help you with all of the paperwork, and provide aggressive legal representation if necessary. An immigration attorney may also be able to help with additional immigration law related matters. This includes fiance visa, investor visas, and more.