As an employer who wants to bring foreign nationals to the U.S. for short-term employment, you have a few different options for obtaining the required work visas. PLEASE NOTE: This is a complex process. The following is merely an introduction to the topic. Further research and legal advice for your specific needs are essential.
For the purposes of this article, we will only be covering nonimmigrant, temporary work visas.
An employer’s first steps
Employers begin the process by filing a Petition for a Nonimmigrant Worker (Form I-129) with U.S. Citizenship and Immigration Services (USCIS). While doing this, the employer must identify which work visa best suits their needs. Here’s a list of the many types of work visas available.
In some cases, namely for workers in specialty occupations (H-1B visa), temporary or seasonal agricultural workers (H-2A visa) and temporary non-agricultural workers (H-2B visa), the employer will also need to fill out a Labor Condition Application or an Application for Temporary Employment Certification with the Department of Labor (DOL) before they fill out a I-129 petition.
The DOL used to require employers to prove there are no available U.S. citizens to perform the work for H-2B visas, but this is no longer the case. Instead, the DOL performs this task themselves, after the employer fills out the necessary forms on SeasonalJobs.dol.gov.
What happens after filing Form I-129?
The USCIS will confirm that they have received the petition. This is the stage where the petition is examined for completeness and accuracy. If necessary, the USCIS will ask for more information or return the application and filing fee if there are substantial problems or errors.
If the petition is complete and approved, the next step depends on where the worker is at the time of approval. If they are already in the U.S. in a valid, nonimmigrant status, they can begin working. If they are outside of the U.S., the completed petition will be sent to the consulate nearest to their home. The worker must then apply for a nonimmigrant visa. Once the visa is issued, they can travel to the U.S. and begin working.
Even with all that documentation in hand, there’s a chance the U.S. Department of State will reject the worker’s admission to the U.S., if they find an issue in the worker’s background check.
How long does it take to process a Form I-129?
Processing times can vary, depending on the circumstances. It’s possible to check the status of a petition on the USCIS website.
Can this process be expedited?
Yes. The employer must file a Request for Premium Processing Service (Form I-907) and pay an extra fee at the same time they file Form I-129.
Can a foreign national on a work visa change jobs?
Yes. The process is called “porting” and requires yet another petition to be filed with the USCIS.
How long is the work visa valid?
Each visa has a different duration. For example, an H-1B visa is valid for three years. Most visas have an option to file for an extension.
Finally, be aware that there are annual quotas for most visa categories.