Hiring H-1B Workers as a Test Before Green Card Sponsorship
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Sponsoring a foreign worker for a green card is a lengthy and complex procedure. Any mistakes made during the sponsorship process can result in high costs and delays in getting the worker on board at your company. Green card sponsorship is a serious commitment that should not be undertaken without careful thought and planning, as described in the articles under "Employers: Sponsoring Immigrants for Work Visas or Green Cards."
For these reasons, many employers hire foreign nationals on a temporary basis, as a test before committing to sponsor the worker for a green card. To do so, employers typically sponsor a foreign worker for an H-1B nonimmigrant visa, which is initially valid for three years and can then be extended for another three years. Hiring a foreign worker for a trial period before beginning the sponsorship process may be advantageous for several reasons, as explained below.
Starting With an H-1B Visa Lets You Get to Know the Worker
Hiring a foreign worker temporarily is a good opportunity to get to know the worker and his or her work ethic before committing to the green card sponsorship process. Some useful questions to ask once the H-1B worker is on board are, “How well does this H-1B worker fit in with the rest of the company’s employees?” and “Would this company benefit from a long-term relationship with this employee?”
These questions can get the employer thinking about the long-term aspect of the sponsorship process. It is important to evaluate the H-1B worker’s performance because, in sponsoring a worker for a green card, the company commits to employing the worker on a full-time and permanent basis. If the employer is not happy with the H-1B worker’s performance, or if the worker does not fit in well with the rest of the company, green card sponsorship may not be the best route.
Starting With an H-1B Visa Lets You Evaluate the Worker’s Skills
By hiring a foreign worker temporarily, the employer will have the opportunity to assess the worker’s qualifications and how the worker’s skills benefit the company.
For example, many foreign workers possess unique and valuable language and other skills. A healthcare clinic located in Miami, Florida may benefit from hiring a Spanish-speaking foreign physician to help serve the clinic’s Spanish-speaking patients. An international-law firm may hire a foreign worker with unique expertise in another country’s laws. A U.S. law firm specializing in trade with Chinese businesses may benefit from employing a Chinese attorney who has specialized training in Chinese law and business regulations.
When making the decision to sponsor a worker for a green card, the employer should weigh these benefits against the costs of sponsorship, to help make an informed business decision.
Hiring an H-1B Worker Helps Familiarize Your Company With U.S. Immigration Laws
Hiring an H-1B worker gives the employer also an opportunity to familiarize company personnel with U.S. immigration laws as well as how to comply with immigration regulations. Since immigration laws can be confusing, it is helpful to develop a bit of working institutional knowledge before taking the full plunge into green card sponsorship.
The H-1B application process is in some ways similar to the green card sponsorship process, although easier. Both processes require that the employer inform the company’s workers (or union leader, if a union exists) about the foreign worker’s employment. Additionally, both processes require the employer to file a visa petition with U.S. Citizenship and Immigration Services (USCIS).
Of course, the most efficient way for an employer to fully comply with U.S. immigration laws is to contact a skilled attorney specializing in these matters.
Hiring an H-1B Worker Can Facilitate the Green Card Process
Sponsoring a worker for a green card takes time and careful attention to three major procedural steps.
First, after conducting recruitment, the employer files ETA Form 9089 (PERM application) with the Department of Labor (DOL). It usually takes the DOL about four to six months to approve a PERM application.
Second, the employer files an I-140 petition with USCIS (including the approved PERM). USCIS typically approves I-140s in four to six months, unless the employer paid an extra fee to have it reviewed in 15 business days.
Third, once USCIS approves the I-140 petition and the foreign worker’s priority date is current, the worker (not the employer) files an application for a “green card” with a U.S consulate if coming from overseas, or submits Form I-485 and accompanying "adjustment of status" forms and documents if already legally in the United States.
Although USCIS typically takes about a year or longer to approve an adjustment of status application, this is usually more convenient than filing the green card application with a U.S.consulate abroad. The mere act of filing the green card application gives the employee legal status in the U.S., and the employee can file applications for employment authorization and advance parole (permission to travel in and out of the country) along with the green card application. Thus, the employee does not need to keep extending the H-1B visa while waiting for USCIS approval of the green card application, so the employer can save money in legal fees and filing fees by not extending the visa.
Additionally, there is always the chance that the consulate may delay the processing of the green card application due to security checks or other issues. If the application is delayed, the employee won’t be able to return to the U.S. to work for months or even years, amounting to a significant waste of time and money for the employer.
Another advantage to having the worker in the country while the employer completes the green card process is that the employer is able to utilize the worker’s skills during this entire period. Additionally, the worker's presence makes it easy to demonstrate (1) the existence of a bona fide employment relationship and (2) that the employer has the ability to pay the worker’s salary. USCIS may raise both of these issues during the I-140 processing and deny the petition if these are not properly established.
However, a possible disadvantage may arise early on, at the PERM stage of green card sponsorship. The PERM regulations do not allow a worker to count experience gained with the sponsoring employer as job experience. For example, let’s say an H-1B worker is working as a lawyer for an employer. In the PERM, the employer states that it requires two years' legal experience for its job opportunity. The worker would need to have two years of experience as a lawyer with another employer in order to qualify for the PERM job opportunity.