Sponsoring a foreign worker for a U.S. job can be quicker and easier through a nonimmigrant visa than through an application for lawful permanent residence (a green card). Sometimes, too, a nonimmigrant visa can provide a way for an employer to employ a green card candidate during the typically long time it takes to get through the application process for permanent residence. (See Nonimmigrant Work Visa as Stepping Stone to a Green Card for a more detailed discussion.)
As the prospective employer of a foreign worker, the first questions you'll face are eligibility-related: will any of the work-authorizing nonimmigrant visa categories fit the job you have open and the candidate you have in mind?
Nonimmigrant visa categories cover many kinds of workers, from seasonal laborers to multinational executives, from pastors to celebrity chefs. Despite the apparent variety, however, many jobs will fall through the eligibility cracks. Each category is narrowly defined, imposing specific requirements on both employer and employee. (See the articles under, Work Visas (Nonimmigrant) for a complete listing of nonimmigrant visa categories.)
Once you've found a nonimmigrant visa category that will serve, what remains is procedure—which government agencies to approach and how to approach them. We summarize the basic procedures here as critical background, and to help you steer clear of some common mistakes by understanding some fundamental features of the immigration bureaucracy.
Everyday speech makes loose use of the word "visa" to mean a foreigner's authorization to be in the United States. Technically, though, a U.S. visa is a travel document issued by the State Department to allow its holder to enter the United States, and it does not control the holder's immigration "status" within the United States.
Very often, this is a distinction that doesn't make much difference, which is why even immigration lawyers (including Nolo authors) don't always observe it. In the procedural context, however, the distinction becomes important, as you and your prospective foreign worker need to know what you're asking for—a "visa" or "status"—and which agencies to ask in order to get it.
To sponsor a worker in the H-1B category, to use a common example, you will first need to deal with the U.S. Department of Labor (DOL), which has a say over the wage and terms you can offer an H-1B employee. Next, you will petition U.S. Citizenship and Immigration Services (USCIS) by describing the job offered and the prospective employee's qualifications. If your prospective employee is already in the U.S. in another nonimmigrant status—F-1 student status, for example—USCIS will be the end of your procedural road, and Form I-94 (granting a period of stay in H-1B status) will be issued to your employee when your petition is approved. Your employee will be in H-1B status without ever getting an H-1B visa.
If, however, your prospective H-1B employee is outside the U.S., two more agencies must approve the employment and confer their authorization before that employee can come work for you: the U.S. State Department, which will issue an H-1B visa allowing the prospective employee to travel to the U.S., and U.S. Customs and Border Protection (CBP), which will issue Form I-94 at the place of entry, often electronically, admitting the employee for a set period of time in H-1B status.
Other nonimmigrant worker categories present variations on this procedural pattern. The L, O, P, Q, and R categories follow the same basic pattern as H, but without the involvement of the DOL. Some categories—L and TN—allow for the employer's petition to be presented directly to CBP, without the prior involvement of USCIS. The E visa category requires no prior employer petition for a prospective employee outside the U.S., but the visa application your employee presents to the State Department consulate abroad will be far more substantial than an H or L visa application, which are based on approved USCIS petitions.
Even after your nonimmigrant worker has successfully navigated the bureaucratic maze and landed safely on your payroll, procedural pitfalls could lie ahead if you'd like that worker to stick around as long as possible. You and your workers will need to keep track of the expiration dates of their status, visa, or both, and approach the appropriate U.S. government agencies for further benefits. It is the employer's responsibility to ensure that compliance with employment law is maintained for all of its employees, including those whose employment eligibility is attached to their non-immigrant status.
That H-1B worker who changed status from F-1, for instance: Even if only a year has passed since USCIS granted three years in H-1B status, your H-1B worker can't go home on vacation and re-enter the U.S. to resume working for you without obtaining an H-1B visa first. Remember, it's an entry document. And while USCIS conferred H-1B status within the U.S., only the State Department, through one of its consulates, can authorize your employee to re-enter the U.S. If your employee travels abroad while in H-1B status, it's a good idea to provide them with a couple of documents to make their re-entry into the U.S. easier upon return. These include:
By the same token, a worker admitted on a five-year E-2 visa can't simply stay in the U.S. for five years. CBP will most likely grant only a two-year period of stay on Form I-94 when your E-2 worker enters. Before the I-94 expires, either you or your worker will need to take some action: Your worker can travel and re-enter on the E-2 visa, receiving a new two-year I-94, or you can file a petition with USCIS to extend your worker's stay.
Examples could be multiplied practically indefinitely, but you will not want to trouble yourself with bureaucratic intricacies unless you have a practical reason to do so in the shape of a particular worker you're sponsoring. The larger point is that the interplay of authority among U.S. government agencies sometimes makes the procedures for obtaining and maintaining the immigration status of nonimmigrant workers complicated and counterintuitive.
You can obtain application forms and detailed filing instructions from the U.S. government agencies mentioned above that govern nonimmigrant workers—the Department of Labor (Hs only), U.S. Citizenship and Immigration Services, the U.S. State Department, and U.S. Customs and Border Protection. Because the procedures are far from intuitive, however, consider consulting an immigration lawyer when thinking of hiring a nonimmigrant worker.
Even if you are quite certain that your position and your job candidate fit one of the nonimmigrant categories, and even though the forms and filing instructions are available on the websites of the relevant agencies, expert advice could make the difference between success and failure in hiring a nonimmigrant worker and maintaining that worker in proper immigration status.