How to Sponsor a Worker for a Temporary, Nonimmigrant Visa

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 promising prospect 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.)

Once you've found a nonimmigrant visa category that will serve (as described below), procedural matters will become your main concern—which government agencies to approach and how to approach them. In some cases, for instance, you'll need to get clearance from the Department of Labor (DOL) before going forward. Here, we'll summarize the basic procedures to help you steer clear of common mistakes.

What Are My Options for Immigrant Visa Categories?

As the prospective employer of a foreign worker, the first question you'll face is: Will any of the work-authorizing nonimmigrant visa categories fit the job that's open and the prospective candidate for it?

Nonimmigrant visa categories cover many kinds of workers, from seasonal laborers to multinational executives, from pastors to celebrity chefs. They go by letter-number names, like H-1B (temporary specialty worker), H-2A (temporary agricultural workers), O-1 (persons of extraordinary ability in the sciences, arts, education, business, or athletics), P-1 (internationally recognized athletes and entertainers, and their essential support staff), R-1 (ministers and other workers of recognized religions), and so on. Each category is narrowly defined, imposing specific requirements on both employer and employee. See Types of U.S. Nonimmigrant (Temporary) Visas: Who Qualifies? for a full list, and the articles under, Work Visas (Nonimmigrant) for more on particular visas.)

Despite the apparent variety, however, many jobs will fall through the eligibility cracks.

Not All Workers Need an Actual "Visa," But All Need Immigration "Status"

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. As you'll see, prospective workers who are already lawfully in the U.S. can sometimes ask for a new immigration "status" without leaving the U.S. to deal with an overseas consulate.

Which U.S. Government Agencies to Deal With for Initial Approvals

In some cases (for example to sponsor a worker in the H-1B category), you will first need to deal with the U.S. Department of Labor (DOL) even before interacting with any immigration agencies. That's because the DOL has a say over the wage and terms you can offer foreign workers.

Next (or in most other cases of sponsoring a foreign worker), you will need to submit a petition to U.S. Citizenship and Immigration Services (USCIS), using Form I-129. Among other things, the information you provide with this petition will need to describe the job being 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's approval will be the end of your procedural road. Continuing with the example of sponsoring a worker in category H-1B, USCIS will then issue a Form I-94 (granting a period of stay in the U.S.) after approving the I-129 petition. Notice that your employee will gain H-1B status without ever getting an H-1B visa.

If, however, your prospective 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 a 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.

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 treaty trader or investor category requires no prior employer petition for a prospective employee outside the U.S., but the visa application the employee presents to the U.S. consulate abroad will be far more substantial than an H or L visa application, which are based on approved USCIS petitions.

After Nonimmigrant Worker Starts Working: Seeking Follow-Up or Extensions

Even after your nonimmigrant worker has successfully navigated the bureaucratic maze and landed safely on your payroll, you'll need to deal with U.S. government bureaucracies if you'd like for that worker to stick around as long as possible. For starters, make sure your worker understands how to get a Social Security number, since you'll need to pay into that system on their behalf.

Going forward, you and your workers will need to keep track of the expiration dates of their status, visa, or both, and possibly apply 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, the 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, a visa is 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 United States. 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:

• a copy of their H-1B approval notice
• a copy of the H-1B petition that was filed for them, and
• a letter from you detailing their continued employment.

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 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 Might Need an Immigration Lawyer

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.